[2024] UKUT 167 (AAC)

The FtT acknowledged that, following the award of ESA(NS) to TT from 7^th February 2020 to 26^th November 2020, the effect of Schedule 4 paragraph 6(2)(a)(iii) was that a person might be entitled to but not in receipt of CA and that the underlying entitlement to CA would not in those circumstances affect the entitlement to SDP of the person being cared for. However, the FtT found that during this period TT was actually in receipt of CA and so ST was not entitled to SDP.

As set out above, the effect of regulation 4(5)(a) of the Overlapping Benefits Regulations was that no CA was payable in period in question. However, paragraph 6(2)(a)(iii) is not concerned with whether CA was payable, it is concerned with whether the person was “in receipt of” CA.

The Upper Tribunal discussed the meaning of “in receipt of” in DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC) [2018] UKUT 46 (AAC) as follows:

I respectfully agree. The legislative context does not demand a different meaning in this case, and no party has suggested otherwise. It follows that TT had been in receipt of CA during the relevant period.

Regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations do not assist ST. I have only set out Case 1 at paragraph 13 above because it is clear that the other Cases are of no possible application. Although Case 2 appears at first sight to be possibly applicable, on analysis it is not. TT was paid CA under the original award and it was subsequently determined that she was entitled to ESA(NS). However to fall within Case 2 the award of ESA(NS) would have to be in lieu of CA or a determination that it was payable in lieu of CA. Neither of those conditions applied here. The consequence of the award of ESA(NS) was that CA was no longer payable but the entitlement to CA remained, and there was no determination that ESA(NS) was payable in lieu of CA. Accordingly none of the cases within regulation 5 applied in this case.

This conclusion is consistent with the obvious intention of regulation 5(1). It provides a mechanism by which benefit which has been wrongly paid can be treated as paid on account of a benefit which should have been paid. It avoids the need for a claimant to repay the wrongly paid benefit only to have the same sum of money paid to them by way of the correct benefit. But in the present case there was no call for this to happen because ESA(NS) was paid. It was not possible to treat the sums paid by way of CA as payments towards ESA because TT had received both benefits in full. It follows therefore that regulation 5(1) cannot convert the actual receipt by TT of CA into the receipt of ESA(NS).

In the light of the above, during the period in issue TT was both entitled to and in receipt of CA and so ST had not been entitled to SDP. It follows therefore that the FtT correctly found that SDP had been overpaid for the entirety of the period in question.

No issue has been taken by the Appellant as to recoverability, rightly so in my view. The FtT found as a fact that TT had received letters requiring disclosure of changes in circumstances and in her own claim for CA she was made aware that payment of CA was likely to affect ST’s entitlement. The FTT found that “She did fail, on his behalf, to disclose receipt of CA from 02/09/2019 and she could reasonably be expected to know it would affect her son’s benefit. As Appointee she stood in his shoes and she was in breach of the duty to disclose. The overpayment arose as a direct consequence of the failure to disclose. Accordingly, applying Section 71 of the Social Security Administration Act 1992, the amount overpaid to [ST] is recoverable”. This conclusion was justified on the evidence.

For the above reasons, the appeals are refused.