This is the place where we regularly feature a typical enquiry received by our Specialist Support team. Our current article looks at the recoverability of a benefit overpayment and the failure to disclose a material fact.
Q. We have received an enquiry from a tenant who asks if the Department for Work and Pensions can recover an overpayment of benefit? It arose partly because the tenant ceased to be entitled to Personal Independence Payment and failed to notify the Benefits Office, which resulted in an overpayment of Employment Support Allowance.
A. Regulation 32(1A) of the Social Security (Claims and Payments) Regulations 1987 states claimant must:
‘ . . . furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded.’
Regulation 32(1B) of the Social Security (Claims and Payments) Regulation 1987 states claimants must:
‘ . . . notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect [entitlement to or payment of benefit]…by giving notice of the change to the appropriate office . . . ‘
Where you were overpaid because you failed to provide information, you may also have to pay a penalty.
When challenging overpayments of benefits, there are two substantive case-laws to consider. The first is SK-v-Department for Communities (ESA). In this case the Northern Ireland Social Security Commissioner’s ruled that:
“disclosure” to a person who already knew or was deemed to know was conceptually impossible: see Foster v Federal Commissioner of Taxation (1951) 82 CLR 606; Condon v Commissioner of Taxation  FCA 1291 (Federal Court of Australia). Secondly, it was said that “failed to disclose” implies that there had been an obligation to disclose. Such an obligation exists only when it would be reasonable to expect the claimant to make disclosure. And it would not be reasonable to expect someone to disclose facts which she could reasonably expect were already known. Or, thirdly, it was argued that if the true facts were already known, then a failure to disclose them could have no causal effect and it could not be said that, but for the failure to disclose, the Secretary of State would not have made the overpayments.”
In this case, the Court has ruled that the claimant would not have to repay the overpayment of Income Related ESA. In this case the claimant was an appellant (seeking to overturn a previous ruling in a lower court) and it was deemed he did not have to repay an overpayment of Income Related ESA as he could not have been said to have failed to disclose a material fact to the Department for Social Development (the Northern Ireland version of the DWP).
NOTE: that this caselaw is a Northern Ireland case, which is persuasive for English/Welsh/Scottish Tribunals.
The second case is the Hinchy v Secretary of State for Work and Pensions  UKHL 16). This case contradicts the Northern Ireland Ruling. The Courts ruled that:
“The claimant is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the “simple instruction” in the order book. a claimant cannot be said to have discharged their duty to disclose by relying on the Department’s systems for transferring information between sections. “
Essentially, the decision here is that a claimant cannot be said to have discharged their duty to disclose by relying on the Department’s own systems for transferring information between sections.
OUR ADVICE: We always advise that you notify the Department for Work and Pensions in writing of any changes in your benefits. Where possible, we advise that you hand this information into the local office and ask for a receipt, or if sending it by post, obtain proof of postage.
If you find yourself in circumstances where there is overpayment of benefits, we would advise that you seek specialist support from one of our consultants.
If you have a question you would like to put to our consultants, please email your query to email@example.com. We will do our best to answer your query but please be aware that there is no substitute for personalised attention to your specific circumstances.