"There will not be a 'disclosure' of information to a person if the person is already aware of that information" (page 251, paragraph l). She then asks: "
"In Foster v Federal Commissioner of Taxation(1951) 82 CLR 606 , an Australian decision cited to us by Mr. Powell, 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"
"We respectfully agree with Latham CJ's opinion that 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."
"once disclosure had been made to a particular person there can be no question of his being under any obligation to repeat that disclosure to the same person." 9. The Commissioners next considered how the obligation to disclose to a member or members of the staff of an office of the Department handling the transaction giving rise to the expenditure is to fulfilled. They held at [28]: "
"the person upon whom the onus of disclosure is placed must be the claimant. In our judgment disclosure must be made, in connection with the claimant's own benefit, by the claimant himself or, on his behalf, by someone else. In this context we would consider that disclosure could fall within the ambit of having been made 'on behalf of the claimant’ if someone else were to give information concerning the claimant in the course of some entirely separate transaction (for example, in connection with the informant's own claim for benefit), provided that:- (a) the information was given to the relevant benefit office; (b) the claimant was aware that the information had been so given; (c) in the circumstances it was reasonable for the claimant to believe that it was unnecessary for him to take any action himself." 11. The Commissioners added: "casual or incidental disclosure by some other person (in the present case E, for example) of information regarding the claimant will not discharge the duty of disclosure."
"The practicalities of administration to which I have referred mean that such a policy would be seriously undermined by treating the person to whom disclosure must be made as the Secretary of State, as a constitutional entity, and then deeming the Secretary of State to know everything known to all officials of the Department or even, more modestly, all decisions taken in his name by officials of the Department. The Commissioners have therefore consistently rejected attempts to introduce a theoretical or constitutional dimension into the question of whether disclosure has been made for the purposes of section 71. They have accepted that the notion of a failure to disclose connotes an obligation to disclose. They have found this obligation either in regulation 32 or, by implication, in section 71 itself. But they have rejected the submission that disclosure must be to 'the Secretary of State', whatever that may involve. Instead, they have concentrated upon what the claimant has done to convey the information to the official who makes the actual decision about the amount of his benefit." 13. Turning to the question the Judge has posed, I submit that the tribunal was entitled to conclude that the conditions for a disclosure given in R(SB) 15/87 were not satisfied. Even if the appellant was aware that his daughter had claimed ESA for herself from his address, and she had mentioned him in the course of her claim, I submit it would have been open to the tribunal to dismiss this as an instance of the 'incidental disclosure' that R(SB) 15/87 requires to be disregarded. I have enclosed a copy of the section of the 2011 version of the ESA claim form in which the appellant would have been mentioned by his daughter. As far as relevant, this merely asks for the name, title and relationship to the claimant of the "head of the household."
"In this case no notification to [the claimant’s] ESA team would be generated by the fact of [his daughter] moving in to his house."
"Customer records on the ESA system (JSAPS) do not interface with another customer records when a change of circumstances is reported. Additionally, the operational instructions do not direct ESA staff administering a claim to use information received from anyone other than the customer/appointee or acting body to investigate or revise another person's award of benefit."
"Disclosure, then, must be made to the relevant official and not to the Secretary of State as an abstract entity. What assumptions can be made about what the relevant official already knows? The Commissioners have on the whole resisted arguments that the relevant official must be assumed to know, or that the claimant is entitled to assume that he knows, anything about his other benefit entitlements which cannot be described as common knowledge. It is not for the claimant to form views about what may go on behind the scenes in the Social Security or other benefit offices. His duty is to comply with the instructions in the order book." 19. In his later explanation of why the Court of Appeal was wrong to depart from these well-established principles, he added: "31. Carnwath LJ, after citing the memorandum which I have quoted about the way the benefit system is administered, said at [42]: 'I do not think that it affects the legal analysis in any way. The claimant is not concerned with the internal administrative arrangements of the department.' 32. I quite agree. The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the Department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the 'simple instruction' in the order book. It seems to me, however, that this proposition of Carnwath LJ completely undermines the reasoning of Aldous LJ, based upon what Miss Hinchy was entitled to assume about what would amount to 'maladministration', with which Camwath LJ said he agreed. For my part, I would approve the principles stated by the Commissioners in R(SB) 15/87 and CG/4494/1999. The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decisionmaker. The latter is not deemed to know anything which he did not actually know." 20. In my submission, Lord Hoffmann's statement that "
"The result is that officials administering one benefit may or may not know from internal sources about the other benefits which the claimant is receiving. Whether they do or not depends upon the departmental or inter-departmental information systems in place and the efficiency with which they operate."
“Disclosure: The disclosure made by [the claimant’s] daughter was not merely 'incidental' in the manner that Mr Spencer describes in his submission. This is because she would not have mentioned him as 'head of household' or in any way on a claim form in the in the course of making her claim, as her ESA date of claim preceded the date she moved in with the appellant as evidenced by the copy of her 2013 ESA award letter at page 43. The notification would have taken place at the date [his daughter] contacted the ESA office to notify them of her change of address and of moving into her father's property. There is no reason to believe that at that point, in order to determine the correct amount of ESA continued to be paid to her, she would not also have been asked about other members of the household just as [the claimant] himself was when he called the ESA office on 10/09/19 and an IS10 was completed. It was held in LH v SSWP (RP)[2017] UKUT 0249 (AAC) that the meaning of 'disclose' was to reveal facts previously unknown to the DWP (referring to R(SB)15/87). However, the DWP clearly already knew about the ESA it was paying to the claimant's daughter, from the same office, so the criteria for disclosure as set out at para 29 in R(SB) 15/87 appears to be satisfied in this case. In CIS/1887/2002 Commissioner Howell ruled that there can be no failure to disclose where the benefits in question are being handled by the same local office even where the benefits are being handled by different sections of that office. Further pointless disclosure was not therefore required as was held in Hinchy(2005) UKHL 16 and CSB/677/1986: "A disclosure which would be thought necessary only by a literal-minded pedant (see, for example, CSB/1246/1986) need not be made" (para 23). Phone calls: It was not open to the tribunal, based on the evidence before it, to find that [the claimant] notified the DWP in the call of 10/09/19 that his daughter had moved in on 27/02/14. The tribunal have failed to explain why the appellant would assiduously write to the Local Authority on 29/10/13 to inform them that his daughter was moving in on 11/11/13 but then apparently go on to provide a completely different date (including both month and year) to the ESA office in the call of the 10/09/19. In his submission Mr Spencer has noted that both the Mandatory Reconsideration notice and page F, para 4, of the appeal submission also make reference to this call and the fact that an IS1O form was completed with the appellant over the phone that day. However, a copy of this completed IS10 form, which may have provided further information about the precise terms of the call, was never submitted to the tribunal despite the Secretary of State's obligations under Rule 24(4) [of] theTribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 . It should also be noted that the wording of the instruction to the DWP visiting officer (page 65) states the 27/02/14 as being the "date confirmed by customer and noted in CIS". The word 'confirmed' rather than 'informed' or 'notified' would seem to connote that the ESA office were already aware of [his daughter] living at his property as it had been noted in CIS and the date was only confirmed with [the claimant] in the call of 10/09/19. Communications: The colleague who has been described by Mr Spencer as someone with "expert knowledge of DWP's ESA procedures" has herself asked in the email he has supplied, dated 05/08/21, “whether information obtained from a third party/family member should be used to review an award of benefit or whether there is a reason as to why this has never been included in the Ol's". If the fact that this doesn't currently happen is being questioned internally by an officer of the DWP, someone described as an expert, then it is surely reasonable for the layperson to assume that such channels of communication may in fact exist. I submit that this rather undermines Mr Spencer's submission that such a belief would be unreasonable or baseless. The legal principles in the Northern Ireland decision of SK v Dept for Communities (ESA) C9/20-21 should be followed in Great Britain. Failure of ESA40 to be issued: I submit that a duty to disclose under S.32(1A) of the Claims and Payments Regulations can only be imposed on [the claimant] if there is evidence that he had been given a clear and unambiguous instruction that he was under such a duty (as per B v Secretary of State for Work and Pensions[2005] EWCA Civ 929 ,20 July 2005 , reported as R(IS) 9/06). As no ESA40 was issued to the appellant in January 2014, the DWP cannot rely on any alleged failure to disclose by him under this regulation as he did not know what matters he was obliged to disclose to the Department. Lord Hoffman stated in Hinchy that the appellant's "duty is to comply with what the Tribunal called the 'simple instruction' in the order book" (para 32), however in this case no 'simple instruction' was ever provided to the appellant so such a duty cannot arise. The tribunal therefore erred when stating that the appellant was under a duty imposed by S.32(1A). UTJ Rowley has asked though if this error is material in light of the tribunal finding at para 6 that "the appellant has always maintained that he knew he had to report that his daughter had begun to live with him". Presumably this is because S.32(1B) of the Claims and Payments Regulations imposes a further duty to "notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect [entitlement to or payment of benefit]...by giving notice of the change to the appropriate office". However, the tribunal also found as fact at para 12 that "on balance the tribunal considers the appellant is mistaken when he says that he phoned the DWP and in fact the calls were made to the LA. It is the calls to the LA which the appellant has remembered". The appellant always knew that he had to report the fact his daughter has begun to live with him only for the purposes of his LA administered benefits and indeed went on to make that disclosure, but he couldn't possibly have known that he had to report the change to the DWP as he had never been told to do so by them. Put simply, it is not reasonable to expect [the claimant] to know something which he has never been told. As [he] could not possibly know that he had to report that this daughter had begun to live with him for the purposes of his ESA claim and nor was it reasonable for him to be expected to know, the tribunal erred when stating that he was under a duty imposed by S.32(1B). Civil penalty appeal The Secretary of State's representative supports this appeal and I therefore have no further observations to make on this matter.”
“During the course of his award of ESA [the claimant] was issued with regular uprating notices, in particular those issued on29 January 2014 and28 January 2015 … Accompanying those uprating notices would have been form ESA 40 which contains instructions on what changes must be reported to the office paying the claimants benefit…” 14. However, having investigated the matter, DWP has been unable to find definitive proof to show that ESA 40 leaflets were, in fact, issued with uprating letters in January 2014 or January 2015. 15. For the avoidance of doubt the SoS is not conceding that the ESA 40 leaflets were not sent out during the relevant period. However, given the passage of time and the resulting gaps in DWP records, there is a lack of evidence to prove that they were. The evidential picture might of course change in future, if further material were to come to light, but the SoS does not seek to hold up the resolution of these proceedings. 16. In the circumstances, the SoS is unable to support the FTT’s finding that ESA 40 leaflets were issued to the Appellant on 29.1.14 and 28.1.15: SoR [5] – [6] [UT/148-9]. The FTT’s finding was based on a statement in the SoS’s submissions which the SoS has been unable to substantiate. In the circumstances, any issue as regards the publication date of the ESA 40 falls away: Order for Permission to Appeal [7] [UT/252]. For the avoidance of doubt, however, the SoS can confirm that the ESA 40 published in April 2013 contained the same statement as is recorded at [6] of the FTT’s SoR [UT/149]. 17. The SoS is also reviewing other similar cases, so that a common approach can be taken in respect of this issue. 18. The FTT’s second finding, however, remains unimpeachable and is sufficient on its own to sustain the conclusion that the Appellant was under a duty to disclose. Since, as the FTT found, the Appellant in fact “knew he had to report that his daughter had begun to live with him”, it must follow that this was a change of circumstances which he might reasonably be expected to know might affect his benefits. That is sufficient to give rise to a duty to disclose under reg. 32(1B). 19. Further and alternatively, since the Appellant in fact “knew he had to report that his daughter had begun to live with him”, it must follow that he had at some point received a clear and unambiguous instruction to that effect. That is sufficient to give rise to a duty to disclose under reg. 32(1A). For an instruction to give rise to a duty under reg. 32, it must be “clear and unambiguous”: Hooper v SSWP[2007] EWCA Civ 495 at [48] – [58]. 20. The Appellant’s Reply contends that he “always knew that he had to report the fact his daughter has begun to live with him only for the purposes of his [local authority] administered benefits and indeed went on to make that disclosure”
"Customer records on the ESA system (JSAPS) do not interface with another customer records when a change of circumstances is reported. Additionally, the operational instructions do not direct ESA staff administering a claim to use information received from anyone other than the customer/appointee or acting body to investigate or revise another person's award of benefit."
“29. We turn now to the question by whom the disclosure should be made. On this issue we are firmly of the opinion that, although section 20 uses the words “any person”, in order to give efficacy to the section - and without straining the meaning of the words or departing from the principles of statutory interpretation we have accepted - where the expenditure in question has taken the form of benefit payable to a cIaimant, the person upon whom the onus of disclosure is placed must be the claimant. In our judgment disclosure must be made, in connection with the claimant’s own benefit, by the claimant himself or, on his behalf, by someone else. In this context we would consider that disclosure could fall within the ambit of having been made “on behalf” of the claimant if someone else were to give information concerning the claimant in the course of some entirely separate transaction (for example, in connection with the informant’s own claim for benefit), provided that:- (a) the information was given to the relevant benefit office; (b) the claimant was aware that the information had been so given; (c) in the circumstances it was reasonable for the claimant to believe that it was unnecessary for him to take any action himself. Whether or not a claimant has made disclosure will therefore be a question of fact to be decided upon the evidence before the tribunal, and we have deliberately refrained from the use of the word “agency” in connection with information given by some third party as, in our judgment, that would import an unnecessary legal complication into what we consider to be essentially a simple question of fact. Neither would it be helpful for us to attempt to give examples of situations which might arise; suffice it to say that we are clearly of the opinion that casual or incidental disclosure by some other person (in the present case E, for example) of information regarding the claimant will not discharge the duty of disclosure. … 31. In our judgment it was not open to the tribunal, as a matter of law, upon the evidence before them, to find that E’s statement on her own behalf was sufficient disclosure of the claimant’s change of circumstances. Equally, in our view, the tribunal were correct in holding that S’s mother’s action in handing back the child benefit book, while proper and admirably prompt in itself, did not constitute disclosure on the claimant’s behalf not only, as the tribunal found, because the information had not been received by (or on behalf of) the supplementary benefit section in the local office, but also because, as we have set out above, the information about S was apparently given, by the claimant’s wife, solely in connection with S.”
“3. The appellant had previously been awarded income support (IS) by the Department for Social Development (the Department) on the basis of incapacity for work. From17 April 2012 the IS award was converted without a claim into an award of income-related employment and support allowance (ESA) by the Department under regulations implementing Schedule 4 of the Welfare Reform Act (NI) 2007. At the date of conversion, the appellant was receiving the middle rate care component of disability living allowance (DLA), awarded by the Department from7 September 2009 . This had entitled him to payment of the severe disability premium (SDP) element of IS and, from the date of conversion, the SDP element of ESA. 4. On17 July 2012 the DLA branch of the Department notified the appellant that it had decided that he was no longer entitled to the middle rate care component of DLA from7 September 2012 . However, he continued to be paid the SDP element of ESA by the Department after that date. Entitlement to SDP was conditional on the Department deciding that the appellant was entitled to DLA care component at the middle or higher rate and, therefore, it was paid in error. Almost two years later, on20 August 2014 the Department made a decision superseding and removing the SDP from the appellant’s award of ESA. On9 December 2015 the Department decided that the appellant had been overpaid£6,000.09 of ESA for the period from11 September 2012 to18 August 2014 and that this was recoverable from him. The appellant appealed.”
“… What Baroness Hale asserted was ‘certainly not yet with us’ in terms of effective administrative systems from which information about an individual claimant can readily be retrieved is now likely to be the norm given, in particular, the significant advances in technology. In the instant case, Mr Clements has been forensic in attempting to uncover the details of the procedures adopted by the relevant section of the Department in circumstances such as those pertaining here. Mr O’Farrell has given me the benefit of his own detailed knowledge of the operation of the benefit system, including the potential receipt by the ESA section of a Work Availability report (WAR) from the DLA section”. 44. A Tribunal of Great Britain Social Security Commissioners in R(SB)15/87 accepted at paragraph 25 that "it is not possible to "disclose" to a person a fact of which he is, to the knowledge of the person making the statement as to the fact, already aware" (approving the statement of Latham CJ in the Australian case of Foster v Federal Commissioner of Taxation(1951) 82 CLR 606 ). In the period Hinchy was decided, the relevant Departmental systems for notification of DLA decisions to local benefit branches was reliant on transmission of physical cards holding information. Hinchy found that that such a system could not be relied on to assert that the Department generally knew particular facts of decisions that its own benefit branches had made. The question arising is whether the existence of modern computer systems can be relied on by claimants to assert that the Department in a broad sense of all relevant benefit branches knows specific information in the form of a benefit decision generated by a particular branch. 45. In this case it was submitted that, on converting the appellant’s IS award to ESA, the Department would have been aware of the rate and duration of his DLA award on the balance of probabilities. The evidence in this case about the Department’s computer systems was somewhat piecemeal. However, one cannot envisage a rational modern computerised system of administration of benefits, where the rate of one benefit (ESA) is conditional on entitlement to another (DLA), which does not verify the details of that other award. The evidence indicates that, in line with that expectation, the relevant computer system generated notices of DLA decisions to the ESA branch and required action by ESA officials when a DLA decision was received. 46. Moreover, there is evidence in this case that the appellant’s ESA computer claim was accessed on20 July 2012 , albeit with no evidence of action being taken. I do not consider that it is coincidental that the appellant’s DLA decision was issued on17 July 2012 , a few days before the relevant ESA system was accessed on 20 July – an otherwise random date. It seems entirely likely that the reason for access to the computer system on20 July 2012 was that the ESA staff had received a WAR computer prompt to the effect that the appellant’s DLA award was changing. On the balance of probabilities it appears to me that the Departmental staff in ESA were made aware by the computer system of the change in circumstances. 47. However, referencing R(SB)15/87, it seems to me that, in order to discharge the obligation to disclose, the issue in these cases is not merely whether the Department knew the fact in issue, but whether the appellant knew that the Department knew it. In addressing what the claimant knew, I consider that judicial notice has to be taken of the technological revolution over the past 30 years. The benefits system is fully computerised. To the extent that Chief Commissioner Mullan is saying that in the 21st century the Department can reasonably be assumed by claimants to have knowledge of the information it inputs on its own computer systems, I agree with him. 48. There is a vast difference between the manual administrative systems that pertained in the days before computerisation and the technology available to the Department today. Hinchy addressed a disjointed Departmental administration in the period from 1993 to 1998 passing information about DLA awards around on pieces of card, where one branch did not know what the other was doing. The evidence in this case indicates that that system has been consigned to the past. Claimants are entitled to assume that when they receive their decision in relation to one benefit, the Department’s modern computerised systems will not just have communicated the decision to them, but also to any other branches of the Departmental administration where that decision has an impact. 49. In the present case, I am satisfied that the record of access to the ESA computer system on20 July 2012 was triggered by exactly such a communication and that the ESA branch of the Department knew of the change in circumstance in relation to the DLA award. I do not need to investigate why, when that was the case, the Departmental staff in ESA took no action. It is enough to establish on the balance of probabilities that the ESA branch of the Department knew the material facts. 50. More generally, I am also satisfied that when he received notice from the Department of the change it was making to his DLA award, the appellant was entitled to assume that all relevant branches of the Department also had received that information. I agree with the reasoning of Chief Commissioner Mullan in PMcL v DfC and support his approach. Lord Hoffman said at paragraph 32 of Hinchy that “the claimant is not entitled to make any assumptions about the internal administrative arrangements of the Department. In particular he is not entitled to assume the existence of infallible channels of communication between one office and another”
“45. … one cannot envisage a rational modern computerised system of administration of benefits, where the rate of one benefit (ESA) is conditional on entitlement to another (DLA), which does not verify the details of that other award. The evidence indicates that, in line with that expectation, the relevant computer system generated notices of DLA decisions to the ESA branch and required action by ESA officials when a DLA decision was received. 46. Moreover, there is evidence in this case that the appellant’s ESA computer claim was accessed on20 July 2012 , albeit with no evidence of action being taken. I do not consider that it is coincidental that the appellant’s DLA decision was issued on17 July 2012 , a few days before the relevant ESA system was accessed on 20 July – an otherwise random date. It seems entirely likely that the reason for access to the computer system on20 July 2012 was that the ESA staff had received a WAR computer prompt to the effect that the appellant’s DLA award was changing. On the balance of probabilities it appears to me that the Departmental staff in ESA were made aware by the computer system of the change in circumstances. … 49. In the present case, I am satisfied that the record of access to the ESA computer system on20 July 2012 was triggered by exactly such a communication and that the ESA branch of the Department knew of the change in circumstance in relation to the DLA award. I do not need to investigate why, when that was the case, the Departmental staff in ESA took no action. It is enough to establish on the balance of probabilities that the ESA branch of the Department knew the material facts.”