|
Notes:
|
Judgment of the European Court of Human Rights reported as [2012] AACR 39.
Recovery of overpayment – failure to disclose – claimant lacking capacity to understand materiality of fact – whether recovery of the overpayment was a breach of claimant’s human rights
The claimant, who has severe learning disabilities, received an overpayment of benefit after her children were taken into care and removed from her home. Though able to read she was not capable of understanding the information provided to her by the Benefits Agency that she should report her children’s removal as a change of circumstances. The Secretary of State claimed an entitlement to recover the consequent overpayment under section 71 of the Social Security Administration Act 1992 on the ground that the claimant had failed to disclose a material fact. The claimant appealed to a tribunal which allowed the appeal. The Secretary of State’s appeal was upheld by a Tribunal of Commissioners. The claimant’s appeal to the Court of Appeal [2005] EWCA Civ 929 was dismissed and reported in R(IS) 9/06. The claimant applied to the European Court of Human Rights (ECtHR) and the issues before the court were whether the recovery of the overpayment of benefit from her was: (1) a breach of Article 14 of the European Convention on Human Rights (prohibition of discrimination) and Article 1 of Protocol 1 (protection of property); (2) a discriminatory act as it treated persons in similar situations differently; and (3) a failure to recognise the particular problems experienced by persons with learning difficulties.
Held there had been no violation of Article 14 of the Convention read together with Article 1 of Protocol 1 because:
1. insofar as the decision to recover the overpaid benefit was concerned there was no breach of Article 14. Only if the claimant’s possessions had been involved would Article 14 be engaged but they were not, as the claimant had no right to the overpaid benefit and there was no attempt to use her existing belongings to meet the debt. Unlike the case of Moskal v Poland [2009] ECHR 1286, the overpayment was caused by the claimant’s failure to report a change of circumstances (and was not an official error) and it would be perverse for claimants to acquire a right to overpaid benefit arising from their failure to report any changes. But the practice of reducing the claimant’s benefit so as to recover the overpayment might be an interference with the claimant’s possessions (paragraphs 33 to 43);
2. in deciding whether discrimination was justified a contracting State was entitled to a margin of appreciation which varied according to circumstances. In relation to general measures of economic or social strategy a wide margin is usually allowed to a State because national authorities are better placed than international judges to appreciate what is in the public interest on social or economic grounds. Accordingly the ECtHR will generally respect the national legislature’s policy choice unless it was “manifestly without reasonable foundation”. A difference in treatment is only discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (paragraphs 54 to 56);
3. the failure to treat the claimant differently from persons who understood the reporting requirement was justified. Claimants who failed to report a material fact of which they had no knowledge were not analogous or similar to claimants who failed to report a fact because they did not realise it was material. The first is a simple logical fact as you cannot report something you do not know whereas a failure to report something you fail to realise you should report depends on your cognitive capacity and moral sensitivity. The decision not to treat the claimant differently pursued the legitimate aim of ensuring the efficiency of the welfare system including the recovery of overpaid benefit. It was also proportionate, being in accordance with the doctrine of unjust enrichment and the efficient use of scarce public resources. Accordingly it was fair to other taxpayers while the claimant was not placed under an excessive financial burden by the recovery of the overpayment (paragraphs 57 to 62).
Recovery of overpayment – failure to disclose – claimant lacking capacity to understand materiality of fact – whether requirement that disclosure be reasonably to be expected
The claimant, who had quite severe learning disabilities, was in receipt of income support. Her children were taken into care and removed from her home. The claimant, though able to read, was not capable of understanding the information on Form INF4 or in her order book that she should report their removal as a change of circumstances. The Benefits Agency continued to pay child-related benefit premiums for a substantial further period, and an overpayment resulted, which the Secretary of State claimed an entitlement to recover under section 71 of the Social Security Administration Act 1992 on the ground that she had failed to disclose a material fact. The claimant appealed to a tribunal, which allowed the appeal. The Secretary of State appealed and the Chief Commissioner convened a Tribunal of Commissioners to hear the case as of special legal difficulty involving consideration as to the correctness of conflicting Commissioners’ decisions as to the nature of the duty to disclose a material fact.
Held by the Tribunal of Commissioners, allowing the appeal, that:
1. section 71 does not purport to impose a duty to disclose, but rather presupposes such a duty, the actual duty in this case being in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, which provides for (a) a duty to furnish information and evidence pursuant to a request from the Secretary of State, and (b) a duty to notify the Secretary of State of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit (paragraphs 30 to 32);
2. in relation to the duty to furnish information and evidence pursuant to a request, whilst there is no duty to disclose that which one does not know, if a claimant was aware of a matter which he was required to disclose, there was a breach of that duty even if, because of mental incapacity, he was unaware of the materiality or relevance of the matter to his entitlement to benefit, and did not understand an unambiguous request for information, and a failure to respond to such a request triggered an entitlement to recovery under section 71 of any resulting overpayment (paragraphs 33 to 46);
3. insofar as R(SB) 21/82 imported words from regulation 32 into the construction of section 71 in stating that the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected, that decision and subsequent decisions that have relied on it were wrongly decided (paragraphs 47 to 61);
4. the form INF4 supplied to claimants contained an unambiguous request by the Secretary of State to be informed if a claimant’s children went into care and by not disclosing the fact to the Department, the claimant was in breach of her obligation under regulation 32, so that the Secretary of State was entitled under section 71 to recover the overpayment resulting (paragraph 62).
The claimant appealed to the Court of Appeal. Before the Court of Appeal it was additionally argued for the claimant that the recovery of an overpayment of benefit from a claimant who is incapable of understanding that there is something to report was in breach of Article 14 of the European Convention on Human Rights (prohibition of discrimination) taken with Article 1 of Protocol 1 (Article 1P1) (protection of property).
Held by the Court of Appeal, dismissing the appeal, that:
1. recovery of an overpayment of benefit from a claimant who is incapable of understanding that there is something to report had no connection with deprivation of possessions and therefore Article 1P1 was not engaged; however, mental capacity was arguably at least as sensitive a personal characteristic, in relation to discrimination, as race or sex and if the alleged discrimination had been sufficiently related to Article 1P1, persuasive arguments as to justification would have been required (paragraphs 17 to 26, 52 to 53);
2. there is no basis for the construction in R(SB) 21/82, the reasoning for which was unclear and which had not been subjected to further analysis in the Commissioner’ decisions that followed it; section 71 and regulation 32 make no such allowance and leave room for none and there is no basis in section 71 for imposing or requiring a moral obligation to disclose in addition to the legal obligation imposed by regulation 32 (paragraphs 36 to 40, 47 to 49).
The claimant’s petition to the House of Lords for permission to appeal was refused. The European Court of Human Rights upheld the judgment on 14.02.12, application no. 36571/06
|
