Plewa (Executrix of the estate of Jozef Plewa, deceased) v Chief Adjudication Officer
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 July 1994 |
| Court | House of Lords |
| Date | 07 July 1994 |
Social Security - Overpayment of benefit - Recovery - Recipient of retirement pension failing to declare wife's earnings - Statutory provision requiring repayment save where due diligence used by beneficiary to avoid overpayment - Subsequent enactment removing due diligence defence - Whether retrospective -
From January 1981 P. received a retirement pension which contained an addition in respect of his wife. His wife was in fact in part-time paid employment, the earnings from which would have affected the amount of his pension. In December 1981, and on subsequent occasions when benefit was uprated, he received a form notifying him, inter alia, that earnings by a recipient's wife were to be disclosed, but he failed to declare his wife's earnings until October 1987, when his pension was adjusted accordingly. On 6 April 1987 section 53 of the Social Security Act 1986F1 replaced section 119 of the Social Security Act 1975F2 with regard to non-means-tested benefits and removed the provision in section 119 whereby beneficiaries had not been required to make repayment if due care and diligence had been used to avoid overpayment. The adjudication officer held that P. was liable under section 53 to repay those overpayments made after December 1981. On appeal, a social security appeal tribunal held that although P.'s non-disclosure had been innocent and might have amounted to a defence of due diligence had the case been considered under section 119, the provisions of section 53 were applicable and the order for repayment would stand. Following P.s death, an appeal by his widow, as executrix of his estate, against the appeal tribunal's decision was dismissed by the Social Security Commissioner and, on a further appeal, by the Court of Appeal.
On appeal by P.'s widow: —
Held, allowing the appeal, that section 53 of the Act of 1986 imposed liability on third parties for innocent misrepresentation or failure to disclose resulting in an overpayment of non-means-tested benefits, in addition to removing the defence of due care and diligence in respect of such misrepresentations made by the payee, and as such had created new obligations which had not been applicable under section 119 of the Act of 1975 and which had retrospective effect if applied to overpayments made before 6 April 1987; that, given the unfairness that would result from those obligations, the presumption against retrospectivity operated so that section 53 was applicable only to overpayments made after 6 April 1987 in consequence of misrepresentations made by the payee or a third party after that date; that, by section 16 of the
The following cases are referred to in the opinion of Lord Woolf:
Free Lanka Insurance Co. Ltd. v. Ranasinghe [
Secretary of State for Social Security v. Harrison (unreported), 11 December 1989, Tribunal of Social Security Commissioners (CA/126/1989)
Secretary of State for Social Security v. Tunnicliffe [
Yew Bon Tew v. Kenderaan Bas Mara [
The following additional cases were cited in argument:
Jones v. Chief Adjudication Officer [
Lauri v. Renad [
L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [
Reg. v. Barnet London Borough Council, Ex parte Nilish Shah [
Reg. v. Inhabitants of St. Mary, Whitechapel (
Reg. v. Secretary of State for Social Security, Ex parte Britnell [
Reg. v. Secretary of State for Social Services, Ex parte Elkington (unreported), 22 July 1986, Simon Brown J.
Appeal from the Court of Appeal.
This was an appeal, by leave of the House of Lords (Lord Templeman, Lord Goff of Chieveley and Lord Slynn of Hadley) given on 28 July 1993, from the judgment of the Court of Appeal (Sir Thomas Bingham M.R., Stuart-Smith and Simon Brown L.JJ.) on 11 November 1992 dismissing an appeal by Gladys Plewa, as executrix of the estate of Jozef Plewa, from the decision of the social security commissioner of 25 August 1992 to uphold the decision of the Social Security Appeal Tribunal of 17 July 1991 affirming a decision by the adjudication officer that overpayments of retirement pension to Mr. Plewa during the period 7 January 1982 to 7 October 1987 were recoverable pursuant to section 53 of the Social Security Act 1986.
The facts are stated in the opinion of Lord Woolf.
Richard Drabble and Natalie Lieven for the appellant.
Michael Beloff Q.C. and J. R. McManus for the Secretary of State.
Their Lordships took time for consideration.
7 July. Lord Templeman. My Lords, for the reasons to be given by my noble and learned friend, Lord Woolf, I would allow this appeal.
Lord Bridge of Harwich. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Woolf, and for the reasons he gives I, too, would allow this appeal.
LORD WOOLF. My Lords, section 53 of the Social Security Act 1986 enabled the Secretary of State to recover overpayment of both means-tested and non-means-tested benefits. 6 April 1987 was the appointed date under the
The issue on this appeal is the extent to which section 53 applies to overpayment of benefit made prior to 6 April 1987. Determining this issue involves considering the effect of section 16 of the
Section 53, so far as relevant, provides:
“(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) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered, the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but...
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