Hooper v Secretary of State for Work & Pensions

An appeal tribunal must identify and consider issues that are clearly apparent from the evidence, consistently with its inquisitorial function. It need not investigate an unargued issue which could not succeed on any factual finding.

For a claimant’s failure to provide information to be a breach of Social Security (Claims and Payments) Regulations 1987, the Secretary of State’s requirement must be clear and unambiguous. Language stating that a claimant should notify the benefit office or complete a form does not, in its context, necessarily impose a mandatory requirement. An overpayment is therefore not recoverable under section 71 where the alleged failure to disclose rests solely on such ambiguous wording.

The appellant had received incapacity benefit under transitional arrangements following an earlier award of invalidity benefit. He later worked as a school cleaner without notifying the Secretary of State. The work was not exempt work, and the Secretary of State retrospectively superseded the award and sought recovery of an overpayment of £6,989.77.

An appeal tribunal upheld both decisions. Mr Commissioner Jacobs dismissed the appellant’s appeal on the recoverability issue. The appeal raised whether the tribunal should have addressed the retrospective-effective-date provisions and whether the factsheet sent to the appellant imposed a requirement to notify the Secretary of State before starting work.

1. The appeal was allowed in part. The appeal against the supersession decision was dismissed. The appeal against recovery of the overpayment was allowed.

2. Per Dyson LJ, with whom Thomas and Ward LJJ agreed, section 12(8)(a) of the Social Security Act 1998 must be read in light of the tribunal’s inquisitorial role. An issue may be raised by an appeal although it was not expressly articulated by the appellant or counsel. The tribunal must consider an issue clearly apparent from the evidence, applying its legal knowledge to the facts. Its duty is not to search exhaustively for remote points. It need not investigate an unargued issue that has no prospect of success whatever facts might be found.

3. The retrospective-effective-date issue could not have succeeded. A transitional award of long-term incapacity benefit did not convert the original invalidity-benefit decision into an “incapacity benefit decision” for regulation 7A(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Regulation 7(2)(c)(ii) therefore did not apply, while regulation 7(2)(c)(iii) did. The tribunal would have been bound to dismiss the challenge to the supersession decision.

4. Following [2005] EWCA Civ 929, a failure to disclose under section 71(1) of the Social Security Administration Act 1992 can arise from breach of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, irrespective of the claimant’s mental ability to recognise the breach. But the factsheet did not clearly impose a requirement within regulation 32(1). Its use of “should” was advice, not an unambiguous mandatory instruction. Given the serious consequences of non-compliance, a mandatory requirement must be made absolutely clear to a sensible layperson. The appellant had not failed to disclose a material fact on the basis relied on, so the overpayment was not recoverable.

• Court of Appeal (Civil Division) Allowed the appeal concerning recovery of the overpayment, but dismissed the appeal concerning supersession of incapacity benefit.
• Social Security Commissioner (Mr Commissioner Jacobs) Dismissed the appeal from the tribunal on the overpayment issue. Citation not stated in the judgment.
• Appeal tribunal Upheld the Secretary of State’s supersession and overpayment-recovery decisions.