Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 200 (AAC)

Fecha: 17-Mar-2025

The parties’ submissions Submissions for the SSWP

The parties’ submissions

(i)

Submissions for the SSWP

30.

On behalf of the SSWP, Mr Lewis made the following submissions:

(a)

Section 71 of the 1992 Act makes general provisions in respect of overpayment recovery. It generally governs situations in which the person receiving the benefit is somehow at fault for the overpayment being made. It requires some degree of fault by the benefit recipient before an overpayment can be recovered. Section 71 does not apply to NSESA;

(b)

By contrast, section 71ZB of the 1992 Act allows overpayments to be recovered even where they have been caused by the SSWP and the benefit recipient was not at fault in any way;

(c)

The wording used to set out which decisions about recovering overpayments can be appealed, is important. This is set out in Schedule 3 to the Social Security Act 1998. The wording used for paragraph 5 of Schedule 3 emphasises that a person has a right to appeal about whether an overpayment is recoverable under section 71 of the 1992 Act. The wording used for paragraph 6 emphasises the right of appeal against the size of the overpayment;

(d)

When introducing section 71ZB into the 1992 Act, Parliament only legislated for a right of appeal about the amount of an overpayment recoverable under section 71ZB. Paragraph 6B is equivalent to paragraph 6 (amount of overpayment). Parliament did not legislate to provide an equivalent to paragraph 5 (whether the payment is recoverable at all) for overpayments covered by section 71ZB;

(e)

This approach was recognised by Upper Tribunal Judge Jacobs in LP v SSWP (UC) [2018] UKUT 332 (AAC) at paragraph 11 of his decision. That position has not been challenged subsequently;

(f)

The fact a claimant cannot appeal against SSWP’s decision to recover an overpayment under section 71ZB of the 1992 Act does not mean s/he is left without a remedy. A person could ask the SSWP to use her discretion to waive recovery of the overpayment, setting out the reasons why it should be waived. SSWP would then make a decision in response;

(g)

If SSWP decided not to waive recovery of the overpayment, the person could take steps to issue a claim for judicial review in the Administrative Court, challenging the refusal to waive the overpayment. This is what happened in R(K). Steyn J.’s decision in R(K) confirmed there is no right to appeal against the SSWP’s decision to recover an overpayment. Steyn J. considered relevant DWP guidance, including the BORG. Having done so, she concluded that SSWP’s decision to recover the overpayment from K, failed to take into account relevant considerations, did not properly apply the relevant policies and lacked logic in specific ways;

(h)

Steyn J. did not herself make a decision about whether recovering the overpayment should be waived. The effect of Steyn J.’s decision was that the SSWP would have to make again the decision whether or not to recover the overpayment from K;

(i)

The FTT’s decision about the overpayment paid to IL ignored the wording of paragraph 6B of Schedule 3 to the 1998 Act and looked at whether the SSWP could recover the overpayment from IL rather than how much could be recovered. This also failed to reflect the decisions in LP and R(K) confirming an FTT can consider the amount to be recovered but not whether it should happen at all;

(j)

The FTT conflated two different processes (appeals to the FTT and judicial review to the High Court) by relying on R(K). The First-tier Tribunal does not have any judicial review jurisdiction. In using public law principles to impugn DWP’s decision on public law grounds, the FTT exceeded its jurisdiction; and

(k)

Dealing with Čakarević, the SSWP accepts there is no reason why an applicant could not raise human rights arguments in a judicial review claim. However, the FTT has no jurisdiction to entertain a challenge to recover overpayments recovered under section 71ZB(1) and they could not be raised in an appeal to the FTT. In any event, IL has not attempted to pursue any human rights grounds in this appeal, including after the salaried Tribunal Judge raised the issue when granting permission to appeal.

31.

In response to one of my questions about the inclusion of paragraphs 6A and 6B into Schedule 3 to the Social Security Act 1998, Mr Lewis submitted that paragraph 6A (which has not yet been commenced) makes it even clearer that paragraph 6B does not give an appeal right in relation to whether a NSESA overpayment is recoverable. Mr Lewis submitted that if paragraph 6B could be construed sufficiently widely to give an appeal right against whether a NSESA overpayment is recoverable, there would be no need to add a wording equivalent to paragraph 6A for housing credit cases.

32.

In response to questions I asked about human rights, Mr Lewis acknowledged the directions I had made on 10 May 2024 explained the Upper Tribunal would want to hear arguments about them. He submitted the position was really the same as in the SSWP’s main arguments – namely the FTT is the wrong place to make such arguments.

33.

Mr Lewis submitted that the Human Rights Act 1998 states that public authorities, which would include courts and tribunals, have a duty to act compatibly with human rights, one of which is Article 1 to the first Protocol (protection of property). Mr Lewis submitted that section 6(2) of the Human Rights Act 1998 confirms the duty does not apply where one or more provisions in primary legislation prevent a public authority from acting in a different way.

34.

Mr Lewis submitted that the FTT is a creature of statute, whose powers are decided by primary legislation. Mr Lewis submitted the FTT does not have the power to declare legislation incompatible with human rights law, or to respond to arguments about human rights in circumstances where it does not have jurisdiction (i.e., to decide whether NSESA overpayment is recoverable). Mr Lewis submitted those arguments have to be aired in the High Court by way of judicial review.

35.

Mr Lewis submitted that in Čakarević, the decision very much turned on the concept of Ms Čakarević having been given a legitimate expectation that she was entitled to the money, which she could rely on to argue that she could expect the State not to recover the money it had already paid her. Mr Lewis argued this was one of the key threads in that decision. He submitted that this kind of argument is not one open to the FTT and Upper Tribunal to entertain in these kinds of proceedings but can and should be pursued in the Administrative Court.

36.

Mr Lewis also submitted that the fact the circumstances in R(K) had given rise to a substantive legitimate expectation, involved a detailed and close assessment of DWP’s actions. It would require identifying sufficiently clear and unambiguous conduct by DWP to give rise to that expectation. Furthermore, it was quite unlikely DWP had made an express statement that IL could remain entitled to the benefit overpaid to him.

37.

Mr Lewis submitted that R(K) involved a fairly extreme set of factual circumstances where DWP had maintained payments, making statements on more than one occasion that they were correct. Mr Lewis submitted that this would have to be scrutinised in every case. Mr Lewis also submitted that K made strenuous efforts to query and clarify her entitlement with DWP. On that basis, the High Court decided it would be unfair and unjust to repudiate K’s legitimate expectation of entitlement to the past benefit she had been paid. Mr Lewis submitted it would be an extreme case where legitimate expectation would arise for a claimant who had been overpaid.

38.

Mr Lewis submitted that IL should have written to DWP to say it had made a mistake in overpaying him the approximate £8,000 of NSESA and to ask DWP to waive it. If DWP refused to do so, IL could issue a claim in the Administrative Court and say DWP had a discretion not to take the money and was wrong to take it for specific reasons, one of which could be IL’s human rights. Mr Lewis submitted this did not change the fact that the FTT was the wrong place to advance those arguments and they should have been advanced in the High Court.