ED v Secretary of State for Work and Pensions
| Jurisdiction | UK Non-devolved |
| Judge | Judge Perez |
| Neutral Citation | [2020] UKUT 352 (AAC) |
| Subject Matter | Claims,payments - other,Recovery of overpayments - misrepresentation,Revisions,supersessions,reviews - ignorance of material fact,Perez,R |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 29 December 2020 |
ED v Secretary of State for Work and Pensions
[2020] UKUT 352 (AAC)
1 ED v SSWP
CJSA/2368, 2373, 2377 & 2381/2017; CE/2384 & 2388/2017; CIS/2390, 2395, 2396 & 2397/2017
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Appeal Nos. CJSA/2368, 2373,
2377 & 2381/2017
CE/2384 & 2388/2017
CIS/2390, 2395, 2396 & 2397/2017
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between:
ED (claiming as “AA”)
Appellant
and
The Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Perez
Representation:
Appellant: Ms Sonali Naik QC and Mr Desmond Rutledge of counsel
Respondent: Ms Zoë Leventhal and Mr Paul Skinner, both of counsel
DECISION
1. The appeals are dismissed.
Appeals
2. I held an oral hearing of these 10 appeals. Three of them relate to decisions
which removed entitlement: CJSA/2368/2017, CE/2384/2017 and CIS/2396/2017
(“the entitlement appeals”). The other seven appeals relate to the corresponding
recoverable overpayment decisions (“the recoverable overpayment appeals”). I
thank all counsel for their helpful and clear written and oral submissions.
Issue
3. Was it open to the Secretary of State for Work and Pensions to revise (by
removing) entitlement to benefits where the benefits had been awarded to a person’s
false identity (a fictitious identity and not an impersonation of another, real, person)
in the Secretary of State’s ignorance of the fact that the identity was fictitious? That
is the question in the entitlement appeals. Whether there are recoverable
overpayments depends on the answer to that question.
4. There are two parts to the question—
(1) Was it open to the Secretary of State to remove entitlement in relation to
the period when the false identity AA had indefinite leave to remain?
(2) Was it open to the Secretary of State to remove entitlement in relation to
the period, following on from that period, when the false identity AA had
British citizenship?
ED v Secretary of State for Work and Pensions
[2020] UKUT 352 (AAC)
2 ED v SSWP
CJSA/2368, 2373, 2377 & 2381/2017; CE/2384 & 2388/2017; CIS/2390, 2395, 2396 & 2397/2017
5. My answer is yes to each, for the following reasons.
REASONS FOR DECISION
Introduction
6. The appellant is ED. ED came to the UK clandestinely between about 1999
and 2001. She claimed asylum using a false name whose initials are AA, a false
nationality: Kosovan, and a false date of birth: 17 February 1984. It is common
ground that ED was not impersonating another, real person and that the entire AA
identity was fictitious.
7. The fictitious identity, AA, was on 4 January 2002 granted refugee status and
indefinite leave to remain (“ILR”). After the grant of ILR, the appellant – using that
fictitious identity and the national insurance number she had obtained in that fictitious
identity – claimed and was awarded benefits. The benefits in question in these
appeals are an income-based jobseeker’s allowance, income support, and an
income-related employment and support allowance. The fictitious identity AA was on
25 May 2006 granted British citizenship by naturalisation.
8. It was common ground however that the appellant is in fact ED, an Albanian
national born on 17 February 1983. That AA was a fictitious identity was not
discovered until after the grant of citizenship.
9. After that discovery, the Secretary of State for Work and Pensions revised
decisions which had awarded a jobseeker’s allowance, income support and an
employment and support allowance, removing entitlement to those benefits for
certain periods. The revisions were done under section 9 of the Social Security Act
1998 and regulation 3(5)(b) of the Social Security and Child Support (Decisions and
Appeals) Regulations 1999
1
. The revisions were done on the ground that the claims
were not valid because not made by the person to whom they related – “AA” – but by
ED, a person who had no standing or authority to make the claims and who did not
satisfy the conditions of entitlement of the award. The Secretary of State also made
a series of corresponding recoverable overpayment decisions. Combined, these
entitlement decisions and recoverable overpayment decisions led to 10 appeals to
the First-tier Tribunal. The First-tier Tribunal dismissed all 10. The appellant appeals
to the Upper Tribunal in all 10 cases, with my permission. Dates, and the subject of
each appeal, are listed in the Annex to this decision. Nothing turns however on
those details.
The parties’ positions as to indefinite leave to remain and British citizenship
10. The Secretary of State for Work and Pensions accepts that the fact that the
ILR was granted to a fictitious identity did not render the ILR a nullity from the start.
She accepts that the ILR was instead merely voidable and could be only
prospectively revoked
2
. That acceptance comes in light of a concession made for
the Home Department in the Court of Appeal in R (Kaziu, Hysaj and Bakijasi) v
1
Statutory instrument number 1999/991, as amended.
2
Under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41).
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Upper Tribunal (Immigration and asylum chamber), 2023-03-10, LP/00331/2021
...as the Administrative Appeal Chamber of this Tribunal noted in ED (claiming as “AA”) v Secretary of State for Work and Pensions [2020] UKUT 352 (AAC) at [84], where the substantive conditions are otherwise met for the grant of some social entitlement, the use of a pseudonym may not be terri......