Jones v. Chief Adjudication Officer Sharples v. Chief Adjudication Officer CIS 359 1990
| Jurisdiction | UK Non-devolved |
| Judge | N/A |
| Judgment Date | 01 July 1993 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Recovery of overpayments |
| Docket Number | CIS 359 1990 |
| Appellant | Jones v. Chief Adjudication Officer Sharples v. Chief Adjudication Officer |
R(IS) 7/94
(Jones v. Chief Adjudication Officer
Sharples v. Chief Adjudication Officer)
C A (Dillon, Stuart Smith and Evans LJJ) CIS/359/1990
1.7.93 Commissioner case no. Date
Recovery of overpayment - declaration on order book - whether representation as to a material fact
Recovery of overpayment - representation on claim form - whether qualified by declaration at the end of the form
On 5 December 1988, J claimed unemployment benefit from the Department of Employment and income support from the Department of Health and Social Security. On his income support claim form, he declared that that he had claimed unemployment benefit. He received his first payment of unemployment benefit on 13 December 1988 and thereafter received regular girocheques. He received an order book for income support on 21 December 1988 and cashed orders after signing on each one a declaration “that I have correctly reported any fact which could affect the amount of my payment and that I am entitled to the above sum”. He did not report to the Department of Health and Social Security the fact that he had been awarded unemployment benefit. Income support was overpaid because the unemployment benefit was not taken into account. The Commissioner held that the overpayment was recoverable under section 53 of the Social Security Act 1986 on the basis that J had misrepresented a material fact when signing the declaration on the order book. J appealed on the ground that a representation that material facts had been correctly reported was not itself a representation as to a material fact and a representation that he was entitled to the benefit was a representation of law and not of fact
S claimed supplementary benefit on a form on which he answered “no” to a question whether he or his partner had any life insurances or endowment policies and at the end of which he declared: “As far as I know, the information on this form is true and complete.” In fact, unknown to S, his partner did have life insurances or endowment policies. Supplementary benefit was overpaid because the policies were not taken into account. The Commissioner held that the overpayment was recoverable because the claimant had misrepresented a material fact when completing the claim form. S appealed on the ground that he had represented only that he did not know that he and his partner had any life insurances and endowment policies.
Held, dismissing J’s appeal (Evans LJ dissenting) and allowing S’s appeal, that:
1. by signing the order book declaration, J had represented that he had correctly reported any facts known to him and (per Stuart Smith LJ) that was a representation as to a material fact because, unless it was true, the claimant was not entitled to any benefit and (per Dillon LJ) the representation could not be qualified by the addition of words such as “in so far as disclosure could reasonably be expected of me”;
2. (per Evans LJ) the declaration “I am entitled to the above sum” was a representation of law although it might include a representation of fact such as “I, the person claiming, am the person to whom the award was made or to whom the order book was sent”;
3. (per Stuart Smith LJ) J failed to disclose a material fact because he knew he was in receipt of unemployment benefit and must have known that it affected the amount of income support to which he was entitled;
4. (per Stuart Smith LJ) where the order book declaration is signed, an overpayment is recoverable by reason of either misrepresentation or failure to disclose, provided the failure to disclose is established;
5. S’s statement that he and his partner had no life insurances or endowment policies was qualified by the form of words used in the declaration at the end of the claim form and it therefore amounted only to a representation that, as far as he knew, they had no policies, which was not a misrepresentation because he did not know of the policies possessed by his partner.
DECISION OF THE COURT OF APPEAL
Mr. M. Rowland (instructed by Messrs. Raleys, Barnsley) appeared on behalf of the Appellant Jones
Mr. R. Drabble (instructed by Messrs. Cartridges, Exeter) appeared on behalf of the Appellant Sharples.
Mr. J. R. McManus (instructed by P. K. J. Thompson, Office of the Solicitor to the Department of Social Security, London WC2A) appeared on behalf of the Respondent.
LORD JUSTICE EVANS: In these two cases the Department of Health and Social Security seeks to recover certain amounts of social security benefit paid to the appellants in excess of their legal entitlement. It is not disputed that there was an overpayment in each case. Mr. Jones received income support from 20 December 1988 until 2 October 1989 without deducting the amount of unemployment benefit which he also received from the Department of Employment during that period, totalling £2,244.57. Mr. Sharples received supplementary benefit totalling £3,486.20 in respect of the period from 29 August 1987 until 12 February 1988, which, as it now appears, by reason of certain insurance policies which his girlfriend and partner had inherited from her late father, he was not entitled to receive.
The Secretary of State’s right to recover the amount of any overpayment is governed for present purposes by section 53 of the Social Security Act, 1986:
“53. (1) 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) a payment has been made in respect of a benefit to which this section applies; or
(b) ... ,
the Secretary of State shall be entitled to recover he amount of any payment which he would not have made .... But for the misrepresentation or failure to disclose.
(2) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.
(3) ....
(4) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above ... Unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review.”
(Subsections (5) (7) and (10) apply these provisions to supplementary benefit and to income support, respectively.)
The claims were allowed by the adjudication officers and their decisions were upheld on appeal by the social security appeal tribunal (“SSAT”). The appellants then appealed to a social security Commissioner and in each case the appeal was supported by the adjudication officer. Nevertheless, both appeals were dismissed.
The appellants now appeal to this court with leave from Lord Justice Lloyd.
Mr. Sharples’ appeal depends upon a short question of construction of the application form, form B1, which he completed first on 26 August 1987 and on two later dates, each time in, so far as is relevant, identical terms.
Mr. Jones’ case, however, is more complicated. It is not suggested that he either made any misrepresentations or failed to disclose any material fact when he completed his application form, the same form B1, on 5 December 1988. The Department relies upon the declaration which he made when receiving weekly payments of benefit from the Post Office on the standard form of “pension or allowance order book”, in the following terms:
“I DECLARE that I have read and understand all the instructions in this order book, that I have correctly reported ANY facts which could affect the amount of my payment and that I am entitled to the above sum.
I acknowledge receipt of the above sum.
Signature .”
Mr. Mark Rowland, who appeared on behalf of Mr. Jones, has presented his appeal on the basis that it raises issues of principle regarding the application of section 53. The claim against Mr. Sharples is founded on the same section. The two appeals were argued together. For these reasons, the scope and operation of section 53 can conveniently be considered first and in general terms, before turning to the detailed facts of the two cases.
Section 53
Mr. Rowland is correct, in my judgment, to draw attention to the fact that the Secretary of State’s right to recover payments (or overpayments) of benefit is limited to cases where there has been a misrepresentation of or failure to disclose a...
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