McGrath v Secretary of State for Work and Pensions [2012] EWHC 1042 (Admin)

Case No CO/560/2011[2012] EWHC 1042 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2012
Before
MR JUSTICE CRANSTON
Between
Sharon McGrathClaimantSecretary of State for Work and PensionsDefendant
Paul Stagg (instructed by The Public Law Project) for ClaimantJason Coppel (instructed by Office of the Solicitor to the Department for Work and Pensions) for the DefendantHearing Hearing dates: 18 April 2012
JudgmentMr Justice Cranston :Introduction
[1]In this judicial review the claimant challenges the decision of the Secretary of State for Work and Pensions to recover from her an overpayment of income support in 1996 and 1997 by way of the deduction from current payments to her of employment and support allowance. The claimant’s case is that the continued recovery of the overpayment in this way breaches her right in Article 1 of Protocol No. 1 of the European Convention on Human Rights (“ECHR” or “the Convention”) to the peaceful enjoyment of her possessions. In addition she contends that the recovery of the overpayment is both irrational in public law terms and follows from an unlawful exercise of discretion in the circumstances of her case. Over the years the overpayment in the claimant’s case has been the concern of a number of different offices, agencies and sections falling under the responsibility of the Secretary of State for Work and Pensions. For convenience I use the term “Department” to describe all of these offices, agencies and sections.

Background

[2]The claimant was born in 1958. She had been in receipt of a benefit called income support in 1996. On 14 May 1997, one of the Department’s adjudication officers decided that she had not been entitled to that benefit from 4 August 1996 because she had been in remunerative work. The adjudication officer had received evidence from the St Edmundsbury Borough Council in west Suffolk. The claimant then admitted being at a unit selling second hand furniture several days a week, five to six hours a day. She was paid ten percent on the sales she made. She also helped with house clearances and received cash from the owner of the business. In her first witness statement for these proceedings the claimant explains that she was in a relationship with this man over a number of years, which at times was volatile.[3]On 10 October 1997 the Department decided that the claimant had been overpaid income support in the sum of £4,782.85. The letter explained that she had “misrepresented the material fact that she had commenced remunerative work” and that as a consequence she was paid that amount “which would not have been paid but for the misrepresentation”. The letter set out that the overpayment was recoverable from her but if she wanted to appeal she could do so. In her first statement for these proceedings the claimant says that she was only ever paid pocket-money for what she did at the business and that the Department was given false information by the wife of the business owner.[4]The claimant wrote to the Department on 18 November 1997, including her income support order books. She explained that she was changing her address but that no other circumstances had changed. Although in that letter she said that she intended to appeal the Department’s decision to recover the overpayment she never did so. In the first statement she prepared for these proceedings she says that there was so much happening in her life that she was struggling to cope and was not able to appeal.[5]The Department decided to recover the sum of £4,782.85 by way of deduction from benefit the claimant was then receiving. Deductions commenced on 24 November 1997 at the rate of £5 per week, until 16 February 1998, when she again began work and was thus no longer entitled to income support. In an undated letter, received by the Department on 3 March 1998 (“the 3 March 1998 letter”), the claimant made an offer of continued payment at the rate of £5 per week. She never made any payment pursuant to that offer. There was a letter from the Department the following day, requesting repayment of the amount. That letter does not refer to the claimant’s offer letter and was sent to another address the Department had for her.[6]The first of the so called C2 and C6 letters from the Department, requesting repayment and threatening civil proceedings, were sent on 5 May and 19 May 1998 respectively to an address in Saffron Walden. This was the address from which she wrote the 3 March 1998 letter. Further deductions were made when the claimant once more claimed a prescribed benefit, jobseeker’s allowance, between December 1998 and February 1999. C2 and C6 letters were sent on 9 and 23 April 1999 to another address the claimant had given to the Department when claiming benefit, at Castle Camps, Cambridgeshire. The third set of letters was sent on 9 and 23 May 2001. The address held by the Department at the time was in Haverhill which, according to the claimant’s evidence, was where she stayed with her eldest daughter. The claimant does not recall having received any of the Department’s letters. The letters were not returned to the Department as, for example, “not known at this address”. There is no doubt that during this period she was leading a rather itinerant existence.[7]On the claimant’s behalf it is accepted that she must have received at least one of those May 2001 letters, because on 4 June 2001 she telephoned the Department asking for a copy of the original notification of overpayment. This was sent out to her on the same day. She did not make any payment. After this the Department’s contact with the claimant somewhat fizzles. Her recollection is that she hoped and assumed that the Department had decided to write off the debt. In 2004 she moved to Wales and has lived there ever since. She was in employment for most of the period between January 2002 until 2009. It seems that the Department held the claimant’s Haverhill address until March 2005 and was then aware of at least some of her addresses in Wales. The Department referred her case for enforcement by private sector contractors in April 2004 and February 2006, but without success. There is no evidence about what they did to recover the overpayment.[8]In early 2010 the claimant claimed employment and support allowance, which is a benefit for those unable to work because of illness or disability. This prompted a decision by the Department to seek to recover the 1996-1997 overpayment by way of deductions from that benefit. At the claimant’s request, deductions were suspended for three months from 31 March 2010 and then subsequently for six months in October 2010. Meanwhile the Cardigan and District Citizen’s Advice Bureau (“the Cardigan CAB”) had taken up the claimant’s case. One of its case-workers wrote to the Department on 26 August 2010 requesting that it waive recovery of the overpayment because of the lapse of time since the overpayment, its failure to pursue matters, the severe financial hardship recovery would cause and the claimant’s health problems. A letter from the claimant’s GP was enclosed, written to “help [the claimant] in her claim for her benefits”. It referred, amongst other things, to her “anxiety depression issues”.[9]The Department refused to abandon or waive the claim for recovery. In a letter of 7 September 2010 it explained that it would abandon a claim to more than £300 due to recovery having broken down if twenty years had elapsed and no recovery had taken place. That was not the claimant’s position. As regards the waiver of the overpayment, this was refused on 7 October 2010.[10]The Public Law Project sent a letter of claim on 6 January 2011. The Defendant responded on 14 January. Later that month the Department wrote to the Cardigan CAB that it had re-examined the case for waiver but would not change the previous decision. The claimant’s current financial hardship was met by the suspension. The medical evidence was insufficient and did not indicate that the claimant’s health would not improve. The claim form was then lodged. Although delay was raised in the Acknowledgment of Service Collins J, when granting permission, stated that he would extend time if necessary. Delay in lodging the claim is no longer an issue in this case.

The legislative and policy framework

[11]It is generally a condition of entitlement to benefit that a claimant makes a claim for it: section 1 of the Social Security Administration Act 1992 (“the 1992 Act”). It is for the Secretary of State to make a decision on a claim for benefit under section 8 of the Social Security Act 1998 (“the 1998 Act”). Such a decision can be altered by being revised or superseded under sections 9 and 10 of the 1998 Act or on appeal pursuant to section 12. Otherwise, decisions are final: section 17. Generally, an award of benefit is made for an indefinite period: regulation 17(1) of the Social Security (Claims and Payments) Regulations 1987, 1987 SI No 1968 (“the 1987 Regulations”). Under regulation 20 of the 1987 Regulations there is an obligation to make payment “in accordance with an award”.[12]Under section 71 of the 1992 Act an overpayment of benefit may be recovered. The section provides for recovery from a person who has misrepresented or failed to disclose a material fact: s. 71(1), (3). There are various methods of recovery of overpaid benefit. By section 71(8), where an overpayment is recoverable under section 71(1) “…. it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.” Under regulation 15(1) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988, 1988 SI No 664 (“the 1988 Regulations”), “any amount …. recoverable” under section 71 may be recovered by making deductions from a claimant’s ongoing entitlement to the benefits listed in regulation 15(2). Employment and support allowance is one such benefit: regulation 15(2)(d). Regulation 16 provides for a maximum rate of deduction from benefit when recovering an overpayment, which is some 15 percent of the basic amount of the benefit. Other methods of recovery under section 71 include recovery by execution issued by a County Court: subsection (10)(a). Any method for recovery of a debt may also be utilised, including proceedings in a County Court, proving in a claimant’s bankruptcy or making a claim against the estate of a deceased claimant.[13]Section 108 of the Welfare Reform Act 2012 (“the 2012 Act”) amends the Limitation 1980 Act to place beyond doubt that the six year time limit contained there for any ‘action’ to recover a sum recoverable by virtue of an enactment in England and Wales does not apply to the methods of recovering overpaid benefit specified there. These include recovery by way of deduction from benefit but not recovery by proceedings in a court of law: s. 108(3). The section came into force on 8 March 2012 with retrospective effect: see ss. 108(4) and 150(1)(c) of the 2012 Act.[14]For the purposes of these proceedings there is a witness statement by Andrew Milner, of the Department’s Debt Management Operations Policy Unit. He explains the significance to the Department of the recovery of overpaid benefit. Very large amounts of public money are at stake. He also sets out the different routes utilised by the Department to recover overpayments, including the 1988 Regulations and proceedings in the civil courts. He notes that the Department has never had sufficient resources to pursue all those who have been overpaid and who are not currently in receipt of benefits. Consequently, the Department has had to rely upon private sector contractors and the possibility of deductions from the future payment of benefit.[15]As to the Department’s policy on waiving recovery of overpayment, Mr Milner says that this is based on an HM Treasury guidance entitled “Managing Public Money”. There are two elements to the policy, abandonment, which is a decision to cease recovery on the ground of cost-effectiveness, and waiver, which is a decision to waive recovery on the grounds that it would be detrimental to the health and welfare of the person or their family or would otherwise not be judicious or in the public interest. With that guidance in mind the Department has formulated a policy, “Overpayment Recovery Guide”. Under the current, August 2009, version of that guide, recovery may be abandoned where the Department is unable to effect it, the outstanding balance is over £300 and at least 20 years have elapsed since the last effective recovery. In any case where a debtor is in receipt of a prescribed benefit that provision does not apply since the Department is able to effect recovery, from deductions of benefit. As for waiver, this can be done on the grounds that recovery would be detrimental to the health or welfare of a person or their family, or that it is not judicious or in the public interest.

Article 1, Protocol 1 ECHR

[16]In these proceedings the claimant does not challenge the decision that the overpayment of benefit to her is recoverable. Rather she challenges the prospect of ongoing recovery by deductions from her benefit. Her main ground is that continued recovery in this way is a breach of her right to peaceful enjoyment of her possessions under Article 1 of the First Protocol to the Convention. It provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
The claimant contends that on the facts of this case that Article is engaged and that it has been breached.[17]Whether Article 1 of the First Protocol is engaged turns on the application of existing jurisprudence. B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, [2005] 1 WLR 3796 concerned the recoverability of benefit from a woman with learning difficulties, who was overpaid because she had not informed the Department that she no longer had the care of her children. A tribunal of social security commissioners had held that recovery was lawful. Before the Court of Appeal the issue was whether she had “failed to disclose” the information about her children within section 71 of the 1992 Act, if she did not have the mental capacity to appreciate the need to do so. The Court of Appeal held that there was no such qualification to the meaning of “failure to disclose”.[18]One of the arguments the appellant in B raised was that the legislative provisions for recovery had to be construed compatibly with Article 14 of the Convention, read with Article 1, First Protocol. The state’s interference with the claimant’s possessions discriminated unjustifiably between those unable to report facts because they were unaware of them and those like the claimant, who were unable to report because of a disability. In giving the lead judgment Sedley LJ held that the argument fell at the first hurdle, since no possessions of the claimant were at stake. “22. I consider that the argument falls at the first fence, because it does not appear to me that any possessions of the appellant are at stake. What the Secretary of State is claiming is an entitlement to recover money which should not have been paid to the appellant in the first place. This much is not in issue. What is in issue is whether he is prevented from recovering the money because of the appellant's lack of understanding of her obligation of disclosure. Although the decision of this court in R (Carson and Reynolds) v Secretary of State for Work and Pensions[2003] 3 All ER 577, paras 47-8, to the effect that a non-contributory benefit such as income support is not a possession within the meaning of art 1P1 [First Protocol], was taken as correct by the House of Lords [2005] UKHL 37, the underlying issue of principle currently awaits the decision of the Grand Chamber in Hepple v United Kingdom, heard in March this year. But the recovery of overpaid benefits, for the reason I have given, seems to me to stand outside this question and by parity of reasoning outside art 1P1 [First Protocol].” Buxton LJ agreed. In relation to the Article 14 argument he held that Article 1 of the First Protocol did not bite since the claimant’s current assets, out of which the Department was seeking to recover, had to be regarded as being subject to the debt owing to it for the overpayment: [52]-[53]. Sir Martin Nourse agreed with both judgments: [45].[19]For the present claimant Mr Stagg submits that the decision of the Court of Appeal in Bis no longer good law. First, the analysis of Buxton LJ cannot stand in the light of the decision of the Supreme Court in R (Cooper) v Secretary of State for Work and Pensions [2011] UKSC 60, [2012] 2 WLR 1. Buxton LJ’s analysis is effectively the same as the net entitlement principle, relied on by the Secretary of State in Cooper, but rejected by the Supreme Court. Furthermore, the Strasbourg court has recently handed down its decision on the application of the claimant in B: B v United Kingdom [2012] ECHR 36571/06; The Times, 6 April 2012. There the Strasbourg court stated that the award of benefit from which deductions were being made was indeed a possession for the purposes of Article 1, First Protocol ECHR [41].[20]R (Cooper) v Secretary of State for Work and Pensions was concerned with the question of whether the deduction from benefit to recover an overpayment, or a Social Fund loan, constituted a “remedy in respect of the debt” within section 251G(2)(a) of the Insolvency Act 1986. If it was it could not be enforced during the moratorium period of a debt relief order. The case for the Secretary of State rested on the proposition that an overpayment was to be regarded as an advance payment of benefit so that a claimant was only entitled to the net amount. Since the overpayment could properly be deducted no “remedy” was being exercised in respect of the overpayment. The Supreme Court rejected the net entitlement principle: [21]. If a claimant was obliged to repay overpaid benefit that liability arose independently of the person’s entitlement to any benefit from which the Secretary of State might later choose to recover. The Supreme Court went on to hold that the power to recover the overpayment by deduction from benefit was a remedy in respect of a debt. Thus the Secretary of State lost the power to recover it on the making of a debt relief order (as with a bankruptcy order).[21]In my view none of this throws any light on the application of B in this case. B was cited in R (Cooper) v Secretary of State for Work and Pensions but there was no discussion of it or of the Convention right to the peaceful enjoyment of possessions. Whatever view might now be taken of Buxton LJ’s analysis in B, Sedley LJ (with whom Sir Martin Nourse agreed) was clear that, for reasons unconnected with any net entitlement principle, the recovery of overpaid benefit stands outside Article 1, Protocol 1.[22]As to B v United Kingdom, the Strasbourg Court held that the applicant did not have an assertable right to overpaid benefit so it was not a possession within Article 1, Protocol 1. It distinguished the decision in Moskal v Poland (2009) 50 EHRR 22, to which I return, since there the relevant mistake was that of the Polish authorities. In B’s case the overpayment of benefit was the result of her own failure to report the fact that her children had been taken into care. Where a benefit system relies on recipients to report any change in their circumstances, it would be perverse if they could acquire an assertable right to overpaid benefit: [39]. However, as regards deductions from ongoing benefit payment the Strasbourg Court differed from the finding of the Court of Appeal: the reduction of the award of future benefit to which the applicant was entitled, albeit to recover overpaid benefit, could be said to be an interference with a possession for the purposes of Article 1, Protocol No 1 of the Convention: [41].[23]In his attractively put submissions Mr Stagg invites me to follow the approach of the Strasbourg Court, rather than that of the Court of Appeal, and to find that the claimant’s Convention right to the peaceful enjoyment of her possessions is engaged by the Department’s decision that it will recover the 1996-1997 overpayment from the current award to her of employment and support allowance. He analogised from certain passages in R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1951] KB 711, 724, where the Divisional Court held that its duty was to follow a decision of the House of Lords, rather than a decision of the Court of Appeal, when the latter was inconsistent with an earlier decision of the House which had not been cited to it.[24]I must resist the temptation to judicial adventurism which Mr Stagg dangles before me. Our system of stare decisis makes clear that it is for the Court of Appeal or the Supreme Court to rule that the Court of Appeal’s decision in B should not be followed. R v Northumberland Compensation Appeal Tribunal ex parte Shaw is no authority for the High Court to adopt a Strasbourg decision in preference to binding authority of the Court of Appeal. The words of Lord Hailsham in Broome v Cassell & Co Ltd [1972] AC 1027, emphasising the necessity of each lower tier of court to accept loyally the decisions of the higher courts, are well known: at 1054E. Lord Neuberger made the same point more recently, in considering what the Court of Appeal should do when faced with a decision of the House of Lords (and now of course the Supreme Court) which may be, or even is clearly, inconsistent with a subsequent decision of the Strasbourg Court: R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; [2009] 1 AC 311, [64]. That B in the Court of Appeal is inconsistent with B in the Strasbourg Court (or for that matter with R (Cooper) v Secretary of State in the House of Lords) is not a matter for me. In setting its vertical and horizontal constraints our system of stare decisis contributes to the stability of our law and curbs judicial legislation.[25]If contrary to what I have held Article 1 of the First Protocol of the Convention is engaged, the issue becomes whether the imposition of deductions from the award of the claimant’s employment and support allowance is justified within its terms. Plainly the deductions would be a deprivation of part of the award within the meaning of the Article. The legislation authorises such deductions so that the requirement of “conditions provided for by law” is satisfied. Recovery of overpaid benefit is “in the public interest”, for the reasons set out in Mr Milner’s witness statement. However, a deprivation of possessions must also be justified as being, in the circumstances, proportionate. In other words has a fair balance been struck between the public interest and the individuals rights? The spectacles through which an assessment of proportionality is made in this context, an area of social policy, allow a wide margin to the decisions of both the legislature and the executive: Humphreys v Revenue and Customs Commissioners [2010] EWCA Civ 56; [2010] FCR 630, [48]-[49].[26]One of the factors in determining whether a fair balance has been struck is the impact of the deprivation on the person. A deprivation will be disproportionate where the person whose peaceful enjoyment of possessions is interfered with has to bear a “disproportionate burden”: Moskal v Poland (2009) 50 EHRR 22, [64]. That approach is applicable to the recovery of benefit overpayment, as explained in B v United Kingdom [2012] ECHR 36571/06, [60]; The Times, 6 April 2012. The Strasbourg Court said this:
“61. In the present case the Secretary of State took a number of steps to ensure that the applicant was not required to bear an excessive burden. In particular, the Court observes that she was not required to pay interest on the overpaid sums, there was a statutory limit on the amount that could be deducted each month from her award of income support, and the amount to be repaid was in fact reduced to reflect the fact that during the material time she was entitled to, but had not been in receipt of, a disability allowance. Indeed, the Court observes that it would have been open to the applicant to request that the Secretary of State waive his right to recover the overpaid benefit if there was evidence that recovery would be detrimental to her health or welfare. As she did not make any such request, the Court cannot accept that the recovery would have had such a detrimental impact.”
[27]For the claimant in this case Mr Stagg contends that delay and neglect on the Department’s part are important factors in considering proportionality. If there was a long delay or negligence in the Department’s pursuit of an overpayment that could make the recovery attempt disproportionate. He cited Moskal v Poland (2009) 50 EHRR 22. That was a case where the applicant had been awarded an early retirement pension enabling her to provide full time care to her disabled child. She consequently resigned from full time employment. Ten months later the pension was withdrawn because, it was said, the medical evidence about her son did not support the need for his full time care. Although she did not have to return the benefit she had received, for some three years she was without a pension or income. The depressed state of the economy in her region meant that she could not get a job. Eventually another type of pension was awarded, albeit lower in amount, and she was given a lump sum to cover some of what she had lost in the meanwhile.[28]In considering proportionality in the context of Article 1, First Protocol, the Strasbourg Court said that good governance required that, where an issue in the general interest was at stake, it was incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency: [51]. Delay in her case had produced significant effects, a lack of income for several years: [68],[71],[74]. In the context of property rights is was desirable that public authorities act with the utmost scrupulousness, in particular when dealing with matters of vital importance to individuals such as welfare benefits. In the instant case, the Court considered that having discovered their mistake the authorities failed in their duty to act in good time and in an appropriate and consistent manner: [72] The court added this: “73. If a mistake has been caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive”.[29]In this case the claimant contents that the deductions from her current employment and support allowance are disproportionate because of the very significant effects for her. There is the medical evidence from the GP, that she has anxiety/depression issues, which in her witness statement she explains are exacerbated by the concern at having to repay the Department. The loss of some 15 percent of her income now would amount to a severe depletion of her available income. She worked for most of the period between 2001 and 2009 and would have had greater resources with which to repay the overpayment if recovery had been sought. Instead, she heard nothing from the Department until she made a claim for benefit, despite the fact that it appears to have had a current address for her during that period. Mr Stagg characterised this as neglect or negligence by the Department in implementing recovery. In all the circumstances this was an example of a case where the combination of the effect of recovery on the claimant, the gross delay and the negligence of the Department make ongoing recovery disproportionate.[30]In considering proportionality it is necessary to return to the beginning of the claimant’s case. It will be recalled that the Secretary of State decided on 10 October 1997 that the overpayment of what was a not insignificant sum should be recovered. Although she may have intended to, the claimant did not appeal that decision, in other words, that she was overpaid income support as a result of her own misrepresentation or failure to disclose information about her work in the second hand furniture business. In the 3 March 1998 letter, after she had come off benefit, the claimant accepted responsibility for overpayment and offered to repay at a rate of £5 a week. However, she never made any payment. In June 2001 she requested a copy of the repayment letter, prompted it seems by the receipt of one of the C2 or C6 letters. She was working from the early 2000s to 2010, when she could have made some effort to pay.[31]In a recent, and most emphatic legislative statement, Parliament has made clear that there is no time bar applicable to the recovery of overpaid benefit by way of deduction from the benefit a claimant receives. That policy accords with the setting of a maximum rate for deductions, which means that they may have to continue over many years for recovery to be made. Steps have been taken in this regard with the claimant by deduction from her benefit during the limited periods in which she claimed. The 1988 Regulations provide for a maximum rate of deduction from benefit when the Department recovers an overpayment. When the claimant complained about deductions from her current benefit, these were initially suspended for a three month period. A further challenge to the deductions, with the Cardigan CAB citing financial and health difficulties, led to the Department suspending recovery for a further six months.[32]Mr Milner has set out the reasons that the Department can not pursue rigorously all who have received an overpayment of benefit. Even if there were grounds for criticism of the Department in this case the evidence does not lead me to conclude that it has been negligent. Since the late 1990s the claimant has moved around a great deal. The Department sent three sets of repayment demands 1999 to 2001. Although it is certainly not conclusive none was returned to the Department “address unknown”. The claimant says now that she does not recall receiving them, accepting at the same time that her recollection of events during the years in question is hazy. It seems very likely that she received at least one. I do not accept that there has been the delay on the part of the Department which was found disproportionate in Moskal v Poland (2009) 50 EHRR 22. There was a need for prompt action in that case because the applicant had resigned from her employment on the strength of a decision to award her the early retirement pension, for understandable reasons she faced great difficulties in finding further employment, and so she was left in the position of having no income for three years. That is not the claimant’s case. In my view the decision to continue recovery from the claimant in all the circumstances cannot be said to be disproportionate having regard to the wide margin of discretion which applies.

Irrationality

[33]Recovery of benefit under section 71 of the 1992 Act is discretionary. An exercise of discretion which is disproportionate is indicative of administrative action which is Wednesbury unreasonable: see R (Isle of Anglesey CC) v Secretary of State for Work and Pensions [2003] EWHC 2518 (Admin), [2004] LGR 614, [25]. The claimant refers to the disquiet Newman J felt in R (Larusai) v Secretary of State for Work and Pensions [2003] EWHC 371 (Admin), [38] because in that case it would take eight years to recover an overpayment of benefit, even though recovery action had been instituted promptly. However, since the claim of a lack of proportionality, based on Wednesbury unreasonableness, relies upon the same factors as the Article 1, First Protocol claim, it cannot in my view succeed.

Unlawful Exercise of Discretion

[34]The claimant’s contention is that the exercise of the Department’s discretion in this case is unlawful for two reasons. First, there has been a fettering of its discretion. Recovery will only be abandoned for a debt of over £300 if twenty years had elapsed since the last recovery of any amount. The policy amounts to an unjustified fettering of the discretion to consider the effects on a claimant and delays in enforcement. In my view there is nothing wrong with having a policy for abandonment of recovery which applies only where recovery cannot be effected, and therefore does not apply where deduction from benefit can be made and are in progress. The limits of that policy do not fetter the Department’s more general discretion to waive recovery on wider grounds such as ill-health.[35]The claimant then submits that the decisions to refuse a waiver are flawed. In particular they were taken without regard to the gross delay that had occurred. That was a relevant factor to be considered by the Department. The failure to consider it vitiates the decision. In fact delay had been relied upon by the Cardigan CAB and the Public Law Project as a factor in favour of waiver. Not only was it taken into account but, as I have concluded, it is simply not accurate to characterise what has occurred in the claimant’s case as gross delay. The Department considered the claimant’s medical evidence, but discounted it for rational reasons: the GP’s letters were so she could qualify for employment and support allowance. The claimant’s other reasons were addressed. The decisions not to waive recovery cannot be said to reach the high hurdle of legal irrationality.

Conclusion

[36]I can well understand the anxiety which those in the claimant’s position may feel when confronted by the prospect of having to repay a not insignificant sum of overpaid benefit. Fifteen percent of a very low income means an enormous amount to someone trying to survive. However, there is no legal impediment in my view to recovery in the claimant’s case. The Department agreed to suspend deductions in 2010. There is nothing to prevent the claimant from seeking a continuation of that or to negotiate a lower level of repayment than the statutory maximum of 15 percent of benefit once the current suspension of repayment comes to an end. I dismiss the claim.

Cited in 1 later judgment