[2009] UKUT 77 (AAC)(16 April 2009)
Recovery of overpayments
failure to disclose
THE UPPER TRIBUNAL Appeal No. CG 2786 2008
ADMINISTRATIVE APPEALS CHAMBER
PG v Secretary of State for Work and Pensions
Hearing at Cardiff Civil justice Centre / Canolfan Llysoedd Sifil Caerdydd
2 04 2009
Mr C R Bagley of Stroud and District CAB for the appellant
Mr Jeremy Heath, solicitor, of the Office of the Solicitor to the Department for Work and Pensions for the respondent
DECISION
The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.
Directions for new hearing
A The new hearing will be at an oral hearing.
B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.
C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.
D If either party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.
These directions are subject to any later direction by a tribunal judge.
REASONS FOR DECISION
The background
Evidence of overpayment
The tribunal decision
"Her husband reached 65 on 16 March 2003. He had claimed his pension in November 2002 from the Pensions Service and he claimed for her and her own pension went up. In March 2003 the appellant's husband telephoned someone about the appellant's pension increase. It was probably the Pensions Service given what happened the previous November. The appellant did not contend that the ICA unit had been informed."
Submissions for Mrs G
(a) his client (and/or her husband) promptly and properly disclosed her increase in state pension;
(b) on the facts, their duty was to notify an appropriate office and not specifically the carer's allowance unit, and they had been given reason to consider that they had done this;
(c) the tribunal had paid no attention to the effect on Mr and Mrs G of the decision to close the Gloucester social security office and centralise the functions relevant to them and the appellant's reasonable response to this;
(d) the tribunal had erred in eliding the period of payment by order book with the period of payment by bank transfer; the continuing duty on the appellant to disclose should be looked at again after the change of payment method;
(e) in any event, the computer records and correspondence both showed that the DWP knew all it needed to know about Mrs G's pension and it could not claim to be in ignorance of the relevant details.
The duty to disclose
"(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded."
"The civil servants administering DLA and IS have always been geographically separate, with separate "files". There has never been a computer link between the two systems." (Hinchy, opinion of Lord Hoffman at [14]).
Mr Bagley suggested that the facts of this case were sharply different. Carer's allowance and state retirement pension are both centrally administered. There were no relevant local offices for these benefits, even if they still existed for other benefits. It was clear from the papers that by 2007, if not before, that the two centralised units did have an active computer link.
The duty to disclose
"… there is nothing intrinsically wrong in relying on the claimant to give the Secretary of State the information he requires to make his decisions, provided this is information which the claimant has and that the Secretary of State has made his requirements plain. Nor is it intrinsically wrong to include in these requirements information which is already known in one part of the system but not in the part that needs to know it to make the decision in question. In an ideal world, administrative systems might be so efficient that any official in one office might at a few clicks of a mouse be able to retrieve all the information about a particular claimant held everywhere else in the system… It is certainly not yet with us."
"[23] Disclosure, then, must be made to the relevant official and not to the Secretary of State as an abstract entity. What assumptions can be made about what the relevant official already knows? … It is not for the claimant to form views about what may go on behind the scenes in the Social Security or other benefit offices. His duty is to comply with the instructions in the order book."
His Lordship dismissed comments about the relevance of computer systems in a previous case. After an analysis of the decisions he restated his opinion as:
"[30] … the legislative policy … remains unaltered in the Current Act and regulations, namely that the primary onus of keeping the "appropriate office" informed rests upon the claimant.
[32] … The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the Department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the "simple instruction" in the order book."
IF ANY OF THE CHANGES LISTED IN THE FOLLOWING PAGES OCCUR, YOU MUST, UNLESS INSTRUCTED OTHERWISE, SEND YOUR ORDER BOOK BACK IMMEDIATELY TO THE ICA UNIT AND TELL THEM WHAT HAS HAPPENED.
The page of the order book then sets out, also in bold type, the address and telephone number of the CA Unit in Palatine House. It is common ground that this has not changed at any time relevant to this appeal.
"You must tell us about any of these changes and return your order book unless we have stated otherwise:
…
- You must always tell any office where you claim any other benefits that you are getting ICA
…
- You start getting retirement pension … or the amount of your retirement pension increases because your husband has started receiving his own retirement pension"
I see nothing unreasonable or disproportionate about those specific requirements.
Modification of the duty to disclose
"did not consider that a statement by the Pension Service after being informed in March 2003 by the appellant's husband that CA and the appellant's pension were in payment to the effect that matters would be taken into account (whatever the precise terms of such a statement might have been) could be regarded as acceptance by the Pension Service of the obligation to inform the CA unit of the relevant matters."
I agree with Mr Bagley that that misses the point. He submitted that Mrs G gave evidence that they were led to believe by their previous experience and by what they were told in March 2003 that they had adequately reported the change. If so, they had fulfilled the duty on Mrs G to report as it would be reasonable to conclude that "we have stated otherwise" (the terms of the exception in the order book). The tribunal did not make a finding about this. On the contrary, it ducks the issue by failing to consider the "precise terms of such a statement".
Did a failure to disclose cause the overpayment?
"Nor was there any basis for assuming that, on the facts, the non-disclosure had no causal effect because the relevant official had received the information by internal lines of communication. The inference of ignorance from the fact he made the overpayments was far stronger than the possibility that he knew from a card on the file that the DLA award had in fact ceased."
Baroness Hale did not comment on this. Lord Scott dissented on a ground that did not require him to consider it. Lords Hope and Walker agreed with Lord Hoffmann.
When did the failure to disclose occur?
Did the failure to disclose continue to cause the overpayment?
Conclusion
A new hearing
David Williams
Judge of the Upper Tribunal
16 04 2009
[Signed on the original on the date stated]