Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 CIB 1146 2005

JurisdictionUK Non-devolved
JudgeJudge E. Jacobs
Judgment Date24 May 2007
CourtUpper Tribunal (Administrative Appeals Chamber)
Subject MatterRevisions, supersessions and reviews
Docket NumberCIB 1146 2005
AppellantHooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495
Commissioners Decision

R(IB) 4/07

(Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495)

CA (Ward, Dyson and Thomas LJJ)

24 May 2007

CIB/1146/2005

Supersession – date of effect of supersession decision – transitional award of incapacity benefit – whether decision being superseded “incapacity benefit decision”

Recovery of overpayment – failure to disclose – requirement to notify Secretary of State of change of circumstances – statement by Secretary of State that claimant “should” disclose – whether amounted to requirement

The claimant had been in receipt of invalidity benefit, which took effect as an award of incapacity benefit under the Social Security (Incapacity for Work) (Transitional) Regulations 1995. In March 2002 he received a factsheet explaining the new rules for exempt work that a claimant would be permitted to do without loss of entitlement to incapacity benefit, following amendments to regulation 17 of the Incapacity for Work (General) Regulations 1995. The factsheet stated that he “should” tell the office dealing with his benefit before starting work. In September 2002 he started work that would comply with the new rules apart from the specific notice requirement in regulation 17(1)(a) that he inform the Secretary of State within 42 days of starting work. He continued working until April 2004 without informing the Secretary of State. In August 2004 the Secretary of State made a supersession decision to the effect that the claimant was not entitled to incapacity benefit for the period he was working and that there had been a recoverable overpayment for that period. He appealed and the tribunal upheld both decisions. On the claimant’s further appeal, the Commissioner held that the statement in the factsheet that the claimant should disclose his having started work amounted to a requirement to disclose a change of circumstances within the meaning of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, and that there had therefore been a failure to disclose in breach of section 71(1) of the Social Security Administration Act 1992. The Commissioner followed B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, reported as R(IS) 9/06, in disregarding the claimant’s mental state and memory difficulties

The claimant appealed to the Court of Appeal. Before the Court of Appeal it was argued that the tribunal had erred in failing to consider as a matter “raised by the appeal” whether the decision superseded by the Secretary of State was an “incapacity decision” as defined in regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, and so could be superseded only from the date that the claimant knew or could reasonably have been expected to know that the change of circumstances should have been notified, Mongan v Department of Social Development [2005] NICA 16, reported as R 3/05 (DLA), being cited as authority that an issue need not be explicitly raised by a party to be raised “by the appeal” under section 12(8) of the Social Security Act 1998, provided it is clearly apparent from the evidence

Held, dismissing the supersession appeal, but allowing the overpayment appeal, that:

1. regulation 7(2)(c) did not apply, since CSIB/501/2003 and CSIB/695/2004 were correct in holding that transitional awards of incapacity benefit were not “incapacity decisions” as defined in regulation 7(2)(c) of the 1999 Regulations and hence the issue was not “raised by the appeal” (Mongan approved as to the meaning of “raised by the appeal”) (paragraphs 24 to 43);

2. the words in the factsheet were not the language of clear and unambiguous mandatory requirement, such as to makes it absolutely clear that the Secretary of State was imposing a requirement in accordance with regulation 32(1) and therefore the appellant had not failed to disclose in breach of section 71(1) of the Social Security Administration Act (CIB/3925/2003 and R(IB) 4/05 approved) (paragraphs 48 to 58).

Note: the notice requirement in regulation 17 of the Incapacity for Work (General) Regulations 1995 was abolished with effect from 10 April 2006 by SI 2006/757.


DECISION OF THE COURT OF APPEAL

Mr Simon Cox (instructed by Messrs Will Rolt) appeared for the appellant

Mr Martin Chamberlain (instructed by the Solicitor, Department for Work and Pensions) appeared for the respondent.

Judgment (reserved)

LORD JUSTICE DYSON:

Introduction

1. This appeal raises two issues of law arising from the incapacity benefit legislation. They arise from decisions by the Secretary of State for Work and Pensions (SSWP) (i) to supersede an award of incapacity benefit to the appellant for the period 9 September 2002 to 20 April 2004 and replace it with a decision that there was no entitlement to incapacity benefit for that period, and (ii) that an overpayment of incapacity benefit in the sum of £6,989.77 is recoverable from the appellant. These decisions were upheld by an appeal tribunal whose decision was in turn upheld by Mr Commissioner Jacobs. The appellant appeals with the permission of Sir Henry Brooke. Before I come to the statutory framework and the issues in more detail, I need to summarise the facts.

The facts

2. The appellant is 49 years of age. At the age of eight, he was injured in a road traffic accident, as a result of which he suffered significant brain damage. He was unemployed, and on 4 June 1987, a decision was taken under the then applicable legislation to award him invalidity benefit. In 1995, the invalidity benefit regime was replaced by a new regime by the Social Security (Incapacity for Work) Act 1994 (the 1994 Act). This introduced a new Part XIIA into the Social Security Contributions and Benefits Act 1992 and replaced invalidity benefit with incapacity benefit. Under the Social Security (Incapacity for Work) (Transitional) Regulations 1995 (SI 1995/310) (the Transitional Regulations), an award of invalidity benefit took effect as an award of incapacity benefit. Central to the new regime was the “personal capability assessment”. On 22 August 1997, a personal capability assessment was carried out of the appellant. It was determined that he was incapable of work.

3. Until 2002, there were only limited circumstances in which claimants could continue to receive benefit while working. In April 2002, new rules for working while receiving benefit came into force. Work which did not disentitle a claimant from receiving benefit was “exempt work”: see regulation 17(1) of the Social Security (Incapacity for Work) Regulations 1995 (SI 1995/311) (the 1995 Regulations). These rules required the claimant to notify the SSWP within 42 days of starting work.

4. In March 2002, the SSWP sent to all recipients of incapacity benefit a “factsheet” in which they explained the effect of the “new permitted work rules to be introduced from 8 April 2002”, ie exempt work that a claimant would be permitted to do without loss of entitlement to incapacity benefit. After describing what work would be permitted, the document contains a section headed “how does permitted work affect my benefit?” It states that “permitted work will not affect your incapacity benefit” and then:

“You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.”

5. The appellant received a copy of this factsheet. He read it and put it away. He was unemployed at the time. On 9 September 2002, however, he started employment as a school cleaner. He worked in that capacity for 13 hours per week until 20 April 2004. He was paid more than £20 per week. He did not complete the application form that had been referred to in the factsheet before he started his employment or at any time. He did not notify the SSWP either orally or in writing that he was working.

6. He stopped working on 20 April 2004. On 26 May 2004, his incapacity benefit was suspended. On 7 August 2004, the SSWP made a decision superseding the award that had been made on 4 June 1987 on the grounds that between 9 September 2002 and 20 April 2004, he had been doing work which was not exempt within the meaning of regulation 17 of the 1995 Regulations. The supersession decision was that the appellant was not entitled to incapacity benefit for that period. On 13 August 2004, the SSWP made a decision that the appellant had been overpaid £6,989.77 and that this sum was recoverable from him because, in breach of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) (the 1987 Regulations), he had failed to notify the SSWP of the fact that he had started working within 42 days of the day on which his work began.

7. On 14 September, the appellant gave notice of appeal against both the supersession and the overpayment decisions. On 18 October 2004, following a...

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