Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 200 (AAC)

Fecha: 17-Mar-2025

The First-tier Tribunal’s decisions

The First-tier Tribunal’s decisions

On 28 April 2023, a First-tier Tribunal Judge (the “FTT”) decided IL’s appeals. The FTT:

(a)

refused the appeal about DWP’s entitlement decision. The FTT confirmed IL was not entitled to NSESA between 04 May 2020 and 29 November 2021 inclusive, on the basis of the occupational pension he was receiving during that period; and

(b)

allowed IL’s appeal against DWP’s overpayment decision. The FTT decided that although IL had been overpaid £8,835.87 of NSESA, this was not recoverable from him.

The FTT made its decision about the overpayment appeal on the basis that when determining an appeal, an FTT stands in the shoes of the Secretary of State and can make any decision that a DWP decision maker could make on behalf of the Secretary of State. The FTT’s reasoning was that the Secretary of State should have considered the consequences on IL and his family of recovering the overpayment.

In its decision notice, the FTT stated that DWP’s decision to recover the overpayment from IL to take into account:

(a)

his personal circumstances including his ill health and his wife’s need to care for him,

(b)

the subsequent decision to pay a carer to help care for IL;

(c)

the fact IL and his wife had two young children at primary school;

(d)

the high level at which DWP was recovering the overpayment (£200 per month), which was being imposed despite the appeal process; and

(e)

the overall financial difficulties being caused to the family, with more and more corners needing to be cut.

10.

The FTT decided that DWP had failed to consider the consequences of recovering the overpayment and doing so was an error of law, citing the High Court decision in R (o.a.o. K) v SSWP [2023] EWHC 233 (Admin) (hereafter referred to as “R(K)”).

11.

On 15 June 2023, the FTT provided a single Statement of Reasons for both decisions. In the Statement of Reasons, the FTT wrote that it decided there had been an overpayment but that the DWP could not recover it.

The FTT wrote that it was told that it did not have the jurisdiction to make such a decision as the decision whether or not to recover could only be made by DWP. The FTT wrote at paragraph 6 of the Statement of Reasons that it decided it did have that jurisdiction as it stood in the shoes of the DWP, which had already decided to make deductions from IL’s ongoing benefit, causing him and his family considerable hardship.

13.

At paragraph 7 of its Statement of Reasons, the FTT wrote that DWP had failed to provide evidence about, or explain, what enquiries it had made before commencing the deductions, nor had it explained what steps it had taken to ensure IL’s health would not be impacted by the deductions. The FTT wrote that it was satisfied DWP had not followed its own Benefit Overpayment Recovery Guide (referred to as the “BORG” in R(K)).