CB (as executor of YB’s estate) v The Secretary of State for Work and Pensions

Where an inquisitorial tribunal is alerted to the possible availability of material evidence, it must actively explore whether that evidence can be obtained. This duty applies even where a party has not formally applied for an adjournment, particularly where the party’s representative may have limited experience. A failure to investigate evidence that may materially affect recoverability of an overpayment is an error of law. Questions requiring fresh findings of fact should ordinarily be remitted to the First-tier Tribunal, which may be directed to rehear them before a freshly constituted panel.

The Secretary of State determined that overpayments arising from five pension credit claims were recoverable from the appellant, as executor of the deceased claimant’s estate, under section 71(1) of the Social Security Administration Act 1992. The First-tier Tribunal dismissed the appellant’s appeal on 17 August 2023.

Permission to appeal was granted only in relation to claim 5. The issue was whether the First-tier Tribunal had erred in law by failing to investigate whether documentation concerning the 2020 claim remained available, despite that possibility having been raised at the hearing.

1. The appeal was allowed in relation to the recoverability of the overpayment for claim 5. The First-tier Tribunal’s decision was set aside to that extent.

2. The First-tier Tribunal erred in law by failing to explore whether evidence concerning the declarations made for the 2020 claim was still available. The possibility had been raised at the hearing, and investigating it might have avoided reconstructing claim 5 from indirect material.

3. The First-tier Tribunal’s jurisdiction is inquisitorial. The absence of a formal application for an adjournment did not remove its responsibility to follow up a potentially important evidential issue. The appellant’s representative appeared through the Free Representation Unit, and his level of experience might not have been high.

4. The Upper Tribunal declined to make substituted findings of fact. The First-tier Tribunal was the more appropriate forum for determining the issue. The question of recoverability for claim 5 was remitted to a freshly constituted panel for a complete rehearing.

5. The Secretary of State was directed either to provide all evidence relating to claim 5 or to confirm that a comprehensive search had been made and that no such evidence had been found. If recoverability were established, the person from whom it was recoverable was not disputed, subject to any issue arising during the rehearing.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed so far as concerned recoverability of the overpayment for claim 5; that issue remitted for rehearing by a freshly constituted First-tier Tribunal panel.
• First-tier Tribunal (Social Entitlement Chamber): appeal dismissed on 17 August 2023 in relation to all five recoverability determinations.