The Secretary of State for Work and Pensions v IL

Social Security Administration Act 1992, section 71ZB(1)(a) to (c), permits recovery of universal credit, new-style jobseeker’s allowance and new-style employment and support allowance paid in excess of entitlement, irrespective of the cause of the overpayment. Recovery requires a valid reversal, variation, revision or supersession of the entitlement decision under section 71ZB(3).

Under paragraph 6B of Schedule 3 to the Social Security Act 1998, a claimant may appeal only the amount recoverable. The First-tier Tribunal has no jurisdiction to decide whether such an overpayment should be recovered or waived. Public-law and Convention arguments about a refusal to waive recovery may instead be pursued by judicial review.

The Secretary of State appealed against the First-tier Tribunal’s decision that an overpayment of £8,835.87 of new-style employment and support allowance was not recoverable from IL.

IL had disclosed his occupational pension when claiming the benefit. The Department for Work and Pensions did not act on that information until later, when it revised his entitlement and found that he had not been entitled to benefit for the relevant period. The First-tier Tribunal accepted that the overpayment arose through official error, but held that it could not be recovered because of the hardship caused and the Secretary of State’s failure to consider the consequences of recovery.

The central issue was whether the tribunal had jurisdiction to determine whether an overpayment recoverable under section 71ZB of the Social Security Administration Act 1992 should be recovered.

1. Appeal allowed. The First-tier Tribunal had made material errors of law. Its decision was set aside and remade so as to refuse IL’s appeal and confirm the Secretary of State’s recovery decision.

2. Section 71ZB(1)(a) to (c) of the Social Security Administration Act 1992 permits the Secretary of State to recover any universal credit, new-style jobseeker’s allowance or new-style employment and support allowance paid in excess of entitlement. Apart from the condition in section 71ZB(3), the provision imposes no requirement concerning the cause of the overpayment. It therefore applies even where the claimant was blameless and the overpayment resulted entirely from departmental error.

3. Section 71ZB(3) requires the entitlement decision which produced the overpayment to have been validly reversed, varied, revised or superseded. That condition was met because IL’s original entitlement decision had been revised under section 9 of the Social Security Act 1998.

4. Paragraph 6B of Schedule 3 to the Social Security Act 1998 gives an appeal right only as to the amount recoverable under section 71ZB. Read with paragraphs 5, 6 and 6A, it does not create a right to challenge whether recovery should occur. The First-tier Tribunal could require proof of the amount, but it could not decide whether the Secretary of State should waive recovery.

5. LP v SSWP [2018] UKUT 332 (AAC) was followed. R (o.a.o. K) v SSWP [2023] EWHC 233 (Admin) did not enlarge tribunal jurisdiction. It confirmed that the discretion whether to waive recovery is subject to public-law principles and may be challenged by judicial review.

6. Čakarević v Croatia did not alter the statutory result. Sections 6(2) and 4 of the Human Rights Act 1998 meant that the tribunals had to apply the primary legislation and could not make a declaration of incompatibility. Convention arguments may be relevant in judicial review of a refusal to waive recovery.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, and remade it to confirm recovery.
• First-tier Tribunal (Social Entitlement Chamber): On 28 April 2023, confirmed that IL had not been entitled to new-style employment and support allowance but allowed his appeal against recovery of the resulting overpayment.