WS v Secretary of State for Work and Pensions

For an overpayment to be recoverable under Social Security Administration Act 1992, the claimant’s failure to disclose must satisfy two causation requirements. The overpayment must have occurred in consequence of the failure, and the payment must be one that would not have been made but for it. Information in an electronic data feed is not necessarily known to the Department merely because it is available. Knowledge requires access to, and some analysis of, the data by a human decision-maker. A claimant who has been told to report a pension’s commencement remains under that duty unless the relevant office has acquired actual knowledge. Tribunal reasons need be adequate, not perfect.

The First-tier Tribunal confirmed decisions that the appellant had received an overpayment of contributory Employment and Support Allowance after his occupational pension came into payment, and that the overpayment was recoverable because he had failed to report its commencement date. The appellant accepted the entitlement decision and the amount overpaid. He challenged only recoverability.

He argued that information in an HMRC real-time information feed meant that the relevant Department for Work and Pensions office already knew, or should have known, that the pension had come into payment. He also argued that the First-tier Tribunal had failed to make sufficient findings, investigate the issue, and explain causation. The Upper Tribunal had to decide whether those matters disclosed a material error of law.

The appeals were dismissed. The First-tier Tribunal’s decisions of 20 May 2021 involved no material error of law and were confirmed.

1. The First-tier Tribunal was entitled to find that the appellant had been told to report the date on which his pension came into payment, but had not done so.
2. The existence of an HMRC and Department for Work and Pensions information-sharing arrangement did not require a finding that the Secretary of State knew the contents of the feed in real time. Availability of data is different from knowledge. The data had to be accessed and analysed, to some degree, by a human being who then decided what to do with it.
3. For recovery under section 71 of the Social Security Administration Act 1992, the causation inquiry has two limbs: whether the overpayment was made in consequence of the failure, and whether it would have been avoided but for that failure. The first is answered in a common-sense way and may be affected by intervening factors. The burden rests on the Secretary of State.
4. The First-tier Tribunal’s reasons were adequate when read as a whole. Fuller discussion and an express finding about the precise date of departmental knowledge would have improved the decision, but were not legally required.

• Upper Tribunal (Administrative Appeals Chamber): The appeals were dismissed and the First-tier Tribunal’s decisions of 20 May 2021 confirmed.
• First-tier Tribunal (Social Entitlement Chamber): The appeals against the Secretary of State’s overpayment and recoverability decisions were refused on 20 May 2021.