[2025] UKUT 200 (AAC)

Appeal No. UA-2023-001581-ESA

Between:

The Secretary of State for Work and Pensions

Appellant

- v -

IL

Respondent

Before: Upper Tribunal Judge Butler

Mode of hearing: CVP Video

Representation:

Appellant: Mr J. Lewis (counsel), instructed by Government Legal Department

Respondent: Ms N. D.

On appeal from:

Tribunal: The First-tier Tribunal (Social Entitlement Chamber)

Tribunal Case No: 1651-1450-8074-3928

Tribunal Venue: Sutton

Decision Date: 28 April 2023

SUMMARY OF DECISION

EMPLOYMENT AND SUPPORT ALLOWANCE (40); RECOVERY OF OVERPAYMENTS (27).

Judicial summary

This appeal is about the Secretary of State’s ability to recover an overpayment of universal credit, new-style jobseekers’ allowance or new-style employment and support allowance. Recovery of these is governed by section 71ZB(1)(a) to (c) of the Social Security Administration Act 1992.

The Upper Tribunal decided that section 71ZB(1)(a) to (c) of the Social Security Administration Act 1992 allows for universal credit, new-style employment and support allowance (“ESA”) and new-style jobseeker’s allowance (“JSA”) overpayments to be recoverable, irrespective of how they have arisen. The Upper Tribunal followed the earlier decision of the Upper Tribunal in LP v SSWP [2018]UKUT 332 (AAC), which dealt with this issue in relation to universal credit overpayments. The Upper Tribunal also followed the conclusion in LP that a claimant’s right of appeal against decisions to recover overpayments of benefits covered by section 71ZB(1)(a) to (c) only extend to the size of the overpayment being recovered.

The High Court decision in R (o.a.o. K) v SSWP[2023] EWHC 233 (Admin) does not enable a First-tier Tribunal to decide that a benefit overpayment covered by section 71ZB(1)(a) to (c) is not recoverable where it arose due to the Secretary of State’s actions or failures.

The above position is not changed by the decision by the European Court of Human Rights (ECtHR) inČakarević v Croatia (Application 48921/13). The matters addressed in Čakarević are instead potentially relevant toa judicial review challenge against a decision by the Secretary of State not to waive recovery of an overpayment of universal credit, new-style JSA or new-style ESA.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION