CJSA/3583/2007
								[2008] UKUT 4 (AAC)

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision 

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Portsmouth tribunal made on 20th July 2007 under reference 201/07/00520. I substitute my own decision. This is to the effect that any overpayment of jobseekers allowance (“JSA”) paid to the claimant in respect of his claim made on or about 15th August 2005 and/or 1st September 2005 is not recoverable.

Background and Procedure

2. This decision is the last of a linked series of decisions concerning the claimant around the same factual background. I refer below to the other matters.

3. The claimant was born in Mexico on 29th June 1956. He was and is a citizen of Mexico (and not of the United Kingdom or any other EU or EEA member state). He was not and is not refugee or an asylum seeker. In 2002 he had been admitted to the United Kingdom and at some stage he was given limited leave to remain on the condition that he have no recourse to public funds. It is not totally clear whether that condition was attached in 2002 or when his further application was with the Home Office in 2005. He was employed as a care assistant until 27th April 2005. For some time he received funds from Mexico but in August 2005 the receipt of funds was disrupted because of the effects of a hurricane in his home area in Mexico. The disruption lasted for less than 6 weeks. 

4. On 1st September 2005 the claimant made a claim for JSA as from 15th August 2005. The claim form did not ask specific questions about his immigration status except to ask whether he had come to live in the United Kingdom within the previous two years and whether he was an asylum seeker. He marked the reply boxes “no” to both of these questions. On page 41 of the form there is a heading “Other information”, under which there is a statement “Please use this space to tell us anything else you think we might need to know”. The claimant made no statement in the space provided.

5. The Secretary of State awarded and paid income based JSA with effect from 18th August 2005. The claimant then made a claim for JSA to be backdated to 27th April 2005. On 16th September 2005 the Secretary of State refused to backdate the award and the claimant appealed to the tribunal against that decision. 

6. On 4th November 2005 the Secretary of State received copies of two letters that had been sent to the claimant. I do not know how they were obtained by the Secretary of State. One was a letter of 25th October 2005 to the claimant from the CAB in relation to a claim for housing benefit and council tax which referred to the basis on which the claimant was in the United Kingdom and gave him certain advice. The other was a letter of 27th April 2005 to the claimant from his solicitors referring to the value of property that he owned in Mexico and also giving him certain advice. Unless the claimant consented to the disclosure of these letters (or, indeed, sent them in himself) the communications and their contents (certainly from the solicitor and probably also from the CAB) are covered by legal professional privilege and the Secretary of State cannot rely on them in these proceedings.

7. On 14th November 2005 and 3rd March 2006 the Secretary of State revised the original decision to award JSA and decided that there was no entitlement to JSA during the whole period for which it had originally been awarded. The claimant appealed to the tribunal against this decision. On 15th March 2006 the Secretary of State decided that the whole of the JSA paid to the claimant had been overpaid and was recoverable from him. This amounted to £602.15 as calculated on the schedule on page 64 of the file. 

8. On 31st March 2006 the claimant applied to the local authority for housing benefit and council tax benefit with effect from 8th March 2006. On 12th April 2006 the local authority refused to award either of these benefits (on the basis of the claimant’s immigration status) and on 1st June 2006 the claimant appealed to the tribunal against the decision of the local authority. The tribunal considered the matter on 11th October 2006 and allowed the appeal, finding that the case came within an exception to the rule on which the local authority had relied. On 21st November 2006 the District Chairman of the tribunal granted the local authority leave to appeal to the Commissioner against the decision of the tribunal. On 20th December 2006 the Secretary of State requested to become a party to the appeal, which request was granted by the Legal Officer on 4th May 2007. On 19th November 2007 (as a Social Security Commissioner) I allowed the appeal by the local authority in CH/4248/2006 and decided that the claimant had been entitled to neither housing benefit nor council tax benefit.
 
9. On 23rd March 2006 the tribunal considered the question of the claimant’s entitlement to JSA and on the same day issued its decision to the claimant in which it confirmed the decision(s) of the Secretary of State that there was no entitlement. No application for a full statement was made. An application for leave to appeal to the Commissioner was not made to the chairman until 30th October 2006. Notice of the chairman’s rejection of the application was issued to the claimant on 16th November 2006. The claimant then signed a renewed application to the Commissioner on 3rd April 2007. On 19th November 2007 (as a Commissioner) in CJSA/1164/2007 I refused to accept the application, commenting that “The time limits are there to be complied with, and the vast majority of applicants manage to do so. This claimant seems to have treated them with contempt”.

10. Meanwhile, on 18th July 2006 the claimant appealed to the tribunal against the overpayment recoverability decision. This is the subject matter of the present appeal before me. It was considered by the tribunal at an oral hearing on 20th July 2007. The claimant relied on his successful housing benefit appeal to the tribunal (which had been decided on 11th October 2006, the award not being set aside by me until 19th November 2007), the fact that he had been temporarily without funds and the fact that his passport was at the Home Office at the relevant time and he did not know how it was being stamped. The tribunal confirmed the decision and on 17th September 2007 the District Chairman refused the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. The claimant renewed his application to the Commissioner and after an oral hearing of that application on 11th August 2008 (also as a Social Security Commissioner) I gave leave to appeal on the basis that it appeared at that stage that the Secretary of State was unable to satisfy the statutory conditions as to recoverability. In a subsequent submission the Secretary of State supports the decision of the tribunal. Jurisdiction in this matter has now been transferred to the Upper Tribunal.

The Provisions on Overpayment Recoverability

11. So far as is relevant, section 71 of the Social Security Administration Act 1992 provides:

71(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure-

(a)	a payment has been made in respect of a benefit to which this section applies; or
(b)	…

the Secretary of State shall be entitled to recover the amount of any payment which he would have not made … but for the misrepresentation or failure to disclose.

71(5A) … an amount shall not be recoverable … unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.

The section applies to JSA by virtue of section 71(11)(aa).

12. To establish recoverability there must be either a misrepresentation or a failure to disclose (or both).

The Tribunal’s Decision

13. The decision of the tribunal was based on its findings that the claimant was aware of the terms of his leave to remain in the United Kingdom and that they had not changed, notwithstanding the claimant’s evidence that he was unaware of this. The tribunal seems to have relied on the CAB letter of 25th October 2005 (to which I have referred above) to conclude that the claimant’s failure to make a statement in the space provided on page 41 of the JSA claim form amounted to a misrepresentation. Even if the CAB letter is admissible, I do not see how the tribunal could rely on it in relation to misrepresentation as it was written after the claimant had completed the form, and it related to housing and council tax benefit and not to JSA.

The Secretary of State’s Submission to the Commissioner 

14. The Secretary of State now states that there was no failure on the part of the claimant to disclose the relevant fact as at the time of the JSA claim “his passport was with the Home Office, and he wouldn’t necessarily be aware what decision the Home Office will have made” (see the submission of 18th September 2008). Accordingly, I give no further consideration to the question of failure to disclose.

15. That leaves the issue of whether there was a misrepresentation. The Secretary of State argues that,

“It is not clear just what conditions were attached to the original grant of leave to remain in the UK but I submit they would not have been any more advantageous to the claimant than the ones notified to the claimant at some point in 2005”.

16. The argument continues to the effect that the claimant would initially have been given a visa lasting two years, after which he would have had to make a fresh application and although he would not have known what decision would be made or what conditions would be attached on the fresh application he would have known the original conditions. The failure to declare these or that he was subject to immigration control was a misrepresentation.

Conclusions

17. There are circumstances in which a failure to reply can amount to a misrepresentation, but these would generally involve a failure to reply to a specific question. I simply do not see how a failure to comment on a statement such as “Please use this space to tell us anything else you think we might need to know” can amount to a misrepresentation. 

18. It is well established than in a recoverability case the burden of proof is on those seeking the recoverability decision, in this case the Secretary of State. Here the Secretary of State has failed to ask appropriate questions on the JSA claim form, has speculated on Home Office procedures without seeking evidence of how they were applied in the present case, and throughout this case been either careless or lazy in presenting the case.

19. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Judge of the Upper Tribunal 

10th November 2008