Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPC/920/2015

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. On 9 April 2013 a decision was made that £23,135.03 was recoverable from the claimant as state pension credit overpaid in the period from 29 July 2004 to 24 February 2013, on the ground that “on 6 July 2004 [the claimant] failed to disclose the material fact that their occupational pension was in payment”.  At a hearing on 8 December 2014 the tribunal allowed the appeal to the extent that it held that the period of the recoverable overpayment should not begin until 20 October 2006, but the tribunal upheld the Secretary of State’s decision in all other respects.  It is against that decision that the claimant now brings this further appeal, with the permission of a district tribunal judge.

2. The date of 29 July 2004 was chosen as the date for the commencement of the overpayment recoverability period because that was the earliest date for which the DWP had records, but the tribunal held that the period should begin on 20 October 2006 because that was the date on which the claimant was provided with details of the income used to calculate his entitlement to pension credit following his award of state retirement pension.  In a very thorough and careful statement of reasons, the tribunal judge recorded a finding that:

“…on the balance of probabilities [the claimant] did phone someone within the Respondent to notify them that he was in receipt of (or about to be in receipt) of his occupational pensions prior to 29 July 2004.  I also find that such phone call was a timely disclosure.  However, it is not clear which office of the Respondent he phoned or who he spoke to.”

Having evaluated the evidence, the statement of reasons elaborates on that finding as follows:

“I am satisfied that on the balance of probabilities he did make the relevant disclosure to an office of the respondent in 2004, before 29/7/04, by phone.  I am not satisfied by his evidence about any form or details he claims to have subsequently provided…Nor am I satisfied on the basis of the evidence before me that [the claimant] made the disclosure to the office dealing with his claim-as opposed to, for example, a general number for the Respondent.  I refer to my conclusions below in this regard.  Nonetheless I consider that [the claimant] did enough to comply with both his specific disclosure duty and general disclosure duty prior to 29/7/04”

After noting that the claimant did not notify the DWP of increases to his occupational pension, the tribunal judge made a further finding that:

“Unfortunately the Respondent did not act on the information I find it was initially supplied with prior to 29^th July 2004.”

On the basis that the claimant had not given the information about his occupational pensions to the office which was administering his pensions credit claim, the tribunal judge went on to consider whether the claimant’s duty to provide that information continued while the benefit was in payment.  Having held that it did, the judge found that the claimant had not spoken to the DWP about his occupational pension at any time after his telephone conversation in 2004.

3.  The claimant’s application for permission to appeal was on the ground that the tribunal failed to give an adequate explanation for its finding that the office which the claimant phoned in July 2004 was not the office which was administering the pensions credit claim, and the appeal has been supported by the Secretary of State on that ground in a written submission dated 14 May 2015.  For my part, I am also satisfied that the tribunal’s reasons for coming to that conclusion on the key issue in this case have not been sufficiently explained.

4.  In R(SB) 6/85 it was held that it is for the Secretary of State to show on the balance of probabilities all the facts that are needed to justify the recovery of an overpayment.  A decision that overpaid benefit is recoverable from a claimant requires a finding that a claimant has acted in breach of a duty imposed by the legislation and may, as in this case, result in a legal liability to repay considerable sums of money.  To the extent that overpayment recoverability cases may be more adversarial in nature than cases in which no element of fault is involved, the co-operative approach described by Baroness Hale in Kerr v Department of Social Development [2004] 1 WLR 1372 and the general principle enunciated by Lord Hope in that case that in an inquisitorial jurisdiction there is no burden of proof on either side may require some modification.

 5.  In an overpayment recoverability case based on a failure to disclose, the onus will be on the Secretary of State to establish a breach of duty consisting of a negative, that is, that the claimant has failed to comply with a duty to disclose under regulation 32(1)(A) or 32(1)(B) of the Claims and Payments Regulations.  Where the relevant records are available, a tribunal may be able to find that the claimant has failed to provide the required information on the basis that there is no record of such disclosure, although the tribunal may accept a claimant’s evidence that the information was given, but not recorded.  Even if the records for the relevant period are not available, a tribunal may reject a claimant’s evidence that the required information was given if the evidence is vague or inconsistent, or for any other good reason.  However, in this case the judge accepted the claimant’s evidence that he had informed the DWP about his occupational pensions at some time in the period for which no records were available, but the judge said that she was not satisfied that the claimant had contacted the correct office.  In the light of the onus of proof on the Secretary of State to satisfy the tribunal of all the facts needed to justify the recoverability decision, I accept the submission of the claimant’s representative that the tribunal failed to explain adequately why, on the balance of probabilities, the call made by the claimant was to the wrong office.  In any case, since the claimant’s duty was to communicate the information about his occupational pensions to the office dealing with his pension credit claim, the statement that “[the claimant] did enough to comply with both his specific disclosure duty and general disclosure duty prior to 29/7/04” seems to be at odds with the tribunal’s conclusion.

5.  The tribunal judge who gave permission to appeal raised the question of whether the claimant was under a duty to make disclosure of increases in the rates of his pensions from time to time and that his failure to do so was the effective cause of the overpayments for the period in issue.  That was not the way the case was put to the tribunal and the question has not been addressed by the Secretary of State’s representative in his submissions.  Since I consider the decision of the tribunal to have been erroneous in point of law for the reasons I have given, I do not consider it necessary to deal with the point raised by the tribunal judge in this decision.

6.  For those reasons, I allow the appeal and remit the case to the First-tier Tribunal for rehearing before a fresh tribunal.

E A L BANO

21 July 2015