Dale William Band, R (on the application of) v The Secretary of State for Work and Pensions

A reimbursement decision under section 41B of the Child Support Act 1991 must address whether official error caused the overpayment. Where communications clearly assert a post-decision change of circumstances, or provide credible and relevant evidence of one, the Secretary of State must consider whether supersession should be initiated or an application invited. That duty applies even while an appeal against the earlier decision is pending. Communications should be assessed by substance rather than form, subject to the statutory limits and the conflicting interests of the parents. A failure to complete that decision-making process may amount to material official error causing loss.

The claimant sought judicial review of a decision reimbursing only part of child support maintenance which he had overpaid. A First-tier Tribunal had dismissed his first appeal concerning the original maintenance decision, but a later Tribunal found that, from 18 November 2019, he provided equal day-to-day care and was not to be treated as a non-resident parent.

The Secretary of State accepted official error from August 2022 and reimbursed overpayments from 12 August 2022. The claimant argued that earlier communications, including evidence of changed care arrangements and representations made through his MP, should have led to earlier supersession. The central issues were whether the reimbursement decision lawfully addressed those matters and whether the failure to act earlier caused loss.

1. Claim succeeded. The reimbursement decision was materially flawed because it treated reconsideration of the November 2019 decision as unavailable while the first appeal was pending, and consequently failed to consider supersession.
2. The power to supersede under section 17 of the Child Support Act 1991 and regulation 17 of the Child Support Maintenance Calculation Regulations 2012 was distinct from revision. A decision under appeal could still be revised, although the revision would have procedural consequences for the appeal. The possibility that revision was inappropriate did not answer the separate question whether a later change of circumstances required supersession.
3. Communications must be read objectively and by substance rather than form. The use of the word supersession was unnecessary. A clear assertion of a post-decision change of circumstances, or sufficiently credible and relevant evidence requiring consideration or investigation, triggered a duty to consider whether the power should be exercised. The Secretary of State could also invite a formal application.
4. The claimant’s April 2020 communications raised a potential post-decision change of circumstances, particularly the change in child benefit and evidence concerning care. The ensuing internal consideration of supersession was left incomplete. There was sufficient evidence to require a decision, at least concerning one child, and the failure to determine the issue caused loss.
5. The MP’s later representations amounted in substance to an application for supersession. If the MP lacked standing, the claimant should have been invited to make the application. The response relying only on the pending appeal was legally defective.
6. The alleged mistake that the detailed dossier had been supplied in April 2022 was not a mistake of established, objectively verifiable fact. However, it was irrational not to consider the causative effect of the Secretary of State’s erroneous confirmation that the documents had been received and were being processed.

The reimbursement issue was remitted for reconsideration in light of these findings.