WH v Secretary of State for Work and Pensions [2009] UKUT 132 (AAC)

UKUT-AAC
WH v Secretary of State for Work and Pensions
[2009] UKUT 132 (AAC) · 2009-07-10
[1]DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant. The decision of the Bristol First-tier Tribunal dated 23 January 2009 under file reference 186/08/01910 does not involve an error on a point of law. This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007. REASONS FOR DECISION The decision in summary The appellant's appeal to the Upper Tribunal is dismissed. The decision of the Bristol First-tier Tribunal dated 23 January 2009 under file reference 186/08/01910 does not involve any error of law. The Bristol tribunal's decision therefore stands. The issue at the heart of this appeal[2]The issue at the heart of this appeal is whether the appellant is liable for an overpayment of carer's allowance in the sum of £3,696.85 in respect of the period from 20 November 2006 to 16 March 2008. The Bristol First-tier Tribunal decided that she was so liable on the basis that she had failed to disclose to the relevant office that she had started work and that her wages exceeded the allowable earnings limit for carer's allowance. The background to the appeal[3]The appellant was first awarded carer's allowance (then known as invalid care allowance, or ICA) in respect of her son, who is profoundly deaf, in 1991. He was born in 1990 and is her youngest child. In the course of 2006 – the year in which her son turned 16 – she had various discussions with a Jobcentre Lone Parent Adviser about leaving income support and returning to work. The Adviser carried out an "In Work Benefit Calculation" for her which suggested that she would be financially better off in employment, working 20 hours a week.[4]The appellant started work on 1 November 2006. A few days beforehand, she informed the Jobcentre Lone Parent Adviser at her local office of her intention to do so. The Department's case, put shortly, is that she did not, either at the same time or shortly thereafter, notify the Carer's Allowance Unit in Preston both about her starting work and about her earnings.[5]In March 2008, nearly 18 months later, the Carer's Allowance Unit sent the appellant a standard review form. It asked if there had been any changes since February 2006 (the date of the last review). She replied (correctly) that she had started part-time work on 1 November 2006. The appellant then completed a further questionnaire which indicated that her part-time earnings were above the weekly earnings limits for carer's allowance (£84 a week for the 2006/07 year and £87 a week for the 2007/08 year).[6]A decision maker concluded on 12 May 2008 that the appellant was not entitled to carer's allowance for the period from 13 November 2006 to 4 May 2008 and so there had been an overpayment of £4,101.20. Part of this was not recoverable, but the decision maker initially ruled that £3,753.05 of the overpaid carer's allowance was recoverable. This was because the appellant had not disclosed that her earnings exceeded the weekly limits. This decision was confirmed on 22 May 2008 and notified the day after, with a slight modification to reduce the amount of the recoverable overpayment to £3,696.85 (for the period from 20 November 2006 to 16 March 2008).[7]The appellant appealed, explaining the circumstances of the interviews with the Lone Parent Adviser and adding that she had also telephoned the Preston office in March 2006 (agreed to be a misprint for March 2007, and in fact April 2007) on receipt of a standard review letter (known as a DS849). She added in her letter that "after reading all the pages I was unsure as to whether I should still be receiving this allowance. I rang the number at the top of my letter on 23 rd April and told them that I had started work, but was informed by an advisor that if I was receiving the benefit then I was entitled to it".[8]The Carer's Allowance Unit appeals officer then had a telephone conversation with the appellant about the contents of her letter. The appeals officer advised her that as regards the April 2007 telephone call "the response she was given would have depended on the information she had provided". The appeals officer then obtained copies of the record of the Jobcentre interviews. This record confirmed that the appellant had informed the Jobcentre adviser on 23 October 2006 of her intention to accept the offer of employment she had received. The Bristol First-tier Tribunal[9]The Bristol First-tier Tribunal, a tribunal judge sitting alone, heard the appellant's appeal on 23 January 2009. The judge made a very full and careful note of the evidence in his Record of Proceedings. This summarised the evidence about the meetings with the Jobcentre adviser prior to starting work. The Record of Proceedings then continued:
"I did not have any contact with the Carer's Allowance Section. I did not think that I had to so far as I was concerned I thought the Lone Parent Adviser had taken care of everything. She did all the calculations on her computer and I signed a load of forms. I did make a phone call to the Carers' Unit. I had a general letter from the Carers' Section which said something about earnings so I rang the customer service number shown on the letter. [Letter produced dated 23 3 2007 indorsed with a note "rang 23.4 said OK".] I rang up they asked for the reference no. I said that I was getting Carer's Allowance and was unsure whether I was entitled and her reply was that if I was getting it I must be entitled to it. I suppose that I should have asked them to double check. I guess that I thought that I should be receiving it. I cannot remember but I do not think that the person I spoke to asked for any details of my circumstances once I had given her reference number etc she did not I think ask anything else."
[10]The tribunal judge's note also recorded that the appellant did not think that her earnings would affect her Carer's Allowance and that she also thought that she would remain entitled to that benefit as long as she was caring for her son (which she evidently was).[11]The First-tier Tribunal's decision was to disallow the appeal and to confirm the Secretary of State's decision dated 23 May 2008 (actually the date of notification of the decision). The tribunal judge later issued a Statement of Reasons. This set out the chronology of events clearly and found as a fact that the appellant had told the Jobcentre adviser at the time about taking up the job but that there was nothing to indicate that the adviser had agreed in turn to notify the Carer's Allowance Unit of that fact. The Statement of Reasons continued (at paragraph 10):
"The Appellant did not notify the Carer's Allowance Unit that she had started work. Her reasons for not doing so are ambivalent, firstly she said that she did not think that she had to because she continued to care for her son and secondly she did not think that her earnings would affect her entitlement. If she was correct on the first point then, of course, the second point would not arise."
[12]The Statement of Reasons also dealt with the telephone call to the Carer's Allowance Unit in April 2007, some six months after the appellant had started work. The tribunal found that "that appears to have been a very cursory phone call and I would have expected the Appellant to be more persistent and to have pointed out forcefully that she was now working" (paragraph 12). The tribunal concluded that "the telephone call of the 24 th April 2007 was not a telephone call to disclose the fact that she was working" (paragraph 13).[13]The Statement of Reasons furthermore found as a fact that the appellant had been sent the standard explanatory notes that apply to carer's allowance which includes the requirement to inform the Carer's Allowance Unit if the claimant starts work (or indeed her earnings go up). By inference, therefore, the tribunal found that the unqualified duty to provide relevant information under regulation 32(1) and (1A) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) applied. This left no scope for any argument about whether the person concerned "might reasonably be expected to know" that a change of circumstances would affect continued benefit entitlement (with regard to the alternative and conditional duty under regulation 32(1B)). The grounds of appeal to the Upper Tribunal[14]The appellant's representative sets out two grounds of appeal. The first is that the tribunal judge's expectation that the appellant should have been "more persistent and to have pointed out forcefully that she was now working" imposed an unfair and additional test on the appellant, over and above what was required under the legislation. It is also said that the tribunal failed to give adequate reasons for its decision in not making findings of fact about the details of that call. The second ground of appeal is that the DWP officer taking the call should have processed the information correctly.[15]Mr B A Wilson, who now acts as the Secretary of State's representative, does not support this appeal. In summary his view is that the tribunal made sufficient findings of fact, was entitled to make those findings on the evidence before it and both applied the substantive law correctly and gave adequate reasons for its decision. Why the tribunal did not err in law The issues[16]There was no dispute in this case about either the fact that there had been an overpayment of carer's allowance or its calculation. Essentially the sole issue for the tribunal was this question: had the appellant failed to disclose the material facts that(a) she was working and(b) her weekly earnings exceeded the relevant limits for carer's allowance? If she had so failed to disclose, then in principle the overpayment was recoverable from her. If not, then by law it was not recoverable.[17]The tribunal correctly identified the two possible occasions on which there may have been a relevant disclosure of a material fact: the first was in the course of the various discussions with the Jobcentre adviser, the second being the telephone call of 24 April 2007 to the Carer's Allowance Unit. The October 2006 discussions with the Lone Parent Adviser[18]So far as the former is concerned, the tribunal found that the appellant's notification to the Lone Parent Adviser in October 2006 that she was about to start work did not amount to a disclosure to the Carer's Allowance Unit. This was partly based on the finding of fact that there was no evidence that the adviser had undertaken to inform the Carer's Allowance Unit. It was also based on the application of the legal principle confirmed in the House of Lords' decision in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 , namely that as a general rule any disclosure must be made to the relevant departmental office responsible for paying the benefit in question, and not simply to any office of the Department.[19]The appellant's representative rightly makes no criticism of the tribunal's conclusions on this point. Indeed, the tribunal might have added in any event that although the appellant informed the Jobcentre adviser of the material fact that she was about to start work, she did not appear to inform her adviser of the further material fact as to the actual amount of her earnings (although clearly there had been some discussion of the projected level of earnings as part of the In Work Benefit Calculation). Moreover, there has been no suggestion that the appellant informed the adviser of the actual amount of her gross or net earnings following receipt of her first payslip. The April 2007 telephone call to the Carer's Allowance Unit[20]The appellant's letter of appeal suggested that she had telephoned the Carer's Allowance Unit in April 2007 "and told them that I had started work". If correct, this might suggest that there had been an effective disclosure at that time (subject to the difference between the fact of working and the amount of earnings). If so, this would mean in turn that the overpayment from November 2006 to April 2007 would have been recoverable, but the further overpayment after the telephone call had been made might not have been recoverable.

(i) The applicable law

[21]It is axiomatic that there can only be a failure to disclose under section 71 of the Social Security Administration Act 1992 if there is a duty to disclose (see B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 , also reported as R(IS) 9/06). On this matter the tribunal had found that the unqualified duty to disclose laid down in the first limb of regulation 32 of the 1987 Regulations applied, given the appellant's receipt of the standard explanatory notes. There was also no dispute that the appellant herself knew the relevant material facts, namely about both starting work and the amounts of her weekly earnings. As a matter of law it is irrelevant in this context whether or not the claimant understood that those facts were material.[22]The question of what actually constitutes a "failure to disclose" in the context of section 71 of the Social Security Administration Act 1992 has been considered most recently by Judge Ward in GK v Secretary of State for Work and Pensions [2009] UKUT 98 (AAC) . The particular issue which arose there – where a claimant had omitted to disclose a material fact to one part of his local office, although that fact came to be known by another section of that office – does not arise in the present case. However, Judge Ward rightly observes (at paragraph 29) that the standard definition of disclosure for social security purposes is to be found in the decision of the Tribunal of Social Security Commissioners in R(SB)15/87 (in turn at paragraph 25):
"Disclosure consists in the statement of a fact so as to reveal that which so far as the discloser knows was previously unknown to the person to whom the statement was made."
[23]Judge Ward observes that this proposition was in turn based on an Australian decision, Foster v Federal Commissioner of Taxation (1951) 82 CLR 606, where Latham CJ said (at pages 614 and 615):
"In my opinion it is not possible, according to the ordinary use of language, to "disclose" to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware. There is a difference between "disclosing" a fact and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made. Thus…the failure of the [plaintiff] to repeat to the Commissioner what he already knew did not constitute a failure to disclose material facts."
[24]As Judge Ward notes, those definitions both presuppose that the notion of disclosure involves the discloser telling the person to whom the disclosure is made something which so far as the discloser is aware that other person did not know. On the particular facts of GK v Secretary of State for Work and Pensions , the relevant information was known to the local office (although not effectively transmitted within it), but the claimant himself in that case was unaware that the local office had been so informed. The meaning of "to disclose", and a corresponding "failure to disclose", as explained in R(SB)15/87 and Foster v Federal Commissioner of Taxation was such as to enable the learned judge to reject an argument that there had been no failure to disclose on the facts of GK v Secretary of State for Work and Pensions .[25]I note that elsewhere in his judgment (at paragraph 23) Judge Ward reaches the conclusion that the assertion by the Tribunal of Commissioners in CG/5631/1999 (at paragraph 5) that it is "well established that there can be no failure to disclose something which is already known to the person to whom disclosure might otherwise be owed" cannot stand in the light of the decision of the Court of Appeal in B v Secretary of State for Work and Pensions . Clearly CG/5631/1999 needs to be read in the light of the new post- B orthodoxy that it is not section 71 itself, but regulation 32 of the 1987 Regulations, which imposes the duty to disclose. However, it may be that the Tribunal of Commissioners' observation in CG/5631/1999 was as much directed to the fundamental meaning of "disclose" as set out in R(SB)15/87 and Foster v Federal Commissioner of Taxation as to the source of the duty to disclose.[26]Be that as it may, there is also authority to the effect that a statement must be sufficiently clear in terms of its content to amount to a disclosure properly so-called (see e.g. CSB/1288/1985 at paragraph 5). In the present case the tribunal's finding that there had been no disclosure in the course of the "very cursory phone call" in April 2007 was an entirely justifiable finding on the basis of the evidence before it.[27]The appellant's representative places great weight on the tribunal judge's further observation that he "would have expected the Appellant to be more persistent and to have pointed out forcefully that she was now working". I regard this as no more than a statement of opinion. The tribunal judge was trying to point out that a "disclosure" means just that, that a matter is disclosed or revealed to the other party. The tribunal was not imposing some form of additional, subjective and more onerous test which the appellant had to satisfy. The tribunal applied the correct legal principles in determining whether there had been a disclosure of the material fact.[28]The Secretary of State's representative argues in his written submission that "To count as a disclosure, a communication must be effective. It is not enough merely to state a fact in the presence of a representative of the Secretary of State. Enough must be done to ensure that the Secretary of State has registered and understood what is being said." The appellant's representative takes issue with that analysis.[29]There is clearly a strong case for arguing, as Mr Wilson does, that "to disclose" means more than merely "to state a fact in the presence of a representative of the Secretary of State". This is supported by Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 and R(SB) 15/87, referred to above. Other case law from other contexts confirms that the ordinary meaning of "to disclose" is "to expose to view, make known or reveal" ( Attorney-General v Associated Newspapers Ltd [1994] 2 AC 238 at 255 per Lord Lowry) or "to bring to light or reveal something of which the third party was previously unaware" ( B.C.C.I. v Price Waterhouse [1998] Ch. 84 at 102 per Laddie J.). Indeed, I note that this interpretation is also supported in the social security context by the (now sadly dated) book by Paul Stagg, Overpayments and Recovery of Social Security Benefits (1996), where the author asserts that "it is insufficient simply to 'state' the information. It is necessary to 'reveal' it to the recipient" (p.67).[30]One might, of course, envisage hypothetical but not unrealistic scenarios in which a claimant states a material fact in the course of an interview but that particular statement is drowned out by a low-flying plane, a fire-alarm bell or an intense localised thunderstorm. The case law referred to above would logically suggest that in such circumstances the onus is then on the claimant to establish that the information has indeed been heard by the interviewer, despite the interruption. However, to argue, as Mr Wilson does, that "enough must be done to ensure that the Secretary of State has registered and understood what is being said" may be putting the threshold too high, but these sorts of issues do not need to be resolved in the present appeal. (ii) The application of the relevant law by the tribunal to the facts of this case[31]The question, therefore, that the tribunal had to answer in this case was whether or not the appellant had failed to disclose to the Carer's Allowance Unit the relevant material fact (the amount of her earnings). The two material facts were obviously inter-connected, as a failure to disclose the fact of working itself would necessarily encompass a failure to disclose the amount of those earnings.[32]The tribunal made two clear findings of fact on this issue. The first was that "the Appellant did not notify the Carer's Allowance Unit that she had started work". From the way that the Statement of Reasons is constructed, this finding seems to refer primarily to the position as at November 2006. The finding is plainly justified on the evidence before the tribunal. However, this finding also carries the secondary meaning that she did not notify the Unit of that material fact (or as to her earnings) until March 2008. This takes us to the April 2007 telephone call.[33]The tribunal's second finding of fact was that "the telephone call of the 24 th April 2007 was not a telephone call to disclose the fact that she was working". It is true that the Statement of Reasons does not include specific findings as to the details of that call. However, that does not amount to an error of law. The tribunal judge's very clear and detailed entry in the Record of Proceedings about the nature of that telephone conversation fully justifies the more general composite finding that it was not an effective disclosure.[34]The tribunal's conclusion on this crucial issue is also supported by its very clear findings as to the appellant's state of mind. In particular, she assumed that as she was still caring for her disabled son then she would still be entitled to carer's allowance and she did not think that her earnings would affect her entitlement in any event. There was also evidence that the appellant considered (wrongly as it transpired) that the Lone Parent Adviser would take care of everything.[35]The tribunal's conclusion that there was no effective disclosure necessarily also disposes of the second ground of appeal, which assumes that there had, to the contrary, been a proper disclosure.[36]If there is a criticism to be made of the tribunal's decision, it is not one that assists the appellant. The Decision Notice simply dismissed the appeal and confirmed the Secretary of State's decision. It gave no further details, other than the decision's date. The Statement of Reasons referred in the chronology to the initial overpayment calculation of £3,735.05, but not explicitly to the recalculated decision, reducing it by a week, to arrive at a final figure of £3,696.85. For the avoidance of doubt the tribunal should have included both that last net figure and the relevant period of the recoverable overpayment, both on the Decision Notice and in the Statement of Reasons. To the extent that this was an error of law (see Commissioners' decisions R(SB) 9/85 and R(SB) 11/86) it was not a material error of law in the circumstances of the present case. Conclusion[37]My conclusion therefore is that the tribunal's decision discloses no material error of law. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate reasoning.[38]For the reasons explained above, the decision of the Bristol First-tier Tribunal does not involve any error of law. I must therefore dismiss the appellant's appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007. The decision of the Bristol tribunal accordingly stands.[39]It is not clear from the papers before me what if any steps have been taken to recover the overpayment in question. It is normal for recovery to be made by weekly instalments of relatively modest amounts, especially where a person is on a low income. The appellant's representative may wish to explore further the nature of the "better off" calculations conducted by the Lone Parent Adviser and the accuracy of the information provided at the time in order to see whether there are any mitigating circumstances that might be advanced. The decisions on whether to effect recovery and if so how are of course matters for the discretion of the Secretary of State and not subject to appeal to the First-tier Tribunal. Signed on the original Nicholas Wikeley on 10 July 2009 Judge of the Upper Tribunal

Cited in 1 later judgment