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Summary

The claimant was a Dutch citizen. Her claim for employment and support allowance (ESA) was refused on right to reside grounds. On appeal, she argued that it was not permissible under EU law to deny access to benefits intended to facilitate access to the labour market to someone who had the right to reside as a jobseeker, so that ESA, as such a benefit, had to be made available. That argument had been rejected in the Upper Tribunal, where Judge Jacobs said that ESA was not a benefit intended to facilitate access to the labour market in the sense of EU law. The work-related activity that some ESA claimants were required to undertake was to assist them to recover sufficiently, and was merely preliminary to the point at which they could access the labour market.

The Court of Appeal unanimously rejected the claimant's further appeal. Giving the lead decision, Lady Justice Arden held that EU law distinguished between 'social assistance' and benefits intended to 'enable a job seeker's integration into the labour market'. She held that 'ESA is social assistance and not a labour market related benefit' (paragraph 5). The result was that ESA could be lawfully denied to the claimant on right to reside grounds, under Article 24(2) of EC Directive 2004/38.

Citing paragraphs 42-46 of the decision of the European Court of Justice in Jobcenter Berlin Neukolln v Alimanovic, EWCA C-67 /14 (Bulletin 249, p11 ), Lady Arden held that the test was the 'predominant function' of the benefit concerned (paragraph 24). It was clear that ESA was 'primarily provided for those who cannot work or who are on the borderlines due to some disability or past episode in their lives'; also, roughly 87 per cent of those eligible for ESA were put in the support group and did not have to undertake work-related activity (paragraphs 42-43). The conclusion was that ESA was 'not properly described as intended to facilitate access to the labour market for the purposes of EU law' (paragraph 49).

Summary

This decision of the Court of Appeal arises from in two appeals where the main question was whether the retrospective validation (by the Jobseekers (Back to Work Schemes) Act 2013 - the '2013 Act')) of sanctions rules on jobseeker's allowance (JSA) claimants, which had been held to be invalid, was in breach of the European Convention on Human Rights (ECHR). The two cases were: (1) the decision of the High Court in Reilly (No.2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (4 July 2014) (Bulletin 241 , p11); (2) the decision of the Upper Tribunal in SSWP v TG and others (JSA) [2015] UKUT 56 (11 February 2015).

The Court of Appeal held that the retrospective validation by the 2013 Act of sanctions in various work programmes under the Jobseeker's Allowance (Employment, Skills and Enterprise) Regulations 2011 No.917 (the '2011 regulations') was not valid in one respect. It was in breach of Article 6 of the ECHR (right to a fair trial) regarding claimants who had already appealed against sanctions imposed on them under those regulations when the 2013 Act came into force on 26 March 2013. In so deciding, it upheld the decision of High Court in Reilly (No.2) (paragraph 83). However, it held that the Upper Tribunal in SSWP v TG had erred in deciding that the 2013 Act, as a matter of ordinary statutory construction or applying section 3(1) of the Human Rights Act 1998, did not apply in such cases anyway (paragraph 131 ). Therefore, the 2013 Act was successful in retrospectively validating sanctions under the 2011 regulations, except in cases where the claimant had already appealed against the sanctions, in which cases the Act was incompatible with the claimants' rights under Article 6 ECHR. Under the Human Rights Act, this declaration of incompatibility did not mean the 2013 Act ceased to be effective even in such cases: it was up to the government, subject to any further appeal, to decide what to do now (paragraph 180).

The Court also considered whether, for the Work Programme, there is a 'prior information requirement' by which claimants must be given information about the scheme - both at the point they are referred to it and before they are actually mandated to undertake activity. The Court upheld that the Upper Tribunal 's decision in so far as is held that it was 'not easy' to see what representations claimants could make at the point that are referred to the Work Programme, although (said the Court) that did not mean there could never be such cases (paragraphs 171-72). However, in so far as the Upper Tribunal held that there was no such requirement at the point the claimant was actually required to undertake activity, that was wrong. In principle, claimants should have 'sufficient information to enable them to make meaningful representations' about what they are required to do. In practice, however, the Court accepted that guidance required that such information was normally provided; whether there was a failure to do so in any particular case 'will have to be judged on the facts of the particular case' (paragraphs 176-78).

Note: see also the article on p4.

Summary

The claimant was a child aged five years. He had a condition resulting in extensive joint pain, in particular at night. His claim for DLA (made on his behalf by his mother who was also his appointee) was refused. On appeal, the First-tier Tribunal awarded only the low rate of the care component on the basis of attention for a significant portion of the day. It rejected an argument for the middle rate based on a need for attention at night for 'prolonged or repeated attention', on the basis that the claimant's night time needs 'would not be unusual for some five year olds.'

Judge Hemingway allowed the claimant's further appeal and substituted a decision that he was entitled to the middle rate of the care component. The relevant test at section 72(1 )(c)(i) of the Social Security Contributions and Benefits Act 1992 was satisfied, as the claimant needed 'prolonged' care at night, which was 'substantially in excess' of that required by a non-disabled child of the same age. The tribunal found that the claimant had four 'good' nights a week where he needed attention for 30-60 minutes, and three 'bad' nights where he was awake on several occasions that could total five or six hours. The tribunal considered that as on the majority of nights he needed attention for 30-60 minutes and that 'this would not be unusual for some five year olds' the test was not satisfied. But Judge Hemingway held that the tribunal erred in failing to explain that view which did not to him 'seem sufficiently obvious to be assumed' (paragraph 12).

Moreover, the tribunal had applied the wrong test in comparing the claimant with 'some' five year olds. As held in CA/92/92, the yardstick was an 'average' child: in the present case the judge agreed with that, which meant that 'the tribunal should have been asking itself whether the claimant had needs significantly beyond those of a normal child of is age' (paragraph 12). Also, the judge accepted that a yardstick of 20 minutes or more being 'prolonged' attention was not 'for the most part at least, unreasonable' (paragraph 16). Finally, it did not seem to the judge right to say that 'many children of the age of five... will require or are likely to require' the amount of help needed by the claimant: rather it seemed entirely reasonable to conclude that 'the attention this claimant receives even on the good nights is substantially in excess of that which would be required by a typical child of similar age' (paragraph 16).

Comment from CPAG

DLA continues for disabled children, and this decision is a helpful reminder that in the 'substantially in excess' test it is wrong to identify 'some' children that the claimant's needs can be compared with; rather it is a 'normal ' child (or as referred to in C/1/92/92, an 'average' child). The judge also considered that the tribunal probably erred in taking an incorrect arithmetical approach when seeming to base its decision simply on what applied on the majority of nights; but given that he found the test was satisfied even on that basis he did not need to definitively decide that (paragraph 18).

Summary

The claimant, a child, was an Israeli national. He came to the UK from Israel with his mother (his appointee and a dual Israeli and British national) and two siblings in 2011 . However, by the time of the application on his behalf for DLA his visit visa had expired, and no attempt had been made to regularise his immigration status: in short, he was an overstayer. The claim was refused on the basis that the condition requiring 'ordinary residence' in Great Britain in the DLA rules was not satisfied. The First-tier Tribunal dismissed his appeal, but on the basis that the claimant was a 'person subject to immigration control ' under section 115 of the Immigration and Asylum Act 1999.

Judge Hemingway held that the claimant did not satisfy the ordinary residence requirement and so was not entitled to DLA. He concluded that the phrase 'ordinarily resident', in the context of regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 , SI 1991 No.2890, includes an implied requirement that any such residence is lawful, whether the claimant was an adult or a child (paragraph 41 ). He considered that the similar finding of the House of Lords in R v Barnet London Borough Council Ex parte Shah [1983] 2 WLR 16, although strictly speaking obiter was a 'powerful statement' of the view taken by the House of Lords. Also, such an approach in the specific context of where a benefit was sought had been followed in a number of more recent cases (paragraph 33). Cases regarding children in which a different general approach had been indicated did not go so far as to suggest that should be so in cases, 'where a child claimant in the UK unlawfully seeks access to a State benefit' (paragraph 34).

Regarding exclusion under s115 of the Immigration and Asylum Act, the claimant argued that he came within an exception in the Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000 No.636. Specifically, for DLA a person not excluded under section 115 includes a member of a family of a national of a State that had contracted to the Oporto Agreement for the European Economic Area (EEA), and that as the claimant was the child of someone with British nationality (his mother) and that Britain was a signatory to the Agreement, that exception applied. Although (given his finding about regulation 2) not formally required to decide the matter, Judge Hemingway rejected that argument. He accepted the reasoning made in CDLA/708/2007 that the exception applied only to family members of EEA nationals who had exercised free movement rights within the EU. As the claimant and his mother in this case had come direct from Israel to the UK and had never been in any other EU state, the exception did not apply (paragraphs 42-43).

Summary

On conversion of his claim for incapacity benefit to contributory ESA, the claimant was placed in the work-related activity group. At that time, he was resident in Spain. He appealed to the First-tier Tribunal. He did not request a hearing and the tribunal decided the case on the papers. In rejecting the appeal, the tribunal considered the application of the 'substantial risk' provision for work-related activity at regulation 35(2) of the Employment and Support Allowance Regulations 2008 No. 794. The tribunal found that as the claimant lived abroad, work-related activity for him a 'hypothetical consideration' as he would not actually be required to undertake such activity while resident abroad.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The claimant did not have a fair opportunity to put forward a case in relation to regulation 35(2) because he was unaware of the type of work-related activity by reference to which the regulation would be applied (paragraph 20). The tribunal had no information from the Secretary of State about the type of work-related activity it considered could be carried out without substantial risk.

The judge asked the Secretary of State to provide a submission about how regulation 35(2) should be applied in a case where the claimant was resident outside Great Britain, in particular with regard to the requirement that the tribunal would have information about the work-related activity that might be required in a particular geographical area. The Secretary of State replied that in a case where the claimant chose not to attend a hearing, it would almost always take place in Newcastle (where the DWP international pension centre was based): therefore, in such a case the relevant evidence would be from the Newcastle area. Where the claimant chose to attend the hearing in person, s/he could choose a venue suitable to her/him, in which case the relevant evidence would come from the area in which the tribunal was located. Judge Mitchell held that if the appellant does not object, the Secretary of State's approach should be adopted; if the appellant does object to that, then the tribunal needs 'to decide for itself how to proceed taking into account the reasons for the objection and any submissions of the Secretary of State' (paragraphs 16- 22).

Summary

The claimant lived in social sector rented accommodation and was subject to a reduction in his eligible rent under the so-called 'bedroom tax' - ie, for alleged under-occupation, as provided for by regulation B13 of the Housing Benefit Regulations 2006 No.213. His appeal to the First-tier Tribunal was successful, the tribunal finding that the room in question could not be classified as a 'bedroom'. The tribunal found that the room had been used as a bedroom by the claimant's son until about 2010, but that was unsatisfactory as the room (about 63 square feet in size) had a sloping ceiling, and the son had a cabin bunk bed on a sleeping platform. Also the room had been used as a store room since the son had left. The tribunal also found that the room would not qualify as a bedroom for the purposes of rules in England for the size of a bedroom for an adult in houses in multiple occupation.

Judge A Lloyd-Davies allowed the further appeal of the local authority and remitted the case to a fresh tribunal. The tribunal had erred in failing to apply the decision of the Upper Tribunal in SSWP v Nelson and Fife Council DN (HB) [2014] UKUT 525 (AAC); [2015] AACR 21 (the 'Nelson' decision), and so had erred in that it took into account the actual use of the room at the date of the decision, it solely considered whether the room could be used by an adult, and it took into account legislation relating to overcrowding (paragraph 4).

Also, the judge dealt with the claimant's argument that Nelson (which specifically concerned overcrowding legislation in Scotland) did not take account of the Housing Act 2004 which applied in England, and the guidance given by Local Authorities Coordinators of Regulatory Services (LACORS) about space and overcrowding, and that therefore Nelson should not be followed. The judge rejected that argument. It was a general point in Nelson that legislation relating to space and overcrowding was not to be read across into the HB legislation. The legislation and guidance cited by the claimant in any case did not concern actual room sizes, and were applied with regard only to actual occupiers; the LACORS guidance was about houses in multiple occupation, which was not the case here. However, the judge remitted the case to a new tribunal as Nelson did require that relevant factors included that the room should be able to accommodate a single adult bed, a bedside table and somewhere to store clothes as well as providing space for dressing and undressing (paragraphs 5-6).

Summary

The claimant was overpaid the severe disability premium in his PC, following the ending of his award of attendance allowance (AA). That occurred in August 2013; however, the DWP did not properly supersede the award to remove the premium until February 2014. Shortly afterwards, it issued a decision saying that the claimant had been overpaid and that was recoverable from him as, until February 2014, he had failed to disclose the fact that his AA had ceased, so causing the overpayment. The First-tier Tribunal dismissed the claimant's appeal.

Judge Turnbull dismissed the claimant's further appeal. The claimant had argued that the information provided to him had not been clear as to his duty to report the cessation of his AA, and so he had not failed to disclose. Also, as it was the DWP that stopped the AA, the Pension Service should be deemed already to know about that thus rendering any failure on his part immaterial. Rejecting both of those arguments, the judge first held that the statement in the booklet IN4(PC), issued to the claimant on numerous occasions, contained a statement that if the claimant or his partner were getting any social security benefit, allowance or tax credit, 'you must tell us if there are any changes to them', was clear, and gave rise to a duty on the claimant to disclose under regulation 32(1 A) of the Social Security Claims and Payments Regulations 1987 No.1968 (paragraph 32). Also, the claimant could not assert that he knew for sure that the Pension Service would be made aware of the cessation of his AA, and so could not argue that he had not failed to disclose on the basis that there was no point because the relevant authority were already aware (paragraphs 33-34).

Regarding causation, the judge accepted that the Pension Service would have received notification via the DWP computer system (specifically, RIS30715 reports issued by the Customer Information System) that the AA had ceased, and had neglected that. It was also the case that the burden of proof to show that the claimant's failure had caused the overpayment was on the Secretary of State (paragraphs 38-39). However, causation involved a question of whether, as a matter of common sense, the failure of the Pension Office to act meant that due to intervening factors it would not be right to hold the claimant responsible for the overpayment, so breaking the 'chain of causation' (paragraph 42, citing SSWP v SS (SPC) [2013] UKUT 272 (AAC)). As a matter of common sense, although the Pension Service failure was a cause of the overpayment, it was not the only cause, and if the claimant's failure was properly regarded a contributing cause (as it certainly was here) then the chain of causation was not broken (paragraph 43, citing Duggan v Chief Adjudication Officer, reported as R(SB) 13/89). The judge also considered, on the balance of probability, that had the claimant properly informed them, the Pension Service would have acted so as to stop payment of the severe disability premium. That was also an essential finding regarding causation and, in the judge's view, it did apply in this case (paragraph 41 ).

Summary

In this judicial review decision, the High Court found that the benefit cap is unlawful regarding its application to the housing benefit of lone parents with children aged under two. However the Secretary of State is taking steps to appeal the decision to the Court of Appeal.

In the High Court, Mr Justice Collins considered a number of applications for judicial review from lone parents with children aged under two who were subject to the benefit cap via their housing benefit. He noted that a claim against the cap in its original form (before the level was lowered in 2016) was rejected by the Supreme Court in R (SG and others) v Secretary of State for Work and Pensions [2015] 1 WLR 1449. Although the claimants in that case failed in their argument that the cap unlawfully discriminated against women and large families, it was unanimously accepted there that there had been indirect discrimination against women since many more women than men were lone parents (paragraph 4).

Regarding lone parents with children aged under two, the judge accepted the argument that the parliamentary scrutiny process in passing the legislation had not taken into the account the particular position of such claimants. They were not reasonably able to work and so escape the cap. Also, the financial assistance made available to mitigate the cap (in particular, discretionary housing payments (DHPs) and childcare support) did not achieve the protection for such claimants that was claimed. It was 'difficult to see' how the official aim of incentivising work was realistic with regard to children under two. Some 3.7 million children live in poverty- 'as must be obvious', said the judge, 'the cap cannot but exacerbate this' (paragraph 29). Ministerial responses in parliament to concerns about the position of parents with children aged under two failed to engage, considered the judge, with the difficulties referred to (paragraphs 33-35).

In SG, the alleged breach of the anti-discrimination provision in Article 14 was in the context of Article 1 of Protocol 1 (right to possessions). That proved problematic for the claimants, as it was the parents who had therefore been the subject of discrimination (rather than the children. In the present decision, however, the judge accepted that the discrimination was also in the context of the rights of children under Article 8 (right to family and private life). That argument was not pursued in SG, but subsequently had been shown to be of at least potential relevance in the decision of the Supreme Court regarding the 'bedroom tax' in R (MA and others) v Secretary of State for Work and Pensions [2016] 1 WLR 4550. The barrier to the claimants in SG was therefore 'no longer valid' (paragraph 39). The children and parents in the current case have restrictions on what can be provided by way of housing, food and other things 'that an average child should have available'. The damage to family and private life caused by the cap was clear, and Article 8 was engaged. The test for justification of discrimination, namely whether it was 'manifestly without reasonable foundation', was not met and the claims for judicial review therefore succeeded (paragraph 40-42).

Comment from CPAG

The essence of the judge's reasoning is distilled in his closing remarks (at paragraph 43): 'Whether or not the defendant accepts my judgment, the evidence shows that the cap is capable of real damage to individuals such as the claimants... Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on the DHP, they will remain benefit households. Real misery is being caused to no good purpose.' The Secretary of State indeed does not accept the judgment, will apply the cap as before, and is appealing to the Court of Appeal. A hearing is expected in October. See also the article on p4.

Note: The Court of Appeal allowed the Secretary of State's appeal, see R (DA and others) v Secretary of State for Work and Pensions [2018] EWCA Civ 504. The claimants appealed to the Supreme Court, see R (DA and others) and R (DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21 for the Supreme Court's judgment.

Summary

The subject of this decision of a three-judge panel of the Upper Tribunal is the power of a First-tier Tribunal where regulations (in this case, those applying the so-called 'bedroom tax' restriction to HB) have been held to be in breach of the claimant's rights under the European Convention on Human Rights (ECHR). The decision follows on from the decision of the Supreme Court in R (Carmichael and Rourke) v Secretary of State for Work and Pensions, part of the decision in R (MA and others) v Secretary of State for Work and Pensions [2016] UKSC 58 (9 November 2016). The Supreme Court held that, in the case of the claimants, who were disabled adults unable to share a bedroom, the bedroom tax rules unlawfully discriminated against them and so were in breach of the ECHR.

Despite the decision in the Supreme Court, the Secretary of State argued that the First-tier Tribunal was nevertheless obliged to apply the regulations implementing the bedroom tax. The claimant's entitlement could not change, argued the Secretary of State, until the regulations themselves were changed so as to reflect the Supreme Court's decision, the relevant date being 1 April 2017 (paragraph 53). In short, the Secretary of State argued that the tribunal had no ability to correct the (now undisputed) breach of the claimant's human rights.

Mr Justice Charles, Judge Lloyd-Davies and Judge Wikeley rejected that, and held that the tribunal was able to remedy the breach of the claimants' human rights. The correct approach (not quite the one adopted by the tribunal in question) was to direct that the claimant's HB was to be calculated without the reduction for the bedroom tax. It was unlawful for the local authority to apply the bedroom tax where to do so involved a breach of the claimant's Convention rights (paragraph 67).

The judges pointed out that the starting point (under section 3(1) of the Human Rights Act 1998) is that 'both primary and secondary legislation must be read and given effect to in a way which is compatible with Convention rights' (paragraph 57). The Secretary of State, in arguing that the tribunal could not remedy the discrimination, was failing to give sufficient effect to sections 6 and 7 of the Act, which provide that a tribunal must not act in a way which is incompatible with a Convention right and that a claimant has the right to rely on Convention rights in any legal proceedings (paragraph 60). 'In effect', said the judges, the Secretary of State 'is asking us to accept that a member of the public cannot get an effective remedy on human rights grounds in the First-tier Tribunal. If so, that would be truly remarkable' (paragraph 59).

Comment from CPAG

The judge's comments perhaps also reflect the incredulity many will feel at the Secretary of State's arguments. Nevertheless, the Secretary of State persists. Having been refused permission to appeal further by the Upper Tribunal in this case, he has applied for permission directly to the Court of Appeal.

Summary

The claimant was a British national. He had lived all his life in the UK and lived in his mother's house. He decided to spend time travelling abroad, leaving the UK in November 2013 and returning (back to his mother's house) in February 2015.He did not work while abroad, stayed in hotels and hostels, and retained bank accounts in the UK. On his return he claimed jobseeker's allowance, but was refused on the basis that he was a 'person from abroad' as he had not been 'living in' the UK in the three months before his claim. His appeal to the First-tier Tribunal was rejected.

Judge White allowed the claimant's further appeal and substituted a decision that he was not to be treated as a 'person from abroad' at the time of his claim. The relevant rule was at regulation 85A of the Jobseeker's Allowance Regulations 1996, SI No.207. A person is a 'person from abroad' ifs/he is not habitually resident in the common travel area (ie, the UK, Channel Islands, Isle of Man and Republic of Ireland); subject to exceptions, a claimant shall not be treated as habitually resident if s/he has not been 'living in' any of those places for the past three months. The case therefore turned on whether the claimant could be regarded as having been 'living in' the UK in the three months before his claim. The judge considered that he had.

In so holding, he approved the approach taken to the meaning of 'living in' by the Northern Ireland Commissioners in AEKM v Department for Communities (JSA) [2016] NICom 80 (paragraph 27). That involved taking a broad approach, considering things like duration of past residence, family connections and temporary absence. The tribunal in the present case erred in holding that 'living in' required physical presence (paragraph 28). Judge White considered the claimant was plainly habitually resident in the UK when he left, and that, on the facts, his 15-month period abroad was a temporary absence. His travels were 'just that: an extended holiday' (paragraph 34). The Secretary of State argued that a 15-month absence could not be a temporary one; but the judge held that although duration of absence was relevant, it was not determinative (paragraphs 36-7).

Comment from CPAG

This decision formally adopts the approach taken in AEKM into binding caselaw in Great Britain.

Summary

The claimant was awarded PIP for three years from 26 February 2014. At some point in 2015 he reported a change in circumstances, namely that his condition had worsened. But following completion of a further PIP questionnaire and another medical, in November 2015 he was told that he no longer qualified for PIP at all. His appeal (following a mandatory reconsideration) was dismissed by the First-tier Tribunal.

Judge Wikeley allowed the claimant's further appeal and remitted the case to be heard by a fresh tribunal. As the judge commented: 'This case is a further reminder of the need to identify the basis for any supersession and to provide an appropriate explanation for any change in a person's entitlement to personal independence payment (PIP)' (paragraph 1). The tribunal had erred in failing to establish whether a ground for supersession of the claimant's award existed, and failed to explain to the appellant why his existing award should be removed (paragraph 12).

This applied both to awards made by the Secretary of State and by a First-tier Tribunal. The Secretary of State was able to look into an existing PIP award, but in changing the decision must show that a supersession ground was made out, and the subsequent decision on entitlement 'must have regard to all the evidence' (paragraphs 17-18). Regarding supersession grounds, the judge clarified that his earlier decision in MR v SSWP (PIP) [2016] UKUT 481 (AAC) was not authority that supersession was only possible for change of circumstances (paragraph 18). One ground for supersession is receipt of new medical evidence by the Secretary of State. But (regarding the issue of what the claimant's actual entitlement is) the judge also pointed out that a new official PIP assessment report could not simply be assumed to 'trump' the first one - for example, by virtue of being more recent. The appellant was entitled to an explanation as to why his award had been terminated ahead of time (as pointed out in R(M) 1/96 and in SF v SSWP (PIP) [2016] UKUT 481 (AAC)) (paragraph 14).

Comment from CPAG

This decision is further clarification of the basic position that an ongoing award can only be changed where a supersession ground is identified, any change in entitlement is considered on the evidence and (at tribunal level at least) that change is properly explained to the claimant. For a discussion of the earlier caselaw on this subject, see 'PIP: changing an ongoing award', Bulletin 258, p6.

Summary 

The claimant was in receipt of state retirement pension, including a dependant's addition for his wife. He notified the pensions office that his wife was about to start getting her own state retirement pension. He assumed that the pensions office would be aware of the amount, and made no further disclosures. In the event, he was overpaid the dependant's addition over a period of several years. A First-tier Tribunal dismissed his appeal against the decision that the overpayment was recoverable from him, as he had failed to disclose the amount of his wife's retirement pension.

Judge Wright allowed the claimant's appeal and substituted a decision that the overpayment was not recoverable from him as he had not failed to 'disclose' the amount of his wife's retirement pension. The Secretary of State accepted that initially the claimant had fulfilled his duty to disclose to the pensions office what he had been clearly instructed to do - ie, that his wife was entitled to a retirement pension. But it was contended that the claimant had .then failed to disclose the annual uprating of the pension in the following years, and this founded the recoverability of the overpayment. Rejecting that, Judge Wright held that the concept of 'disclosure' involved telling the relevant office something that, as far as the claimant was aware, it did not already know. The amount of his wife's retirement pension, including when it was uprated every year, was not something the claimant could as a matter of law 'disclose' to the pensions office (paragraphs 45-47).

The judge approved (at paragraph 48) the meaning of the word 'disclose' given in R(SB) 15/87. There it was said that, 'disclosure consists in the statement of a fact so as to reveal what the discloser knows was previously unknown to the person to whom the statement was made'. On the facts, the uprating of his wife's state pension was 'plainly known' to the pensions office. 'Just as importantly', the claimant would have known that, because his wife's pension 'was the same species' as that which he had been getting and was uprated annually (paragraph 49). The judge rejected as incorrect the approach which had been taken (by Judge Ward) in GK v SSWP [2009] UKUT 98 (AAC)), where it was held that the effect of the Court of Appeal's decision in B v Secretary of State for Work and Pensions (R(IS) 9/06) was that whether the fact was already known was no longer relevant. That was incorrect, said Judge Wright, fundamentally because R(IS) 9/06 was not concerned with the meaning of 'disclose', but rather with the concept of 'failure'. Although a claimant might 'fail' to notify or furnish information in breach of her/his duties, a resulting overpayment will only be recoverable if that amounts to a failure to 'disclose' (paragraphs 63-65).

Comment from CPAG

This decision requires careful reading and application: It is a reassertion of the relevance of whether the relevant office already knew the facts. But the judge attached significance to his finding that the claimant would himself have known that the pensions office knew the relevant facts. Further, the fact that it was annual uprating that was in issue clearly informed the judge's view that it was plain that the Secretary of State would have known about it: uprating was 'public knowledge' that would have been known even in separate offices (paragraph 53).