Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIS/2650/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision: The appeal is allowed. I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker and substituting my own decision that the overpayment of income support to the claimant in respect of severe disablement premium and enhanced disability premium are not recoverable from him.

 

 

REASONS FOR DECISION

 

1. This is yet another unfortunate case in which, as a result of the apparent failure of local benefit offices to act on information provided to them, a substantial overpayment has been made to an impecunious claimant for several years, following which the secretary of state has sought to recover the amount overpaid.

 

2. In this case the claimant was in receipt of income support from 15 August 2001 to 16 September 2008 He had been in receipt of disability living allowance care component at the highest rate under an award from 25 May 2002 to 12 October 2005. It is clear from the computer print out at p.15 of the file that the local income support office had been notified on 13 September 2002 that the award of disability living allowance was only until 12 October 2005. As a result of that award, severe disability premium at the lower rate and enhanced disability premium were included in the claimant’s income support.

 

3. It should have been apparent to anybody looking at the computer screen that disability living allowance had only been awarded until 12 October 2005. It is also apparent from the print out that the computer record had been accessed at least once between the beginning of 2005 and July 2008, on 27 April 2006, when an incapacity benefit decision was noted. I would expect the tribunal to have been aware of the practice of the DWP in 1993-1998, as stated by it, and as set out by Lord Hoffmann and Lord Scott in Hinchy v Secretary of State, R(IS) 7/05 at paragraphs 15 and 45, that the income support office should set a case control for 6 weeks before the award was due to end.

 

4. As in Hinchy, if the same system was still in force, it would appear the case control was not set, or, if set, it was overlooked, with the result that, despite the information as to the DLA award being on the computer screen at least once in 2006, and possibly more frequently on occasions when no entry was made, the severe disability premium and the enhanced disability premium continued to be paid until 16 September 2008. This was the case even though the office became aware of the true position on 15 July 2008. While the overpayment decision is only from 19 October 2005 until 15 July 2008, there was a delay of 2 months in acting on the information received even then, knowing that for 3 years the claimant had been being overpaid.

 

5. I would add for completeness, although it was not before the tribunal, that on this appeal the secretary of state’s representative has provided the following information, although without giving any dates for changes in procedures:

 

“I understand that more recently the DLA unit automatically issues a broadcast via the interface between the DLA and IS computer systems to the local IS section advising that DLA has been awarded and that entitlement to the severe disability premium (SDP) should be considered. At the end of the award a further broadcast is made advising of the end of the DLA award. I also understand that some local IS sections maintain control within the IS system allowing not only the end date for DLA to be actioned, but also allowing regular checks on the other conditions of entitlement to SDP to be made. Although the broadcast from the DLA system is automated all the action at the local IS section is input to the IS system clerically.”

 

6. In fact, what happened in October 2005 was that the claimant’s entitlement to disability living allowance had not ceased but that the new award had been limited, so far as care was concerned, to the lowest rate of that component. That had the same result, however, as regards severe disability premium and enhanced disability premium, that entitlement stopped and the income support award should have been superseded accordingly. In the event, the supersession was only in September 2008, and the corresponding overpayment decision, under appeal to the tribunal, was in the sum of £5812.55.

 

7. Before the tribunal, the representations made on behalf of claimant were that he suffered from schizophrenia and was not aware of the material facts. As a result, it was contended he was unable to disclose his change in circumstances. Evidence was given in support of that contention, including evidence directed specifically to the ability of the claimant to understand and notify the change of circumstances. The claimant, and his 90 year old mother, who was his carer, attended the tribunal and gave evidence. On the basis of that evidence, the contention that the claimant was not aware of the material fact that his disability living allowance had been reduced was rejected by the tribunal.

 

8. The grounds of appeal put forward on behalf of the claimant by his representative when seeking leave to appeal are firstly that he did not in fact appreciate that his disability living allowance had been reduced and secondly that the tribunal did not explore whether it was reasonable to expect him to know that his income support may be affected due to the change in his disability living allowance award.

 

9. As to the first ground, there was evidence that the claimant managed his bank account into which his benefits were paid, that he could check that direct debits went out and that he would withdraw money regularly to give to his mother for his keep. The tribunal concluded in the decision notice that it was unlikely in those circumstances that he would not have noticed his disability living allowance payments decreasing. He was also found to be able to read and understand letters from the DWP telling him of his entitlement to income support, that at no stage had the possibility of appointee being appointed been considered necessary and that it was clear from the papers that he was notified of the need to notify changes in circumstances. In essence, these matters were repeated in the statement of reasons, together with the finding that he was notified of the decrease in the disability living allowance award.

 

10. It is plain that the tribunal made a finding of fact and that there was evidence entitling it to come to the conclusion that it came to. The first ground of appeal therefore fails. The second ground must also fail in the light of R(IS) 9/06, where it was made plain that once the claimant was aware of a fact that required disclosure, the duty of disclosure arose whether or not the claimant had sufficient mental capacity to understand its relevance or the need to disclose it.

 

11. That, however, is not the end of the matter. There is no express finding by it as to when the claimant first became aware of the change of benefit. It appears from page 33 of the file that the decision to award a lower rate of the care component from 13 October 2005 was made on 4 June 2005 and notified on 5 June 2005. It is clear therefore from the finding that the claimant was notified that the tribunal found that he was aware of the prospective change of benefit well before 13 October 2005.

 

12. The information requirements notified to the claimant by the DWP at pp.17-18 of the file are in form INF4(IS) 04/06. While that form plainly dates from April 2006, the requirement relied on by the secretary of state is well known and goes back well before 2005. There was no express requirement to tell the income support office if there was a renewal of disability living allowance from a date in the future at a rate different from the current rate. What it said was “Tell us if you … start getting a different amount of benefit”, and to remember to include things like social security benefits.

 

13. The lack of clarity of this direction was the subject of adverse comment by Lord Scott and by Lady Hale in Hinchy at R(IS) 7/05, paragraphs 42 and 58, but it is clear in my judgment that it does not require the claimant to notify a future award at a lower rate where the award is to change only four months later. The claimant at that date has not started to get a different amount of benefit. and may never start to get that different amount of benefit in that the decision may be favourably reconsidered or there may be a successful appeal, or the condition of the claimant may deteriorate leading to a revision or supersession.

 

14. In my judgment, the claimant did not come under the reporting duty until he started getting a different amount of benefit. That only occurred after the expiry of the original award, on 13 October 2005.

 

15. There are then two outstanding issues. The first is whether any failure to provide the information sought is a failure to disclose within section 71 of the Social Security Administration Act 1992, even when the relevant income support office has that information on its computer system, and the second is as to causation. The tribunal wholly failed to consider the first issue, even though the evidence before it was that the terminal date of the relevant DLA award was on its computer system, and in the appropriate file.

 

16. It also failed to consider the causation question on the basis that, as it found, there was a duty to notify. The evidence was that the entry as to the terminal date of the award was ignored in October 2005, was ignored again at least once in April 2006 when the file was opened on the computer to make an entry, and may have been ignored more times. Further, when the error was drawn to its attention, it took two months to supersede the incorrect award. By upholding the decision of the decision maker, the tribunal may have impliedly found that had the information been provided immediately, the income support office would have responded immediately by removing benefit, but there are no reasons given for this and no evidence from the income support office that this would have occurred.

 

17. On both these counts, I consider that the tribunal erred in law and its decision must be set aside.

 

The effect of the prior knowledge of the income support office that the relevant award of disability living allowance terminated on 13 October 2005

18. This has been the subject of conflicting decisions. Before considering them, I turn to the relevant statutory provisions. The primary provision is section 71(1) of the Social Security Administration Act 1992 (the 1992 Act). This states as follows:

 

“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)   any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

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.”

 

19. Section 5(1) of the 1992 Act, as amended, gives the secretary of state wide powers to make regulations providing, inter alia,

 

“(h) for requiring any information or evidence needed for the determination of such a claim or of any question arising in connection with such a claim to be furnished by such person as may be prescribed in accordance with regulations;

(hh) for requiring such persons as may be prescribed to furnish any information or evidence needed for a determination whether a decision on an award of benefit to which this section applies-

(i)               should be revised under section 9 of the Social Security Act 1998; or

(ii)              should be superseded under section 10 of that Act; or

…

(j) for notice to be given of any change of circumstances affecting the continuance of entitlement to such a benefit or payment of such a benefit”

 

20. As pointed out by Lord Hoffmann in R(IS) 7/05,

 

“18. Pursuant to these powers, the Secretary of State has made the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968 as amended). Regulation 7(1) deals with the duty to provide information at the time of the claim:

“… every person who makes a claim for benefit shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be required by the Secretary of State …”

19. Regulation 32 deals with the on-going duty to provide information while in receipt of benefit:

“(1) … every beneficiary and every person by whom … sums payable 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 facts affecting the right to benefit or to its receipt as the Secretary of State … may require …, 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 given otherwise than in writing) of any such change to the appropriate office.””

 

21. The requirements in INF4(IS) 4/06 and its predecessors were made under these regulations, and must be read in that context. The regulations can only provide for information or evidence to be provided that falls within section 5(1)(h)-(j) of the 1992 Act. Neither they nor any requirements made under them can require pointless information to be given, and the regulations and the requirements need to be construed where possible so that they only require potentially relevant information to be given. Thus it is clear that there can be no breach of an obligation to provide information to the local office of a change of benefit that the same local office has just notified to the claimant. That is not, in my view, because of the application of the doctrine of waiver as suggested by Judge Ward in paragraph 22 of CIS/2710/2008 ([2009] UKUT 98 (AAC)), but because there is no conceivable basis on which such information could lawfully or sensibly be required, or indeed wanted, by the local office. Both the regulations and the requirements are to be construed to exclude such absurdities.

 

22. That is not the same, however, as saying that the information need not be given because, unknown to the claimant, the local office already has it. That ground is at best a reason for saying that no adverse consequences should flow from the failure to give. The majority of the House of Lords in Hinchy appears to have left it open whether the duty to disclose is to be implied from section 71(1) or derived from regulation 32(1) (see paragraphs 22 and 32 of that decision), but concluded on any footing that the information required by requirements made under regulation 32(1) had to be provided by the claimant, who was 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.”

 

23. It appears to me that if the duty of the claimant is to comply with a simple instruction, whether in the order book or elsewhere, that is what he or she must do. It cannot matter for this purpose whether the channels of communication are assumed to be infallible or whether, unknown to the claimant, the information is already on the relevant computer. It would be different if the claimant had already been told that the income support office already knew that his disability living allowance was to end on 13 October 2005. In that case, he would know that the office had the information and that there was no duty to provide information the office had already told him that it had.

 

24. The question then arises whether, if the relevant office already has the information, the failure to provide it as directed is a failure to disclose for the purposes of section 71(1). In this context, there have in the past been a number of Commissioners’ decisions that one cannot disclose what is already known to the other party. If that is right, then it would mean that although the claimant would be in breach of a duty to furnish information or to notify or give notice of a change of circumstances within section 5(1) of the 1992 Act and regulation 32 of Social Security (Claims and Payments) Regulations 1987, he would not be in breach of a duty to disclose that information within section 71(1) of the 1992 Act.

 

25. The question is as to the meaning of the word “disclose” in section 71(1). That appears to me to have been dealt with by the Tribunal of Commissioners in R(IS) 9/06, where they state:

 

“24. In submitting that the duty imposed by regulation 32(1) was something different from that underlying “failure to disclose” in section 71, Mr. Weisselberg referred to the difference in language, section 71 referring to “disclose” but regulation 32(1) referring to “furnish” and “notify”. We do not consider these differences to be significant, the word “disclose” as a matter of language being wide enough to include the concepts of “furnish” and “notify”.

….

28. …. The duty to disclose sufficient to found entitlement to recovery under section 71 has to be sought outside section 71 itself.

…

35. If there was a failure to disclose in breach of the obligations imposed by regulation 32(1), what were the consequences?

 

36. As Staughton LJ indicated in Franklin, no consequences were set out in the regulation itself. They are set out in section 71. That provides simply that, where there was a breach of the obligation to disclose any material fact under regulation 32(1), whether fraudulent or innocent, then the Secretary of State shall be entitled to recover any overpayment that results.”

 

26. The decision of the Tribunal of Commissioners was upheld by the Court of Appeal. While the Court of Appeal does not specifically endorse the reasoning of the Tribunal of Commissioners quoted above, nothing in the judgments of that court casts any doubt on it. I am bound by it and I follow it, as Judge Ward did in CIS/2710/2008 ([2009] UKUT 98 (AAC)). It is true that in R(IS) 9/06 there was no suggestion that the relevant office had the information sought, but the obligation under regulation 32(1) to provide potentially relevant information cannot be affected by matters of which the claimant had no knowledge. Words in a statute must be construed in context, and, for the reasons given by the Tribunal of Commissioners, in the context of the 1992 Act, “disclose” included the provision of information pursuant to the duty imposed by section 5(1) of that Act and regulation 32(1).

 

Causation

27. Under section 71(1) of the 1992 Act, the secretary of state is “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”. The onus is thus on the secretary of state to prove on the balance of probabilities that each payment of benefit would not have been made. It is not enough that he can show that it might not have been made.

 

28. As pointed out by a Tribunal of Commissioners in R(SB) 15/87, at paragraph 30, “there could be circumstances in which the Secretary of State would be in possession of certain knowledge – even though not supplied to him by or with the knowledge of the claimant – which would make it impossible for him to say that he thereafter incurred expenditure in consequence of the claimant’s failure to disclose”. That would be a question of fact in each case, and while the wording of section 71(1) of the 1992 Act differs from that in section 20(1) of the Supplementary Benefits Act 1976, which was under consideration by the Tribunal of Commissioners, the principle remains the same.

29. It has also been generally accepted that if there has been non-disclosure or misrepresentation that comes to the attention of the local office and nothing is done about it for a time, the continuing payment is caused by the failure of that office to act on the information it has received and not as a result of the non-disclosure or misrepresentation. That is apparent in this case, in that the overpayment decision does not include the two months between the date when the matter was specifically drawn to the attention of the office and the date when it acted.

 

30. However, it is clear that there can be more than one cause of an overpayment. In Duggan v Chief Adjudication Officer, reported as an annex to R(SB) 13/89, there were said to be two causes of the overpayment, non-disclosure by the claimant and the failure by the adjudication officer to discover that the claimant’s wife had claimed unemployment benefit. On the facts of that case, the Court of Appeal held that the most that could be said was that there were two causes of the overpayment – the failure to make enquiries and the failure to disclose. As it was put by May LJ in that case,

 

“As a matter of common sense… if one poses the question: did the failure of the claimant to disclose the fact that his wife was in receipt of unemployment benefit have as at least one of its consequences the overpayment of the supplementary benefit?, the only reasonable answer that one can give is “yes”.”

 

31. In Morrell v Secretary of State, R(IS) 6/03, the Court of Appeal again considered the same question. In that case, the claimant failed to disclose that her mother was paying money each month either directly to her or to her landlord in order to discharge her liability for rent. She also completed review forms stating that nobody else paid money to someone else on her behalf. The Court of Appeal concluded that these representations in the review forms were misrepresentations of a material fact. There were two periods under review, one from 1995 to 1997 and the other from 1998 to 1999. The reason for the break was that the local authority had received a letter from the claimant informing it of the regular monthly payments, and the local authority had forwarded a copy to the benefits centre dealing with her income support, which had been received by the benefits centre on 13 February 1997, but no action had been taken on it (see paragraphs 5 and 6 of the judgment of Richards J). The gap was until the claimant was regarded by the secretary of state as again becoming a causative agent of overpayment when she completed a further review form in April 1998. So too, the second period ended on 14 April 1999, when similar information provided to the local authority by the claimant was again forwarded to and received by the benefits centre.

 

32. At paragraph 45, Richards J cited the passage in Duggan to which I have referred and continued in paragraph 46 as follows:

 

“For the same reason the misrepresentation on the appellant’s review forms could properly be considered to be a cause of the overpayments, so that the overpayments were made “in consequence” of the misrepresentations, even if a further cause was a failure on the part of the Benefits Centre to take due account of the information provided by the local authority.”

 

33. At paragraph 48, Richards J continued:

 

“The reasoning that has led me to uphold the Commissioner’s conclusion would suggest that the Benefits Agency was entitled to recover overpayments not just for the two periods to which this appeal relates but for the entirety of the period covered by the appellant’s income support review forms. Payments were made throughout that period on the basis of repeated misrepresentations, and the misrepresentations would appear to have been a cause of the overpayments throughout. It is difficult to see why the receipt of information from the local authority in February 1997 and again in April 1999 broke the chain of causation, as the Commissioner expressed it in paragraph 14 of his decision. At most the failure to act on the information would seem to have been an additional cause of the overpayments as from the date of receipt of the information; but that would not preclude recovery of the overpayments. Since the decision was taken to claim overpayments only for the two specific periods, nothing turns on the point; but I mention it in order to make clear the implications of my judgment.”

 

34. Both Sedley and Thorpe LJJ agreed with this judgment.

 

35. It appears to me that the views expressed in paragraph 48 are obiter and do not bind me. They appear to have been made without the benefit of any argument on the point as it did not arise. I would test them in this way. Suppose that the claimant had written the letters received in February 1997 and April 1999 directly to the benefits centre and they had not acted on them. Could it still be said that they would not have broken the chain of causation? The misrepresentation would have been corrected. Why then should it be different if her letter was forwarded to the benefits centre by the local authority? If correcting the misrepresentation is not by itself sufficient to break the chain of causation, what must a claimant to do if they have made an innocent misrepresentation to ensure that the chain of causation is broken? Would the answer be the same if there had been evidence that the letter had been considered by an inexperienced person at the income support office, and an incorrect decision had been arrived at that, as the payments were by way of loan, no action was needed?

 

36. To take another example, suppose that, a week after making an innocent misrepresentation, the claimant realised the error and wrote to the benefits office correcting it. The letter was received but misfiled, and not acted on. The claimant, as in many cases, had no idea whether the information in fact would affect the amount of benefit, and if the decision was only made after the letter had been delivered would frequently be entitled to conclude that the decision took into account the contents of the letter. On the analysis in paragraph 48 of Morrell, the resulting award and overpayment would be in consequence of the misrepresentation, as indeed in one sense it would be, and might continue for years without being spotted.

 

37. These questions also apply where there has been no misrepresentation, but only a failure to provide information. What more is the claimant to do but to provide it late? Suppose that the claimant provides the information a week late. Is the failure to provide it really to extend for the rest of the period of benefit if the benefits office fails to deal with it properly? What is to happen if the evidence is that the decision was taken by a decision maker who was well aware of the implications of the relevant facts, and who would have taken a very different approach from the person who subsequently considered them and considered them irrelevant. It appears to me to be very far removed from the commonsensical approach recommended by May LJ to say in those circumstances that the initial non-disclosure or misrepresentation is in any real sense a cause of all future overpayments.

 

38. It is to deal with situations such as these that the concept of breaking the chain of causation has been developed and other limitations have been imposed on the legal concept of causation as applied to the law of damages in both contract and tort and, in this jurisdiction, to recovery under section 71 and its predecessors. Both causation and breaking the chain of causation are determined as matters of ordinary common sense being concerned with everyday life, thoughts and expression rather than with philosophic speculation (see Halsbury’s Laws, 4^th ed. Reissue, vol.12(1), paragraph 1036, text to n.2 and paragraph 1040, text to n. and the authorities there cited).

 

39. It appears to me that, at least as a general rule, the claimant can do no more than to provide the relevant information and that once he or she has done so, it is for the benefits office to act on it reasonably promptly. So too, if the information from the claimant is forwarded by a third party, in Morrell the local authority, I am unable to see why this should make any difference. The fact that it was forwarded by the local authority should make it apparent to the benefits office that it was something that needed consideration.

 

40. If the provision of that information does not lead to a revision or supersession of the original award the appropriate inference in some cases may be that it was considered and not regarded as relevant. In other cases, the information may be so patently relevant that the only proper inference could be that it was not seen by the appropriate person.

 

41. The question of causality is in all cases one of fact, the burden of proof being on the secretary of state. There will be many cases where it is proper to infer that had the correct information been supplied to the benefits office, benefit would have been reduced or not paid. Where, however, the benefits office in question not only has had the information at all times, but as here has had it on the relevant computer file, which has been accessed, some evidence is required as to why it did not act, and how it would have acted if the claimant had disclosed that the amounts received in respect of DLA had been reduced.

 

42. This would be all the more the case if the reminders referred to by the representative of the secretary of state were in place in 2005, or if a case control had been diarised for 6 weeks before the end of the 2002 DLA award as had been the case during the period covered in Hinchy.

 

43. A different view was expressed by Judge Ward in CIS/2710/2008 ([2009] UKUT 98 (AAC)), where in paragraph 34 he stated:

 

“In the present case, I accept that the local office was in possession of the relevant information. Whether the memorandum from the incapacity benefit section to the income support section went astray and never reached the income support section, or whether it was received by the income support section but due to an oversight never acted upon is not known but in my opinion is immaterial. Ms Arnold invites me to infer that had the claimant disclosed the information of the cessation of entitlement to carer’s allowance to the local office, it would have been acted on. Putting it at its lowest, on the balance of probabilities that must be right, and is not called into question by the fact that on a single occasion the internal memorandum was not duly processed in one or other of the circumstances outlined above, and I find accordingly.”

 

44. It may well be that in that case, had the information that entitlement to carer’s allowance had ceased been provided, on the balance of probabilities it would have been acted on even if the memorandum from the incapacity benefit section had not been acted on due to an oversight. However, it would normally be relevant to have evidence as to why the information was not acted on, and as to the procedures in place at the time for dealing with the receipt from the claimant of the relevant information. It is for the secretary of state to produce evidence (as opposed to submissions) as to why the error occurred if the information was available in the office, and even more so when it was clearly available on the relevant file. The evidence should also deal with the standard procedures in place to review an award in a case such as the present, where there may well have been a case control or a reminder at the relevant time in 2005, and as to what happened in relation to those procedures. If the answer is that the person dealing with the file did not appreciate that the end of the award of DLA led to the cessation of entitlement to the two premiums, then the provision of the information by claimant would have had no effect whatsoever.

 

45. Further if it appears in addition that warnings were given that the matter required review and nothing happened, that again would at least be some evidence that on the balance of probabilities a notification across the counter from the claimant would not have made any difference. The notification for this purpose should be assumed to be the minimum required by regulation 32 and the information notice.

 

46. It is stated in the commentary to section 71 in Volume III of Social Security Legislation 2009/10, paragraph 1.99 that “if it can be shown that the inter-office communication system did operate (that is, there was actual rather than deemed knowledge) but was not then used to initiate any reviews, there would be a break in the chain of causation”. R(SB) 15/87, CIS/159/1990 and CSIS/7/1994 are cited in support of this proposition. It appears to me that it would be more accurate to state that in the circumstances there set out there may be a break in the chain of causation, particularly in the absence of any evidence to show the reasons for the inaction and how matters would have been different had the appropriate information been provided.

 

47. In this case, the benefits office had all the information it needed on the relevant file, which was accessed. Indeed, so far as it was aware, DLA had terminated completely. Nor was the file a dead file. It was accessed at least once, when an entry was made in 2006, and may well have been accessed at other times as well. There were standard provisions for its review. It does not appear to me to follow as a matter of common sense that a note from the claimant that his DLA payments had reduced would have had any effect on the person dealing with that file, so as to result in a supersession of the income support award. This is all the more the case if, as the representative of the secretary of state indicates, a reminder was sent and also not acted on. The inaction in this case is emphasised by the fact that it took two months to stop benefit even after the office had had the error pointed out to it.

 

48. This is not a case in which the common sense inferences referred to by May LJ apply. There is no evidence from the secretary of state at all as to causation. I conclude that, on the facts of this case, the secretary of state has failed to prove that any overpayment was caused by the claimant’s failure to disclose, as the relevant fact was at the forefront of the relevant file from 2002 onwards, there appears to have been a review procedure in place and there is no evidence why no action was taken.

 

 

Michael Mark

Judge of the Upper Tribunal

 

15 April 2010