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Neutral Citation Number:
Reported Number:	R(IB)4/07
File Number:	CIB 1146 2005
Appellant:	Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	24/05/2007
Date Added:	21/09/2007
Main Category:	Revisions, supersessions and reviews
Main Subcategory:	date of effect of decision
Secondary Category:	Recovery of overpayments
Secondary Subcategory:	failure to disclose
Notes:	(Only the Court of Appeal decision is reported. The Commissioner's decision can be found under CIB/31146/2005.) Supersession – date of effect of supersession decision – transitional award of incapacity benefit – whether decision being superseded “incapacity benefit decision” Recovery of overpayment – failure to disclose – requirement to notify Secretary of State of change of circumstances – statement by Secretary of State that claimant “should” disclose – whether amounted to requirement The claimant had been in receipt of invalidity benefit, which took effect as an award of incapacity benefit under the Social Security (Incapacity for Work) (Transitional) Regulations 1995. In March 2002 he received a factsheet explaining the new rules for exempt work that a claimant would be permitted to do without loss of entitlement to incapacity benefit, following amendments to regulation 17 of the Incapacity for Work (General) Regulations 1995. The factsheet stated that he “should” tell the office dealing with his benefit before starting work. In September 2002 he started work that would comply with the new rules apart from the specific notice requirement in regulation 17(1)(a) that he inform the Secretary of State within 42 days of starting work. He continued working until April 2004 without informing the Secretary of State. In August 2004 the Secretary of State made a supersession decision to the effect that the claimant was not entitled to incapacity benefit for the period he was working, He appealed and the tribunal upheld both decisions. On the claimant’s further appeal, the Commissioner held that the statement in the factsheet that the claimant should disclose his having started work amounted to a requirement to disclose a change of circumstances within the meaning of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, and that there had therefore been a failure to disclose in breach of section 71(1) of the Social Security Administration Act 1992. The Commissioner followed B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, reported at R(IS) 9/06, in disregarding the claimant’s mental state and memory difficulties. The claimant appealed to the Court of Appeal. Before the Court of Appeal it was argued that the tribunal had erred in failing to consider as a matter “raised by the appeal” whether the decision superseded by the Secretary of State was an “incapacity decision” as defined in regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, and so could be superseded only from the date that the claimant knew or could reasonably have been expected to know that the change of circumstances should have been notified, Mongan v Department of Social Development [2005] NICA 16, reported as R 3/05 (DLA), being cited as authority that an issue need not be explicitly raised by a party to be raised “by the appeal” under section 12(8) of the Social Security Act 1998, provided it is clearly apparent from the evidence. Held, dismissing the supersession appeal, but allowing the overpayment appeal, that: 1. regulation 7(2)(c) did not apply, since CSIB/501/2003 and CSIB/695/2004 were correct in holding that transitional awards of incapacity benefit were not “incapacity decision” as defined in regulation 7(2)(c) of the 1999 Regulations and hence the issue was not “raised by the appeal” (Mongan approved as to the meaning of “raised by the appeal”) (paragraphs 24 to 43); 2. the words in the factsheet were not the language of clear and unambiguous mandatory requirement, such as to makes it absolutely clear that the Secretary of State was imposing a requirement in accordance with regulation 32(1) and therefore the appellant had not failed to disclose in breach of section 71(1) of the Social Security Administration Act (CIB/3925/2003 and R(IB) 4/05 approved) (paragraphs 48 to 58). Note: the notice requirement in regulation 17 of the Incapacity for Work (General) Regulations 1995 was abolished with effect from 10 April 2006 by SI 2006/757.
Decision(s) to Download:	R(IB)_4-07_bvam.doc