Stephen Mark Parkinson v The Secretary of State for Work and Pensions

Under section 71(1) of the Social Security Administration Act 1992, whether an undisclosed fact is material is assessed objectively and in all the circumstances, including what the Secretary of State already knows. A further increase in earnings is not material where the Department already knows the claimant exceeds the earnings limit and the increase does not alter entitlement. The section’s requirements that payment be made “in consequence of” the failure and “but for” the failure are separate. Obiter, a later omission that leaves an original administrative error uncorrected does not necessarily make continuing payments a consequence of that omission.

Mr Parkinson claimed carer’s allowance in 2009 after his wife became ill. In response to a further information request, he disclosed earnings above the applicable limit. The Department nevertheless awarded the allowance and continued payments until a 2020 check revealed that his earnings had remained above the limit. His earnings had increased over the years, and he had not reported those increases as required by letters sent under regulation 32 of the Social Security (Claims and Payments) Regulations 1987.

The First-tier Tribunal found the earlier overpayment resulted from the Department’s original error, but treated payments from 2011 onwards as recoverable because Mr Parkinson had not reported increased earnings. He appealed, arguing that the increases were not material because the Department already knew his earnings exceeded the limit, and that later payments were not made in consequence of his silence. The Upper Tribunal considered the requirements for recovery under section 71 of the Social Security Administration Act 1992.

1. Appeal allowed. The First-tier Tribunal erred in law. The Upper Tribunal set aside its decision and substituted a decision that no carer’s allowance was recoverable from Mr Parkinson.

2. For section 71(1) of the Social Security Administration Act 1992, a failure to provide information requires a breach of a legal duty. The duty in this case arose from the information requirement under regulation 32 of the Social Security (Claims and Payments) Regulations 1987. The letters required Mr Parkinson to report that his earnings had increased. The judge’s preferred view was that they did not require him to state the new level of earnings. The scope of an information requirement determines what information a claimant can fail to disclose.

3. Disclosure means stating a fact so as to reveal what the recipient does not already know. A person need not repeat a fact already disclosed to the same recipient. The Department knew from 2009 that Mr Parkinson’s earnings exceeded the limit. The judge held that whether a further increase was a “material fact” had to be assessed objectively and in all the circumstances. Because the increases neither changed eligibility nor affected the amount of entitlement, their precise level did not matter. The fact of the increases was therefore not objectively material in this case. This was sufficient to defeat recovery.

4. The judge considered causation separately “for completeness”. Section 71(1) requires both that payment be made “in consequence of” the failure and that it would not have been made “but for” the failure. The latter condition could be met because notification would probably have triggered an inquiry, although findings would be needed about when payments would have stopped. The judge considered the former condition unmet: the original payments resulted from the Department overlooking the correct information already supplied, and later silence left that error in place rather than causing the continuing payments. These causation conclusions were not necessary to the result.

5. LB v SSWP (ESA) ([2019] UKUT 178 (AAC)) was distinguishable on materiality: the unreported pension increases in that case altered entitlement. The judge agreed with the conclusion reached on those facts. The decision also illustrated the distinct operation of the “but for” test when calculating an overpayment.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and substituted a decision that no carer’s allowance was recoverable.
• First-tier Tribunal (Social Entitlement Chamber): Judge Birbeck found the overpayment recoverable from 2011 onwards because Mr Parkinson had not reported increases in earnings. The judgment’s cover sheet gives the decision date as 20 March 2025, while its operative decision refers to 22 April 2025.
• Earlier Upper Tribunal proceedings: In October 2024, the Upper Tribunal set aside an earlier First-tier Tribunal decision and remitted the case for reconsideration by a different judge. The earlier First-tier Tribunal decision had been made in October 2023.