IN THE UPPER TRIBUNAL	Appeal No.  CG/1505/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

The appeal is allowed in part.  The decision of the tribunal which took place on 5/5/09 under reference 008/08/01851 is SET ASIDE because its making involved an error on a point of law but is RE-MADE as follows: 

	The appellant is liable for an overpayment of Carer’s Allowance of £4013.50 for the period 19/6/06 to 20/1/08.  The overpayment is recoverable from the appellant.

The overall effect of this decision is that the appellant is liable for an overpayment of sum slightly reduced from that in the original decision.

REASONS

1	This appeal was brought with my permission from the First-tier Tribunal’s decision that the appellant was liable for an overpayment of Carer’s Allowance.  The sum to be repaid was originally £4060.45 for the period 5/6/06 to 20/1/08.  However, in the submission to the Upper Tribunal, the Secretary of State spotted a small error and submitted that the sum should be reduced to £4013.50 for the period 19/6/06 to 20/1/08.  I accept that this is correct and amend the overpayment figure and dates accordingly.

2	This is the second tribunal which has heard the appeal.  The decision of the first tribunal was set aside by a First-tier Judge for error of law.  The Record of Proceedings, which is a public record of what the parties said at the hearing, is in the bundle. 

3	The issue placed before the Upper Tribunal by the appellant’s representative was whether a claimant had an obligation to disclose a material fact which was already known to the office handling the claim in question.  In granting permission to appeal, I noted an ambiguity in the Statement of Reasons whereby the tribunal stated that there was evidence that a relevant memo/minute (‘memo’) from the Pensions Service about a pension increase had been received by the Carer's Allowance Unit (‘CAU’) which administered the benefit in issue.  However, the remainder of the Statement of Reasons did not make sense on this basis and the decision notice clearly stated that the CAU had no record of it.  I directed the tribunal judge to either confirm or correct the Statement, which he did by correcting it to read that the memo had not been received.  I also asked the Secretary of State to explain the system by which communications were made between sections or units of the DWP, which he did in detail.  Finally, I queried whether a prospective notification of this sort by a third party would satisfy the requirement under regulation 32 of the Social Security (Claims and Payments) Regulations 1987 that a claimant notify the appropriate office of a change of circumstance.  This proved to be unnecessary to follow up.  The Secretary of State provided a detailed submission relating to the law on overpayments following the changes effected by B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 (reported as R(IS)9/06) and further elucidated in CIS/2710/2009 by Judge Ward.  The appellant’s representative maintained his position in his reply.

4	It was common ground that the appellant was in receipt of CA in respect of her husband from 1999.  When her husband turned age 65 on 27/5/06, he became entitled to State Retirement Pension (‘SRP’).  This led to an increase in the appellant’s existing SRP (Class B) from and including 22/5/06 so that it exceeded the amount she received in CA.  Once SRP exceeds CA, the recipient is no longer entitled to payment of the latter benefit by virtue of sections 20(1)(f) and 63(c) of the Social Security Contributions and Benefits Act 1992 and regulation 4(4)(a) of the Social Security (Overlapping Benefits) Regulations 1979.  

5	Instruction notes accompanying notes to an award of CA, which are reissued to claimants when they awards are uprated each year, specifically instruct claimants to let the ‘CAU’ know straightaway if they are receiving a Retirement Pension which increases because a partner starts receiving his own Retirement Pension.  The appellant accepts that she did not notify the CAU, and that the Allowance continued to be paid in full.  

6	The question of the appellant’s receipt of instruction notes appears not to have been explored at the hearing, but was simply assumed to have happened.  However, the previous tribunal had taken evidence on this from the appellant and the presenting officer.  The Submission also presented evidence on this briefly.  Having regard to the length of time this appeal has taken for resolution, the overriding objectives of the Tribunal Procedure (Upper Tribunal) Rules 2008, and the implausibility of the department failing to send out standard documents in line with standard practice over the course of over 5 years, I consider it appropriate to make my own finding of fact on this matter to assist in the disposition of the appeal.  On balance of probabilities, it is more likely than not that the appellant was sent and received instruction notes over the years.  

7	When the CAU discovered that the pension had been increased, they superseded the award and raised the overpayment.  The full amount was £4154.34 for the period 22/5/06 to 20/1/08 but the decision maker reduced this to £4060.45 for the period 5/6/06 to 20/1/08.  The reason for the reduction is not stated in the decision (p 23) but has now been explained by the Secretary of State as being necessary to reflect the late notification of the SRP award to the appellant.  The original decision maker had set off two week’s benefit for the period before the appellant was notified of the award, but the Secretary of State noticed that the overpayment should have been reduced by three week’s benefit.  This is because the appellant was only notified of her entitlement to the increased pension by a letter sent on 5/6/06 (a Friday), which is unlikely to have been received by the date of payment of the third week’s allowance, 6/6/06.  As she would not have known of the change of circumstance by 6/6/06, she was not yet under an obligation to report the change.  

8	The appellant’s case was that the Pensions Service told her that they notified the CAU on 20/2/06 that she was to receive the increase from May 2006.  The bundle contained a screen print of the memo provided by the Pensions Service and its reply to the appellant’s representative.  These documents were either accessed or created in 2008 and confirm that the memo had been sent back in 2006 (pages 27 and 52).  The appellant submits, therefore, that because the CAU knew the material fact, she had no duty to disclose that which was already known (R(SB)15/87).  She assumed that she remained entitled to CA because it continued to be paid to her despite the Pensions Service notification to the CAU.  

9	The Secretary of State explained the system of communication between various parts of the Department of Work and Pensions and states that operational units of the Department such as the Pensions Service and the CAU normally communicate by post which is delivered by a courier such as TNT.  Some 70,000 items of mail per day are dealt with in this way.  If an item of mail is wrongly delivered, the expectation is that it will be passed on to the right department.  If it is undeliverable, it is sent to an undeliverable mail centre at Longbenton for opening and identification.  Both procedures are fallible.  Central units and sections that deal with policy, procedure and legal matters may have a general e-mail address, but there is still no general directory of e-mail addresses to enable officers in different units and sections to contact each other unless they happen to know a particular person’s e-mail address, the claimant’s name, national insurance number and type of benefit in issue.  I have no reason to doubt this evidence, and the representative’s only criticism is that the Secretary of State has stated expressly that the memo was actually received.  I consider that to be the conclusion implicit in the Secretary of State’s submission.  Moreover, this was the tribunal’s finding of fact, and one for which there was a sufficient basis.

10	The final factual position, then, is that the appellant did receive instruction notes, the CAU did not receive the notification and did not have any knowledge of the increase in the appellant’s Retirement Pension.  The tribunal also found, for reasons not clear to me from the evidence, that the appellant believed the Pension Service would inform the CAU that her pension had increased.  I say this because the tribunal did appear to have taken evidence on the matter and did not advert to the appellant’s evidence to the previous tribunal that she did not know that she had to tell the CAU about her pension at all.  As it happens, even if she did hold this belief, it could not assist her.

11	The tribunal decided that that the appellant was liable for the overpayment.  Closely following paragraph 32 of Lord Hoffmann’s judgment in Hinchy, the tribunal held that she was not entitled to make any assumptions about communications between the Pension Service and CAU.  The appellant’s duty was quite simply to carry out the instructions in the CA booklet to notify the CAU of the change.  She did not do so, the memo was not received and the overpayment flowed directly from this.  It was recoverable from her.  The tribunal was entitled to find such facts as it did, and the evidence supports the remaining facts I have found, for the reasons I have already given.  On these facts, there has been no error by the tribunal.

12.	The representative submitted that Hinchy did not set aside CG/5631/1999, which supports the principle that you cannot ‘disclose’ that which is already known to the disclosee.  It was unnecessary, however, for the House of Lords to do so in Hinchy, as that issue did not arise.  Indeed, it no longer arises in the present appeal owing to the tribunal’s finding that the memo was never received.  The First-tier tribunal nevertheless accepted that that would have been the case, had the memo been received but not actioned.  The Secretary of State, on the other hand, submitted that ‘disclosure’ could no longer bear this meaning following B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 (reported as R(IS)9/06) and in any event, even if the information had been received, the appellant’s own breach of duty would remain a cause of the overpayment:  Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526 (reported as R(IS)6/03); Duggan v Chief Adjudication Officer (reported as an annex R(SB)13/89); GK v Secretary of State for Work and Pensions [2009] UKUT 98 (AAC).  

13 As the issue does not arise, it would not be appropriate for me to launch upon an academic study.  My views would be obiter dicta and of no precedential value.  The full scope of B v Secretary of State for Work and Pensions remains to be worked out and is best left to an appeal which raises it directly. 

14	Because I am able to substitute my own decision, there is no need for the appeal to be remitted. 

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		16 February 2010