Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 167 (AAC)

Fecha: 15-Jun-2021

Legal Framework

Legal Framework

10.

Section 4(1) Welfare Reform Act 2007 provides that the amount of ESA(IR) is the applicable amount or, if the claimant has an income, the amount by which the applicable amount exceeds his income. By section 4(2) the applicable amount is to be prescribed by regulations.

11.

Regulation 67(1) of the Employment and Support Allowance Regulations 2008 provides that the amounts prescribed for those purposes are the prescribed amount determined in accordance with paragraph 1 of Schedule 4 to the Regulations and, amongst other amounts, the amount of any applicable premium. The premiums are set out in Part 3 of Schedule 4 and include the SDP. The conditions of entitlement to the SDP are set out in Part 2 of Schedule 4 and in the case of a single claimant include, in paragraph 6(2)(a)(iii), that “no person is entitled to, and in receipt of, a carer’s allowance…in respect of caring for the claimant”.

12.

Regulation 4(5)(a) of the Social Security (Overlapping Benefits) Regulations 1979 provides that, where both a contributory and non-contributory benefit are payable, the non-contributory benefit is adjusted by deducting from it the amount of the contributory benefit and only the balance, if any, is payable.

13.

The Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 provided, at the relevant time, at regulation 5:

“(1)

… any sum paid in respect of a period covered by a subsequent determination in any of the cases set out in paragraph (2) shall be offset against arrears of entitlement under the subsequent determination and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them.

…(2) Paragraph (1) applies in the following cases—

…Case 2: Award or payment of benefit in lieu

Where a person has been paid a sum by way of benefit under the original award and it is subsequently determined … that another benefit or, as the case may be, universal credit should be awarded or is payable in lieu of the first.”

14.

Section 71 Social Security Administration Act 1992 governs the recoverability of overpayments. In summary, where a payment of any benefit (save for certain exceptions which are not applicable here) has been made in consequence of a misrepresentation or failure to disclose a material fact, whether fraudulent or not, the SSWP is entitled to recover the amount of any payment which would not have been made but for the misrepresentation or failure to disclose. It is a precondition to recovery that the determination pursuant to which the payment was made has been reversed or varied on appeal, or revised or superseded.

15.

Regulation 32 of the Social Security (Claims and Payments) Regulations 1987 makes provision for information to be given and changes to be notified by claimants to the SSWP. This includes in Regulation 32(1B)“any change of circumstances which he might reasonably be expected to know might affect a) the continuance of entitlement to benefit; or b) the payment of benefit”.