The Social Security (Payments on account, Overpayments and Recovery) Regulations 1988

Made: 30th March 1988

Coming into force: 11th April 1988

Whereas a draft of the following Regulations was laid before Parliament in accordance with the provisions of section 83(3)(b) of the Social Security Act 1986 and approved by resolution of each House of Parliament.

Now, therefore, the Secretary of State for Social Services, in exercise of the powers conferred on him by sections 23(8), 27, 51(1)(t) and (u), 53, 83(1), 84(1) and 89 of that Act and all other powers enabling him in that behalf, by this instrument, which contains only regulations made under the sections of the Social Security Act 1986 specified above and provisions consequential on those sections and which is made before the end of a period of 12 months from the commencement of those sections, makes the following Regulations:

PART I — GENERAL

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 and shall come into force on 11th April 1988.

• (2) In these Regulations, unless the context otherwise requires—

• “the 1995 Act ” means the Jobseekers Act 1995;

• “the 2007 Act ” means the Welfare Reform Act 2007;

• “the 2012 Act ” means the Welfare Reform Act 2012;

• “the Act” means the Social Security Act 1986;

• “ adjudicating authority ” means, as the case may require, the Board, an officer of the Board, the First-tier Tribunal or the Upper Tribunal;;

• “the Administration Act” means the Social Security Administration Act 1992;

• “benefit” means a jobseeker’s allowance, state pension credit, personal independence payment, an employment and support allowance and any benefit under the Social Security Act 1975 , a state pension under Part 1 of the Pensions Act 2014, child benefit, disabled person’s tax credit, working families' tax credit, income support and any social fund payment under sections 32(2)(a) and 32(2A) of the Act and any incapacity benefit under sections 30A(1) and (5) of the Contributions and Benefits Act;

• ...

• “the Board” means the Commissioners of Inland Revenue;

• “child benefit” means benefit under Part I of the Child Benefit Act 1975 ;

• “the Claims and Payments Regulations” means the Social Security (Claims and Payments) Regulations 1987 ;

• “the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992;

• “disability living allowance” means a disability living allowance under section 37ZA of the Social Security Act 1975;

• “disabled person’s tax credit” means a disabled person’s tax credit under section 129 of the Contributions and Benefits Act and, in relation to things done, or falling to be done, prior to 5th October 1999, shall include a reference to disability working allowance;

• “employment and support allowance” means, for the purposes of Parts 3 to 6, employment and support allowance under Part 1 of the 2007 Act as that Part has effect apart from the amendments made by Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance;

• “the Employment and Support Allowance Regulations” means the Employment and Support Allowance Regulations 2008;

• ...

• “guardian's allowance” means an allowance under section 38 of the Social Security Act 1975 ;

• “income support” means income support under Part II of the Act and includes personal expenses addition, special transitional addition and transitional addition as defined in the Income Support (Transitional) Regulations 1987 ;

• “Income Support Regulations” means the Income Support (General) Regulations 1987 ;

• “jobseeker’s allowance” means, for the purposes of Parts 3 to 6, jobseeker’s allowance under the 1995 Act as that Act has effect apart from the amendments made by Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance;

• “Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance Regulations 1996;

• “personal independence payment” means the allowance under Part 4 of the 2012 Act ;

• “severe disablement allowance” means an allowance under section 36 of the Social Security Act 1975 .

• “state pension credit” means the benefit payable under the State Pension Credit Act 2002;

• “the State Pension Credit Regulations ” means the State Pension Credit Regulations 2002”.

• “start notification” means a notification of entitlement to tax credit furnished to an employer by the Board, referred to in section 6(2)(a) of the Tax Credits Act 1999;

• “tax credit” means working families' tax credit or disabled person’s tax credit;

• “universal credit” means universal credit under Part 1 of the 2012 Act ;

• “the Welfare Reform Act” means the Welfare Reform Act 2007;

• “working families' tax credit” means working families' tax credit under section 128 of the Contributions and Benefits Act and, in relation to things done, or falling to be done, prior to 5th October 1999, shall include a reference to family credit.

• (3) Unless the context otherwise requires, any reference in these Regulations to a numbered Part or regulation is a reference to the Part or regulation bearing that number in these Regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number.a numbered Part or regulation is a reference to the Part or regulation bearing that number in these Regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number.

PART II — INTERIM PAYMENTS

Making of interim payments

2

• (1) Subject to paragraph (1A), the Board may, in their discretion, make an interim payment, that is to say a payment on account of any benefit to which it appears to them that a person is or may be entitled (or, where sub-paragraph (a) applies, entitled apart from satisfying the condition of making a claim), in the following circumstances—

• (a) a claim for that benefit has not been made in accordance with the Claims and Payments Regulations and it is impracticable for such a claim to be made immediately, including where it is impracticable to satisfy immediately the national insurance number requirements in section 1(1A) and (1B) of the Administration Act; or

• (b) a claim for that benefit has been so made, but it is impracticable for it or a reference, revision, supersession, application or appeal which relates to it to be determined immediately; or

• (c) an award of that benefit has been made but it is impracticable for the beneficiary to be paid immediately, except by means of an interim payment.

• (1A) Paragraph (1) shall not apply pending the determination of an appeal.

• (2) Subject to paragraph (3), on or before the making of an interim payment the recipient shall be given notice in writing of his liability under this Part to have it brought into account and to repay any overpayment.

• (3) Where the recipient of an interim payment of disability living allowance–

• (a) is terminally ill within the meaning of section 35(2C) of the Social Security Act 1975; or

• (b) had an invalid carriage or other vehicle provided by the Secretary of State under section 5(2)(a) of the National Health Service Act 1977 and Schedule 2 to that Act or under section 46 of the National Health Service (Scotland) Act 1978,

the requirement to give notice in paragraph (2) of this regulation shall be omitted.

• (4) Where an interim payment of income support or income-related employment and support allowance is made because a payment to which the recipient is entitled by way of child support maintenance under the Child Support Act 1991, or periodical payments under a maintenance agreement within the meaning of section 9(1) of that Act or under a maintenance order within the meaning of section 107(15) of the Social Security Administration Act 1992, has not been made, the requirement in paragraph (2) of this regulation to give notice shall be omitted.

Bringing interim payments into account

3

• (1) Subject to paragraph (2), where it is practicable to do so and, where notice is required to be given under regulation 2(2), such notice has been given—

• (a) any interim payment, other than an interim payment made in the circumstances mentioned in regulation 2(4),—

• (i) which was made in anticipation of an award of benefit shall be offset by the adjudicating authority in reduction of the benefit to be awarded; and

• (ii) whether or not made in anticipation of an award, which is not offset under sub-paragraph (i) shall be deducted by the Secretary of State from—

• (a) the sum payable under the award of benefit on account of which the interim payment was made; or

• (b) any sum payable under any subsequent award of the same benefit to the same person; and

• (b) any interim payment made in the circumstances mentioned in regulation 2(4) shall be offset by the Secretary of State against any sum received by him in respect of arrears of child support maintenance payable to the person to whom the interim payment was made.

• (2) Where the interim payment mentioned in paragraph (1)(a) is a payment on account of tax credit, paragraph 1(a), but not paragraph 1(b), shall apply with the modification that, for the words “Secretary of State” there is substituted the word “Board”.

Recovery of overpaid interim payments

4

• (1) Where the adjudicating authority has determined that an interim payment has been overpaid in circumstances which fall within paragraph (3) and where notice is required to be given under regulation 2(2), such notice has been given, that authority shall determine the amount of the overpayment.

• (2) The amount of the overpayment shall be recoverable by the Secretary of State by the same procedures and subject to the same conditions as if it were recoverable under section 53(1) of the Act.

• (3) The circumstances in which an interim payment may be determined to have been overpaid are as follows—

• (a) an interim payment has been made under regulation 2(1)(a) or (b) but—

• (i) the recipient has failed to make a claim in accordance with the Claims and Payments Regulations as soon as practicable or has made a claim which is either defective or is not made on the form approved for the time being by the Secretary of State and the Secretary of State has not treated the claim as duly made under regulation 4(7) of the Claims and Payments Regulations, or

• (ii) it has been determined that there is no entitlement on the claim, or that the entitlement is less than the amount of the interim payment, or that benefit on the claim is not payable, or

• (iii) the claim has been withdrawn under regulation 5(2) of the Claims and Payments Regulations; or

• (b) an interim payment has been made under regulation 2(1)(c) which exceeds the entitlement under the award of benefit on account of which the interim payment was made; or

• (c) an interim payment of income support or income-related employment and support allowance has been made under regulation 2(1)(b) in the circumstances mentioned in regulation 2(4).

• (4) For the purposes of this regulation a claim is defective if it is made on the form approved for the time being by the Secretary of State but is not completed in accordance with the instructions on the form.

• (5) Where the interim payment is a payment on account of tax credit paragraphs (2) to (4) shall apply with the modification that for references to “the Secretary of State” there shall be substituted references to “the Board”.

PART III — OFFSETTING

Offsetting prior payment against subsequent award

5

• (1) Subject to paragraphs (1A), (2A) and (6) and regulation 6 (exception from offset of recoverable overpayment), any sum paid in respect of a period covered by a subsequent determination in any of the cases set out in paragraph (2) shall be offset against arrears of entitlement under the subsequent determination and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them.

• (1A) In paragraph (1) the reference to “any sum paid” shall, in relation to tax credit, include a reference to any amount or calculation of tax credit payable in respect of a period prior to the date of the subsequent determination, which is included in a start notification given by the Board to an employer, and for the payment of which the employer remains responsible.

• (2) Paragraph (1) applies in the following cases—

• Case 1: Payment under an award which is revised, superseded or varied Where a person has been paid a sum by way of benefit or by way of a shared additional pension under section 55A or 55AA of the Contributions and Benefits Act under an award which is subsequently varied on appeal or revised or superseded.

• Case 2: Award or payment of benefit in lieu Where a person has been paid a sum by way of benefit under the original award and it is subsequently decided, on a revision, supersession or appeal, that another benefit or, as the case may be, universal credit should be awarded or is payable in lieu of the first.

• Case 3: Child benefit and severe disablement allowance Where either—a person has been awarded and paid child benefit for a period in respect of which severe disablement allowance, employment and support allowance for those persons with limited capability for work in relation to youth in accordance with paragraph 4 of Schedule 1 to the Welfare Reform Act 2007, or incapacity benefit for persons incapacitated in youth in accordance with section 30A(1)(b) and (2A) of the Contributions and Benefits Act is subsequently determined to be payable to the child concerned; orsevere disablement allowance, employment and support allowance for those persons with limited capability for work in relation to youth in accordance with paragraph 4 of Schedule 1 to the Welfare Reform Act 2007, or incapacity benefit for persons incapacitated in youth in accordance with section 30A(1)(b) and (2A) of the Contributions and Benefits Act is awarded and paid for a period in respect of which child benefit is subsequently awarded to someone else, the child concerned in the subsequent determination being the beneficiary of the original award.

• Case 4: Increase of benefit for dependant Where a person has been paid a sum by way of an increase in respect of a dependent person under the original award and it is subsequently determined that that other person is entitled to benefit for that period, or that a third person is entitled to the increase for that period in priority to the beneficiary of the original award.

• Case 5: Increase of benefit for partner Where a person has been paid a sum by way of an increase in respect of a partner (as defined in regulation 2 of the Income Support Regulations) and it is subsequently determined that that other person is entitled to benefit for that period.

• Case 6: Carer Support Payment Where a person has been paid carer support payment for a period in respect of which any overlapping benefit is subsequently determined to be payable.

• (2A) In paragraph (2), Case 2 shall not apply where either—

• (a) the sum paid under the original award, or

• (b) the subsequent decision on the revision, supersession or appeal,

referred to in that Case (but not both) is or relates to tax credit.

• (2B) In paragraph (2), for the purposes of Case 6—

• “carer support payment” means the carer support payment component of carer support given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023;

• “overlapping benefit” means a benefit specified in paragraph (2C).

• (2C) The following are overlapping benefits for the purposes of paragraph (2B)—

• (a) state pension or retirement pension;

• (b) incapacity benefit;

• (c) severe disablement allowance;

• (d) unemployability supplement that is paid with industrial injuries disablement benefit or war pension;

• (e) widowed parent’s allowance, widowed mother’s allowance or widow’s pension, excluding additional pension;

• (f) bereavement allowance;

• (g) war pension;

• (h) maternity allowance;

• (i) industrial death benefit;

• (j) contribution-based jobseeker’s allowance;

• (k) contributory employment and support allowance; and

• (l) training allowance.

• (2D) For the purposes of paragraph (2C)—

• “the 2003 Act” means the Income Tax (Earnings and Pensions) Act 2003;

• “bereavement allowance” means an allowance referred to in section 39B of the Contributions and Benefits Act, subject to the transitional provisions specified in article 4 of the Pensions Act 2014 (Commencement No. 10) Order 2017;

• “contribution-based jobseeker’s allowance” means an allowance under the 1995 Act, as amended by the provisions of Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance, and a contribution-based allowance under the 1995 Act, as that Act has effect apart from those provisions;

• “contributory employment and support allowance” means an allowance under Part 1 of the 2007 Act, as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance, and a contributory allowance under Part 1 of the 2007 Act, as that Part has effect apart from those provisions;

• “incapacity benefit” means a benefit referred to in section 30A of the Contributions and Benefits Act;

• “industrial death benefit” means a benefit referred to in Part VI of Schedule 7 to the Contributions and Benefits Act;

• “maternity allowance” means an allowance referred to in sections 35 and 35B of the Contributions and Benefits Act;

• “Personal Injuries Scheme” means any scheme made under the Personal Injuries (Emergency Provisions) Act 1939 or under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939;