Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL File No:  CIS  672/10

Administrative Appeals Chamber

14 October 2010

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF FIRST-TIER TRIBUNAL

Appellant: [the claimant]

Respondent: Secretary of State for Work and Pensions

Claim for:  Income Support

First-tier Tribunal: Bromley

Tribunal Case Ref:  168/09/01271

Tribunal date: 1 October 2009 (reasons issued 08.12.09)

DECISION OF THE UPPER TRIBUNAL

The claimant’s appeal is allowed. The tribunal’s decision is set aside as erroneous in law and  replaced under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 with this decision, that no amount of overpaid income support is legally recoverable from the claimant under the Secretary of State’s decision of 19 September 2008 (whether as given originally, or as revised on 4 March 2009) as the evidence before the tribunal failed to show that the statutory conditions for recovery under section 71(5A) of the Social Security Administration Act 1992  were satisfied in relation to that decision.

REASONS

Mr P L Howell QC:

1. The decision of the Bromley tribunal sitting on 1 October 2009 is conceded to have involved the error in law identified in the grant of leave dated 23 June 2010 at page 168 and agreed in the written submission of Mr B A Wilson on behalf of the Secretary of State dated 20 August 2010 at pages 169-172, namely that the decision under appeal, purporting to make sums of (originally) £7,622.14 or (as revised) £20,023.45 recoverable from the claimant as overpaid income support, was not supported by evidence from which the tribunal could properly have concluded that the conditions for legal recovery under section 71 Social Security Administration Act 1992 had been complied with. 

2. In particular, the original form of the decision under appeal dated 19 August 2008 (at page 45, headed “Overpayment decision”) refers to a previous decision on the claimant’s entitlement dated 22 October 2007 of whose existence the tribunal seems to have been doubtful, as paragraph 1 of the statement of reasons at page 143 refers to that of 19 August 2008 as having itself determined the question of entitlement, though plainly it did not. Then there was said to have been a revised form of the decision under appeal given on 4 March 2009, redetermining both the claimant’s income support entitlement back to 2001 and the amount of the recoverable overpayment, now increased to £20,023.45, but of that there was no real evidence before the tribunal at all.  All that was produced was the document at pages 51-53 (there was no 52), consisting of a handwritten “referral request” in relation to a decision of “19.09.08” with a “revised schedule” adding up to £20,023.45, but no actual decision by anyone.

3. As an earlier tribunal which adjourned the case on 30 July 2009 had correctly assessed, that was an insufficient basis for the tribunal to be satisfied that there had been a valid revision on 4 March 2009 of the decision under appeal, not only making it extend for the first time to previous questions of entitlement, but also causing that greatly increased amount to be immediately recoverable.  The directions given on that occasion allowed the Secretary of State a further opportunity to provide clarification and evidence to show that the claim for legal recovery was properly based: page 116.  Regrettably, that was not done and the Secretary of State again did not attend to prove his case at the adjourned hearing, when the evidence remained insufficient to establish that the statutory preconditions for legal recoverability of the amounts claimed had been complied with. 

4. In those circumstances the tribunal clearly erred in my judgment in accepting and recording in paragraph 1(b) that there had been a valid and effective revising decision on 4 March 2009 both altering the claimant’s entitlement to income support for past periods and making the whole of the increased amount immediately recoverable from her.  The statutory preconditions, including that in sub-section (5A), have been put there by Parliament for a purpose and are mandatory: tribunals must insist on proper evidence that they have been complied with before any decision purporting to make a person liable and laying him or her open to enforcement proceedings can be upheld.

5. In those circumstances I accept the concessions made in Mr Wilson’s helpful submission and give the decision set out above.  Whether any further action may still be needed or appropriate to redetermine the claimant’s past entitlement in an effective way, or to recover any amounts found to have been overpaid in excess of that entitlement, are matters for consideration, and fresh decision if necessary, by the Secretary of State.

P L Howell

Judge of the Upper Tribunal

14 October 2010