OVERPAYMENTS

 ESA overpayments are rare  No recovery at common law – CPAG v SSWP [2010] UKSC 54  Regulation 36(6) SSCS(D&A) Regs 1999

Revision and Supersession What’s the difference?

Revision Section 9, Social Security Act 1998 “Any decision of the Secretary of State under section 8 or section 10 may be revised by the Secretary of State”

Supersession “Any decision of the Secretary of State under section 8 or section 10 whether as originally made or as revised under section 9, any decision of an appeal Tribunal or a Commissioner may be superseded.

Most obvious distinction is date from which new decision takes effect. Revision operates from date of original decision. Supersession operates from date on which it is made. See “Changing Decisions” by Bob Forrest, and “DLA Technical Guide”

Entitlement Decision Overpayment Recoverability Decision – failure to disclose or misrepresentation of material fact. -S71(5A) Administration Act 1992 – no sum is recoverable unless there has been an entitlement decision.

Ideally both decisions should be made within a short time of each other. Both appeals should be heard on same day by same Tribunal.

Outcome and recoverability appeals heard separately. Is the second Tribunal bound by the decision of the first?  CIS/3512/2007  KJ v SSWP (DLA) [2010] UKUT 452  SSWP v AM [2010] UKUT 428 (AAC)

S71(1) Administration Act 1992 “Where it is determined that, whether fraudulently or otherwise, any person has misrepresented or failed to disclose any material fact and in consequence of the misrepresentation or failure a payment has been made in respect of a benefit to which this section applies, the Secretary of State shall be entitled to recover the amount of any payment which he would not have made.

Burden of Proof Standard of Proof Effects of Criminal Conviction  AM v SSWP (DLA) [2013] UKUT 91 (AAC)  Newcastle CC v LW [2013] UKUT 123

“Any Person” Must be a legal obligation Appointees See R(IS) 5/03

“Fails to disclose” reg 32 Claims and Payments Regulations imposes two duties:

(i)provide such …, information as the SoS may require.

(ii)notify SoS of any change of circumstances that might “reasonably be expected to know might affect the right to benefit.. As soon as reasonably practicable… by giving notice in writing.. to appropriate office”.

Duty under first head of reg 32 is unqualified.

Duty under second head is qualified. Claimant must be expected to know that COC is relevant to their benefit continuing. So:-

Failure to disclose can be wholly innocent.

Someone cannot fail to disclose something they do not know.

Material fact is one objectively material to decision to award benefit.

Failure to disclose is not same as mere non- disclosure.

To whom is duty to disclose owed? -Hinchy v SSWP [2005] UKHL 16 “…to the person or office identified to the claimant as the decision maker”. So 

 personal disclosure to administering office is a complete disclosure.  continuing duty exists where disclosure is not to administering office.  Disclosure need not be in writing or by recipient.  Does posting lead to a presumption of notice?

“Material Fact” What is a material fact? Causal link between Misrepresentation or FTD and overpayment essential.

Amount of Overpayment SoS must determine and Tribunal must check. Essential to check dates particularly in cases where rates vary.

PIP Overpayments reg 9(b) Decisions and Appeals Regulations 2013 Now no protection similar to that given to DLA claimants allowing for les advantageous revision of a “disability decision” only where claimant could be “reasonably expected to know” of the ignorance or mistake. PIP assessment regulations will provide for a more objective and transparent system of deciding entitlement which will make it harder to argue that they did not know of change.

Two new grounds for Supersession Reg 26(1)(a) – where SoS receives medical evidence from HCP or other approved person. Reg 26(2) – permits a negative determination to be made where claimant does not comply with the evidence gathering process to support an assessment under regs 8 or 9.

Effective Date of Supersession s10(5) SSA 1998 is the default position – takes effect on day application made Part 2 of Schedule 1 D&A Regs 2013 General Rule - COC effective from date it occurs or is expected to occur – Para 12, Schedule 1. If superseding decision advantageous to claimant change must be reported within 1 month. By reg 36 time can be extended for up to 13 months. Changes not reported in time take effect from when reported.

Decisions not advantageous involving a PIP payment decision take effect from the date of the decision IF SoS decides claimant could not reasonably have been expected to know – i.e. gradual improvements. Para 13, Schedule 1.

Where SoS decides claimant COULD reasonably have been expected to know change should have been notified effective date is date on which claimant knew. Paragraphs 16 & 17, Schedule 1

Where sections 78 & 79 criteria do not apply change will be effective from date it occurs. Eg: going into hospital ceasing to be habitually resident.

THE END Michael A Taylor – November 2013 Ver. 2