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KW [2009] UKUT 143 (AAC) (14 July 2009)
Recovery of overpayments
misrepresentation

IN THE UPPER TRIBUNAL File No: CIS 928/09

Administrative Appeals Chamber

14 July 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF FIRST-TIER TRIBUNAL

Appellant: [the claimant]

Respondent: Secretary of State for Work and Pensions

Claim for: Income Support

First-tier Tribunal: Newtown

Tribunal Case Ref: 188/08/06074

Tribunal date: 14 January 2009 (reasons issued 10.03.09)

DECISION OF THE UPPER TRIBUNAL

The claimant's appeal is allowed. The first-tier tribunal's decision is set aside as erroneous in law and replaced under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 with the decision I am satisfied the tribunal should have given on the facts found and material before it, namely that the claimant had not been shown to have made a misrepresentation as alleged and the Secretary of State had therefore not established that all or any of the sum of £2,886.10 claimed to have been overpaid to her by way of income support during the period from 20 June 2006 to 4 June 2007 was legally recoverable under section 71 of the Social Security Administration Act 1992.

REASONS

Mr P L Howell QC:

Introduction

1. This appeal by the claimant succeeds. The decision of the first-tier tribunal at Newtown on 14 January 2009 (Mr G R Griffiths, first-tier judge, sitting alone) was in my judgment based on a misdirection in law in holding that the claimant had made a misrepresentation to the Secretary of State in answering a question on her income support claim by saying she was getting child benefit for her daughter, when the facts as found by the tribunal confirmed that it was true she was getting it, although not under an award made on a claim in her own name. I set the decision aside and replace it under section 12(2)(b) of the 2007 Act with the one set out above, the effect of which is that she does not have to pay any money back even if what she received for the period in question was technically an "overpayment".

The facts

2. The facts of the case are in a small compass and not in dispute. The claimant is a lone parent with a daughter who was born on 15 June 2005. At all material times the daughter has lived with the claimant and the claimant has been responsible for her. (At this point I am using the expressions "lone parent" and "responsible" in the actual meanings they have in the English language and the real world, not any distorted meaning that may be sought to be imposed on them under the Income Support regulations.) The claimant and her former partner lived together for only a very short time after their daughter was born, and separated on 4 July 2005 when he left.
3. Though this case concerns the claimant's income support, her daughter's child benefit has a central role in the story for reasons that will appear. The child benefit for the baby had been claimed before the couple separated, the claim being made in the name of the claimant's partner for convenience so as to use his bank account, and the award had been made in his name. When they separated it was agreed between the two of them that as their daughter was living with and being looked after by the claimant, she was the one who should actually get the benefit, and from then on it was transferred into her account. There is no dispute that this arrangement between the two of them subsisted and was honoured at all material times. The award however was left in his name as there was no difficulty between them about the money and they were unaware there might be any need to change it. Only much later, when the claimant was given to understand it might make a difference to her income support, was the claim switched into her name and the child benefit formally awarded to her in her own name from 16 July 2007.

Claim and adjudication history

4. On 16 November 2005 the claimant made her claim for income support. She did so using the main method now provided by the department, of answering a series of standard prepared questions put to her over the telephone by a person at a "Jobcentre Plus" call centre, who tapped his or her interpretation of the answers into a computer and sent the results in the form of a "customer statement" to the claimant to sign a few days later. In the claimant's signed statement at pages 3-14 she is recorded as answering (truthfully) that she had one dependent child aged under 19 living with her, naming her daughter, and that she was her primary carer. In answer to the question "Are you getting child benefit?" she answered "Yes". That was also entirely truthful, as a matter of objective fact and as far as the question went. She said this was for her daughter, but further questions asking for the child benefit reference number and other details were otherwise recorded as "Unanswered". There was no question that asked which parent's name the child benefit was in. In answer to other questions she said she had been unable to work because of high blood pressure and a heart disorder (medically certified) since 30 October 2005, had never previously been on benefit; and that she and her daughter were getting no other social security benefits apart from the child benefit. She signed the usual declaration that the information she had given on the statement was correct and complete: see page 14.
5. On 15 December 2005 the claimant was awarded income support from 16 November 2005, on the basis that she was a person incapable of working. Although it was recorded that she was also a lone parent, no further investigation into the unanswered questions about the child benefit for her daughter was apparently thought necessary at that time. This, like other aspects of the claim history, has to be pieced together from some fairly sparse and abbreviated computer records; the actual documentary evidence put in front of the tribunal being far from complete, and the departmental explanations being based to some extent - understandably in administrative terms, in view of the volume of records that have to be kept, but still in terms of legal proceedings unsatisfactorily - on reconstruction of what should have happened rather than actual evidence that it did.
6. On 10 May 2006 according to the computer notes the claimant underwent a medical examination for the personal capability assessment and on the basis of its findings was determined to be capable of work from 16 June 2006, triggering a reconsideration of the basis on which she had been awarded her income support and had been entitled to it down to that date. A subsequent entry dated 3 July 2006 on her income support computer notes reads: "Cust paid as LP - Sue" which is said to be the departmental record of a determination by a decision maker on behalf of the Secretary of State that there was to be no change in her income support entitlement "because she was a lone parent and, therefore, fell into a prescribed category of person" - page 19.
7. No enquiries seem to have been made or further information sought from the claimant before this decision was taken: e.g. to follow up the questions left unanswered on the original Jobcentre Plus questionnaire now that her status as a lone parent became for the first time the thing on which her entitlement to income support depended. There is a record that a letter was issued to her on the same date saying there was no change in her entitlement, but no evidence of any explanation to her of the altered basis or assumptions on which payment of her income support was being continued.
8. That continued until well into the following year, when on 15 May 2007 an interdepartmental computer matching exercise (child benefit now being in the hands of HM Revenue and Customs) showed a "discrepancy" in that the claimant was being paid income support as a lone parent but there was no award of child benefit in her name. On 25 June 2007 (according to the computer notes at page 20) a decision was made and notified to her on behalf of the Secretary of State revoking her income support entitlement with effect from 5 December 2006, on the ground of a "change of circumstances" recorded as having occurred on 15 June 2006, in that she no longer met the conditions of entitlement.
9. How this "change" was defined at that time is not recorded, but it can be inferred from further notes of telephone calls in July and August 2007 (page 28) that the officer dealing with the case did at that time explain to the claimant that the problem was the child benefit award for her daughter still being in the name of her former partner. As appears from the same notes, once this was appreciated she immediately set about getting the award transferred into her own name. That was duly done (without any difficulty from her former partner, but with one false start when the child benefit office sent her the wrong form) and a fresh award in the claimant's name was made from 16 July 2007. After that date her entitlement both to the child benefit she had actually been getting all along, and to her income support as a lone parent, is unquestioned.
10. There is no record of what happened about any appeal against the decision to revoke the claimant's income support back to the previous December, but perhaps she thought that with all the various telephone calls and the switching of the child benefit into her own name she had managed to sort things out to the department's satisfaction. Further computer notes dated 14 and 22 August 2007 show the issue of a "standalone payment letter" and a further letter saying "no change in entitlement". No further detail is given nor are the letters themselves in evidence but I infer these must relate to the reinstatement of her income support after confirmation of her child benefit award, as a separate note also dated 14 August 2007 in the child benefit enquiry details on page 28 says "Claim now cleared", and the decision date shown on the child benefit computer print at page 30 appears to have been the previous day .
11. Nothing further of any materiality seems to have happened for another whole year. Then there was another computer note dated 14 August 2008 saying "O/P calc 16/06/06 to 16/09/07 sent to Glasgow", explained in a manuscript note on the copy put before the tribunal by the department as evidence (page 22) as "Screen print showing referral of overpayment for recoverability decision". The next page, identified as "Copy of overpayment referral", is what appears to be a completed online form headed "Jobcentre Plus Debt Management Referral – Straightforward", which in a section headed "Statement of Fact" contains the assertion (possibly as a result of an automatic suggestion by the computer to the person entering the details, since there was never any evidence for it) that the reason an overpayment had arisen was "Non-disclosure of a change in circumstances … Cst claimed as lone parent but child not with her." Further inaccuracies were that the date she allegedly no longer satisfied the conditions of entitlement was inconsistently shown as 17 June 2007 and 16 June 2006 in different places, and she was shown as receiving the child benefit in her own name only from 17 September, rather than 16 July, 2007.
12. The untrue allegation thus made about the claimant's child not living with her caused another machine to produce what is said to have been an "overpayment decision" on 25 August 2008, described only as "computer generated" in the reconstructed copy submitted to the tribunal on page 24 which is the only evidence of it. This alleged that:

"As a result of the decision(s) dated 22/08/2007 an overpayment of income support has been made from 16/06/2006 to 16/09/2007 (both dates included) amounting to £3,797.73 as shown on the attached schedule.

On 16/06/2006, or as soon as practicable after, [the claimant] failed to disclose the material fact that her child no longer lived with her."

It went on to allege that as a consequence income support amounting to £3,273.83 from 16 June 2006 to 16 July 2007 inclusive had been paid which would not have been paid but for that failure to disclose and accordingly was recoverable from her: the balance of £523.90 (for the period after the department's own enquiry notes showed it was aware the child benefit award was still in the name of the father) was stated not to be recoverable.

13. The assertions recorded in that "computer generated decision" about the claimant failing to disclose the material fact that her child no longer lived with her were rubbish, because her child lived with her at all material times and there was never any reason to suggest otherwise, whether that suggestion came from a real person or a machine with a sloppy operator. It hardly makes it any better that the only actual letter dated 25 August 2008 put in evidence as having been issued to the claimant was not in those terms at all, but the letter at pages 25 to 27 from the "DWP Debt Management Centre" which said only that "We are writing to you because too much Income Support has been paid. This is because of [sic] your entitlement to the benefit has stopped", with a table showing how the total alleged overpayment of £3,797.73 had been made up. It then said that £3,273.83 "must be paid back under Social Security law", and informed the claimant of her right of appeal against "this decision", though without saying anything further about the basis on which it had been made or the reasons for it.
14. There is no information about any "decision(s) dated 22/08/07" to explain the reference in the "overpayment decision" on page 24, beyond the earlier record already noted that a "no change" letter had been sent to the claimant on that date after her status as a lone parent with a current award of child benefit in her own name had been confirmed. If she was told about any appeal rights on the question of entitlement at that time, or was even told about the basis on which her previous entitlement had been purportedly taken away retrospectively, (now apparently back to 16 June 2006, instead of 5 December 2006 as in the disallowance decision of 25 June 2007 shown in the record on page 20), there was nothing put in evidence to the tribunal to show when or how this had been done, or that it had ever really happened at all.
15. The claimant appealed against the letter she was sent on 25 August 2008, having by that time managed to get hold of someone in the department who told her what the letter did not, that it had been issued on the assumption her daughter had not been living with her. In her letter of appeal received on 16 September 2008 she explained that this was simply untrue and what the child benefit arrangements between her and her partner had actually been, saying that all this information had been given to the department at the time she first claimed income support (page 1).
16. This resulted in an internal reconsideration by an officer who in the words of the submission to the tribunal "examined the evidence", and found that the claimant had in fact been awarded the child benefit for her daughter from 16 July 2007. Further, though not expressly so stated in the departmental submission, he or she obviously found that there had been no effective decision to alter and remove the claimant's previous entitlement to income support from 16 June 2006, so that the basis for recovery asserted in the "overpayment decision" as reproduced on page 24 was invalid. What became of the "decision(s) dated 22/08/2007" identified as the basis for that decision, if it or they ever existed at all as valid decisions affecting the claimant's entitlement to income support, was not explained and they were never mentioned again.
17. Instead according to the departmental submission to the tribunal a decisionmaker, or possibly two decisionmakers, then proceeded to make two further decisions on 7 November 2008 on behalf of the Secretary of State. The first reconsidered and revised the benefit decision of 25 June 2007 on the ground that it had been made under a mistake of material fact, and replaced it with a decision that the claimant had not been entitled to income support from 20 June 2006 (instead of 5 December 2006) because she had not been within a prescribed category of persons to qualify for income support from that date. The "mistake of fact" in question was said to have been a mistake about the date from which she ceased to be within such a prescribed category, though how that squares with the "date of change" having already been recorded more or less accurately as 15 June 2006 in the original decision of 25 June 2007 itself (as shown on page 20) was also left unexplained.
18. The second decision said to have been made on 7 December 2008 was a further overpayment decision, revising that of 25 August 2008 against which the claimant was appealing. The revised form of the decision as set out in what appears to be a reconstructed record on page 34 was that "As a result of the benefit decision of 07/11/08," a reduced amount of income support amounting to £2,886.10 had been overpaid for the period 20 June 2006 to 4 June 2007, of which £2,708.65 for the period 20 June 2006 to 14 May 2007 inclusive "...was paid which would not have been paid but for [the claimant's] misrepresentation of the material fact that she was not in receipt of child benefit for her daughter …" and was accordingly recoverable from her. The balance of £177.45 for the period after the department received notification via the matching exercise that there was no award of child benefit in the claimant's own name was determined not to be recoverable "as it did not arise as a consequence of the misrepresentation".
19. There is no evidence that the first of those decisions of 7 November 2008, namely the one purporting to revise and revoke the claimant's entitlement retrospectively to 20 June 2006, was ever communicated or notified to the claimant in a way that enabled her to appeal against it. The departmental submission to the tribunal did not even assert that it was. Nor is it at all clear how and in what terms the second decision of 7 November 2008 (which in reality appears to have been simultaneous, or virtually so) was notified to her, though her appeal against the original "overpayment decision" of 25 August 2008 was treated as continuing against the reduced overpayment determination in its revised form. The terms of the departmental "referrals for reconsideration" and revised entitlement and overpayment decisions bearing the date 7 November 2008, as submitted to the tribunal at pages 30 to 35 of the appeal bundle, are self-evidently the result of a reconstruction exercise since two of the pages have the word "constructed" written across them where the relevant officer's signature should be, and the normal identification and other details to show the making of a valid decision and its notification to the claimant are left blank. The tribunal's task was not made any easier by the departmental submission purporting to draw its attention (at the top of page E) "to the fact that the decision originally appealed against has been revised on 14/03/08" but there is no indication where that date came from and it must I think have been just another mistake. There was no oral hearing so the first-tier judge did not have the assistance of any presenting officer to clarify matters on the department's behalf.

The appeal to the tribunal and the law it had to apply

20. What came before the tribunal for consideration on the papers on 14 January 2009 was therefore the claimant's continuing appeal against the Secretary of State's determination that a sum of overpaid income support was recoverable from her under section 71 Social Security Administration Act 1992, originally made on 25 August 2008 but then revised (or rather, torn up and completely replaced) by the second decision said to have been made on 7 November 2008. This was based not only on what was said to be a fresh, and different, redetermination of what her past entitlement to the benefit had been but also on a completely different factual and legal basis for recovery, now founding on what was alleged to have been a "misrepresentation" by her at the time of her original claim on 20 November 2005, about her receipt of child benefit for her daughter.
21. Section 71(1) provides so far as material that

"71. (1) Where it is determined that , whether fraudulently or otherwise, any person has misrepresented, ... any material fact and in consequence of the misrepresentation – a payment has been made in respect of a benefit [including income support] ... the Secretary of State shall be entitled to recover the amount of any payment which would not have been made ... but for the misrepresentation ..."

22. There was no appeal before the tribunal against any decision on (or revoking) the claimant's entitlement to income support for the relevant period, but both the written departmental submission and the first-tier judge quite rightly approached the matter on the basis that he required to be satisfied that there had in fact been an overpayment of benefit in excess of the proper legal entitlement before anything could be held recoverable under section 71. It is now expressly provided under section 71(5A) that an amount shall not be recoverable under section 71(1) unless the benefit award determination in pursuance of which it was originally paid has been validly taken away, by being reversed or varied on an appeal or by a further decision effective to revise or supersede it under section 9 or 10 of the Social Security Act 1998. The consequence of that is that in any appeal against an overpayment decision alone (i.e. where the question of entitlement is not itself directly under appeal as well) the tribunal is required to satisfy itself that a proper and complete, procedurally and substantively valid decision to remove the entitlement in question was in fact taken and already in place before the making of the determination as to recoverability; or nothing can be confirmed as legally recoverable under it. Moreover the effect of the primary legislation in section 12(8)(b) of the Social Security Act 1998 also appears to be that the tribunal is required to ignore any corrective decision on entitlement taken after the making of that overpayment determination; so the need to show a complete and effective revising or superseding decision on entitlement already in place before that time is crucial.

The misrepresentation issue

23. Whether there had been a misrepresentation on the part of the claimant to bring her within section 71(1) depended on whether she had actually made any misstatement of material fact in the answers she gave to the "Jobcentre Plus"call centre at the time of her original claim and in the resulting form she signed on 20 November 2005, about getting the child benefit for her daughter. That was the only basis for recovery relied on before the tribunal, no other misrepresentation being alleged and the previous suggestion of a "failure to disclose" having been abandoned. It was a purely objective question whether what she said amounted to a factually untrue statement. Her honesty was never in question and it was rightly accepted by the tribunal that she had acted entirely innocently throughout, but as is well established and clear from the statutory wording, liability under section 71 can arise even from an innocent misrepresentation.

Why the child benefit question became relevant

24. Under section 124(1)(e) Social Security Contributions and Benefits Act 1992 a person may only be entitled to income support if he or she "falls within a prescribed category of person". As noted above the claimant was originally within the prescribed category of "Persons incapable of work", but ceased to count as such a person from 16 June 2006. Whether she continued to qualify for income support from then on depended on whether she was within the prescribed category of "Lone parents" under the relevant provisions of the Income Support (General) Regulations 1987 SI No. 1967 as amended and in force at the relevant time.
25. So far as material those regulations provide as follows.

By regulation 1 a "lone parent" means a person who has no partner and who is responsible for, and a member of the same household as, a child or young person.

By regulation 4ZA a person falls within a "prescribed category" if any paragraph of Schedule 1B applies to him or her, and if within such a category for any day in a benefit week, remains in it for the whole of that week (which explains any slight discrepancy in the date from which the claimant is said to have lost her entitlement after ceasing to count as incapable of work).

Under Schedule 1B the first prescribed category of person ("Lone parents") is: "1. A person who is a lone parent and responsible for a child who is a member of his household."

By regulation 15:

"Circumstances in which a person is to be treated as responsible or not responsible for another

15. (1) Subject to the following provisions of this regulation, a person is to be treated as responsible for a child or young person for whom he is receiving child benefit …

(2) In the case of a child or young person in respect of whom no person is receiving child benefit, the person who shall be treated as responsible for that child or young person shall be –

(a) except where sub-paragraph (b) applies the person with whom the child or young person usually lives;

(b) where only one claim for child benefit has been made in respect of the child or young person, the person who made that claim.  …

(4) … for the purposes of these regulations a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible."

By regulation 16:

"Circumstances in which a person is to be treated as being or not being a member of the household.

16. (1) Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 15 … for a child or young person, that child or young person … shall be treated as members of the same household …

(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where –

(a) that person does not intend to resume living with the other members of his family; or

(b) his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances …"

26. The claimant's daughter lived with her as a member of her household at all material times, and it is not suggested that regulation 16 operated artificially to alter that. On the undisputed facts regulation 16(2) appears to rule out her counting as a member of the same "household" as her father, and there is no equivalent of the last part of regulation 15(4) that could operate to treat her as not being a member of the claimant's household where she actually lived.
27. Whether the claimant qualified for income support as a lone parent therefore depended entirely on whether she met the separate requirement in paragraph 1 of Schedule 1B that she was "responsible for" her daughter. That in turn leads to regulation 15, made in exercise of the regulationmaking power in what is now section 137(2)(m) Social Security Contributions and Benefits Act 1992 to prescribe the circumstances in which for the purposes of the income-related benefits part of that Act one person is to be treated as responsible or not responsible for another: and thus to the apparently innocent expression "receiving child benefit" in regulation 15(1), there being no doubt or dispute that the child benefit in question here was the child benefit "for" the claimant's daughter who was living with her.

The tribunal decision

28. The first-tier judge accepted the Secretary of State's argument that this claimant was not a lone parent at all, because "is receiving child benefit" had to be interpreted as if it said: "has a current award of child benefit in his or her own name"; and further that it followed automatically (the two questions were not differentiated) that she had made a "misrepresentation" of material fact in not understanding and answering in that sense when she was asked the simple factual question "Are you getting child benefit?".
29. He gave the nub of his reasoning in the summary reasons recorded on his decision notice of 14 January 2009 at page 43:

"(1) When [the claimant] claimed I/S in November 2005 she said she received Child Benefit for her daughter …

(2) This was not correct because it was paid to [the] father and not to her.

(3) When she failed the Personal Capability Assessment in May 2006, her continued entitlement to I/S depended upon entitlement to child benefit.

(4) Because she had no such entitlement at the time she had not entitlement to I/S either."

30. In his statement of reasons issued to the parties on 10 March 2009 at pages 45 to 48 he recorded express findings of fact that

"[the daughter]'s Child Benefit was received not by [the claimant] but by her ex-partner who paid it over to her"

and that at all material times the daughter had lived with the claimant, but it was only from 16 July 2007 that the claimant was awarded the child benefit for her daughter in her own name. He then restated the reasons for his decision saying:

"a. [the claimant] was entitled to Income Support on November 2005 until 21.6.06 when she failed the Personal Capability Assessment on the basis of incapacity for work.

b. She would only continue to be entitled to Income Support from that date if she were a lone parent. Regulation 15 of the Income Support (General) Regulations in effect provides that the test as to whether or not a person is entitled to Income Support as a lone parent is an award of Child Benefit in her name. In this case, as [she] states in her letter of appeal, Child Benefit was awarded to her ex-partner even though he always paid it over to her. Her claim for Income Support in November 2005 clearly states that she was receiving Child Benefit. This was not the case although the Tribunal can fully understand that this misrepresentation was entirely innocent. Perhaps if the Secretary of State had insisted on her providing the Child Benefit reference number and then checked it out, this would have come to light. At no time after that date did she apply for Child Benefit in her own name until July 2007 after the first entitlement decision was made.

c. Whilst the Tribunal accept that [the claimant's] partner paid over the money to her and [her daughter] lived with her, the conditions of entitlement to Income Support on the basis that she was a lone parent were 'technically' not met. If the award had been transferred into her name by her partner when they separated, there would have been no problem. But this was not done and consequently she was not entitled to Income Support when she 'lost' her entitlement on the basis of incapacity for work in June 2006.

d. The Tribunal checked the various decisions and the 'arithmetic' of the overpayment and found that the decisions were correct in that respect."

The present appeal

31. The claimant appeals against that decision with my leave. Her grounds are that she had throughout been truthful in the information she provided to the department (as already noted her honesty is in no way disputed) and had been receiving the child benefit for her daughter from her ex-partner for reasons she had already explained. She considered this to be "receiving child benefit". If as a result of a perfectly genuine misunderstanding she is found not to have been entitled to any benefit and has to pay it back the results for her and her daughter could be even more serious, because it could also mean she was not entitled to housing or council tax benefit either; and if that was the case she could lose her home and be placed in a really desperate situation: page 57.
32. The Secretary of State opposes her appeal and in the submission on his behalf dated 10 June 2009 at pages 63 to 65 Mr T Lawton argues that the special meaning of "receiving child benefit" adopted by the tribunal was the one it was bound as a matter of law to apply, and that the regulations and current case law do not make any allowances where the claimant is not the person "receiving" [the quotation marks are his] child benefit under a current award in her own name. Very properly, he draws my attention to two decisions of Commissioners (both dealing exclusively with questions of benefit entitlement, not overpayment and misrepresentation), in which "receiving" in this context and the corresponding provisions under the Jobseekers' Allowance regulations had been read as meaning "entitled under an award", so that actual receipt in the ordinary everyday sense was not good enough: see CIS 2317/06 and CJSA 2811/06.
33. As the Commissioner put the point in paragraph 12 of the first of those decisions:

"12. The first reason concerns the wording of regulation 15(1). The word 'receiving' immediately raises the question: receiving what? The answer is: child benefit. Ms Bridges argues that the claimant was receiving the child benefit, because it was paid into her account. However, there is a flaw in that argument. The claimant was not receiving the benefit. What she was receiving was the money paid pursuant to the award of child benefit. That is not the same thing as receiving the benefit itself."

34. I have to say that I find that an over-fine distinction to have to draw on facts such as those found by the tribunal in this case. Most ordinary people would I suspect regard it as an unnecessarily sophisticated way of reaching an unfair result, and too far removed from reality. If it is to fulfil its needed role of providing fair and simple justice for ordinary people dealing with the benefits system, the Upper Tribunal has in my judgment to be careful to keep any distortions of ordinary language by provisions such as those in point here to the absolute minimum, and not add to them.
35. The word in question here is "receiving". This is not a term of art but a word in ordinary everyday use in the English language; there is no provision in the regulations which requires it to be read in anything other than its ordinary sense, or given some different and restricted artificial meaning for the purposes of regulation 15(1). On the tribunal's express finding that the claimant's former partner paid "it" (that is the child benefit for the period in question) over to her, the most natural and ordinary description of the situation seems to me as the claimant herself understood it, that what she was receiving for her daughter was the child benefit, albeit indirectly under the arrangement made between her and her former partner on the separation; it was not any separate unrelated amount of money he was providing at his own expense.
36. The purpose of these provisions, as I understand it, can only be to provide a clear system for identifying the person who has the real substantive responsibility for looking after a child at home, and is thereby restricted in her or his ability to work and earn, so should be the one to qualify as a lone parent for income support. It cannot be to make life deliberately more difficult for such people, or to set traps for the unwary. Consistently with that I would for my part accept that on clear facts such as those found here it is the substantive receipt of the child benefit money by the person having the real responsibility for looking after the child that matters, not the name in which it happens to have been claimed or awarded without regard to those more real factors.
37. I do not think giving the words in regulation 15(1) their ordinary meaning in this way should lead to an avalanche of disputed and doubtful claims. It will always be for the parent actually looking after the child to prove that she (or he) falls within the terms of regulation 15(1), and in the exceptional case where the award of child benefit is not already in that parent's own name this must mean proving actual receipt of it on a clear, consistent and undisputed basis to the exclusion of the nominal claimant, as on the tribunal's findings was the case here. Nor does it imply anything about the meaning of "receive" in other benefit contexts. The reasons for applying an ordinary factual meaning in regulation 15(1) are particularly strong because of the purpose of the provision and the special nature of child benefit, as money intended to help with the costs of caring for and bringing up a child which should properly go to the person who actually incurs those costs and has those responsibilities.
38. Insofar as the question of the claimant's entitlement to income support from 16 June 2006 is before me on this appeal I would therefore be prepared to hold that there was actually no overpayment in this case at all.

Misrepresentation a separate issue

39. But however that may be, the tribunal judge did in my judgment fall into error in treating the question of fact of whether there had been a misrepresentation within section 71 of the Administration Act as effectively determined and disposed of by the "technical" meaning he considered had to be imposed on the word "receiving" in regulation 15(1) for the purpose of deciding entitlement, rather than treating the two questions as separate as I think they should have been, and are.
40. The relevant primary legislation in section 71 requires, as a precondition of any money being made legally recoverable, a misrepresentation of material fact to be shown. The words "misrepresentation" and "fact" there bear their ordinary natural meanings and there is nothing to extend the phrase artificially, so as to turn statements that in ordinary language are factually and objectively true into "misrepresentations", when they happen to conflict with restricted or artificial meanings imposed (or thought to be imposed) by regulations for particular benefit purposes elsewhere. The question actually asked of the claimant was "Are you getting child benefit?" to which she truthfully answered "Yes", confirming this in the form she was sent to sign which also used the word "received" in relation to the child benefit for her daughter, so far as I can see interchangeably and without material distinction.
41. Of course if the question had instead been "Are you getting child benefit under a current award in your own name?" that would have been an entirely different matter, and the correct answer would have been "No", there being no reason to suppose the claimant would not have given it. But that was not the question she was asked, and not the one she answered. Again if the system is to command respect it is important in my judgment that the ordinary words used in section 71 should be applied objectively, and people should only be held liable for a "misrepresentation" if it is clear on the balance of probabilities that they have actually stated a factual untruth. It is of course commendable that the Jobcentre Plus procedures should be phrased in plain English and reduced so far as possible to simple questions using simple language such as "get". But the consequence, which I view as also a commendable one, is that people are not to be accused or made liable for misrepresentation when they truthfully answer the questions they are actually asked, understanding the language used in its ordinary simple sense, instead of the different and more elaborate questions they might have been asked if the focus had been on some more artificial and restricted meaning.
42. In my judgment therefore the first-tier judge misdirected himself in not differentiating the question of interpretation of regulation 15(1) from the factual question that had to be addressed under section 71, and reached the wrong conclusion on the latter. The evidence before him was not sufficient to show the claimant had stated any factual untruth in the answers she gave; and a decision should be substituted that none of the alleged overpayment of income support was shown to be recoverable from her by reason of any misrepresentation of material fact on her part.

Procedural issues also needed to be addressed

43. While expressing my sympathy for the tribunal judge for the piecemeal and by no means complete way the procedural history of the case was put before him in the evidence, I have also to say that I think his decision open to criticism in its failure to address whether a satisfactory and complete redetermination of the claimant's entitlement for the whole period of the alleged overpayment had actually been demonstrated by proper evidence to have taken place before the overpayment decision under appeal to him (in its revised form) had been made.
44. The various gaps and unexplained loose ends will be apparent from the procedural history summarised above and in view of the conclusion I have already reached it is not necessary to delve back further into that again, beyond emphasising that it is a requirement of the primary legislation in every case, before any amount of money can be confirmed as legally recoverable under section 71, that the relevant award of entitlement must be shown to have been validly taken away by a proper and complete separate decision carrying its own appeal rights. If that is not shown to the satisfaction of the tribunal then the recoverable overpayment decision in question cannot be confirmed, and since section 71(5A) makes this a question of jurisdiction, it is an issue to be addressed by the tribunal in every case.

Conclusion

45. The claimant's appeal is allowed and a decision in the above terms substituted accordingly, confirming that none of the alleged overpayment of £2,886.10 is legally recoverable from her. As already noted the question of her entitlement to income support for the relevant period was not directly before me in this appeal, and nor was the question of any consequential effect on her right to housing and council tax benefit of that entitlement being withdrawn retrospectively. Although the consequences if that did happen could, as she says, be very harsh indeed for herself and her daughter it will, I hope, assist both her and her local authority (to which she can show a copy of this decision) if I say that

(a) on the material now before me this would be an entirely proper case (for reasons that will be apparent from what is said above) for the authority to exercise its discretion not to pursue any question of recovery from her for the period in question, even if an "overpayment" was thrown up retrospectively by the stopping of her income support entitlement;

(b) but in any event it seems doubtful if any recoverable overpayment of housing or council tax benefit actually does arise, because the "lone parent" conditions enabling her to count as "responsible" for her daughter for those benefits are different, and less harsh; and if in fact she had no resources of her own she will have had an underlying entitlement in any case, whatever happened about her income support award: see in particular regulations 20 and 104, Housing Benefit Regulations 2006 SI No 213.

P L Howell

Judge of the Upper Tribunal

14 July 2009

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