Ouassini v SSWP [2025] EWHC 3683 (Admin) – Welfare Rights Analysis
This is a potentially significant welfare rights case because it confirms that DWP cannot automatically recover a Universal Credit overpayment caused by its own mistake without properly considering whether recovery is reasonable and without giving adequate reasons. The judgment builds on R (K) v SSWP [2023] EWHC 233 (Admin) and applies important public law, Equality Act and human rights principles.
R (K) v SSWP [2023] EWHC 233 (Admin) – Official error overpayment – Garden Court North Chambers
Facts
The claimant’s family migrated from Tax Credits to Universal Credit under managed migration. DWP initially calculated transitional protection at approximately £1,802 per month and paid UC accordingly. It later decided the transitional protection had been miscalculated and sought recovery of approximately £2,210, stating only:
“You were overpaid £2,210 between 14 January and 13 March 2025. This is because the transitional protection on your claim was calculated incorrectly.”
The family argued the overpayment arose entirely from DWP’s error and that recovery would cause hardship due to disability, mental health conditions and responsibility for six children, including a disabled child.
Shortly before the judicial review hearing, DWP withdrew the decision and wrote off the overpayment except for £128.62 already recovered. The Court nevertheless proceeded to determine whether the original decision had been unlawful.
Key Legal Principles
1. Recovery of UC overpayments is discretionary
The Court accepted that s.71ZB Social Security Administration Act 1992 gives DWP power to recover overpayments even where the overpayment was caused entirely by official error. [Ouassini,…Admin) (1) | PDF]
However, the Court emphasised that DWP policy states that recovery should occur where it is reasonable and cost-effective and without causing undue hardship.
The significance is that recovery is not simply automatic because an overpayment exists.
2. DWP must consider waiver/recovery
Relying on R (K) v SSWP [2023] EWHC 233 (Admin), the Court held that DWP must consider whether it is reasonable to recover an overpayment where the claimant seeks waiver or raises relevant circumstances. Failure to recognise that discretion is unlawful fettering of discretion.
This is perhaps the most useful point for advisers.
Practical argument
Where the overpayment results from:
- official error;
- claimant innocence;
- severe financial hardship;
- disability;
- mental health problems; or
- vulnerability,
advisers should expressly request that DWP consider whether recovery should be waived and require a reasoned decision.
3. Reasons must be adequate
The Court held that the decision was unlawful because it provided no meaningful reasons. DWP merely stated that transitional protection had been calculated incorrectly but failed to explain:
- how the error occurred;
- who made the error;
- why recovery was considered reasonable; or
- why waiver had not been granted.
Welfare rights significance
Where an overpayment decision simply states an amount is recoverable without explaining:
- why it arose;
- the statutory basis;
- consideration of hardship; or
- consideration of waiver,
there may be a public law challenge.
4. Hardship is a relevant consideration
The Court held that recovery was irrational because DWP failed to consider relevant factors, including:
- the overpayment being entirely DWP’s fault;
- significant hardship;
- disability within the household; and
- the circumstances of the family.
Practical use
This strengthens arguments that advisers should provide evidence of:
- income and expenditure;
- disability-related expenditure;
- debt;
- rent arrears;
- food insecurity;
- caring responsibilities; and
- health impacts.
Where hardship evidence is ignored, there may be grounds for challenge.
5. Equality Act 2010
The Court held that DWP failed to comply with its duty under s.149 Equality Act 2010 because there was no evidence that it had considered the impact of recovery on disabled family members.
Relevance for advisers
Whenever seeking waiver or reduced recovery, highlight:
- physical disabilities;
- mental health conditions;
- learning disabilities;
- neurodivergence;
- caring responsibilities for disabled children.
The judgment confirms that these matters should be actively considered.
6. Article 1 Protocol 1 ECHR
The Court relied on Cakarevic v Croatia (2018) and held that recovery of benefits paid through official error can engage property rights under A1P1. Recovery must therefore be objectively justified and proportionate.
The Court concluded that recovery in this case was disproportionate because:
- the claimant was not at fault;
- the error was DWP’s;
- hardship would result; and
- disabilities had not been properly considered.
Practical significance
Although A1P1 arguments are not routinely successful, this case demonstrates that they remain available in exceptional recovery cases involving:
- official error;
- claimant innocence;
- substantial sums; and
- severe hardship.
7. Important Tribunal/JR Jurisdiction Point
Perhaps the most important practical passage appears at paragraph 12.
DWP argued there was an alternative remedy by appeal.
The Court rejected that argument, referring to DWP v IL [2025] UKUT 200 (AAC) and holding that an appeal can address the calculation of an overpayment, but public law issues such as:
- irrationality;
- failure to consider waiver;
- A1P1 proportionality; and
- public law unlawfulness
must be pursued by judicial review.
Why this matters
For advisers, the case helps identify the correct route:
| Issue | Appeal | Judicial Review |
|---|---|---|
| Wrong amount of overpayment | ✓ | Usually no |
| Wrong calculation | ✓ | Usually no |
| DWP failed to consider waiver | No | ✓ |
| Failure to give reasons | No | ✓ |
| Equality Act challenge | Usually no | ✓ |
| A1P1 challenge | Usually no | ✓ |
| Irrational recovery decision | No | ✓ |
Strategic Implications for Welfare Rights Advisers
Use this case when:
- DWP seeks recovery of an official-error UC overpayment.
- Recovery would cause serious hardship.
- Waiver has been requested but ignored.
- There are disability-related issues.
- DWP gives no reasons.
- DWP treats recovery as automatic.
Evidence to gather
- UC statements.
- Recovery notices.
- Journal entries requesting waiver.
- Medical evidence.
- PIP/ADP award letters.
- Income and expenditure evidence.
- Evidence of rent arrears or debt.
- Evidence showing claimant did not cause the overpayment.
Key Quotable Principle
The strongest welfare-rights takeaway is:
DWP cannot simply identify an official-error overpayment and automatically recover it. It must give adequate reasons, consider whether recovery is reasonable, consider hardship and disability, and ensure any recovery is proportionate. Failure to do so may be unlawful.
Relevance to your UC overpayment cases
This judgment could be particularly useful in cases involving:
- official error overpayments;
- managed migration/transitional protection disputes;
- waiver requests;
- vulnerable claimants with mental health conditions;
- recovery causing hardship; and
- failure by DWP to engage with journal requests challenging recovery.
It is one of the strongest recent authorities supporting the argument that recovery discretion must be actively exercised rather than assumed.