[2025] UKUT 200 (AAC)

On 23 August 2023, a salaried Tribunal Judge granted SSWP permission to appeal against the FTT’s decision regarding appeal 1651-1450-8074-3928. The Judge referred to the Upper Tribunal decision in LP v SSWP (UC) [2018] UKUT 332 (AAC), which DWP had relied on as part of its appeal grounds. The Judge also referred to paragraphs 13 to 15 of R(K), observing that it described the powers in section 71ZB of the 1992 Act in respect of UC, but the same powers are provided in respect of NSESA. The Judge emphasised that in paragraph 13 of R(K), the High Court Judge, Steyn J. stated that there was no right to appeal against the decision to seek recovery, or not to waive recovery, of an overpayment of UC. The Judge also emphasised paragraph 15 of R(K) in which Steyn J. stated that the Secretary of State’s discretion to waive recovery of an overpayment is of crucial importance.

The Judge observed that neither the FTT’s decision nor DWP’s application for permission to appeal, referred to a potentially relevant 2018 case in the European Court of Human Rights (“ECtHR”). The Judge wrote that Čakarević v Croatia (Application no. 48921/13) confirms an applicant could raise human rights arguments to successfully challenge the State’s attempt to recover overpaid state benefit from her. The ECtHR considered that where a claimant had not contributed to an administrative decision being made wrongly or implemented wrongly, although benefit entitlement could be revoked for the future, there was an expectation it would not be called into question retrospectively. The ECtHR held this expectation should usually be recognised as being legitimate unless there were weighty interests to the contrary. The Judge observed that it was possible IL’s appeal could also have been allowed on a human rights argument based on inČakarević.

The Judge granted permission to appeal to the Upper Tribunal, stating it seemed that the case raised issues of wider public interest about the recoverability of overpayments, the extent of the power to waive recovery and the tribunal’s jurisdiction if it finds that SSWP has not exercised the power lawfully.

On 10 May 2024, I made observations and case management directions about appeal 1651-1450-8074-3928. The Upper Tribunal Office had also registered an appeal for the SSWP in relation to 1652-1887-4416-6432 (DWP’s entitlement decision). This was because the SSWP had listed both appeals in its UT2 application form to the Upper Tribunal. I confirmed in my Directions Notice that I was not granting permission to the SSWP to appeal against 1652-1887-4416-6432. I was not satisfied the SSWP was actually seeking permission to appeal against that decision (which the FTT had decided in the SSWP’s favour). Nor did IL dispute that he was paid the USS pension and that this meant he was not entitled to the NSESA that DWP had paid him.