[2009] UKUT 77 (AAC) (16 April 2009)

77 [2009] UKUT 77 (AAC) (16 April 2009)

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Cite as: [2009] UKUT 77 (AAC)

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[2009] UKUT 77 (AAC)(16 April 2009)
Recovery of overpayments
failure to disclose

THE UPPER TRIBUNAL Appeal No. CG 2786 2008

ADMINISTRATIVE APPEALS CHAMBER

PG v Secretary of State for Work and Pensions

Hearing at Cardiff Civil justice Centre / Canolfan Llysoedd Sifil Caerdydd

2 04 2009

Mr C R Bagley of Stroud and District CAB for the appellant

Mr Jeremy Heath, solicitor, of the Office of the Solicitor to the Department for Work and Pensions for the respondent

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If either party has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

The background

Mrs G's husband has been in receipt of maximum disability living allowance since 1992. He is quadriplegic, and now severely physically limited. The appellant, Mrs G, is his carer and has been receiving carer's allowance for caring for Mr G since 1992. Claims were made for Mr and Mrs G by the local social services staff as Mrs G has literacy and reading problems. Her carer's allowance was paid together with other benefits in one benefit book.

Mrs G became entitled to a reduced state pension on her own contribution record when she reached retirement age on 11 11 2002. She told the local Gloucester social security office that she was receiving carer's allowance. Staff at the local office said they would deal with the matter for her. The Gloucester office sent an internal memo to "ICA Blackpool" about the pension before the date on which it was first paid. Further, a decision reducing her carer's allowance was made before her pension entitlement started.

The papers do not make clear what happened next. It appears that Mrs G made a claim for an increase in her state pension by reference to her husband's contribution record when he became entitled to his state retirement pension. This was "around 16 03 2003", to quote the only evidence in the papers. Records show that her entitlement to pension was increased from 17 03 2003 on this basis. There is no information about when or how Mrs G was informed of the pension increase. The only evidence is that an officer, checking later, "couldn't see anything on the system". No change was made to her carer's allowance to take account of this increase in her pension.

It is not in dispute that Mrs G's carer's allowance should have been reduced to take account of this increase in her pension. The screen prints of Mrs G's personal entitlement suggest (as the tribunal made no finding on the point nor the Secretary of State any submission) that she was issued with a new carer's allowance order book on 28 02 2003 for the period to 17 08 2003 at the same rate as previously, and that the increased retirement pension was first payable to her on 17 03 2003. No new order book was issued until 18 07 2003. The screen prints do not show if she was issued with a new order book for her increased pension and suggest no single order book was produced for both her pension and her carer's allowance. I note that because Mr Bagley suggested that Mrs G had a single order book. If she did, the computer records are wrong. But, I emphasise, the tribunal made no findings on this.

Evidence of overpayment

On 19 07 2007 a Department for Work and Pensions ("DWP") business assurance team noted that Mrs G seemed to be getting too much carer's allowance. A check on DWP computer records showed this to be the case. The check seems to have been occasioned because the team noted that Mrs G was getting a non-standard rate of carer's allowance, and that her weekly pension increased from 17 03 2003. The team appears to have been part of the Carer's Allowance unit, based at Palatine House, Preston. That is, and for a long time has been, the location of the Carer's Allowance unit of DWP.

A screen print was requested by a named officer of an unidentified part of DWP on 19 02 2008 at 10.12 am against Mrs G's National Insurance Number. The request immediately produced a computer print out of her personal entitlement to retirement pension. Six minutes after that was downloaded, at 10.20 am, a different officer, a member of the appeals section of the CA Unit, made a payment history enquiry against the same National Insurance Number. Over a period of 5 minutes the computer downloaded a complete weekly statement of the amount of carer's allowance received by Mrs G.

These screen prints appear to show that the unit had immediate access on 19 02 2008 without enquiry of any further person to all the information it needed to indicate that Mrs G was being overpaid her carer's allowance, and the precise details of the overpayment. It is not clear whether the same swift check was possible in 2007 or before. The Business Assurance Team at Palatine House asked on 19 07 2007 for a post payment check on Mrs G because Mrs G had received a pension increase from 17 03 2003 that was not reflected in a reduction of the non-standard rate of carer's allowance she was then receiving. So it had that information available. This led to an enquiry to "RP Stockport" on 30 07 2007 about when Mrs G was notified that her pension was increasing. RP Stockport "couldn't see anything on the system" so guessed that it would have been "around 16 03 2003". There is no other evidence about when the claim was decided or notified. This led to a decision made on 30 07 2007, not under appeal, superseding Mrs G's entitlement to carer's allowance from 17 03 2003.

A computer generated decision that overpaid carer's allowance was recoverable, made on 25 08 2007, claimed as recoverable all the carer's allowance paid to Mrs G up to 5 08 2007. The Business Assurance Team notice shows that on 19 07 2007, if not before, the unit had all the information it needed to stop the continuing overpayment. It is not clear why the computer programme did not stop the overpayment recoverability decision at that date. It appears that the programme generated a decision to recover the full amount of benefit overpaid, rather than the amount recoverable. I have no evidence about the basis on which these decisions are generated, so cannot comment further on this.

It is not clear on what basis the staff at Palatine House accessed the information held on Departmental computer systems about Mrs G's retirement pension and carer's allowance either in 2007 or 2008. From the request date for the screen prints in 2008, I assume these to have been generated for the purposes of the appeal. But together they are a fair basis on which to raise the question put by Mr Bagley, namely whether – as superficially appears to be the case - all the data were held together in, or accessible from, a computer system accessible in Palatine House at least at those dates> If so, when did the common system start?

These facts raise questions about the period of recoverable overpayment. Aside from that, there has been no challenge to the individual details shown on the screen prints and on which the calculation of the overpayment was based.

Mr Bagley pointed out a further way in which evidence appeared to be accessible within DWP about Mrs G's carer's allowance. On 24 07 2003 the Pension Service sent Mr G a letter about his pension credit. Part of the letter is missing from the papers, but it is clearly a standard letter notifying Mr G of the changeover from Minimum Income Guarantee to state pension credit. The important point about this letter, according to Mr Bagley, is that it shows that the Pension Service knew that Mr and Mrs Bagley were living together and that she was receiving carer's allowance. The letter also makes it clear that the carer's allowance was not relevant to Mr G's entitlement to state pension credit for himself and Mrs G. Mr Bagley made two points about this. If carer's allowance is irrelevant to state pension credit, why did the Departmental officers (or the computer programme generating the letter) have access to information not only about Mr G's disability living allowance but also about Mrs G's carer's allowance when dealing with the suggestion that Mr G should claim state pension credit? Whatever the reason, it is evidence that the Pension Service knew of Mrs G's carer's allowance. Further, this reasonably suggested to both Mr G and Mrs G that the DWP knew both about Mrs G's pension as then in payment and her carer's allowance.

Mr Bagley also put weight on another Departmental action relating to Mrs G's carer's allowance. Mrs G was paid her carer's allowance by order book until 28 03 2004, and by payment to her bank after that. Mrs G was notified of this by a letter dated 31 12 2003, that claimed that she had requested a change in the way her CA was paid. In a submission to the Upper Tribunal about the appeal, the secretary of state's representative produced copies of two letters which, according to the submission, "computer records show were issued to the claimant by the CA office". Mr Bagley pointed out that the evidence presented by him showed that this was wrong. There was a copy of one of the letters sent to Mrs G in the papers. It was significantly different to the letter that the secretary of state's representative claimed had been issued to her. The significance was that the letter did not, as the secretary of state's representative claimed, give any instructions to the recipient about notifying changes to the Department. At the hearing, Mr Heath accepted that what had been produced by those instructing him was a template showing the letter that would have been sent had standard practice been followed. Mr Bagley made the point in reply that the evidence clearly showed that if that was standard practice then it had not been followed. I accept that submission. The secretary of state's representative cannot in this case rely on the assumption that that standard practice had been followed.

The tribunal decision

The decision under appeal was the computer generated decision showing a recoverable overpayment of carer's allowance for the period from 17 03 2003 to 5 08 2007 (inclusive) because of the failure by Mrs G to disclose the material fact that she was awarded the standard rate of retirement pension following Mr G's 65^th birthday.

The formal statement of law based that decision on section 71 of the Social Security Administration Act 1992. The formal submission to the tribunal based its application of that section on the continuing failure of Mrs G to comply with the instructions in her order books. That submission is defective in two ways. First, it fails to mention that the duty to report is under regulation 32 of the Security (Claims and Payments) Regulations 1987. Second, Mrs G did not have any order books to sign from April 2004, so the reasoning of the submission was defective from that date. But Mrs G had the benefit of the help of a well-informed representative who was fully aware of the regulation 32 point. He was also fully aware of the error about the payment books. Any unfairness that might have resulted from the errors in the submission did not affect Mrs G's case as presented to the tribunal.

It is not possible to tell from the tribunal's record of proceedings what part of the record consists of submissions of the parties and what part records evidence of Mrs G. In its statement of reasons the tribunal records receiving oral evidence from Mrs G, including the following concerning what happened in and after March 2003:

"Her husband reached 65 on 16 March 2003. He had claimed his pension in November 2002 from the Pensions Service and he claimed for her and her own pension went up. In March 2003 the appellant's husband telephoned someone about the appellant's pension increase. It was probably the Pensions Service given what happened the previous November. The appellant did not contend that the ICA unit had been informed."

The tribunal's reasons start with a concise and accurate statement of the law. The decision was based on failure to disclose, not misrepresentation. The duties to disclose were in regulation 32(1A) and (1B) of the Claims and Payments Regulations. The carer's allowance order book set out the required duty for regulation 32(1A). The decision of the House of Lords in Secretary of State for Work and Pensions v Hinchy [2005] UKHL 16, R (IS) 7/05 "makes it clear that to discharge the duty of disclosure imposed disclosure must be to the office administering the particular benefit". This required Mrs G to disclose changes in her retirement pension to the Carer's Allowance unit, This had not been done. "The tribunal did not consider that the change of payment from order book affected that matter".

The tribunal then turned to the specific ground of appeal. "The issue which remained was whether in some way the DWP could have been taken to have qualified the duty as set out in Hinchy to report matters to the office dealing with the particular benefit by its previous conduct." Its conclusion was: "the fact that disclosure previously to a local office dealing with different benefits had been effective did not relieve the appellant of the duty which was clearly set out in the instructions in the order book to make disclosure to the actual administering office."

Submissions for Mrs G

Mr Bagley, having started by disowning any legal expertise, set about demolishing both the decision of the Secretary of State and that of the tribunal with forensic thoroughness. He did so, he submitted, because this case was typical of confusion in many such cases and guidance would be welcome. I note above the defective nature of the submission to the tribunal and do not need to deal with that further. Mr Bagley sought to test each link in the chain of reasoning of the tribunal, not flinching from arguing that the decision of the House of Lords in Hinchy should have been distinguished on the facts and not followed by the tribunal in this case. The thoroughness of that argument, and the closely argued skeleton argument on which he based his submissions, deserve full examination.

Mr Bagley sought to attack the tribunal's decision on several grounds:

(a) his client (and/or her husband) promptly and properly disclosed her increase in state pension;

(b) on the facts, their duty was to notify an appropriate office and not specifically the carer's allowance unit, and they had been given reason to consider that they had done this;

(c) the tribunal had paid no attention to the effect on Mr and Mrs G of the decision to close the Gloucester social security office and centralise the functions relevant to them and the appellant's reasonable response to this;

(d) the tribunal had erred in eliding the period of payment by order book with the period of payment by bank transfer; the continuing duty on the appellant to disclose should be looked at again after the change of payment method;

(e) in any event, the computer records and correspondence both showed that the DWP knew all it needed to know about Mrs G's pension and it could not claim to be in ignorance of the relevant details.

For the Secretary of State, Mr Heath relied on the terms of regulation 32, the decision of the House of Lords in Hinchy, the formal evidence in the papers, and the tribunal's record of proceeding to submit that it had made no error of law either in its legal reasoning or in its findings of fact.

The duty to disclose

The case for the Secretary of State is that Mrs G failed to disclose the increase to her pension in 2003 to the Carer's Allowance unit. Any other disclosure was irrelevant. The tribunal identified the duty as that imposed by regulation 32(1A) of the Claims and Payments Regulations 1987. The Secretary of State has not questioned this. That duty is:

"(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded."

This regulation has been subjected to much dispute and analysis. Mr Bagley bravely sought to reenter that debate. He accepted that the key analysis was that of the House of Lords in Hinchy. But he pointed out that that decision was an analysis of the situation in 1998, and that things had moved on significantly since then. There had been major reorganisations of the DWP in the last ten years, with major introductions of computer systems. The evidence in the papers in this case showed that. In particular, he noted that the DWP had told the House of Lords that, in connection with the two benefits in dispute in that case:

"The civil servants administering DLA and IS have always been geographically separate, with separate "files". There has never been a computer link between the two systems." (Hinchy, opinion of Lord Hoffman at [14]).

Mr Bagley suggested that the facts of this case were sharply different. Carer's allowance and state retirement pension are both centrally administered. There were no relevant local offices for these benefits, even if they still existed for other benefits. It was clear from the papers that by 2007, if not before, that the two centralised units did have an active computer link.

In my view three issues that arose in or behind Hinchy need to be separated in this appeal to see whether there is merit in Mr Bagley's' argument. The first is the duty to disclose. The second is what that duty required of Mrs G in this case. The third is whether failure in that duty caused the overpayment.

The duty to disclose

The majority opinions in Hinchy show that in their Lordships' opinions the underlying policy behind the duty to disclose is that it is the claimant or beneficiary who knows the relevant facts. Baroness Hale noted (at [49]):

"… there is nothing intrinsically wrong in relying on the claimant to give the Secretary of State the information he requires to make his decisions, provided this is information which the claimant has and that the Secretary of State has made his requirements plain. Nor is it intrinsically wrong to include in these requirements information which is already known in one part of the system but not in the part that needs to know it to make the decision in question. In an ideal world, administrative systems might be so efficient that any official in one office might at a few clicks of a mouse be able to retrieve all the information about a particular claimant held everywhere else in the system… It is certainly not yet with us."

Lord Hoffmann, in the leading opinion, looked at the issue from the standpoint of the decision maker, not the Secretary of State:

"[23] Disclosure, then, must be made to the relevant official and not to the Secretary of State as an abstract entity. What assumptions can be made about what the relevant official already knows? … It is not for the claimant to form views about what may go on behind the scenes in the Social Security or other benefit offices. His duty is to comply with the instructions in the order book."

His Lordship dismissed comments about the relevance of computer systems in a previous case. After an analysis of the decisions he restated his opinion as:

"[30] … the legislative policy … remains unaltered in the Current Act and regulations, namely that the primary onus of keeping the "appropriate office" informed rests upon the claimant.

[32] … The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the Department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the "simple instruction" in the order book."

It follows that the duty on Mrs G was the duty imposed by regulation 32(1A) whatever the administrative arrangements in place in the DWP. It was common ground that, at least initially, that duty was set out in the order book being used in March 2003. The instructions are clear:

IF ANY OF THE CHANGES LISTED IN THE FOLLOWING PAGES OCCUR, YOU MUST, UNLESS INSTRUCTED OTHERWISE, SEND YOUR ORDER BOOK BACK IMMEDIATELY TO THE ICA UNIT AND TELL THEM WHAT HAS HAPPENED.

The page of the order book then sets out, also in bold type, the address and telephone number of the CA Unit in Palatine House. It is common ground that this has not changed at any time relevant to this appeal.

I heard no argument, and can see none, that the Secretary of State cannot reasonably and proportionately make that requirement in general terms of a claimant for carer's allowance. In the list of changes to be reported are the following:

"You must tell us about any of these changes and return your order book unless we have stated otherwise:

…

You must always tell any office where you claim any other benefits that you are getting ICA

…

You start getting retirement pension … or the amount of your retirement pension increases because your husband has started receiving his own retirement pension"

I see nothing unreasonable or disproportionate about those specific requirements.

Modification of the duty to disclose

Those were the duties on Mrs G from the time that she knew of her pension increase unless "we have stated otherwise" and until the failure to disclose was no longer causative of any overpayment. I agree with the tribunal that in this case that duty, once established, does not end because the method of payment ceased to involve order books unless, again, "we have stated otherwise".

The contention that "we" "stated otherwise" must be based on other representations. In this case the argument was based on the fact that "we" accepted notification through the local Gloucester office - passing it (wrongly) to the Blackpool office who presumably passed it correctly to the Preston office - when Mrs G reported receiving her own state pension. Had that been repeated when she received increased pension, then there would be a strong case for that proviso again operating. But the Gloucester office was closed down before she received additional pension linked to her husband's pension, so she could not repeat the process. Nonetheless Mr Bagley argued that, on the authority of R(A) 2/06, the tribunal should have found that the Secretary of State had modified the duty imposed on Mrs G. As it is not in dispute that Mrs G was under a duty to report the receipt of an increase in her pension, the issue was how and to whom she should report it.

In R(A) 2/06 Commissioner Rowland discussed modification of the duty to disclose. That could include where disclosure should be made. He accepted at [13] that under the law since Hinchy modification could be oral as well as written. He added the reservation that if it became apparent that an anticipated reduction in benefit had not occurred, then a further duty to report might arise. However, if the claimant did not know whether or not the information would result in a deduction, that further duty might not arise. The Commissioner did not need to analyse the argument further as it did not arise on the facts of that case.

That argument could be applied to this case if the evidence showed that Mrs G had been told that it was enough that she report the changes to her pension to any part of the DWP that would then pass it on to the Carer's Allowance unit. Alternatively, if she could show on the evidence that the Pension Service said it would pass on the information she had supplied to the Service to that unit, then again the argument would apply. There would have to be something more than the fact that on the previous occasion the Gloucester office acted as a postbox. (I do not consider anything turns on whether the actions were taken by Mrs G or Mr G provided they were taken).

The tribunal found at [13] that there was a telephone call to the Pension Service to explain that carer's allowance was in payment. It was contended that as part of that conversation Mr and Mrs G were led to believed that the information would be passed on to the Carer's Allowance unit, and that it was reasonable for them to expect it to be passed on in the light of the experience the previous November. What the tribunal found was that it:

"did not consider that a statement by the Pension Service after being informed in March 2003 by the appellant's husband that CA and the appellant's pension were in payment to the effect that matters would be taken into account (whatever the precise terms of such a statement might have been) could be regarded as acceptance by the Pension Service of the obligation to inform the CA unit of the relevant matters."

I agree with Mr Bagley that that misses the point. He submitted that Mrs G gave evidence that they were led to believe by their previous experience and by what they were told in March 2003 that they had adequately reported the change. If so, they had fulfilled the duty on Mrs G to report as it would be reasonable to conclude that "we have stated otherwise" (the terms of the exception in the order book). The tribunal did not make a finding about this. On the contrary, it ducks the issue by failing to consider the "precise terms of such a statement".

If the tribunal considered that this was the position in law, and that it did not need to find these facts, then it was wrong. It follows from R(A) 2/06 that there may be an oral modification of the duty to report to a particular office. If the evidence showed that, on being told of the problem, an official in an office of the Secretary of State indicated that no further disclosure was needed, then it must be decided as fact if the duty had been modified and discharged. If a modification had previously occurred, then that makes the necessity to find the relevant facts all the more important. The tribunal appears to have assumed that the Pension Service knew nothing about what happened the previous November. But the record of proceedings does not show whether any enquiry was made. If, for example, Mr G had told the Pension Service of the problems, and of how helpful the Gloucester office had been the previous November, and asked for help, then I see no reason why he and Mrs G could not rely on any help they were then given in discharging, and so modifying, her duty to inform.

But if is found that the duty on Mrs G had been modified, then it must also be considered when she should have taken further action to check that her notification had been received at a later stage. She knew her pension had not changed after the increase in pension in the way that it was changed promptly when she first received her pension. It is implied, though no specific finding was made, that she expected, or should reasonably have expected, a change in her carer's allowance when her pension changed. If she did expect a change then at some point the further duty to disclose, as Commissioner Rowland called it in R(A) 2/06, arose.

This answers another argument put forward by Mr Bagley. I agree with Mr Heath that the tribunal's concern was focussed on regulation 32(1A). That test does not include any wording about the reasonableness of informing the appropriate office (or any other office). It lays down a requirement in absolute terms. I reject the argument that the Secretary of State had failed to show the tribunal that it was reasonable for Mrs G to disclose the increase in her pension. She was required to disclose it. She did not disclose it to the Carer's Allowance unit. The question was whether she had, in the particular circumstances of both her and her husband's limitations and their course of dealing with the DWP, discharged the duty by contacts with the Pension Service. That is an issue of fact, not law. The relevant findings were not made.

I conclude from the above that the original duty on Mrs G is clear. If that duty was not modified, then she failed to disclose her pension to the Carer's Allowance unit as required. The tribunal did not deal adequately with the submissions and evidence about a modification of, and linked discharge of, the duty on Mrs G to report her increased pension to the Carer's Allowance unit as a result of the telephone calls that it accepted Mr G made to the Pensions Service.

It remains to be decided whether the Secretary of State has satisfied the burden of proof that there was a failure to fulfil the duty on Mrs G to report her pension. There is nothing in the formal submission to the tribunal on this issue. No submissions were made at the hearing for the Secretary of State on the issue. Unfortunately, it is not clear what evidence was given by Mrs G on the point at the tribunal hearing. Whatever evidence was given appears to have been uncontested, so it is not clear how the tribunal could have rejected it. But in the absence of both findings of fact and a clear record of proceedings I am unable to take that point further.

Did a failure to disclose cause the overpayment?

If Mrs G failed to fulfil the duty, then she is liable to pay back any resulting overpayment so long as her failure to disclose is causative of the overpayment. The importance of this issue is because the overpayment must be "in consequence of the … failure to disclose" (section 71 of the 1992 Act). Little attention was paid to this aspect of the case by their Lordships in Hinchy. Lord Hoffman commented at [25]:

"Nor was there any basis for assuming that, on the facts, the non-disclosure had no causal effect because the relevant official had received the information by internal lines of communication. The inference of ignorance from the fact he made the overpayments was far stronger than the possibility that he knew from a card on the file that the DLA award had in fact ceased."

Baroness Hale did not comment on this. Lord Scott dissented on a ground that did not require him to consider it. Lords Hope and Walker agreed with Lord Hoffmann.

When did the failure to disclose occur?

The question resolves itself in this appeal into issues of fact. When did the failure to disclose occur? It was assumed to be on the day that Mrs G first became entitled to an increased pension. But there is no finding that she had been notified of the increase in her pension at that date, or that she was paid it, or given an order book for it. The only evidence is of entitlement. The screen print evidence is incomplete, so does not answer the question when she knew or should have known of her entitlement.

If it is accepted that Mrs G was entitled to assume that she had met the requirement on her when her husband telephoned about the double payment, then that may discharge the duty to disclose only for a limited time. At some later time, to be decided on the facts, it may be that it was longer continue reasonable for her to assume that she had discharged the duty on her if her carer's allowance continued in payment at the same or an increased rate. That would need to be decided as the obligation to report a second time would then arise.

Did the failure to disclose continue to cause the overpayment?

When did any failure to disclose cease to be the operative cause of the overpayment? There is no finding on this. The computer programme claimed the full overpayment. That may be wrong because the evidence in the papers shows that the "appropriate office" knew all it needed to know on 19 07 2007 (the date on which the Business Assessment Team alerted someone else to the overpayment issue) or perhaps at some earlier date. But it may be that on the evidence both of the information available to the relevant officers on that date, and the information readily available to officers of the unit on 19 02 2008, the "appropriate office" had all the information it needed some time before that. That is the core of one of the arguments by Mr Bagley. It must be decided on the evidence.

Conclusion

The appeal came before me at the hearing as a supported appeal. This was because the Secretary of State agreed with the appellant that the tribunal had failed to deal with the appellant's arguments based on R(A) 2/06. I indicated at the hearing that I was not fully persuaded that that error by itself was such as to cause the tribunal to have erred in law. I have taken that decision into account in concluding that the tribunal failed adequately to make findings about the contended modifications of the duty on Mrs G to disclose her increased pension. I have noted that the tribunal also failed to consider whether the period of overpayment for which recoverability was asserted was correct. And I have noted an absence of evidence and findings on a number of other issues. The tribunal decision must be set aside for these reasons.

A new hearing

I indicated at the hearing that I would seek to decide this case fully myself without reference to a new tribunal. I find that a full analysis of the argument presented by Mr Bagley raises more questions of fact and gaps in the evidence than I had anticipated. Mrs G was unable to attend the hearing before me so I was unable to take evidence directly from her. Judge Pacey directed that evidence be obtained from Mr G ahead of the hearing, and I have read that. It should clearly be taken into account. I find, reluctantly, that the matter must go back to a new tribunal for a hearing.

I direct the new tribunal as follows. The general duty on Mrs G to report the change in her carer's allowance when she received additional state pension from about 17 03 2003 is not in issue. Nor is the amount of the overpayment. The terms in which the Secretary of State notified that duty to her in the order book are set out above. On the agreed facts, those apply both while and after she was paid by order book. It is also common ground that Mrs G did not report the matter directly to the Carer's Allowance unit.

The tribunal must decide on all the evidence whether the Secretary of State has satisfied it that that duty remained unmodified or undischarged despite the evidence of Mrs G and her husband that they considered that they had discharged the duty, as modified orally by the Secretary of State, by the telephone call or calls that took place at the time her pension was increased. If the tribunal is satisfied that the duty was not modified, then it must find as fact whether Mrs G was aware of the increased pension from the date it was first payable or from some later date. If the tribunal is satisfied that the duty was modified and discharged at the time the increased pension was payable, then it must consider how long it remained discharged and if and when Mrs G should have taken further action to stop the overpayment.

The tribunal must also consider when any failure to disclose ceased at any time to be causative of the overpayment. Should recoverability cease on 5 08 2007 (the date in the decision under appeal) or 19 07 2007 (the date on which the appropriate office was clearly aware of the overpayment) or some earlier date (as Mr Bagley has contended by reference to the computer records and correspondence)?

The parties will note from the above that there are still gaps in the evidence. When did Mrs G find out about her increased pension and when was she first paid it? What did the Pension Service actually say to Mr G in March 2003? How did the Business Assessment Team know that Mrs G was being overpaid carer's allowance on 19 07 2007? If it knew on that date, should it have identified that there was an overpayment at some earlier date? The parties are to submit any further evidence on these or any other relevant matter to the tribunal within one month of this decision.

David Williams

Judge of the Upper Tribunal

16 04 2009

[Signed on the original on the date stated]

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 77 (AAC) (16 April 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/77.html Cite as: [2009] UKUT 77 (AAC)