Morrell v Secretary of State for Work and Pensions

This is an appeal from a decision of the Social Security Commissioner (Mr Commissioner Jacobs) dated 25 April 2002 by which he upheld a decision of an appeal tribunal confirming that the Secretary of State was entitled to recover sums from the appellant as overpayments of income support. The issues raised are (1) whether certain payments received by the appellant by way of loan were “income” of the appellant for the purposes of the income support legislation, (2) whether, if there were overpayments, they were “in consequence of” misrepresentations by the appellant, and (3) whether the decision of the appeal tribunal was adequately reasoned.

The appellant received income support for the period 23 June 1995 to 1 August 1999.

For much of that period she was also receiving regular sums of money from her mother, either paid to her and used by her towards rent and other living expenses, or paid directly to her landlord or the landlord's agents in respect of her rent. The sums paid by the mother varied over time, from £2,000 per month, to £1,733 per month and then £1,906 per month. The payments were made in order to help the appellant out after her divorce. It is not in dispute that they were made to her by way of loan. There is only limited evidence, however, as to the terms of the loans. In a letter dated 25 January 1997 the mother stated that “I expect to be reimbursed gradually as her problems decrease”. In a letter dated 15 March 1999 she wrote that “[t]he money has been paid by me on the basis that it is a loan, to be repaid by my daughter when she is able to find employment and my daughter has signed annual IOUs to that effect”.

During the period when she was in receipt of income support, the appellant was required to fill in income support review forms on four occasions, namely 14 September 1995, 24 October 1995, 27 April 1998 and 6 January 1999. Each of those forms included the question: "Does anyone pay money to someone else on your behalf?". In each case the appellant answered "no".

By letter dated 30 January 1997 to the benefits investigation team at the London Borough of Hammersmith and Fulham the appellant advised that she had been in receipt of a regular monthly loan from her mother since September 1995, in a total amount to date of £20,000. The letter appended the mother’s letter dated 25 January 1997 confirming the loan arrangement and the total amount outstanding.

The benefits investigation team took the view that the amounts received from the mother should be classed as income and referred a copy of the appellant's letter to the Benefits Centre dealing with her income support payments. It was received by the Benefits Centre on 13 February 1997. No action was taken on it.

In early 1999 the appellant was questioned further by the local authority’s benefits investigation team. In a witness statement dated 2 March 1999 she stated that the whole of her monthly rent was being paid directly to her landlord by her mother, that the payment was a loan and she had to write her mother an IOU on an annual basis, and that she did not know how much was owing at the moment. Her mother provided the letter of 15 March 1999 confirming the amount paid by way of rent per week on the appellant’s behalf and the fact that it was a loan.

This further information was sent by the local authority to the Benefits Centre for consideration of whether income support should cease. It was received on 14 April 1999. Again no action was taken on it.

On 1 August 1999, however, the appellant’s income support was terminated for a different reason, namely that she had notified the Benefits Centre that she was moving in with her fiancé and no longer required benefit.

On 11 February 2000 the appellant was notified by the Benefits Agency’s Overpayments Centre of a decision to recover overpayments of income support from her. There were various reconsiderations of that decision, culminating in decisions to recover (1) overpayments amounting to £5,274.32 in the period 11 September 1995 to 13 February 1997 and (2) overpayments amounting to £3,650.00 in the period 24 April 1998 to 8 April 1999.

The significance of those periods is this. The first period ran from the week of the appellant’s income support review form dated 14 September 1995 until the date in February 1997 on which the Benefits Centre first received information from the local authority that she had been in receipt of loans from her mother. The second period ran from the week of her review form dated 27 April 1998 until the date in April 1999 on which the Benefits Centre received further information from the local authority about her receipt of loans from her mother. The essential reasoning was that in each case the review form contained a material misrepresentation that no-one was paying money to a third party on her behalf, as a consequence of which overpayments of income support were made; but that in each case, as from the date when the information or further information was received by the Benefits Centre, the overpayments became attributable to “official error” rather than to the misrepresentation.

On 30 July 2001 an appeal tribunal dismissed an appeal against the decisions to recover overpayment, giving the following written reasons:

The appellant obtained leave to appeal that decision to the Social Security Commissioner. On the appeal the appellant challenged the entirety of the appeal tribunal's decision. The Secretary of State sought to uphold the decision only in so far as it related to the first period of overpayment, from September 1995 to February 1997. As to the second period, from April 1998 to April 1999, the Secretary of State submitted that the tribunal had erred in law, in that the overpayment was not in consequence of the appellant’s misrepresentation but was caused by a failure of the department to act timeously on the information provided in 1997.

The Commissioner upheld the appeal tribunal's decision in its entirety. On the first issue before him, whether the loan payments were income, he stated:

The Commissioner found next that there had been misrepresentations by the claimant, rejecting an argument that the wording of the review form was not adequate to refer to loans. In relation to the argument that the claimant’s answers on the review forms were not the cause of the overpayments, in that the department had not acted on the receipt of information about the loans in 1997 and would not have acted differently if the claimant had reported the loans on her review forms, he stated:

In relation to the final issue, the adequacy of the tribunal’s reasons, the Commissioner held:

The appellant now appeals from that decision with permission granted by the Commissioner. There are three grounds of appeal: (1) that the Commissioner erred in law in deciding that the loans made to the appellant by her mother were capable of being income; (2) that he erred in law in that he failed properly to consider whether the overpayment was as a consequence of any misrepresentation by the appellant; and (3) that he was incorrect to hold that the tribunal's reasons were adequate. The Secretary of State resists the appeal on each ground, having done a volte face in relation to the second ground since the appeal from the appeal tribunal to the Commissioner.

By s.124(1)(b) of the Social Security Contributions and Benefits Act 1992, one of the conditions for a person's entitlement to income support is that "he has no income or his income does not exceed the applicable amount". Where a person is entitled to income support, the general rule under s.124(4) is that (a) if he has no income, the amount shall be the applicable amount; and (b) if he has income, the amount shall be the difference between his income and the applicable amount.

Detailed provisions for the calculation of the amount of income support are contained in the Income Support (General) Regulations 1987. Extensive citation of the regulations is unnecessary, but three general points may be noted.

First, running through the regulations, and in particular Part V (regs. 23-69), is a distinction between “income” and “capital”. Those expressions are not defined either in the regulations or in the 1992 Act. There are, however, complex provisions for the calculation of income and of capital, including provisions requiring certain capital to be treated as income and provisions requiring certain income to be treated as capital. For example, reg. 28(2) provides that, for the purposes of the calculation of income under reg. 28(1), “‘income’ includes capital treated as income under regulation 41 (capital treated as income) …”. Reg. 41 provides, in part:

Secondly, there are certain provisions relating to the treatment of loans. In particular, reg. 41 (capital treated as income) provides in para. (6) that a Career Development Loan paid pursuant to s.2 of the Employment and Training Act 1973 shall be treated as income; and reg. 66A, in a chapter dealing with students, provides in para. (1) that a student loan shall be treated as income. These provisions certainly indicate that a loan is capable of constituting capital. There is, however, no provision dealing specifically with the treatment of loans of the kind in issue in the present case. Whether they count as income or capital is to be determined by reference to general principle.

Thirdly, the calculation of income support is done on a weekly basis. Reg. 17 makes provision for the weekly applicable amount (the amount which the legislation assumes that a person requires to live on). Reg. 28(1) provides that “the income of a claimant shall be calculated on a weekly basis”, in particular by determining in accordance with Part V the weekly amount of his income. The effect of reg. 29 and related provisions is that where a sum which is required to be taken into account as income is paid in respect of, say, a period of a month, it is apportioned over that period to determine the weekly amount of that income.

Against that legislative background I turn to consider the parties’ submissions.

For the appellant, Mr Coppel submits that as a general rule loans are capital, not income. He puts that forward as a matter of common sense and also seeks to derive support from cases on taxation, eg Cooper v Billingham[2001] EWCA Civ 1041 where reference is made to an agreed starting point that “an interest-free loan, even if repayable on demand, is a capital payment” (para. 27); see also Clayton v Gothorp[1971] 2 All ER 1311. He submits that it makes no difference whether the loan is made by way of monthly instalments or as a single lump sum: the details of the arrangement cannot alter the essential characteristic of the loan as a capital payment. In accordance with the general rule, therefore, the loans in this case were to be taken into account as capital, not income. There is nothing in the 1987 Regulations to displace that general rule.

Miss Laing, for the Secretary of State, submits that there is no general rule that loans are to be treated as capital. Whether they are capital or income is a mixed question of fact and law in every case. Payments received on a periodical, recurring basis and available to meet recurrent expenditure are to be regarded as income. The fact that they are repayable does not deprive them of their character as income unless there is a certain and immediate obligation to repay them. She cites Leeves v Chief Adjudication Officer[1999] ELR 90, R v Bolton Supplementary Benefits Appeal Tribunal, ex parte Fordham [1981] 1 All ER 50 and R v Supplementary Benefits Commission, ex parte Singer[1973] 1 WLR 713. She submits that if one looks at the relevant factors in the present case, the payments can be seen to have the character of income. Nothing turns on the fact that the 1987 Regulations make specific provision for certain loans that are or might be capital to be treated as income.

The appropriate starting point for consideration of those rival submissions is Leeves, since it is a recent decision of this court on the same regulatory scheme and is closely in point. The case concerned a mature student who had been awarded income support and was also in receipt of a student grant. On 27 April 1995 he abandoned his course. The local education authority was entitled to terminate the grant award if satisfied that he had abandoned his course. He had also been required to give an undertaking that where payments made to him by the authority exceeded the grant payable he would, if called upon to do so, repay the excess. Some time after 27 April he was informed orally by the authority that he would have to repay the apportioned balance of his student grant, but it was not until 24 May that the authority wrote to him formally terminating his grant, requesting repayment of the relevant part of the grant and enclosing an invoice for immediate payment. In the meantime, on 9 May, an adjudication officer had decided that he was no longer a student but that his grant nevertheless fell to be taken into account as income.

The court held that the adjudication officer had been correct to decide as at 9 May that the grant fell to be treated as income, though it ceased to have the character of income on receipt of the letter and invoice of 24 May. Potter LJ, with whom the other members of the court agreed, expressed a preference for the submissions of the claimant’s counsel that “income” should be given its ordinary and natural meaning and that, in the ordinary way, money accruing in respect of which there was an obligation of immediate and equivalent repayment should not be regarded as income (see page 97H). A little later he stated:

He went on to consider Fordham, a case in which a fireman had gone on strike after receiving 2 weeks’ advance wages in respect of the period when he was on strike. Under the relevant supplementary benefits legislation, the “resources” of an applicant for benefit had to be assessed on a weekly basis by taking into account the applicant’s weekly earnings for the period in question. It was held that the fact that, at some indeterminate future date, the applicant would have to repay part of the payment did not prevent it constituting part of his resources for the period in question. Potter LJ quoted a number of passages from the judgments in the case, including (at page 99G) this from the judgment of Lord Denning:

Potter LJ observed that Fordham was not decisive of the question before the court, since it was not concerned with the proper meaning of the word ‘income’ or with a notional payment of income attributed on a weekly basis under a statutory formula. At one point he stated that it might nonetheless render some assistance, but in relation to the period after 24 May he distinguished it and declined to apply its reasoning.

On the issue in Leeves itself, Potter LJ expressed his conclusion as follows:

In my judgment the issue in the present case can and should be decided by applying the guidance in Leeves. "Income" should be given its ordinary and natural meaning. The 1992 Act and the 1987 Regulations do not define it and there is no need to embark upon the elusive quest for a definition. There is nothing in the statutory scheme, including the various deeming provisions whereby certain capital is to be treated as income and vice versa, to compel any departure from the ordinary and natural meaning, though the statutory context, with its focus on weekly amounts available to meet outgoings, may help to inform the answer in a doubtful case.

I reject Mr Coppel's submission that loans are as a general rule capital rather than income and are therefore to be taken into account as capital in the absence of a specific provision requiring them to be treated as income. I do not read the tax cases as laying down any such rule. Nor is it supported by the existence of specific provision in the 1987 Regulations for certain loans to be treated as income. The fact that the draftsman considered that those particular types of loan would or might be regarded as capital in the absence of a specific provision requiring them to be treated as income cannot be generalised into a rule that all loans are to be regarded as capital in the absence of a specific provision requiring them to be treated as income.

Subject to the effect of the repayment obligation, I think it clear that the sums received by the appellant from her mother, being regular monthly receipts towards her rent and other living expenses, had the character of income. The fact that they were loans and therefore subject to a repayment obligation does not automatically give them a different character. As with the student grant in Leeves, so with a loan it is necessary to examine the nature of the repayment obligation. I accept that, in accordance with the reasoning in Leeves, a sum received under a certain obligation of immediate repayment would not amount to income. But it is difficult to envisage anything less certain or immediate than the repayment obligation in the present case. On the basis of the mother's evidence, the sums would be repayable by the daughter either "gradually as her problems decrease" or "when she is able to find employment". In reality they might never be repayable at all, since the conditions for repayment might not arise or the mother might convert the loans into gifts at some future date (which, given the family relationship, must be viewed as a realistic possibility). In any event the obligation to repay is an uncertain and future obligation. In my view that is not sufficient to deprive the receipts of their character as income.

If there were otherwise any doubt about the matter, then in my view reference to the statutory scheme would strongly favour the conclusion that these receipts were income. Income support is a means-tested benefit designed to meet a person's essential needs on a weekly basis. These moneys were provided to the appellant, and were used by her, for the specific purpose of meeting her recurrent needs throughout the relevant period. It would be contrary to the purpose of the legislative scheme if such payments fell to be excluded from the calculation of income when determining entitlement to benefit.

Although the fact that these were regular monthly receipts tells in favour of their being income, I would leave open the question whether an element of regularity or recurrence is essential. I should refer in that connection to the decision in Singer. The applicant in that case had been refused legal aid on the basis that he had received approximately £17,000, including loans and gifts from relatives and friends, in the previous year and the estimation of his next year’s income was based on the assumption that further payments of that nature would be received and would form part of his income. “Income” was defined as including “benefits and privileges”. Bridge J, giving the judgment of the court, stated:

The loans in the present case have the essential feature of income identified by the court in Singer, namely an element of periodic recurrence. Indeed, they provide a good example of the situation which the court found it difficult to visualise as likely to be encountered in practice: the periodically recurrent receipt of loans qualifying as income. Singer therefore supports the conclusion I have reached. It is far from obvious to me, however, that a single loan on the same terms by the appellant's mother would have had a different character, counting as capital rather than income. It seems to me that the court's view about ad hoc receipts in Singer was directed to a very different situation in a different statutory context. But since the point does not arise for decision I need say no more about it.

For those reasons I take the view that the Commissioner was correct to conclude that the loans received by the appellant from her mother were income.

By s.71(1) of the Social Security Administration Act 1992:

In the light of my conclusion on the first issue, it is clear that overpayments of income support were made to the appellant. It is also clear that the appellant misrepresented a material fact when she answered "no" to the question on her income support review forms, "Does anyone pay money to someone else on your behalf?". The next question is whether the Commissioner was correct to conclude that the overpayments were made "in consequence of" those misrepresentations. It is not suggested that the further provision in s.71(1) limiting recovery to the amount of any payment which would not have been made "but for" the misrepresentations involves a different test or gives rise to any separate issue.

It is common ground that it is for the Secretary of State to show that the conditions for recovery are satisfied.

Mr Coppel accepts that in the normal course the inference will readily be drawn that a misrepresentation had a causal impact. But he submits that such an inference cannot be drawn in the particular circumstances of the present case, at least in relation to the second period of overpayment. On the contrary, the evidence suggests that the payments would have been made even if the appellant had answered "yes" to the relevant question on the income support review forms and had given details of the loans on those forms. On two occasions, first in 1997 and then in 1999, the appellant's Benefits Centre received detailed information about the loans from the local authority yet took no action to adjust the appellant's income support. It is therefore reasonable to infer that it would not have adjusted her income support had she supplied the same information on the review forms.

The simple answer to that line of argument might well be that the failure to act on the information received in 1997 and 1999 was the result of a straightforward administrative error, through a failure to marry up the information with the claimant's file. The continuation of payments after receipt of the information from the local authority was attributed to “official error” or mistake, as mentioned in the decisions of the appeal tribunal and the Commissioner, and one could readily suppose that that was the kind of error or mistake referred to. If so, it would be fatal to Mr Coppel's argument, which is based on the proposition that the officials handling the appellant's claim to income support received the information from the local authority but took a conscious decision not to act upon it, so that it can be inferred that they would equally have taken no action if given the same information by the appellant on the review forms.

All of that, however, would be supposition. There is no actual evidence of a failure to marry up the information with the claimant's file. The nature of the "official error" is nowhere described. It would therefore be wrong to rely on this as a basis for finding against the appellant.

But there is a further answer to Mr Coppel's submissions. In paragraph 16 of his decision the Commissioner held that the department was entitled to rely on each income support review form as an up to date and accurate statement of the appellant's circumstances. I accept Miss Laing's submission that this was a correct analysis. The evident purpose of the review form is to get the claimant to provide such information. In my view the department must be entitled to rely on that information as a more up-to-date and accurate statement of the claimant's circumstances than any information it may have received in the past from a local authority or other third party about a claimant's circumstances. If, therefore, the form contains a material misrepresentation and the department makes payments of income support to which the claimant was not entitled on the true facts, the most natural inference is that the misrepresentation was a cause of the overpayments even if the department had other information in its possession which indicated that the historical position was different and from which, on further investigation, the true current position could have been ascertained.

As the Commissioner also observed, the misrepresentation does not have to be the sole cause of the overpayment. He referred to the decision of this court in Duggan v Chief Adjudication Officer, a judgment of 8 December 1988 apparently reported only as an annex to Commissioner's decision R(SB) 13/89. The case concerned a failure, in the context of a supplementary benefit claim, to disclose a material fact concerning receipt of unemployment benefit by the claimant's wife. In relation to an argument that the cause of overpayment was not the claimant's failure to disclose that fact but a false assumption and failure to investigate by the adjudication officer, May LJ stated:

For the same reason the misrepresentations on the appellant's review forms could properly be considered to be a cause of the overpayments, so that the overpayments were made "in consequence" of the misrepresentations, even if a further cause was a failure on the part of the Benefits Centre to take due account of the information provided by the local authority.

In my judgment, therefore, the Commissioner was correct to find that the appeal tribunal had not erred in law in relation to causation.

The reasoning that has led me to uphold the Commissioner's conclusion would suggest that the Benefits Agency was entitled to recover overpayments not just for the two periods to which this appeal relates but for the entirety of the period covered by the appellant's income support review forms. Payments were made throughout that period on the basis of repeated misrepresentations, and the misrepresentations would appear to have been a cause of the overpayments throughout. It is difficult to see why the receipt of information from the local authority in February 1997 and again in April 1999 broke the chain of causation, as the Commissioner expressed it in paragraph 14 of his decision. At most the failure to act on the information would seem to have been an additional cause of the overpayments as from the date of receipt of the information; but that would not preclude recovery of the overpayments. Since the decision was taken to claim overpayments only for the two specific periods, nothing turns on the point; but I mention it in order to make clear the implications of my judgment.

The appellant exercised her right to require the appeal tribunal to give a statement of the reasons for its decisions. Mr Coppel submits that the reasons given had to deal with the principal important controversial issues and give a sufficient account of the tribunal's reasoning on them. He complains that the tribunal simply assumed that the loans were income, without giving reasons or making relevant findings of fact, and that it failed to give reasons why any misrepresentations by the appellant were causative of the relevant payments of income support.

It is true that the appeal tribunal did not deal with the question whether the loans were income. That issue, however, was not raised in terms on the appeal. The submissions made by the appellant to the tribunal in respect of each period of overpayment were (i) that there was no misrepresentation because the question "Does anyone pay money to someone else on your behalf?" was not directed to loans, or could reasonably be interpreted in that way; and (ii) that if there was a misrepresentation, payments were not made in consequence of it. The tribunal's reasons set out its conclusions on both aspects of those submissions. There was no failure to deal with a principal controversial issue.

The reasons given for the tribunal's decision on the issues before it were very thin. The Commissioner was right to make the critical comments he did. Nevertheless I would support his view that the reasons were just about adequate. The central issues were issues of law and there was no material dispute of fact on which specific findings were required. Sufficient was said in the decision to enable the parties to know where they stood and to mount effective arguments on the further appeal to the Commissioner.

In any event the Commissioner made clear that, if he had found the tribunal's reasons to be inadequate, he would have substituted his own decision on the same terms. In his own decision he dealt clearly with all the relevant issues and no complaint can be made about the adequacy of his reasons. In those circumstances the challenge to the adequacy of the appeal tribunal's reasons can get the appellant nowhere.

In my judgment the Commissioner reached a well reasoned and legally correct conclusion on each of the issues before him. I would dismiss this appeal.

I agree.

I have had the advantage of reading in draft the judgment of Richards J. I agree that this appeal should be dismissed for the reasons which he states.

On the first issue debated, namely whether the sums regularly advanced by Mrs Morrell are to be classified as capital or income receipts, it seems to me plain as a matter of common sense and authority that receipts are not receipts of capital simply because they are receipts by way of loan.

Whilst I accept that in the ordinary case sums borrowed will be classified as capital receipts, and perhaps invariably in the case of commercial loans, in the case of a family arrangement the classification of the sum or sums received will usually require closer scrutiny of the surrounding facts and circumstances. Take for example monthly payments made by a parent to enable a student to live more comfortably. Ordinarily such financial support is provided without strings attached. But circumstances within a family might lead to an arrangement whereby the payments were agreed to be provided by way of loan, the quantification of which would be achieved on the date of receipt of final payment and the repayment of which thereafter might either be on demand or within a stipulated period or by stipulated instalments. I would not have any difficulty in classifying the payments of such a loan by instalment as payments of income. After all the money is provided by the parent to the student for the precise purpose of enabling the student to defray outgoings. Regular recurring payments designed to meet outgoings might serve as one definition of income.

That illustration is this case save that the parent is sustaining the child in different circumstances of need following the breakdown of a marriage. For me the recurrent regularity of the receipts and their disbursement to meet ordinary outgoings including ‘£200 per month for school fees, £150 for utilities (gas, electricity and telephone) and £400 for food’ demands their classification as the provision of income by way of loan. To classify the provision as a loan of capital would be to ignore reality.