Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/1581/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  I allow the claimant’s appeal.  I set aside the decision of the First-tier Tribunal dated 20 January 2011 and substitute a decision setting aside the decision of the Secretary of State dated 22 April 2010.

REASONS FOR DECISION

1. The claimant was in receipt of income support and child benefit.  Entitlement to child benefit in respect of her son ceased on 2 March 2009 but no relevant alteration to her income support was made until 10 February 2010, from which date the claimant was no longer entitled to include in her “applicable amount” for the purpose of calculating entitlement to income support any allowance in respect of her son or any family premium because her son reached the age of 20 years on 12 February 2010.  That supersession decision is not challenged.  However, on 9 April 2010, the child benefit computer records were checked and that led to a decision that £2,655.68 income support had been overpaid from 25 February 2009 to 9 February 2010, on the basis that entitlement to include the child allowance and family premium in the applicable amount should have ended with the child benefit, and that that sum was recoverable from the claimant because she had failed to disclose the change of circumstances.

2. The claimant appealed on the ground that she had informed the Department for Work and Pensions in November 2009 that her son had moved to university in another city on 19 November 2009.  The Department denied receipt of any such notification but the claimant, who did not speak English, produced evidence from an advice agency that they had telephoned the Department on 7 December 2009 to inform them that the claimant’s son had moved to university on 22 November 2009.

3. The claimant’s appeal was heard on 20 January 2011.  She was represented by Coventry Law Centre.  It was conceded that the overpayment calculated in respect of the period up to 7 December 2009 was recoverable but it was contended that there had then been disclosure and so the overpayment calculated in respect of the period from that date was not recoverable.

4. The First-tier Tribunal dismissed the appeal, partly on the ground that it was not satisfied that adequate disclosure had been made to the right part of the Department for Work and Pensions, partly because it considered that the relevant telephone call had been made on 17 December 2009 which was not consistent with the claimant’s account and partly because it took the view that there was a continuing duty of disclosure so that the claimant’ should have made disclosure again when she realised that the amount of her benefit had not been adjusted.  In the decision notice, it was also recorded that the judge was not satisfied “that saying merely that the son had gone to university was sufficient to notify that child benefit had ceased” but that point is not mentioned in the statement of reasons, possibly because the judge had had second thoughts about its merits.  

5. The claimant now appeals with the permission of the First-tier Tribunal.  The first ground is that the First-tier Tribunal erred in taking the point about the discrepancy between the dates of the telephone call without giving the claimant an opportunity to deal with it and the First-tier Tribunal judge who has granted permission has raised the question whether, in any event, it really went to the claimant’s credibility.  The second ground is whether the First-tier Tribunal erred in considering that disclosure that the claimant’s son had left home and gone to university was insufficient disclosure, to which the First-tier Tribunal judge has added that it is arguable that the First-tier Tribunal did not make sufficient findings as to the disclosure there had been.  The claimant also points out that income support was the only benefit the claimant was receiving, implicitly arguing that the First-tier Tribunal erred in considering that disclosure might have been to the wrong part of the Department.  The third ground of appeal is that the First-tier Tribunal erred in concluding that there was a continuing duty of disclosure, to which the First-tier Tribunal judge granting permission has added that there is a question as to the effect of any breach of any such duty.

6. The Secretary of State has not addressed any of those grounds of appeal because his representative supports the appeal on a more fundamental ground.  He submits that the evidence shows that, although there was a decision superseding the claimant’s entitlement to income support with effect from 10 February 2010, there is no evidence of any revision or supersession decision having been made in respect of any earlier period and, indeed, that evidence in the computer records suggests there was no such decision.  Consequently, he submits that the Secretary of State had no power to make a decision to the effect that there had been an overpayment that was recoverable under section 71(1) of the Social Security Administration Act 1992 because section 71(5A) provides –

“(5A)  Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.”

7. Accordingly, it is submitted, the First-tier Tribunal should simply have set aside the Secretary of State’s decision and the Upper Tribunal should substitute for the First-tier Tribunal’s decision a decision to that effect.  It would, of course, remain open to the Secretary of State to make a new a new recoverability decision provided a revision or supersession decision has first been made.

8. It is extremely important that there be a revision or supersession decision (or, in other cases, a decision on appeal to a tribunal) before there is a recoverability decision because the amount of the overpayment that is recoverable under section 71(1) cannot properly be calculated without one.  Not only must the legislative provisions for substantive entitlement be taken into account but so must the procedural provisions governing the question whether it is permissible to revise or supersede a decision and, if so, the date from which the revision or supersession is effective.  Moreover, a proper consideration of the reasons for revision or supersession will reveal the relevant change of circumstances that should have been disclosed or the material fact that has been misrepresented.

9. It may be arguable that, if the First-tier Tribunal finds itself faced with a recoverability decision where the question of the claimant’s entitlement has not yet properly be determined because there has not been a revision or supersession decision (or a relevant decision of a tribunal), it can consider rectifying the situation by substituting for the recoverability decision a decision that also includes the necessary revision or supersession, applying section 12(8)(a) of the Social Security Act 1998 and following R(IB) 2/04.  However, it is unnecessary for me to consider whether that is so because, even if it were, it would be subject to two major provisos.  The first would be that the First-tier Tribunal had, or could obtain from the parties, the necessary evidence.  The second would be that the parties had an adequate opportunity of addressing all the relevant issues.  Unless the facts were simple or the claimant was competently represented, these conditions would probably not be satisfied.  In the present case, I do not have the relevant evidence and there is no advantage in me trying to obtain it rather than simply leaving the Secretary of State to make a new decision if he wishes to do so.  Accordingly, I accept the Secretary iof State’s suggestion for the disposal of this appeal.

10. In case the Secretary of State does decide to consider superseding the claimant’s award in respect of a period before 10 February 2010, I observe that it seems to me that the important change of circumstances in this case was not so much the claimant ceasing to be entitled to child benefit (which by itself would have entitled the claimant to more income support since that benefit was being taken into account as income because this was a “transitional” case) as her son ceasing to be a “qualifying young person” for child benefit purposes.  The date payment of child benefit ceased is only indirect evidence of that.  There might, for instance, have been an overpayment of child benefit if her son became a university student in September or October of 2008. 

11. If there is a supersession decision and so recoverability is an issue, consideration needs to be given to what information the claimant was instructed to report, so that it can be determined whether there was a failure to disclose that information, bearing in mind that she had presumably experienced a drop in income when child benefit ceased to be payable.

12. As to the original grounds of appeal, I do not consider it necessary to say anything about the first two grounds.  If minded to issue a new recoverability decision, the Secretary of State will have to consider the evidence of the telephone call made in December 2010 and the points made about it in these proceedings.

13. I ought, however, to say something about the third ground of appeal, even though I have not received full argument on the point, because the point may arise in this particular case.  In my judgement, if it is accepted that the telephone call was made to the correct office of the Department so that there was then adequate disclosure, the Secretary of State may still consider whether, after some while, there arose a new duty of disclosure on the basis that the claimant should have realised that the previous disclosure had not been effective even if it should have been.  However, such a new duty of disclosure can presumably only arise if the claimant should have realised that she was being overpaid benefit, because otherwise she would not have realised that the disclosure had not been effective.  I do not accept that the possibility in principle of there being a continuing duty of disclosure, as suggested in paragraph 18 of R(SB) 54/83 and paragraph 28 of R(SB) 15/87, was doubted in CIS/1887/2002, notwithstanding what was said in paragraph 21 of that decision.  It is plain from the last two sentences of paragraph 24 that the point was left open for future cases because it had not been suggested by the Secretary of State in that case that the claimant should have realised he was being overpaid. 

Mark Rowland

3 May 2012