PE-S CIS 1062 2009
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 04 August 2010 |
| Neutral Citation | 2010 UKUT 294 AAC |
| Subject Matter | Income support and state pension credit |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 1062 2009 |
| Appellant | PE-S |
IN THE UPPER TRIBUNAL Case No. CIS/1062/2009
ADMINISTRATIVE APPEALS CHAMBER
Before Judge Whybrow QC
Attendances:
For the Appellant: Mr Peter Mant of Counsel instructed under the FRU scheme
For the Respondent Mr Stephen Brown of DWP Legal Services
DECISION
The decision of the first-tier tribunal made on 9 January 2009 involved the making of a material error of law. I set aside its decision and remit the case to a differently constituted first-tier tribunal for rehearing in accordance with the directions set out in paragraphs 91 to 95 below.
REASONS FOR DECISION
Nature of appeal
- This is an appeal by the claimant against the decision of the first-tier tribunal confirming the decision of the respondent that the claimant had been overpaid income support in respect of the period from 23 August 2005 to 19 March 2007 in the total sum of £5543.48, and that this overpayment was recoverable from the claimant. The claimed overpayment was founded on the contention that the claimant had failed in her duty to disclose payments of child maintenance from her husband (or ex-husband) in respect of her children
- The appeal to the Upper Tribunal was brought on the grounds, in summary, that the tribunal’s reasons for its decision were flawed. Upper Tribunal Judge Lloyd-Davies granted permission to appeal on the basis that the grounds of appeal were arguable
- After receipt of the respondent’s first written submissions, which did not support the appeal, Upper Tribunal Judge Mesher made further directions (which are set out full in paragraphs 47 and 72 below) which raised two further issues which can be summarized briefly as follow. The first was whether there was an overpayment at all on the basis that it was arguable that on the true construction of paragraph 73 of Schedule 9 to the Income Support (General) Regulations 1987 as amended (“the ISGR”) payments of child maintenance, which fell within the ambit of the provisions relating to payments by liable relatives, were to be disregarded in full in calculating the claimant’s income. Second, if there had been an overpayment, there was an issue as to whether the overpayment was recoverable in that it was questionable whether in the circumstances the claimant had been under a duty to disclose the payments.
- In the light of the further written submissions of the respondent in response to this direction, I directed an oral hearing which I held on 18 May 2009. Shortly before the hearing took place, I raised with the parties a further issue as to whether on the true construction of the ISGR and, in particular, regulations 25 and 40, there was any statutory basis for applying any amount of the disregard in paragraph 73 of Schedule 9 to the ISGR to liable relative payments.
- At the hearing the claimant was represented by Mr Peter Mant of counsel and the respondent was represented by Mr Stephen Brown of DWP Legal Services. I am very grateful to both for their clear and helpful skeleton arguments and oral submissions. At the hearing both Mr Mant and Mr Brown accepted my invitation to reserve the issue of whether paragraph 73 applied at all to liable relative payments to further written submissions. Subsequently, Mr David Blundell of counsel on behalf of the respondent, and Mr Mant provided written submissions on this issue.
The relevant factual background
- Up until June 2005 the claimant lived with her husband and three dependent children in Dubai. On or about 17 June 2005 she left her husband, came to England with her three children, and claimed income support as a lone parent. On 9 August 2005 she was awarded income support with effect from 17 June 2005. The claimant in her customer statement dated 30 June 2005, on which the award was based, signed the usual declaration that the information given in the statement was correct and complete. The information provided included a negative answer to the question: “Do you or any of the children you are claiming for get any voluntary maintenance payments?” The customer statement also required the claimant to provide information about “other money coming in” and gave examples of what this phrase included, specifying, amongst other matters, maintenance paid through a written agreement or because of a court order. In response to a question in the statement asking whether the claimant had any such monies coming in, the claimant answered positively, explaining that it was in the form of child tax credits. The declaration section of the form also included a warning that it was an offence to fail to notify a change of circumstances promptly and that such failure may result in action being taken against her.
- It was the respondent’s case that when the award was notified, the claimant would have been sent a copy of form INF 4, which requested the claimant to inform the local benefits office of changes in her circumstances. This form included a long list of examples of changes which the claimant should report. Under the heading of “Other money coming in”, the form requested the recipient to
“Tell us if you or anyone you have claimed for
……………………………………………………
- Get any money…………
Remember to include things like………
- maintenance for a spouse, civil partner or children, whether it is paid by court order, voluntarily or by arrangement with the Social Security Agency or Child Support Agency”
- On 23 August 2005 the claimant began to receive from her husband payments of maintenance for the children. It appears that her case (which is set out more fully in paragraph 17 below) is that she did not report these payments immediately but did so when she received a review form (A2) in or about December 2005. On reporting the payments, the claimant says she was advised by an official from Belle Vale Jobcentre Plus that the payments did not affect her claim for income support. On 5 December 2005 the claimant completed the review form in which she answered a similar question about maintenance payments to that asked in her customer statement in the same way. The review form also stated that it was necessary to know if she had any “other money coming in”, and again set out examples of what is included in that expression, including specifically maintenance paid through a written agreement or because of a court order. In response to the question whether she had any such money coming in the claimant ticked the yes box and identified the relevant monies as child tax credits. The form further asked whether the claimant had any other money coming, which she had not already told about, to which question she ticked the no box. The claimant signed a declaration to the effect, amongst other things, that she must promptly tell the paying office of anything that might affect her entitlement, and that the information included in the form was correct and complete so far as she knew, and that she had included all her income and savings.
- On 10 July 2006 a consent order was made in the Liverpool County Court in divorce proceedings between the claimant and her husband, which, amongst other things, required her husband to pay periodical payments commencing on 10 August 2006 to the claimant for the benefit of each of the three children at the rate of £300.00 for each child until each reached 17 years or ceased full time tertiary education. The claimant’s case is that she informed the Belle Vale Jobcentre Plus that the order had been made, but was again advised that it did not affect her claim for income support.
- At some stage in 2006, apparently as a result of information received from a third party, a formal investigation was begun into her entitlement to income support. As a result of the investigation it emerged that from August 2005 her husband had been making substantial payments of varying amounts into the bank account in the joint names of the claimant’s husband and the claimant. In an interview under caution on 26 April 2007 and in subsequent further representations, the claimant said, in effect, that the payments made by the husband were intended to be principally maintenance for the children (£300.00 per month for each child), and the balance was intended to cover the cost of her mortgage and related endowment policy and insurance.
- On 26 June 2007 in the light of the information obtained by the investigation, including bank statements for the joint account, the respondent made a decision described as superseding the decision of 9 August 2005 on the ground that there had been a change of circumstances since the earlier decision had been made in that the claimant had been in receipt of voluntary maintenance payments in respect of the children. The June 2007 decision did not replace in terms the previous entitlement decision with a fresh entitlement decision but stated that the maintenance payments should be taken into account at the rate of £1099.17 per month (which was stated to represent the average payments over the last six months). The decision also stated that an overpayment should be calculated accordingly. On 30 October 2007 a further decision...
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