Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                              Case No.  CIS/1107/2009

ADMINISTRATIVE APPEALS CHAMBER

1.               This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Margate on 5 February 2009. For the reasons set out below that decision was in my judgment wrong in law, and I set it aside. In exercise of the powers in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the findings of fact set out below and re-make the Tribunal’s decision as follows:

The Claimant’s appeal against the decision of the Secretary of State made on 4 April 2008 is allowed. The overpayment of income support totalling £1307.53 in respect of the period 22 October 2007 to 4 March 2008 is not recoverable from the Claimant.

2.               The Claimant was in receipt of income support and incapacity credits on the ground that she was incapable of work. The Claimant attended a medical examination for the purposes of the personal capability assessment, and was considered by the examining doctor not to score sufficient points to be found incapable of work. On 23 October 2007 a decision was therefore made that the Claimant was not entitled to incapacity credits from that date.

3.               On that date a standard form letter (IB65, version 04/07) was sent to the Claimant notifying her of the decision. The letter was from the Ramsgate Office (at Sandling Road) of Jobcentre Plus. The following parts of the letter are directly material.

                    “…………………………..

                    As you scored 0 points, we have decided that from 23 October 2007                     you are not entitled to: [there were then 3 boxes, labelled respectively                     “incapacity benefit and national insurance credits”, “severe disablement                     allowance” and “national insurance credits”. The third of those boxes                     was ticked].

                    If you are already getting income support

                    You may no longer be entitled to Income Support because of your                        illness or disability. You will get a separate decision about this. If you                     think you can get Income Support for any reason, please get in touch                     with this office straightaway to prevent any loss of benefit or any delay                     in the processing of your claim.

                    ………………………………………………………………..

                    If you are looking for work, or you need information about benefits and                     services available, contact Jobcentre Plus ……………….

               Claiming other benefits

               …………………………………

               Income support

               ………………………………..

               Income support and appealing

               If you appeal against our decision to stop your incapacity benefit  or                national insurance credits, you may be able to get Income Support at a                reduced rate until the appeal is heard. We can only pay this on receipt                of a valid appeal ………..

               If you think you can get Income Support for any reason, please get in                touch with Jobcentre Plus straightaway to prevent any loss of benefit or                any delay in the processing of your claim.

               ………………………………

               Pension Credit

                    If you are already getting Pension Credit the amount you receive may                     change because you are no longer entitled to Incapacity Benefit. You                     must tell the Pension Service of your change of circumstances.

                    …………………………………………………..”

4.               The Claimant continued to receive income support until 4 March 2008. According to the Secretary of State’s submission to the Tribunal: “In March 2008 a GMS [Generalised Matching Service] referral was received indicating that [the Claimant] no longer had a live incapacity benefit claim. These details were checked and it was found that her incapacity benefit claim had ceased on 22 October 2007 as she had failed the PCA.” That statement was wrong in referring to incapacity benefit. The Claimant had not been in receipt of incapacity benefit, but only incapacity credits.

5.               On 4 March 2008 a decision was made superseding and removing the Claimant’s award of income support with effect from 22 October 2007.

6.               On 19 March 2008 the Claimant wrote to the DWP saying that she had been informed yesterday that her incapacity claim was closed down and that her income support claim should also have been closed down, and stating that she wished to appeal against the decision to close her incapacity benefit claim. A late appeal was accepted, but was dismissed by a First-tier Tribunal in or about September 2008.

7.               On 4 April 2008 a further decision was made that an overpayment of income support totalling £1307.53 had been made in respect of the period 22 October 2007 to 4 March 2008, and was recoverable from the Claimant on the ground that she had “failed to disclose the material fact that failed PCA on points.” The Claimant also appealed against that decision.

8.               In September 2008 the Claimant telephoned and asked for further clarification as to the income support overpayment. An internal note records that “I explained to the customer that the o/p occurred as she should have informed us that her incapacity benefit had ceased. I advised that incapacity benefit  and IS was paid by two different offices and IS were not informed that incapacity benefit had stopped.”

9.               However, it was asserted in the written submission from the Claimant’s representative (Canterbury District CAB) to the Tribunal, and was accepted by the Tribunal, that in fact incapacity credits/benefit and income support were both dealt with from the same Jobcentreplus office in Margate.

10.           The Tribunal, by the decision now under appeal to me, dismissed the Claimant’s appeal against the overpayment decision of 4 April 2008. The nub of the Tribunal’s reasoning was in paragraph 4(f) of the Statement of Reasons:

                    “At the very least the letter of 23 October 2007 told the appellant there                     had been a change to a material fact (failure of PCA) that may affect                     her benefit. The law places a duty on appellants to notify the relevant                     department of any change of circumstances that may affect payment of                     benefit. The appellant’s assertion that the 2 departments (incapacity                     and income support) used the same building did not relieve her of her                     obligation to notify the income support department of the change of                     material fact that may affect payment.”

11.           However, in my judgment, and as the Secretary of State in supporting this appeal accepts, that result was not one to which the Tribunal could properly have come. In my judgment the letter of 23 October 2007 implied very strongly that, if the effect of the decision about incapacity credits was that the Claimant ceased to be entitled to income support, Jobcentreplus would take steps to terminate the income support award. The clear implication was in my view therefore that the Claimant need not notify the persons administering income support that an adverse incapacity decision had been made. I would point, in particular, to the words “you will get a separate decision about this [i.e. income support]” on the first page of the letter. It was in my judgment also significant that the Claimant was told later in the letter that, if she was getting pension credit, she must notify the Pension Service of the change of circumstance, but was not told to notify the income support section of the change. In my judgment that would have been the clear implication even if income support had been administered from a different Jobcentreplus office, but the fact that it was administered from the same office rendered the implication even stronger.

12.           As a matter of legal analysis, the fact that the letter of 23 October 2007 indicated that the Claimant need not notify the persons administering income support about the adverse incapacity credit decision in my judgment had the consequence that there was no breach by the Claimant of the obligation in reg. 32(1B) of the Social Security (Claims and Payments) Regulations 1987. The Tribunal reasoned that the adverse incapacity credits decision was a circumstance which the Claimant “might reasonably be expected to know might affect” the continuance of entitlement to income support, and therefore that reg. 32(1B) gave rise to an obligation to notify. However, where a clear indication is given on behalf of the Secretary of State, by someone who is clearly authorised so to indicate, that there is no need to notify in the particular case, no obligation to notify arises. That can if necessary be put on the basis of waiver by the Secretary of State of the obligation (cf. CIS/2710/2008 at para. 22). Where that indication is contained in a letter which is plainly in standard form, and therefore has obviously been approved for use by the Department, no question as to absence of authority can arise.

13.           The Secretary of State was not able to rely before the Tribunal (and is not able to rely before me) on the obligation in reg. 32(1) or (1A) of the 1987 Regulations, because the Secretary of State has not provided any evidence of the circumstances which the Claimant was required, in information leaflets etc, to notify. In particular, the Secretary of State has not provided any evidence that the Claimant was required, by some general information, to notify an adverse incapacity for work decision. However, even if (as I imagine was probably the case) the Claimant was required, by some general information or note, to notify the income support office of an adverse incapacity for work decision, that advice would in my judgment almost certainly have been overridden in the particular circumstances here by the indication in the letter of 23 October 2007 that the Claimant’s income support award would be looked at and terminated, if appropriate.

Charles Turnbull

Judge of the Upper Tribunal

2 December 2009