Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 200 (AAC)

Fecha: 17-Mar-2025

Does the ECtHR decision in Čakarević have any effect on the above analysis?

Does the ECtHR decision in Čakarević have any effect on the above analysis?

70.

In Čakarević v Croatia (Application 48921/13), Ms Čakarević was paid unemployment benefit by the Rijeka Employment Bureau for a longer period than the maximum entitlement period. The issue was whether a judgment in civil proceedings made to recover the overpaid benefit from her interfered with her human rights under Article 1 of Protocol 1 and if so, whether it was justified.

71.

The ECtHR concluded there was an interference with Ms Čakarević’s human rights under Article 1 of Protocol 1 and that it was based in law and pursued a legitimate aim. Dealing with whether the interference was proportionate, the ECtHR took into account the following:

(a)

Ms Čakarević was not alleged to have contributed to the decision to pay her benefit incorrectly;

(b)

The Rijeka Employment Bureau had taken a decision in Ms Čakarević’s favour and continued to make the benefit payments, giving her a legitimate basis for assuming they were legally correct. Ms Čakarević could not be expected to realise that she was receiving benefit beyond the statutory maximum period;

(c)

The Rijeka Employment Bureau made a mistake in not defining the period for which Ms Čakarević was entitled to further employment benefits. It perpetuated that mistake by continuing to pay her unemployment benefit for a period of around three years after the maximum period ended;

(d)

Even though the reason the incorrect payments were made was entirely the result of an error by the State, Ms Čakarević was ordered to repay the overpaid amount in full, with statutory interest. This failed to establish any responsibility on the State for creating the situation. The State avoided any consequences of its own error, instead placing the burden on Ms Čakarević;

(e)

Ms Čakarević offered to repay the debt in sixty instalments, but what she was ordered to repay included statutory interest and was a significant amount of money for her, given she was deprived of her only income source at that time, as well as her overall financial situation;

(f)

The unemployment benefits Ms Čakarević received were modest and were spent on her subsistence; and

(g)

When deciding Ms Čakarević had been unjustly enriched, the national courts had not taken into account her health and economic situation. This included poor health and her lack of bank accounts, income or property of any significance. In those circumstances, paying the debt, even in sixty instalments, would put her subsistence at risk.

72.

The ECtHR decided that given these considerations, the requirement placed on Ms Čakarević to reimburse the unemployment benefits paid to her in error entailed an excessive individual burden on her. The ECtHR decided the decision therefore violated Article 1 of the First Protocol.

73.

Section 6(1) of the Human Rights Act 1998 provides it is unlawful for a public authority to act in a way incompatible with a right under the European Convention on Human Rights. Section 6(3)(a) confirms that a public authority includes a court of tribunal. This means a tribunal may itself act unlawfully if it applies a legislative provision that breaches a party’s Convention rights.

74.

However, section 6(2) disapplies section 6(1) in two specific circumstances:

(a)

where, as the result of one or more provisions of primary legislation, the public authority could not have acted differently (section 6(2)(a)); and

(b)

where, in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way compatible with the Convention rights the public authority was acting to give effect to or to enforce those provisions (section 6(2)(b)).

75.

In the present case, what makes the NSESA overpayment recoverable from IL and prevent him from being able to appeal that decision to an FTT, are provisions in primary legislation, namely section 71ZB of the Social Security Administration Act 1992 and section 12 of, and Schedule 3 to, the Social Security Act 1998. Having considered the wording of those provisions, it is not possible to read or give effect to them in a way that means the overpayment would not be recoverable, or to give IL a right of appeal against the decision to recover it. The outcome is:

(a)

section 6(2) of the Human Rights Act 1998 applies to them, and section 6(1) is disapplied: and

(b)

The FTT, and the UTT, are required to apply them in their full form to IL and other claimants in equivalent situations to his, with the result that IL, and claimants in his position, have no right to appeal to an FTT against a decision by the SSWP about whether to recover an overpayment of UC, NSJSA or NSESA.

76.

Under section 4(1) and (2) of the Human Rights Act 1998, a declaration of incompatibility can be made in respect of a provision of primary legislation that is incompatible with Convention rights. However, only specific types of courts can do so (see section 4(5)). They include the High Court, but not the First-tier Tribunal or the Upper Tribunal.

77.

It would be open for a party to raise the question of how Čakarević might apply as part of a judicial review challenge to the SSWP refusing to waive the recovery of an overpayment of UC, NSJSA or NSESA recoverable under section 71ZB(1)(a) to (c) of the 1992 Act.