20 March 2009

FOURTH SECTION
Application no. 36571/06
by B. against the United Kingdom
lodged on 31 August 2006

STATEMENT OF FACTS
THE FACTS
The applicant, B, is a British national who lives in Middlesex. She is represented before the Court by Ms Sarah Clarke of Child Poverty Action Group, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has three children. From May 1990 she was in receipt of two non-contributory state benefits administered by the Secretary of State for Work and Pensions: child benefit and means-tested income support. As a lone parent she was entitled to a higher rate of income support than a single person. The benefits were paid by order book. A note on the back of the book advised the applicant that she might break the law if she did not notify the Department of Work and Pensions (“DWP”) if a dependent or someone living with her moved to a different address. The applicant had also received a Form INF4, which advised her that she should immediately inform the Department of Work and Pensions (“DWP”) if, inter alia, children that she had claimed for were taken into care.
The applicant has a severe learning disability. She experienced problems looking after both herself and her children, and in October 2000 the three children were taken into care. Pursuant to regulation 32(1) of the Income Support (General) Regulations 1987 (“the 1987 Regulations”) she was under a duty to report this fact to the DWP and the amount of income support to which she was entitled would accordingly have been reduced. At the time, however, she had not had the services of a social worker for several months and she did not receive any practical help from the local authority disability team. She did not understand that the placing of her children in care was a material fact which she was required to report to the DWP.
In November 2001 the applicant began to receive support from the Owl Housing Link Project, a charity which provides a range of support services to people with learning difficulties. She was found to be completely isolated. She was living alone in a dilapidated flat, she had not had a bath for two years, and she was very depressed.
In December 2001 Owl Housing notified the DWP that the applicant’s children had been taken into care. Section 71 of the Social Security Administration Act 1992 (“the 1992 Act”) entitled the Secretary of State for Work and Pensions to recover from a claimant’s benefits or any other possessions any payment he would not have made but for a misrepresentation or failure to disclose. On 21 May 2002 the Secretary of State decided to revise the award of income support to the applicant with retrospective effect and recover GBP 4626.74 (representing the amount of overpaid income support).
The applicant appealed to the Social Security Appeal Tribunal (“the Tribunal”). The Social Security Commissioners had previously held that there was no failure to disclose unless disclosure was reasonably to be expected. If there was no failure to disclose, the question of recovery of an overpayment would not arise at all. The Tribunal allowed the applicant’s appeal, finding that the relevant test was not what a reasonable man would have thought it appropriate to disclose, but rather what a reasonable man knowing the particular circumstances of the claimant would have expected her to disclose. The Tribunal accepted that the applicant did not understand that the placing of her children in care was a material fact which she needed to disclose to the DWP, and that it was not reasonable to expect her, in the particular circumstances of her case, to have disclosed that fact.
The Secretary of State appealed to the Social Security Commissioners (“the Commissioners”). The Commissioners allowed the appeal, holding that if a claimant was aware of a matter which he or she had been required to disclose, there would be a breach of that duty even if, because of mental incapacity, the claimant was unaware of the materiality or relevance of the matter or did not understand an unambiguous request for information. Notwithstanding the settled case law of the Commissioners, the “reasonableness test” was not a requirement under section 71 the 1992 Act and did not represent a possible construction of section 71. Capacity was not relevant to the issue of failure to disclose and the applicant was in breach of the obligations imposed on her under the first limb of regulation 32(1) of the 1987 Regulations.
The applicant appealed to the Court of Appeal. She submitted that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. I in that the State’s interference with her possessions discriminated unjustifiably between people who were unable to report facts because they were not aware of them and people who, like the applicant, were unable to report them for some other reason. It was argued in the alternative that the law treated identically people who were capable and people who were incapable of understanding that there was something they were required to report.
The Court of Appeal held that the argument fell at the first fence because there were no possessions of the applicant at stake: what the Secretary of State was claiming was an entitlement to recover money which should not have been paid to the applicant in the first place. Although the decision of the Court of Appeal in the case of R. (Carson and Reynolds) v. the Secretary of State for Work and Pensions to the effect that a non-contributory benefit such as income support was not a possession within the meaning of Article 1 was taken as correct by the House of Lords, the underlying issue of principle awaited the decision of the Grand Chamber of the Court in the case of Stec. The recovery of overpaid benefits, however, stood outside this question and by parity of reasoning outside Article 1 of Protocol No. 1.
The Court of Appeal went on to reject in any event the applicant’s first alleged ground of discrimination. As to the latter ground, it found it unnecessary to determine what was considered to be a difficult question, since the recovery of overpaid benefits could not in any event amount to a deprivation of possessions.
On 6 March 2006 the applicant was refused permission to appeal to the House of Lords.
B.  Relevant domestic law and practice
At the relevant time, regulation 32(1) of the 1987 Act provided that:
“Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such a manner and at such times as the Secretary of State ... may determine such certificates or other documents and such information and facts affecting the right to benefit or its receipt as the Secretary of State ... may require (either as a condition on which any sum or sums shall be receivable or otherwise) and in particular shall notify the Secretary of State ... of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing (unless the Secretary of State ... determines in any particular case to accept notice otherwise than in writing) of any such change to the appropriate office.”
Section 71 of the 1992 Act provides that:
“(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—
(a) a payment has been made in respect of a benefit to which this section applies; or
(b) ...,
the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.
(2) Where any such determination as is referred to in subsection (1) above is made on an appeal or review, there shall also be determined in the course of the appeal or review the question whether any, and if so what, amount is recoverable under that subsection by the Secretary of State.
(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.
(5) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review or has been revised under section 9 or suspended under section 10 of the Social Security Act 1998.
 (8) Where any amount paid is recoverable under—
(a) subsection (1) above;
it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.
 (10) Any amount recoverable under the provisions mentioned in subsection (8) above—
(a) if the person from whom it is recoverable resides in England and Wales and the county court so orders, shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court; and
(b) ...
(11) This section applies to the following benefits—
 (b) income support; ”

Pursuant to section 10 of the Social Security Act 1998, the Secretary of State for Work and Pensions had power to supersede an award of income support, where there had been a relevant change in circumstances, with retrospective effect from the date when the change occurred.
COMPLAINTS
The applicant complains of a violation of Article 14 of the Convention when read in conjunction with Article 1 of Protocol No. 1. She complains that the enforceable chose in action created by the Secretary of State’s determination under section 71 of the 1992 Act interfered with her right to peaceful enjoyment of her possessions. She further complains under Article 14 that the construction given to section 71 of the 1992 Act by the Court of Appeal discriminated against persons incapable of understanding the requirement to disclose because they were treated in the same manner as those who were capable of doing so and/or because they were treated differently from persons who were not aware of the material fact.
QUESTIONS TO THE PARTIES

Do the facts of the case fall within the ambit of Article 1 of Protocol No. 1 so as to render Article 14 of the Convention applicable? In particular, in view of the fact that she had been overpaid benefits, did the decision and steps taken to recover the overpayment amount to an interference with the applicant’s “possessions” for the purposes of Article 1?

If so, did the decision and steps taken to recover the overpaid benefits violate the applicant’s rights under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?