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Neutral Citation Number:
Reported Number:	R(IS)7/05
File Number:	CIS 4322 2001
Appellant:	Hinchy (Respondent) v Secretary of State for Work and Pensions (Appellant) [2005] UKHL 16
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	03/05/2002
Date Added:	23/08/2002
Main Category:	Recovery of overpayments
Main Subcategory:	failure to disclose
Secondary Category:
Secondary Subcategory:
Notes:	Recovery of overpayment - failure to disclose material fact - whether disclosure reasonably to be expected of claimant where fact known to one office of Department but not to the office administering the benefit in issue The claimant, who had been in receipt of income support for many years, was awarded middle rate care component of disability living allowance (DLA) for five years. As a result of that award she was entitled to have a severe disability premium added to her income support. At the end of the five years she made a renewal claim for DLA, which was refused and her appeal against that refusal was dismissed. She did not inform the office administering her income support of the change, and the postal notification system between the two offices failed, so that she continued to receive the premium in her income support for two years. By the time the mistake was discovered a substantial overpayment had arisen. The Secretary of State decided that the overpayment was recoverable under section 71(1) of the Social Security Administration Act as it had arisen in consequence of the claimant's failure to disclose that her DLA had expired. Regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 requires claimants to notify the Secretary of State of such information as the Secretary of State may require and any change of circumstances which the claimant might reasonably be expected to know might affect the right to benefit, or to its receipt. The claimant appealed, arguing inter alia that disclosure could not reasonably be expected of her, because of her ill-health and lack of understanding of the benefit system. The tribunal found that she was capable of understanding the instructions issued to claimants and dismissed the appeal. The claimant appealed to the Commissioner, who dismissed the appeal, following the decision of the Tribunal of Commissioners in R(SB) 15/87 reaffirmed by the Tribunal in CG/4494/1999, but gave her leave to appeal, in order to enable her to test the correctness of the decisions of the Tribunals in the Court of Appeal. The Court of Appeal allowed her appeal, holding that it was reasonable to believe that the relevant information would reach the decision-makers in the income support office and that the Secretary of State must be deemed to have knowledge of decisions taken in his name. The Secretary of State appealed to the House of Lords. Held by the House of Lords, allowing the appeal (Lord Scott of Foscote dissenting), that: 1. Commissioners had consistently held that the legislation imposes the primary duty upon the claimant to inform the relevant decision-maker of the material facts and rejected attempts to introduce a theoretical or constitutional dimension into the question of whether disclosure has been made for the purposes of section 71 (paragraphs 20 and 21); 2. the Court of Appeal was wrong to reject the principles developed and applied by the Commissioners over a number of years; the Commissioners had practical experience of the day-to-day working of the benefit system, and the principles they had devised to give effect to the legislative scheme dealing with overpayments were entitled to great respect (paragraphs 29 and 30); 3. the claimant's duty, whether implied by section 71(1) or derived from regulation 32(1), was to disclose to the office administering the benefit in question and she was not concerned or entitled to make assumptions about the internal administrative arrangements of the Department (paragraph 32); 4. the cessation of DLA payments was a notifiable change of circumstances, notwithstanding that the instructions to claimants told them to disclose when benefit income went "up or down" (paragraph 33). Their Lordships restored the decision of the Commissioner.
Decision(s) to Download:	R(IS) 07_05 bv.doc