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Neutral Citation Number:	2015 UKUT 108 AAC
Reported Number:
File Number:	CDLA 1800 2014
Appellant:	AH and VH and MH
Respondent:	Secretary of State for Work and Pensions (DLA)
Judge/Commissioner:	Judge P Gray
Date Of Decision:	04/03/2015
Date Added:	18/03/2015
Main Category:	DLA, AA, MA: general
Main Subcategory:	other
Secondary Category:	Recovery of overpayments
Secondary Subcategory:	misrepresentation
Notes:	Reported as [2015] AACR 40. Recovery of overpayments – misrepresentation – whether cause of overpayment continued beyond interview under caution The appellant was paid disability living allowance (DLA) for herself and her two children. The Department for Work and Pensions (DWP) decided she had received a recoverable overpayment on the basis that she had overstated her own needs and those of her children on the claim forms. The First-tier Tribunal (F-tT) held that the overpayments were recoverable up to the date DLA ceased to be paid. The appellant appealed to the Upper Tribunal (UT) where, among other things, it was submitted on her behalf that the overpayments arose because of the Secretary of State’s failure to revoke or suspend benefit payments sooner following the appellant’s interview under caution. The Secretary of State argued that, following the interview, investigations were ongoing as the appellant continued to maintain her entitlement for benefits, that there was no obligation to suspend payment of benefit in these circumstances and that the F-tT’s conclusion had been reasonable on the basis of the available evidence. The issue before the UT was whether the terminal date upon which the overpayment could be said to have been caused by the misrepresentation was correct or whether there was anything which broke the chain of causation arising from a failure to revoke or suspend benefit payments following the appellant’s interview under caution. Held, dismissing the appeal, that: 1. the suspension of benefit under regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 was a discretionary power (not a duty) and it had to be exercised reasonably and with appropriate circumspection: JM v Secretary of State for Work and Pensions (IS) [2011] UKUT 15 (AAC). It would be wrong to expect the Secretary of State to use his discretionary powers too early in an investigation by too narrow an interpretation of the causative question in relation to the continuance of payments. The stance taken by the claimant might also be of importance. If they accepted the contrary information then, in the absence of any argument as to the correct position, the causal link between an original misrepresentation or a failure to disclose might cease. But where the claimant continued to contend for entitlement then the DWP was faced with competing versions of the facts which might reasonably require further investigation (paragraphs 11 to 14). 2. there was no principle of law that a failure to exercise the discretion to suspend payment converted a recoverable overpayment into one which was not recoverable: JA v Secretary for Work and Pensions (DLA) [2014] UKUT 44 (AAC). It was settled law that misrepresentation or a failure to disclose did not have to be the sole cause of the overpayment: Duggan v Chief Adjudication Officer reported as an appendix to R(SB) 13/89; Morrell v Secretary of State, [2003] EWCA Civ 526, reported as R(IS) 6/03 (paragraphs 15 to 17); 3. the issue before the F-tT was whether the appellant’s misrepresentations remained a cause of the continuing overpayments. Secretary of State for Work and Pensions v JL (DLA) [2011] UKUT 293 (AAC); [2012] AACR 14 was not an authority that suspension was a proper or even a preferable course in the circumstances of these appeals. The question of causation was one of fact, and required an analysis of the relevant facts in order to determine whether any failure by the DWP to act on information received was sufficient to break the chain of causation resulting from the original misrepresentation or non-disclosure or was merely a concurrent cause of the overpayment: Secretary of State for Work and Pensions v SS (SPC) [2013] UKUT 272 (AAC) (paragraphs 18 to 19); 4. the issue of whether the chain of causation was broken, and if so at what point, must be a matter of fact for the F-tT which precluded there being a legal principle that an interview under caution would of itself break the chain of causation (paragraph 25).
Decision(s) to Download:	[2015] AACR 40ws.doc