AR v Secretary of State for Work and Pensions (ESA) [2013] UKUT 358 (AAC)

UKUT-AAC
AR v Secretary of State for Work and Pensions (ESA)
[2013] UKUT 358 (AAC) · 2013-07-24
[1]The claimant’s appeal fails. The decision of the Newcastle tribunal given on 7 June 2012 (the tribunal) is not erroneous in point of law. Accordingly, the claimant’s appeal against its decision is dismissed.[2]As the Upper Tribunal judge noted when granting permission to appeal in this case, the adjudication history is complex. However, there is no point in my adding to that complexity and therefore I will refer only to the decision ultimately under appeal which was a revised decision made on 6 March 2012 to the effect that the claimant had been overpaid income related employment and support allowance (ESA) between 25 March 2011 and 10 November 2011. The gross overpayment was calculated at £2,156.95. Of this, the Secretary of State decided that £340.60 was not recoverable, and therefore the supersession decision as it finally stood was that because of the claimant’s misrepresentation, there had been a recoverable overpayment in the sum of £1,816.35 in respect of the period ending 29 September 2011. The fact of misrepresentation in the claim form signed on 28 March 2011 was accepted by the claimant and her representative. Accordingly, what was at issue was the overpayment between 26 August 2011 and 29 September 2011.[3]As the tribunal found, and it was not disputed on the claimant’s behalf, the original claim form contained a material misrepresentation. Where the claim form asked if there was any other income coming in, the claimant (see page 44 of the appeal bundle) indicated there was not by ticking the box containing the answer “no”. This was described by her representative as an innocent misrepresentation. Whether a misrepresentation is innocent or otherwise, section 71 of the Social Security Administration Act 1982 entitles the Secretary of State to recover benefit overpaid in consequence of the misrepresentation. The misrepresentation was the response “no” to the question of whether the claimant had other money coming in. In fact she was in receipt of working tax credits in the sum of £88.52 per week up to 5 April 2011, and thereafter in the sum of £84.53 per week. Both sums exceeded the amount of ESA to which she was entitled, that being £65.45 per week until 14 April 2011, and thereafter (because of annual uprating) £67.50 per week. As the claimant was in receipt of the income related benefit, the materiality of the misrepresentation is self‑evident.[4]In respect of the disputed period, i.e. that from 26 August 2011 onwards, the argument was that the claimant had not signed a claim form in respect of this period, which followed on from a supersession decision terminating her entitlement to ESA because she had not obtained the requisite number of points when assessed under the criteria set out in the Schedules to the ESA Regulations. Accordingly she was found not to have limited capability for work, and her entitlement to ESA ceased.[5]Although the tribunal judge struggled to identify the provision by which payment of ESA recommenced after the claimant had appealed against the disentitlement decision, it is in fact to be found in regulation 30(3) of the ESA Regulations 2008. Regulation 30 sets out the circumstances in which a claimant is treated as having limited capability for work. A person who has been found not to have limited capability for work is not entitled to an award of ESA unless regulation 30(3) applies. This provides that where a claimant has made and is pursuing an appeal against a decision which embodies a determination that the claimant does not have limited capability for work, and that appeal has not yet been determined by the First‑tier Tribunal, then that person continues to be treated as having limited capability for work. When a claimant appeals against the supersession of his or her ESA entitlement, entitlement to payment of ESA continues until the further appeal is determined. This is, of course, subject to the other conditions of entitlement continuing to be satisfied. In the claimant’s case, I understand that her appeal on ESA was ultimately successful, though this is not relevant to the issues to be determined in the present appeal.[6]The ground of appeal argued on the claimant’s behalf, which is specific to this limited part of the overpayment period, is that the claimant should not have been treated as having made a claim, because she was not required to complete a new claim form. It was argued on the claimant’s behalf that if she been required to sign a new claim form, it was quite possible that the misrepresentation would not have been repeated.[7]So the question is whether a new claim was required in these circumstances. The tribunal found one answer to this question which has been hotly contested on the claimant’s behalf. As the tribunal judge pointed out, the original claim form, that signed on 28 March 2011, contains a declaration (see page 64 of the bundle) which states:
“I also understand that the department may use the information which it has now or may get in the future to decide whether I am entitled to the benefit I am claiming [as well as] any other benefit I may claim in the future.”
The claimant’s representative argues that it was unfair for the tribunal to rely on this when the point had not been specifically put to the representative in the oral hearing. This is a very weak argument. It is true that natural justice demands that a party’s attention is drawn to contrary points to enable the party to address these, but as the tribunal judge said when refusing permission to appeal, an experienced representative is expected to be familiar with the evidence which is before the tribunal. Further, as the question is misrepresentation, the legislation does not allow much room for considerations of “fairness”. Something either is or is not a misrepresentation, and an adjournment to allow the representative to address this point would have been fruitless.[8]The point about paying benefit without a claim form being completed is one which the tribunal judge deals with in paragraph 76 of his statement of reasons, and is very fully and lucidly dealt with by the Secretary of State’s representative in her submission to the Upper Tribunal. Regulation 4 of the Social Security (Claims and Payments) Regulations 1987 provides for making a claim for benefit. Regulation 4(1) requires every claim for benefit to be made in writing on a form approved by the Secretary of State. However there are limited exceptions to this, and regulation 3 of the Claims and Payments Regulations provides for circumstances where claims are not required for entitlement to benefit. Regulation 3(j) provides that in the case of an ESA claim where: “(i) The beneficiary has made and is pursuing an appeal against a decision of the Secretary of State that embodied a determination that the beneficiary does not have limited capability for work and(ii) that appeal relates to a decision to terminate or not to award a benefit for which a claim was made.” there is no requirement for a new claim to be made. Accordingly, in a situation where the claimant was pursuing an appeal against the supersession of her ESA in these circumstances, the Secretary of State was entitled to rely on the information in the claim form of 28 March 2011 and there is no requirement for the claimant to complete a fresh claim form.[9]Accordingly, the tribunal was obliged to come to the decision it did, which is that the misrepresentation made on 28 March 2011 remained an effective cause of the overpayment for the period from 26 August 2011.[10]The claimant’s representative also raised a more general objection, and one which I feel can be dealt with summarily. This was the somewhat tired argument that there is no right to recover under section 71 unless 71(5) had been complied with. This requires the Secretary of State to revise or supersede each decision in the chain involved in the making of the decision under appeal. It has been held on many occasions by the Upper Tribunal that where the circumstances allow an inference that, whether individually detailed or not, a decision has been superseded, then an assumption that that process has taken place can be safely made. Perhaps the most authoritative exposition of this, because it is from a Tribunal of Commissioners (as Upper Tribunal judges then were) is at paragraph 76 of R(IB) 2/04:
“… a decision should be regarded as having been made under section 10 [or section 9] regardless of the form in which it may be expressed if it has the effect of termination of an existing entitlement from the date of decision … the only possible inference is that the decision maker intended to supersede [or revise] under section 10 [or section 9]. There is no other power which enables the Secretary of State to change a previous decision as from the date of the new one and it would be ... wholly unrealistic to infer that the … decision, however inadequately expressed, was made … without any reference to section 10 [or section 9].”
[11]As to matters of form, at paragraph 8 of the same decision, the Tribunal of Commissioners held:
“Although […] a person with a right of appeal against any decision [must] be given written notice of the decision, neither the Act [Social Security Act 1998] nor any regulation specifies any particular form in which decisions must be made – and a decision (as opposed to notification of a decision) is not even required to be made in writing.”
This means there is no force to the objection that in the present case the Secretary of State failed to identify the relevant chain of decisions made under sections 9 (revision) or 10 (supersession) as this does not render the supersession decision invalid and without effect.[12]The tribunal judge explained the reasons for the decision very clearly, and the tribunal’s decision in all material respects provides a clear statement of the tribunal’s findings and the relevant law. Accordingly, the claimant’s appeal must be dismissed. (Signed on the Original) A Ramsay Judge of the Upper Tribunal 24 July 2013

Cited in 1 later judgment