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Neutral Citation Number:
Reported Number: R(A)2/06
File Number: CA 2298 2005
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 05/01/2006
Date Added: 23/01/2006
Main Category: Recovery of overpayments
Main Subcategory: failure to disclose
Secondary Category:
Secondary Subcategory:
Notes: Recovery of overpayment – failure to disclose – whether duty to disclose The claimant entered a care home and initially paid her own fees. Following a change in legislation the local authority started paying part of the fees with the effect that attendance allowance was no longer payable to the claimant. Before that change in circumstances the claimant’s appointee was visited by an officer of the Pensions Service who advised her that alterations to the claimant’s benefits would take place when the local authority started paying the fees, without the need for any further action from her. The appointee did not inform the Disability Benefits Unit of the change of circumstances and an overpayment of attendance allowance resulted. The Secretary of State decided that the overpayment was recoverable from both the claimant and the appointee because the appointee had failed to disclose the change of circumstances. The appointee lodged an appeal. The appeal tribunal dismissed the appeal on the ground that disclosure should have been made to the Disability Benefits Unit and not to an officer of the Pensions Service. On appeal to the Commissioner the appointee argued that the duty to disclose had been qualified orally by the officer of the Pensions Service. Held, allowing the appeal, that: 1. where it is decided that an overpayment is recoverable from both a claimant and an appointee and the appointee appeals, the appeal should be taken to be an appeal made on behalf of both the claimant and the appointee unless it is clear that the liability of only one of them is in issue (paragraph 4); 2. although R(SB) 21/82 was held in B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, [2005] 1 WLR 3796 (also reported as R(IS) 9/06) to have been wrongly decided, the general principle expressed in R(SB) 21/82 that there could be a failure to disclose only where disclosure was reasonably to be expected is consistent with B, provided that it is accepted that disclosure is always reasonably to be expected if there is a statutory duty to disclose under regulation 32 of the Social Security (Claims and Payments) Regulations 1987, and therefore most of the cases decided in reliance on that general principle, including that of the Tribunal of Commissioners in R(IS) 5/03, remain good law (paragraphs 10 and 11); 3. while (following R(IS) 15/87) the duty to disclose information or a change of circumstances to the office administering the benefit concerned may be modified by an oral representation by an officer of the Department to the effect that further disclosure is unnecessary, in this case there had been no such modification because the claimant presumably knew that the Pensions Service did not administer attendance allowance and, in the absence of any discussion about attendance allowance, the claimant could not reasonably have thought that information would be passed to the Disability Benefits Unit (paragraphs 13 and 14); 4. in cases where the Secretary of State seeks to recover an overpayment on the ground that there has been a failure to disclose a material fact, it is essential for the Secretary of State to produce evidence showing why the claimant was under a duty to disclose that fact, which usually involves showing why the claimant should have realised that the fact was relevant (paragraph 17); 5. the tribunal erred in law in proceeding on the basis that there was a duty to disclose without investigating whether it was justified, because the appointee’s case that she had acted reasonably implied a challenge to the Secretary of State’s implied claim that she had breached a duty of disclosure (paragraph 18). The Commissioner remitted the case to a differently constituted tribunal with directions to the Secretary of State to provide, if possible, the evidence necessary to support his argument.
Decision(s) to Download: R(A) 2 06 bv.doc R(A) 2 06 bv.doc