Overpayment and Recovery in UK Law

That will no doubt be so if the Secretary of State has actually elected – as he did in this case—to recoup the overpaid benefit by deduction at source from subsequent prescribed benefits. As I see it, the liability to repay cannot be said to be not a "bankruptcy debt" (as defined) if one form of recovery – viz by deduction under s.71(8) or s.78(2) – is adopted but can be a "bankruptcy debt" if another form of recovery is adopted.

I consider that the argument falls at the first fence, because it does not appear to me that any possessions of the appellant are at stake. What the Secretary of State is claiming is an entitlement to recover money which should not have been paid to the appellant in the first place. But the recovery of overpaid benefits, for the reason I have given, seems to me to stand outside this question and by parity of reasoning outside art 1P1.

Since the Secretary of State paid the benefit awarded pursuant to a statutory duty, there could be no question of his having made a mistake of fact or law in making the payment. This explains too why section 71 contains no express exclusion of any common law right of recovery: there simply was none and it is hardly surprising that no such exclusion was inserted in 1998 when the adjudicatory and payment functions merged.

The question is not whether there are any differences between the common law remedy and the statutory scheme. The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive.