Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                           Appeal No.  CIS/1454/2009

ADMINISTRATIVE APPEALS CHAMBER

Before          Judge S M Lane

Decision:  The decision of the Upper Tribunal is to confirm the Secretary of State’s decision on corrected grounds.  Although the First‑tier Tribunal made errors of law, I have re‑made the decision, which is to the same effect.

          The appellant is liable for an overpayment of Income Support of £636.60 for the period 20/02/03 to 11/5/05.  The overpayment is recoverable from him.  On 26/2/03 or as soon thereafter as practicable, the appellant failed to disclose the material fact that he was in receipt of a personal occupational pension.  As a result of this failure, Income Support amounting to £636.60 was paid which would not otherwise have been paid. 

REASONS FOR DECISION

1        The appellant brings this appeal with my permission against the decision of the Liverpool First‑tier Tribunal’s decision on 17/2/09 heard under reference no. 069/08/01139.  The tribunal confirmed the Secretary of State’s decision of 22/1/07 as revised on 16/6/08 that the appellant had been overpaid Income Support, as shown in the decision recited above. 

2        The facts are that the appellant, who had been on Income Support since 2000, did not disclose to the Secretary of State the material fact that he began to receive an occupational pension on 26/2/03.  The Secretary of State responded on 11/5/05 by superseding his entitlement to Income Support.  The supersession of entitlement decision is not in the bundle, but it was followed on 22/1/07 by an overpayment decision for the period 20/2/03 – 11/5/05 of £4,836.04.  The appellant appealed, stating that the figures were entirely wrong.  The Secretary of State recognised an error in the basis of calculation and on 5/6/08 a decision maker revised the underlying entitlement to Income Support.  On 16/6/08 an overpayment decision maker revised the overpayment for the period to £636.60.  The revision of underlying entitlement is not in the Submission, once again. 

3        The appellant continued to complain that the figures were wrong and that he would supply correct figures, but he has never done so.  He says that his papers were destroyed in a flood.  If I understand his letters correctly, he believes that a housing benefit payment already covers much of the ground of the Income Support overpayment.  The two overpayments are, however, entirely separate.  In any event, the appellant eventually explained that he had been having mental and physical health problems during this time, but nowhere in the papers before the tribunal did he dispute his failure to disclose.  The most he has done is assert that there have been errors by the Department.

4        The basis of the Secretary of State’s decision was a failure to disclose a material fact as a consequence of which the overpayment occurred.  In order for the overpayment to be recoverable, the Secretary of State has to establish (as relevant to this appeal) that there was a failure to disclose a material fact which caused the overpayment (section 71(1), Social Security Administration Act 1992) and that the determination in pursuance of which the overpayment was made had been revised or superseded (section 71(5A) of the same Act).  The tribunal did not deal with either issue correctly, but the errors are remediable in the Upper Tribunal because there is sufficient documentation in the Submission and the tribunal’s findings of fact to enable me to do so.

5        The first issue that had to be addressed was whether the Secretary of State had correctly revised or superseded the Income Support determination(s) upon which the benefit was paid.  Although the tribunal mentions the overpayment decisions, it does not deal with whether the statutory procedure was properly carried out in relation to the entitlement decisions.  The Secretary of State, who supports the appeal, has suggested that the appeal should be remitted to the First‑tier Tribunal for this reason.  For the reasons already given, however, I do not consider this to be necessary.

6        Although neither of the decisions superseding and/or revising entitlement to Income Support is in the papers, there is sufficient evidence to establish that a supersession of the initial decision awarding Income Support was carried out on 11/5/05, that on 5/6/08 another decision maker applied his mind to the need to revise or supersede the determination by which Income Support was paid, and that he thereupon revised the earlier supersession of entitlement.  Had he not done so, it is difficult to see how the overpayment decision maker would have been able to identify the period to which the overpayment related.  I accordingly find that the Secretary of State has carried out the necessary procedures in relation to the appellant’s entitlement to Income Support during the period in question under section 71(5A). 

7        The next issue which the tribunal needed to address was whether the appellant had failed to disclose a material fact which led to the overpayment.  The tribunal brushed over this, no doubt because the appellant had not denied it.  However, in order for there to be a failure to disclose, it must be shown that the appellant was in breach of a duty under regulation 32 of the Social Security (Claims and Payments) Regulations 1987.  In this case, the duty would have arisen either under regulation 32(1A) or 32(1B).  The is not a novel proposition, having been confirmed in a series of appeals including Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 in the House of Lords and B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, in the Court of Appeal.  B v Secretary of State for Work and Pensions, reported as R(IS)9/06, confirms the Tribunal of Commissioners decision also reported in R(IS)9/06.

8        Some of the fault in this appeal must lie with the Secretary of State, who persists in reciting the law in his Submissions as it stood before its correction in the Hinchy line of cases.  Because of this, the Submission gives no indication of the breach upon which he is relying to give him the right to recover. 

9        The regulations, as relevant to this appeal, state:

        ‘  32(1A):  Every beneficiary…shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of Sate may require in connection with payment of the benefit claimed or awarded.

            32(1B)…Every beneficiary…shall notify the Secretary of State of any change of circumstance which he might reasonably be expected to know might affect [the continuance of entitlement to, or the payment of, benefit] as soon as reasonably practicable after the change occurs…’

10      Where the Secretary of State has given a claimant unambiguous directions to provide certain information, the claimant has an absolute duty to do so under regulation 32(1A).  There is no question of having to explore whether the claimant could reasonably have been expected to disclose the information in these circumstances, and the claimant’s state of mind or ability to understand the directions is immaterial.  If, on the other hand, the Secretary of State has not given unambiguous directions to disclose such information, then the test in regulation 32(1B) becomes applicable and, if there has been a relevant change of circumstance, he can only recover if the claimant might reasonably be expected to know that the change might affect his benefit.  This is not by any means a stringent test.

11      In this appeal, where the appellant was claiming that he had mental and physical health problems, the classification of the duty as falling under one or the other provisions could have been material.  It is possible – though perhaps unlikely – that a tribunal might have been persuaded that the appellant might not have realised that his extra occupational pension might have affected his benefit.  The tribunal therefore was obliged to decide under which provision the appellant’s duty arose.

12      The Submission includes the information pages that accompanied the appellant’s order books during the period in question.  Note 10, which instructs the claimant that if he has any other money coming in, he must let the Department know, also directs the claimant to notes 15 and 16.  These are headed, in bold print.

          15.     Extra cash or money

                              a.       you must send us a letter of form A9 if you… get any extra cash or money.

          16.     New cash or money

                              a.       You must send us a letter or form A9 if you… get any new cash or money.

13.  These instructions are entirely unambiguous.  Accordingly, I find that the appellant’s mental and/or physical health problems were material, and that he had an absolute duty to report this extra occupational pension money.  He did not do so, and this caused the overpayment which is, in consequence, recoverable from him.

14      The appellant has not been able to produce any figures to shown that the Department’s calculation of the overpayment is incorrect, and having looked at the breakdown produced to the First‑tier Tribunal, I am unable to see any errors. 

15      The appellant has made a number of complaints about the DWP’s administrative handling of his case over which the tribunal has no jurisdiction.  Equally, the tribunal has no jurisdiction whatever over whether and how the Secretary of State decides to recover the overpayment.  He is wrong in his belief that a tribunal has powers of the County Court. 

16      The appeal is accordingly dismissed.

[Signed on original]                                       S M Lane

                                                                      Judge of the Upper Tribunal

[Date]                                                             05 November 2009