WS v Secretary of State for Work and Pensions
[2023] UKUT 81 (AAC)
Secretary of State for Work and Pensions v NS
7 December 2023
[2024] UKUT 5 (AAC)
Upper Tribunal
A man got extra money from the government because he didn't tell them about his pension. The court said he should have told them, even though they could have found out themselves. He has to pay the extra money back, but not a small fine that was initially imposed.
Key Facts
- •NS, a university teacher, claimed and received Contributory Employment and Support Allowance (ESA(C)) after becoming unwell.
- •NS received an ESA40 booklet instructing him to report changes in circumstances, including pension income.
- •NS notified the DWP of his retirement and impending pension in a June 2013 letter but did not specify amounts.
- •The DWP continued payments, later discovering an overpayment of £23,675.55 due to NS's failure to disclose pension income increases.
- •The DWP imposed a civil penalty on NS.
Legal Principles
A person can only fail to disclose a material fact if they were under a legal duty to disclose that fact.
Regulation 32 of the 1987 Regulations, CIS/4348/2003 and B v SSWP [2005] EWCA Civ 929
For an instruction to give rise to an obligation to "furnish" information, it must be "clear and unambiguous."
Hooper v SSWP [2007] EWCA 495; R(IB) 4/07
There's a 'division of labour' in benefit investigations; claimants provide information within their knowledge, the DWP investigates further if needed.
Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23
The claimant's duty is to comply with instructions; the DWP's ability to independently obtain information is irrelevant.
R (Rew) v SSWP [2008] EWHC 2120 (Admin)
A wholly innocent failure to disclose is still a failure to disclose; however, one cannot disclose unknown facts.
B v SSWP
Claimants cannot assume the DWP knows information not disclosed or common knowledge.
Hinchy v SSWP [2005] UKHL 16
For recoverability, a causal link must exist between the failure to disclose and the overpayment.
s.71 of the 1992 Act, Duggan v Chief Adjudication Officer (R(SB) 13/89)
The interpretation of reporting duties must reflect their nature and purpose; to gather information for entitlement decisions.
CDLA/2328/2006
Outcomes
The Upper Tribunal allowed the Secretary of State's appeal.
The First-tier Tribunal (FtT) materially erred in law by misinterpreting the claimant's disclosure obligations under the ESA40 booklet and Regulation 32 of the 1987 Regulations. The FtT wrongly concluded that NS's June 2013 letter sufficiently discharged his duty to disclose pension income receipt.
The Upper Tribunal remade the decision regarding the recoverability of the overpayment.
The overpayment was recoverable because NS failed to disclose the material fact of receiving pension income, despite clear instructions in the ESA40 booklet. The DWP's ability to independently obtain this information was irrelevant.
The Upper Tribunal did not set aside the FtT's decision regarding the civil penalty.
Given the length of proceedings, NS's poor health, the small penalty amount (£50), and the lack of evidence suggesting deliberate concealment, setting aside the decision was deemed disproportionate.
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