DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant, but not to his ultimate advantage.

The decision of the Bournemouth First-tier Tribunal dated 19 October 2011 under file reference SC185/11/00597 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is in a position to re-make the decision under appeal. The decision that the First-tier Tribunal should have made and which is now accordingly re-made and substituted is as follows:

“The appeal is, in effect, dismissed. 

There was an overpayment of income-based jobseeker’s allowance amounting to £228.61 for the period from 25 December 2008 to 29 April 2009.

The Secretary of State decided that that sum was recoverable from the Appellant on the basis that he had failed to disclose a material fact. That was wrong. The sum in question was recoverable because the Appellant had misrepresented a material fact on the JSA3 form, which was signed on 23 February 2009 and received by the Jobcentre on 25 February 2009.

The decision of the Secretary of State dated 25 November 2009 is revised accordingly.”

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary
1.	The Appellant’s appeal to the Upper Tribunal is allowed, but in the end to no avail. The decision of the Bournemouth First-tier Tribunal involves an error on a point of law and is set aside. I can re-make the First-tier Tribunal’s decision and do so as above. The effect of this decision is that there remains a recoverable overpayment of jobseeker’s allowance (JSA) amounting to £228.61 in respect of the period from  25 December 2008 to 29 April 2009. The ultimate outcome of the Upper Tribunal’s decision is therefore the same as that of the First-tier Tribunal, although the reasoning is different.

2.	The Secretary of State’s original decision was that the sum in question was recoverable under section 71(1) of the Social Security Administration Act 1992 on the basis that the Appellant had failed to disclose the material fact that he was in part-time work. The First-tier Tribunal (FTT) confirmed that decision. However, what the Secretary of State and the FTT should have decided was that the sum was recoverable on the basis of the Appellant’s misrepresentation on Form JSA3, when he answered “No” to the question “Are you or your partner working at the moment?”. In other words, the Secretary of State and FTT applied the “wrong limb” of the test under section 71 for recovery of an overpayment of benefit. I can and do correct that error.

The complex wider dispute between the Appellant and the DWP
3.	The present appeal is merely one episode in a much longer-running dispute between the Department for Work and Pensions (DWP) and the Appellant about his entitlement to JSA over several years. A separate FTT decision, taken by a different tribunal judge also in Bournemouth but later on 7 February 2012 (under FTT reference 185/10/00778) is the subject of a separate appeal in CJSA/2356/2012. That case concerned an alleged overpayment of some £6,000 or so but in relation to an earlier period. That appeal is being allowed in a separate Upper Tribunal decision. It has no direct bearing on the present appeal.

The background to, and the proceedings before, the First-tier Tribunal
4.	The Appellant’s entitlement to JSA was stopped in September 2007 (the circumstances of that decision form the subject matter of the other appeal). The Appellant’s entitlement to JSA was later reinstated, in part at least, with a payment of £1,754.50 of arrears being made for the period from 7 August 2008 to 25 February 2009. JSA then continued in payment for a further period of some months.

5.	There is a conflict of evidence about when that payment of arrears of JSA was made. The DWP’s original submission to the FTT stated that it was made on 4 February 2009. However, I am satisfied from the screen prints on file that the payment of arrears was made on 4 March 2009. There is no evidence in the screen prints that any action was taken on the case on 4 February, and I suspect the statement in the submission to the FTT was simply a misprint.

6.	Some time later, on 12 October 2009, the Appellant was interviewed by a DWP compliance officer. He admitted that he had done some paid work for the county council and provided copies of pay slips covering the monthly periods to 31 December 2008, 28 February 2009 and 31 March 2009.

7.	On 3 November 2009 the decision maker decided that the part-time earnings should have been taken into account for the relevant period. The consequence was that the Appellant was entitled to a reduced amount of JSA for the period from 25 December 2008 through to 29 April 2009.

8.	On 25 November 2009 the decision maker concluded that the consequential overpayment of benefit was recoverable from the Appellant. This was said to be on the basis that the Appellant had failed to disclose that he had started part-time work in December 2008. The Appellant appealed, arguing that in fact the DWP owed him money rather than the other way round.

9.	Following an adjournment on 2 September 2011 – the case appears to have got enmeshed in delays, probably due to the complexity of the parallel appeal – the FTT heard the appeal on 19 October 2011. The FTT disallowed the appeal and confirmed the Secretary of State’s decision, noting the Appellant’s concession that he had not informed the DWP about the work in question until 12 October 2009. The FTT judge also issued a statement of reasons. This found that there was an obligation on the Appellant to notify any relevant change of circumstances by virtue of regulation 32(1B) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968). The tribunal dismissed the Appellant’s argument that, because he was owed arrears of JSA, he was therefore under no obligation to inform the DWP about his limited part-time work.

The proceedings before the Upper Tribunal
The grant of permission to appeal
10.	When I granted the appellant permission to appeal in the present appeal on 1 May 2012, I commented in part as follows:

‘Introduction
1. The grounds of appeal are arguable, in certain respects at least, and merit exploration.  

The Appellant’s grounds
2. Not all the appellant’s grounds are persuasive, as District Tribunal Judge Ponting explained in his refusal of permission. For example, the argument that there was a pre-June 2009 disclosure is unlikely to cut much ice on appeal. This was an issue of fact to be decided by the First-tier Tribunal (FTT). Any such earlier disclosure was expressly disavowed at the hearing before the FTT (see statement of reasons at [3]) and the argument will not run now.

The alleged failure to disclose
3. The FTT dealt with this issue at [6]. The analysis there seems to be premised on the assumption that the appellant was a benefit claimant at the time that he was paid p/t invigilation fees by the LEA in late 2008 and early 2009. However, my understanding from the file is that he was not actually in receipt of JSA at the time.  If that was the case, then how can the duties placed on claimants by regulation 32(1)-(1B) apply, which refer to where “sums by way of benefit are receivable” by a claimant (emphasis added). The overpayment decision expressly referred to the failure to disclose being “on 25/12/2008 or as soon as practicable thereafter” – yet the appellant’s JSA was, it appears, not reinstated till some months later.

4. It may well be, of course, that the duty disclose the p/t paid work arose at some other time, but it is not clear that that question has been addressed by the DWP submission writer or the FTT. I note in this context that there was some ongoing correspondence between the appellant and JCP during 2009 about his JSA entitlement. His letter of 24 February 2009 refers to an enclosed JSA3, a form which I believe asks about work undertaken, but no copy of that form seems to have been included with the appeal papers.

5. The Secretary of State’s representative is asked to address, in their submission on this appeal, whether the FTT has arguably erred in law in its approach to the overpayment issue and whether, if it has, the correct approach would have led to any other outcome on the known facts, given the evidence that is available.’

The two submissions by the Secretary of State’s representative
11.	The first submission on behalf of the Secretary of State was made by Mrs Jill Douglas on 9 July 2012. She argued that the FTT had erred in law in its decision. Put very shortly, she stated that there could be no recoverable overpayment with effect from 25 December 2008, as the Appellant was not actually in receipt of JSA at that date. As such, he could not be under any duty of disclosure by virtue of regulation 32. She noted that payment of arrears of JSA had been made on 4 March 2009, following completion of a Form JSA3, but there was no copy of that form in the appeal papers. She speculated that, were that form available, it might have contained evidence of a misrepresentation, but there was currently no such evidence.

12.	Whilst this present appeal was in progress, the Appellant made a further application for permission to appeal in respect of the other FTT decision relating to the much more substantial overpayment of JSA (CJSA/2356/2012). The file for that appeal contained the missing Form JSA3 from February 2009. In answer to the question “Are you or your partner working at the moment?”, the Appellant had ticked the “No” box. This being an inquisitorial jurisdiction, I therefore invited fresh submissions on the current appeal.

13.	Mr Wayne Spencer has made a fresh submission on behalf of the Secretary of State, in effect withdrawing support for the appeal (at least as regards the overall outcome). He makes three main points. 

14.	First, regulation 32(1) and (1B) of the Claims and Payments Regulations are prefaced by the words “except in the case of a jobseeker’s allowance” and so were strictly not relevant in this case – although regulation 24(7) and (9) of the Jobseeker’s Allowance Regulations 2006 (SI 2006/207) served the same purpose.

15.	Second, at the point when he started work in December 2008, the Appellant was not in receipt of JSA. In addition, all the evidence suggested that he was not in receipt of JSA when he received his first month’s pay. As a non-claimant at that time, he simply could not be under any duty to report those changes and so had not failed to disclose a material fact within either regulation 32 of the 1987 Regulations or regulation 24 of the 2006 Regulations.

16.	Third, however, Mr Spencer argued that the Appellant’s answer to the question about work on the Form JSA3 on 23 February 2009 amounted to a misrepresentation. He further submitted that this misrepresentation had caused the ensuing overpayment, given that on 4 March 2009 the Secretary of State had arranged for payment of arrears for a period between August 2008 and February 2009. The Secretary of State, he argued, must have decided on the basis of Form JSA3 that the Appellant had no current relevant earnings. Mr Spencer added that the Upper Tribunal, like the FTT, is entitled to change the ground on which the overpayment is recoverable, provided however that the Appellant is given a proper opportunity to answer the changed case so as not to be disadvantaged by being taken by surprise (see R(SB) 40/84, at paragraph 12).

The Appellant’s submissions
17.	In the light of the Secretary of State’s change of position, I drew the Appellant’s attention to Mr Spencer’s submission and invited his further comments. The Appellant complains that the Secretary of State’s representative is seeking to (i) change the basis of the claim against him; (ii) change the Secretary of State’s position and (iii) overturn the FTT ruling. He argues that as he was not on benefit at the time in question there was no obligation on him to disclose his earnings. Moreover, he argues that “there can be no misrepresentation if there is no duty to disclose”. He adds that “I completed the JSA3 on 23 February 2009 giving it to [a named member of staff] on 25 February 2009 and was not working at the moment the form was submitted”. He further argues that the work in question was ad hoc, occasional and, if there was any misrepresentation, then the DWP is guilty of contributory negligence because of the way in which it had handled (or mishandled) his benefit claim over a period of years (referring to several matters that arose in the context of CJSA/2356/2012).

The Upper Tribunal’s analysis
The errors of law in the First-tier Tribunal’s decision
18.	The FTT’s decision was wrong. It was wrong on the facts, as the Appellant was not on benefit at the point when he was alleged to have been under a duty to disclose. A mistake of fact, in itself, does not normally give rise to a right of appeal. However, the FTT here seems to have assumed that the Appellant was on JSA at the relevant time. That was an assumption of fact for which there was no evidence, and so amounts to an error of law. That led the FTT into the further legal error of assuming that the Appellant was subject to a duty to report any relevant change of circumstances by virtue of regulation 32(1B) of the 1987 Regulations (in fact regulation 24(7) of the 2006 Regulations).

The disposal of this appeal
19.	I therefore conclude that the tribunal erred in law for the reasons set out above.  Accordingly I must set aside the decision of the First-tier Tribunal dated 19 October 2011. In fairness to that FTT I must add that its consideration of the case was not helped by the fact that some of the material on the appeal file actually related to CJSA/2356/2012, while some of the paperwork on that other file related to the present case. This confusion appears to have been caused by the lengthy correspondence between the Appellant and the DWP relating to a range of separate matters, and which did not always clearly identify the decision(s) being respectively either  challenged or justified.

20.	No new evidence is going to emerge in relation to this aspect of the long dispute between the Appellant and the DWP. In those circumstances, as well as setting aside the FTT’s decision, I can re-make the tribunal’s decision. In other words I can substitute the decision that the tribunal should have made. That decision is as set out at the head of these Reasons.

21.	My re-made decision is to exactly the same effect as the FTT’s decision, but based on misrepresentation rather than failure to disclose. I deal with the Appellant’s arguments and make my own findings as follows.

The Appellant’s arguments
22.	First, the concept of contributory negligence is a common law notion which applies in, for example, claims for personal injury compensation. It has no relevance in the context of claims for social security benefits under statute. A person is either entitled to (e.g.) JSA or not entitled; the level of their entitlement (or the amount of any recoverable overpayment) cannot then be adjusted to reflect the actual or alleged poor handling of the matter by the DWP. Claims of maladministration have to be resolved through other channels, notably by a complaint to the Ombudsman.

23.	Second, these are inquisitorial proceedings, before both the FTT and the Upper Tribunal. The Secretary of State’s representative is entitled to change his mind, especially in the light of new evidence, and cannot be estopped (or barred) from abandoning one position and taking up another (see e.g. Davies v Social Security Commissioner (1989), reported as R(SB) 4/91). As Baroness Hale of Richmond explained in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 (at paragraph 41):

“Another relevant fact of tribunal life is that the benefits system exists to pay benefits to those who are entitled to them. As counsel put it to us in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, [2005] 1 WLR 967, the system is there to ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less.”

24.	Third, the Appellant’s argument that “there can be no misrepresentation if there is no duty to disclose” is to misunderstand section 71 of the Social Security Administration Act 1992. Misrepresentation and failure to disclose are alternative limbs to the Secretary of State’s power to make recovery of overpaid benefit under section 71(1). An oral or written statement which is untrue is a misrepresentation, and the question of whether there is a duty to disclose simply does not arise in that context – that is relevant to the alternative limb of failure to disclose. The Appellant relies heavily on Commissioners’ decision R(SB) 54/83, but that case was about a failure to disclose, not a misrepresentation.

25.	Fourth, the argument that the Appellant “was not working at the moment the form was submitted” borders on the disingenuous. It is not entirely clear what the Appellant is seeking to argue here – perhaps that he was employed neither on 23 February 2009 when he completed the form or 25 February 2009 when he handed it in at the DWP office. The relevant question – “Are you or your partner working at the moment?” – is the first question under the bold heading of Part 3 of the form, About work you or your partner do now. The concept of work is defined expansively, as the form makes it clear that “we need to know” about any work, employed or self-employed, full- or part-time, permanent or casual, paid, unpaid or voluntary, etc. To construe that question that follows so narrowly that it applies solely to the particular point in time when the form is filled in, or when the Jobcentre is visited, is to rob the question of any sensible meaning. The expressions “now” and “at the moment” are obviously intended to be understood so that the question “are you … working” is meant in general terms in the continuous present – not are you working at this precise moment, but do you have some work, whether full- or part-time, permanent or casual, etc, with which you are currently involved.

The Upper Tribunal’s findings
26.	I accept that exam invigilation work in a school is by definition occasional and seasonal. However, it plainly comes within the definition of “work” on the JSA3 form. The payslips show that the Appellant worked for 16.5 units (presumably hours) in December 2008 (payment date 31 December 2008), 5.67 units in February 2009 (payment date 27 February 2009) and 13.5 units in March 2009 (payment date 31 March 2009) (excluding holiday pay). The work may have been on a causal basis and the Appellant may or may not have had a formal written contract of employment, but he certainly had a payroll number.

27.	At the end of February 2009 the Appellant completed a Form JSA3 in which he answered “No” to the question “Are you … working at the moment?”. That answer was a misrepresentation of a material fact. In fact he was working for the county council at that time, albeit occasionally and sporadically. The previous FTT was right to dismiss the argument that because he claimed to have been underpaid in relation to past periods, he was now entitled not to reveal his part-time work to the DWP. That misrepresentation caused the Secretary of State to make a payment on 4 March 2009 of arrears of JSA for the period from 7 August 2008, without any such part-time earnings being taken into account. It follows that the overpayment of £228.61 is recoverable from the Appellant, albeit not on the ground originally identified by the Secretary of State and approved by the FTT.

Conclusion
28.	For the reasons above, I allow the Appellant’s appeal, set aside the FTT’s decision as in error of law, but re-make it in the terms set out above so the Appellant’s liability to repay the overpayment in question remains, but on the alternative base.

Signed on the original			Nicholas Wikeley
on 22 February 2012				Judge of the Upper Tribunal