Are Her Majesty's Courts Tribunals allowed to over rule legislation using discretion?

Timothy Merricks made this Freedom of Information request to Department for Work and Pensions

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Dear Department for Work and Pensions,

Are Her Majesty's Courts Tribunals allowed to over rule legislation using discretion?

Specifically, if an over payment has been made to a claimant and that was an error on the part of the DWP, and if that means that the claimant has suffered physically/mentally/financially as a result of that error, then can the tribunal use discretion to overrule said legislation to disregard overpayments in favour of the claimant? Is that discretionary?

Yours faithfully,

Timothy Merricks

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J Roberts left an annotation ()

Not an answer to your questions, but you might wish to read this Commissioner's decision:

'23. The House of Lords in Hinchy, with the honourable exception of Lord Scott, turned a blind eye to the consequences of maladministration and deficient operational practices on the part of the Department.  As a result, there has been little evident change in the Department’s approach to avoiding overpayments of benefit in the intervening years.  This has understandably led tribunals to take a sympathetic view of honest claimants who strive to make full disclosure of their circumstances against a background of complex benefit rules which they do not understand.'

'28 In the particular case the respondent had notified the Department on two separate occasions that he would be receiving a non-state pension and the date on which this would begin.  He had been told that a case control would be set to action this information.  This was not a case, such as Hinchy, where the claimant had failed to make disclosure.  I consider that in these circumstances, the claimant was entitled to assume that he had made sufficient disclosure.  It seems to me that, in circumstances where the respondent had already conveyed the information twice, and had been told that action would be taken in response, contacting the Department again with the same information is something which would be thought necessary only by a literal-minded pedant.'

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