Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 200 (AAC)

Fecha: 17-Mar-2025

Disposal of appeal

Disposal of appeal

78.

Having decided the FTT’s decision regarding appeal 1651-1450-8074-3928 involved material errors of law, it is appropriate to exercise my discretion to set aside the FTT’s decision dated 28 April 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for it to be decided afresh or to remake the FTT’s decision myself.

79.

At the hearing on 17 March 2025, Counsel for the SSWP invited me to set aside the FTT’s decision for containing material errors of law and to remake its decision regarding appeal 1651-1450-8074-3928. Ms D’s position was she suspected IL would want the matter to come to an end.

80.

Ms D queried whether IL would be able to challenge the increased tax liability he incurred as a result of receiving the benefit that the SSWP subsequently decided was overpaid. As I explained at the hearing, IL would need to raise that issue directly with HM Revenue and Customs (“HMRC”), since the decision he would want changed, is the one made by HMRC about his tax liability. Directing for a new FTT to decide the appeal would not change that position.

81.

Having considered the parties’ positions, I have decided to remake the FTT’s decision. In doing so, I make the following findings of fact, drawn from the evidence before the FTT:

(a)

IL was diagnosed with multiple sclerosis over 16 years ago. By the date he claimed NSESA, IL needed to use a wheelchair. He also had restricted upper limb function and experienced fatigue as a result of his condition;

(b)

IL claimed NSESA on 27 April 2020;

(c)

When claiming NSESA, IL declared correctly on his claim form that he was receiving an occupational pension;

(d)

Acting on behalf of the SSWP, on 02 July 2020, DWP awarded IL NSESA from 04 May 2020;

(e)

IL continued to be paid his occupational pension after 04 May 2020;

(f)

As a result of being paid NSESA, IL incurred an increased tax liability to HMRC, which he was required to pay;

(g)

Although IL had notified DWP at the outset of his claim that he was receiving an occupational pension, DWP did not act on this information until 13 October 2021;

(h)

On 30 November 2021, DWP decided IL was not entitled to any NSESA for the period from 04 May 2020 to 29 November 2021 inclusive. On 30 December 2021, DWP decided IL had been overpaid £8,835.87 of NSESA that was recoverable from him;

(i)

DWP’s failure to act on IL’s disclosure before 13 October 2021 caused an overpayment of £8,835.87 to arise for the period from 04 May 2020 to 29 November 2021 inclusive;

(j)

IL’s actions did not cause the overpayment to arise;

(k)

Ms D, provided full-time care to IL during the period when the overpayment arose, and subsequently;

(l)

During the period in which the overpayment arose, IL and Ms D had two school age children in their household; and

(m)

During the overpayment period, IL was unable to work and to support his family. Those circumstances have not changed since the date of DWP’s decision.

(n)

the SSWP took steps to recover the NSESA overpayment throughout the appeals process, recovering it at £200 per month; and

(o)

By 17 March 2025, the SSWP had recovered approximately £2,300 of the stated overpayment, by deducting it from IL’s PIP benefit award.

82.

The NSESA overpayment is recoverable from IL under section 71ZB(1)(c) and (3) of the Social Security Administration Act 1992. This is because on 30 November 2021, the SSWP revised the original determination to pay IL NSESA from 04 May 2020 onwards under section 9 of the Social Security Act 1998. The SSWP’s entitlement decision dated 30 November 2021 was confirmed by a First-tier Tribunal on 28 April 2023.

83.

As the appeal process to the FTT and Upper Tribunal has ended, it is open to IL, or Ms D as his representative, to ask the SSWP to waive recovery of the overpayment, on the basis that it arose as a result of DWP’s actions. The SSWP’s policy on waiving recovery of overpayments is set out at Chapter 8 of the published BORG guidance, a copy of which can be found at the following link: https://www.gov.uk/government/publications/benefit-overpayment-recovery-staff-guide/benefit-overpayment-recovery-guide.

84.

If they wish to pursue this, IL and / or Ms D, may wish to seek advice from a welfare rights organisation such as Citizens Advice or the Child Action Poverty Group, about whether, and if so how, to take the steps described at paragraph 83 above.

85.

Finally, in looking at the BORG guidance, I note that paragraphs 4.6 and 4.15 of Chapter 4 of that guidance provide that where overpayment decisions are disputed, DWP will not suspend recovery of disputed UC, NSJSA or NSESA overpayments during the mandatory reconsideration or appeal process. The reason given at paragraph 4.15 explains why DWP started recovering the NSESA overpayment from IL even though he was appealing against the overpayment decision. The reason is:

“This is because only the value of the overpayment can be appealed – not the decision that it is recoverable. Therefore, any appeal will only revise the amount to be repaid, and so suspending recovering until after the appeal outcome would only delay recovery. For that reason recovery is not suspended for these benefits”.