WS v Secretary of State for Work and Pensions
[2023] UKUT 81 (AAC)
K, R (on the application of) v Secretary of State for Work and Pensions
7 February 2023
[2023] EWHC 233 (Admin)
High Court
The government wrongly made a woman repay money they mistakenly overpaid her. They didn't tell her the full rules about getting the money waived, and didn't think about how their rules might unfairly affect disabled people. The court said the government had to let her keep the money and change their rules.
Key Facts
- •The claimant was overpaid Universal Credit (UC) by the defendant due to official error.
- •The claimant repeatedly notified the defendant of the error but the defendant repeatedly miscalculated her entitlement.
- •The defendant refused to waive recovery of the overpayment, applying the Benefit Overpayment Recovery Guide (BORG).
- •The claimant challenged the lawfulness of the defendant's decisions to refuse to waive recovery.
- •The DMGW, an unpublished internal guidance document, contained significantly different waiver criteria than the published BORG.
- •The claimant argued the defendant unlawfully failed to publish the DMGW and breached the Public Sector Equality Duty (PSED).
Legal Principles
Public authorities must publish policies affecting individuals to enable informed representations.
R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245
A lawful policy is necessary for consistent and adaptable exercise of executive discretion.
B v Secretary of State for Work and Pensions [2005] 1 WLR 3796
Statutory power to recover overpayments must be exercised in accordance with public law principles.
Section 71ZB of the Social Security Administration Act 1992
Legitimate expectation can be founded on a statement that was an error of law, but cannot conflict with statutory duty.
R (Alliance of Turkish Business People Ltd) v Secretary of State for the Home Department [2020] EWCA Civ 553
Public Sector Equality Duty requires due regard to eliminating discrimination and advancing equality of opportunity.
Section 149 of the Equality Act 2010
Outcomes
The defendant's failure to publish the DMGW was unlawful.
The DMGW was crucial for understanding the waiver policy, and its non-publication prevented the claimant from making informed representations.
The defendant's decisions to refuse to waive the UC overpayment were unlawful.
The defendant failed to consider material factors, such as the circumstances of the overpayment and the claimant's conduct, and breached the claimant's legitimate expectation.
The defendant failed to comply with the PSED.
The defendant did not make reasonable inquiries into the potential adverse impact of the waiver policy on disabled people.