VT v SSWP (IS)

A claimant absent from Great Britain for more than four weeks remains entitled to income support under the overseas-treatment exception only where the treatment abroad is provided or arranged by the National Health Service within the statutory scheme. Privately obtained treatment, even if sought because NHS funding was refused, does not meet that condition.

An innocent failure to disclose a material absence can make the resulting overpayment recoverable. A civil penalty under Social Security Administration Act 1992 section 115D requires absence of a reasonable excuse and is discretionary as to whether it is imposed, though its prescribed amount is fixed. The reasonable-excuse inquiry is person-sensitive but objective.

The claimant had received income support on incapacity grounds. She travelled to Ukraine for medical treatment from April to July 2012 and from January to April 2013. The treatment had not been funded, provided or arranged by the NHS. She did not notify Jobcentre Plus of either absence until after the second trip.

The Secretary of State decided that she was not entitled to income support for the relevant periods, that overpayments were recoverable, and that a £50 civil penalty was payable for the second overpayment. The First-tier Tribunal dismissed her appeals in her absence on 10 October 2014. She appealed to the Upper Tribunal, challenging in particular the refusal to adjourn and the civil penalty.

1. Appeal dismissed. The First-tier Tribunal was correct to decide that the claimant was not entitled to income support during the relevant absences. Regulation 4(3A) of the Income Support (General) Regulations 1987 applies only where the NHS has provided, or arranged the provision of, overseas treatment. It could not apply to treatment independently obtained abroad after NHS funding had been refused.

2. The overpayments were recoverable under section 71 of the Social Security Administration Act 1992. The claimant had been told to notify Jobcentre Plus if she went abroad. Her failure to disclose the absences was therefore a failure to disclose a material fact, even if it was innocent. Her asserted practical difficulties did not provide a reasonable basis for believing that benefit remained payable or excuse her failure to notify after her return.

3. A section 115D civil penalty is not automatic. The word may confers a discretion whether to impose it once the statutory conditions are met. A reasonable excuse is assessed by asking whether a responsible person, intending to comply with benefit obligations and sharing the claimant’s relevant experience, attributes and circumstances, would have acted as the claimant did. The amount, however, is the prescribed fixed amount; there is no discretion to set a different sum.

4. There is a right of appeal to the First-tier Tribunal against imposition of a section 115D penalty. It is a decision made on an award for section 12 of the Social Security Act 1998. Although the First-tier Tribunal had not expressly addressed reasonable excuse or discretion, its findings showed that the claimant had no reasonable excuse. The Upper Tribunal afforded her the opportunity to make discretionary submissions and found no injustice from the refusal to adjourn. A penalty for the second overpayment was appropriate.

• Upper Tribunal (Administrative Appeals Chamber): The claimant’s appeal was dismissed.
• First-tier Tribunal: On 10 October 2014 it dismissed the claimant’s appeals against the entitlement, recoverability and civil-penalty decisions.
• Secretary of State: Decisions dated 13 May 2014 and 28 January 2014 ended entitlement for the relevant overseas absences, found overpayments recoverable, and imposed a £50 civil penalty for the second overpayment.