Appeal Nos.
UA-2023-000536-JSA, UA-2023-000540-JSA,
UA-2023-000541-JSA, UA- 2023-000554-JSA,
UA-2023-000556-JSA and UA-2023-000557-JSA.
On appeal from
Between:
KS
Appellant
- v –
The Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Price
Decision date: 5 June 2025
Decided on consideration of the papers
Representation:
Appellant: Mr M Lewin
Respondent: Ms L Foody
On appeal from
Tribunal: First Tier (Social Entitlement Chamber)
Tribunal Case No: 165498483409355
Tribunal Venue: Fox Court
Decision Date: 11 November 2022
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 17 November 2022 under number 165498483409355 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
Directions
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The First-tier Tribunal must decide that for the period defined as ‘period 2’ in the reasons below, there no recoverable overpayment.
On deciding the remitted appeal, the First-tier Tribunal is to limit their consideration to the following issues:
Whether there was an overpayment in period 1 (as defined in the reasons below); and If there was an overpayment, was it recoverable?
Was the appellant entitled to JSA (IB) from 1 December 2021 onwards?
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Application for an oral hearing
The respondent did not request an oral hearing in this matter. The appellant requested an oral hearing. Having read the detailed written submissions made by both parties who are legally represented, I do not consider it necessary to conduct a hearing in order to fairly decide this matter. Therefore I do not grant this request.
Factual background
The appellant is a single parent born in 1984. She was first awarded Job Seekers Allowance (Income Based) (‘JSA (IB)’) in September 2015.
The appellant was engaged by Butlers Recruitment Ltd on a zero-hours contract. I am not clear of the exact date of this contract, but it was around December 2020. She undertook a number of weeks of work in 2020 and 2021 on an ad hoc basis, such is the usual nature of this type of employment.
It is clear that the appellant worked in the weeks commencing 9 and 16 December 2020. The appellant’s evidence on this before the FtT was that ‘at that time [December 2020] I did declare my employment to my work coach at Hackney Job Centre’.
The appellant also worked for various hours between the period March 2021 and December 2021. The exact dates are not clear, but as Judge Buley KCs set out in his judicial observations (see below) it appears that she worked for a fluctuating number of weekly hours during term-time weeks only.
In December 2021 the appellant started work on a permanent basis in a school, she worked as a kitchen porter. This was regular employment, however, the hours were limited to term time (so approximately 38 weeks per year).
On 9 December 2021, her claim for JSA (IB) was closed, with the last effective date being 6 December 2021.
The respondent became aware on an unspecified date that the appellant had received income from paid remuneration.
As a consequence, the appellant was interviewed by the respondent on 30 November 2021. Consequently, given the information the appellant provided in the interview, combined with the other information the respondent obtained regarding her paid employment, the respondent made a number of decisions concerning the appellant’s eligibility for JSA (IB) and the overpayment of the same.
DWP decisions and correspondence
There is what can only be described as a complex set of decisions taken by the respondent. I have set out a record of these below:
Decision date | Decision |
31/1/22 | Decision superseding the earlier entitlement decision regarding reduced entitlement from 9/12/20 to 30/11/21 and no entitlement from 1/12/21 onwards. |
02/02/22 | Decision to issue a civil penalty notice |
02/02/22 | Decision regarding overpayment in the period 9/12/20 to 22/12/20 due to failure to disclose a material fact. £148.70 is said to be recoverable. |
02/02/22 | Decision regarding overpayment in the period 31/3/21 to 4/5/21 due to failure to disclose a material fact. £218.96 is said to be recoverable. |
02/02/22 | Decision regarding overpayment in the period 29/9/21 to 30/11/21 due to failure to disclose a material fact. £503.03 is said to be recoverable. |
16/02/22 | Decision regarding no entitlement to JSA (IB) from 5/5/21 to 8/6/21 and reduced entitlement from 16/6/21 to 20/7/21. This is said to be because the appellant received earnings that exceeded the benefit she was due. |
16/02/22 | Decision regarding overpayment in the period 5/5/21 to 27/7/21. £791.94 is said to be recoverable. |
On 2 February 2022 a letter was sent to the appellant setting out that there had been an overpayment in the sum of £148.70 for the period between 9/12/20 and 22/12/20. This was said to be because between 11/12/20 and 18/12/20 the appellant’s circumstances changed and she did not notify the respondent.
On 2 February 2022, a further letter was sent to the appellant setting out that there had been an overpayment in the sum of £218.96 for the period between 31/3/21 and 4/5/21. This was said to be because between 2/4/21 and 30/4/21 the appellant’s circumstances changed and she did not notify the respondent.
On 2 February 2022, a third letter was sent to the appellant setting out that there had been an overpayment in the sum of £503.33 for the period between 29/9/21 and 30/11/21 and a civil penalty of £50 also had to be paid. This was said to be because between 1/10/21 and 3/12/21 the appellant’s circumstances changed and she did not notify the respondent.
On 17 February 2022, the appellant was notified by letter she had been overpaid the sum of £791.94. This was said to be because she did not notify the respondent on 7/5/21 that her circumstances had changed.
The appellant sought a mandatory reconsideration of all these decisions, which occurred on 18 March 2022. On reconsideration the decisions were all upheld.
FtT appeal
The appellant appealed to the FtT on 10 April 2022. This appeal was heard on 17 November 2022.
At the hearing, the FtT decided that although one overpayment decision had been made in fact the appellant’s intention was to appeal six decisions by the DWP. This is why six appeal numbers were duly given to the appeal. However, the FtT did not identify the specific decisions nor distinguish in its reasons which appeal number relates to which decision and gave a combined statement of reasons for all six decisions. The FtT upheld each of the respondent’s decisions. A lengthy statement of reasons was produced by the FtT on 14 April 2023.
The appellant applied for permission to appeal to the FtT on 10 April 2022 this was refused on 14 April 2023.
The UT appeal
The appellant renewed her application before the UT. Permission was granted on 15 May 2024 by Upper Tribunal West.
On 14 November 2024, the UT provided judicial observations on the appeal and issued case management directions requiring the respondent to provide written submissions in response to the observations. These were provided on 20 January 2025.
The helpful judicial observations made by Upper Tribunal Judge Buley KC bear repeating at some length as they summarise the issues in this appeal:
‘Broadly, this case concerns the impact on the Appellant’s entitlement to Jobseeker’s Allowance of the fact that she worked in three separate periods, and the extent to which she disclosed material facts about her work and whether, in those circumstances, the Respondent is entitled to recover overpayments of JSA as a result of that.
The periods in question are:
Period 1, December 2020, during which the Appellant undertook two weeks of irregular work, but then does not appear to have worked again for some months (albeit she may have remained on a zero hours contract).
Period 2, March 2021 to 1 December 2021, during which the Appellant undertook further irregular work on a zero hours contract. In some weeks she did not work at all, and in the weeks in which she did work, it appears to have ranged from about 6.5 to 22 hours in any given week.
Period 3, from 1 December 2021, when the Appellant obtained permanent employment at a school, for 20 hours / week (albeit possibly only during term time).
In respect of Periods 1 and 2, the Respondent decided that the Appellant’s hours were on average less than 16 hours / week, and accordingly that the Appellant was not in remunerative work in these periods within the meaning of section 1(2)I of the Jobseeker’s Act 1995 (“the 1995 Act”). However, it decided that, had account been taken of her income from work in these periods, that would have affected the amount of JSA she should have been paid, essentially by deducting that income (less a £20 disregard to which she was entitled as a single parent) from her applicable amount. The Respondent also decided that she had made a material failure of disclosure in respect of these periods so as to satisfy the test for recovery of overpayments under section 71 of the Social Security Administration Act 1992 (“the 1992 Act”).
In respect of Period 3, the Respondent decided that the Appellant’s work qualified as “remunerative work” from 1 December because it was for more than 16 hours/week, so that the JSA award was terminated’.
Judge Buley went on to set out a series of questions that concerned him regarding the approach of the respondent to the issue of overpayment. He considered that these matters may have wider implications. Due to the complexity of the facts and their significance on the legal questions to be considered, the contextual observations and questions are set out in detail below:
‘Period 1, December 2020
In December 2020, the Appellant undertook two weeks of paid work which she did not disclose. Further, in January 2021, she made a declaration that there had been no change of circumstances up to that date.
The work she undertook was potentially relevant to her JSA award, because it would have affected the amount to which she was entitled for those two weeks. Assuming she knew of it in time to make a meaningful disclosure therefore (as to which see below), she should have disclosed it and her failure to do so potentially engages section 71 of the 1992 Act.
Accordingly, my provisional view is that the Respondent may have bee[n] right to say that there was a recoverable overpayment in this period, and that the FTT made no error of law in upholding the Respondent’s decision in this respect. Subject to one point, it was entitled to conclude that there was a material non-disclosure of the work in December 2021. That is subject to one possible point, which is more easily explained in the context of Period 2, so I will return to that below.
The amount of the overpayment in this period is, so far as I can see, two weeks JSA entitlement, since her earnings exceeded the applicable amount by more than £20 in both weeks. I think that is (£74.35 * 2 = £148.70), but perhaps than can be confirmed.
Period 2, March to December 2021
I am provisionally satisfied that, for the detailed reasons given in the Respondent’s submission to the FTT, the Appellant’s JSA entitlement was reduced by the amounts set out in that submission (especially pages Q to S of the FTT bundle). That is again because her JSA award would have varied, on a week by week basis, in line with the fluctuations in her income from work, as set out in the FTT submission.
However, the issue that I am concerned about in this period is the question of recovery of overpayment under section 71 of the 1992 Act. The Respondent’s decision under appeal is based on the Appellant’s failure to disclose the fact that she was employed on a zero hours contract from 1 December 2020.The mere fact that she was employed on a zero hours contract was not, in itself, causative of any overpayment from March 2021 (as is illustrated by the fact that there was no overpayment in January or February 2021, when she did not in fact work). The Respondent has accepted that this work was not “remunerative work” within section 1(2)I of the 1995 Act, so it only led to an overpayment if and so far as the Appellant earned any money in a given week.
Further, and critically, the Respondent was in any event aware of this, and had discussed it with the Appellant, by, at the latest, 30 March 2021 (so at worst, one week after she commenced work in Period 2). That is clear from the “Client Conversation Print” of this date at page 50 of the FTT bundle, which records that “customer has been successful in gaining employment 15 hrs on 23rd -31st 3 hrs a day”, and (correctly, so far as I understand it) that the Appellant did not know how long the job would last.
Accordingly, leaving aside a possible issue about the very first week of work in this period, from 23 March, there does not appear to be any question of any failure to disclose in December being causative of any overpayment from the start of April 2021. The Respondent knew by this time that the Appellant had obtained work, which is the only thing that she is said to have failed to disclosed in December.
Rather, the reason that the Appellant continued to be paid JSA at the full amount from this time on is that the Respondent took no action, and / or because the Respondent did not know how much she was earning or how many hours. However, that is in itself reflective of the fact that the Appellant herself did not know this, or did not know at any rate until just before she started work, because she was on a zero hours contract.
I therefore do not see how the failure to disclose in December 2020 can be said to be causative of any overpayment from March, or at any rate April, 2021, onwards.
It may be that there could be said to be a separate series of failures to disclose, on a rolling basis, from this time onwards, because the Appellant did not disclose her hours from time to time and / or the amount she earned each week. However, there would appear to be a number of possible problems with that:
That is not the basis of the Respondent’s decision. It is less clear to me whether it is the only basis of the FTT’s decision (see FTT SOR 90(d)), but query whether it would be right for the FTT to look at some alternative basis for non-disclosure at a hearing at which the Appellant was not present.
The Appellant did in fact provide information about her earnings, by providing payslips, from time to time, for example by email on 25 May 2021 (FTT bundle 12). The FTT comments that it is not clear which payslips they were, but it is reasonable to infer that they were the four payslips at FTT Bundle 13-16, which were for the earliest four weeks that she had worked up to that point. She provided further payslips on 17 August (FT Bundle 18), and again on 20 September (FTT Bundle 28). I don’t think it was adequate for the FTT to say that it was not clear which payslips these were, both because it is tolerably obvious from the papers and also because, in any event, the FTT would have needed to make findings about what was disclosed and how that impacted the recoverability of overpayments. For example,
I do not know when the Appellant would have been given the payslips by her employer, or to what extent it would have been possible for her to disclose them sooner. No duty of disclosure could arise before they were available. In that regard it is suggestive, at least, that the Appellant supplied payslips on 26 May up to 7 May 2021, but not for the weeks of 14 and 21 May, which by then had passed. They were supplied later, perhaps because she did not have them on 26 May.
I do not know whether it would be possible or practicable for the Appellant to disclose her hours or earnings from time to time without the payslips, or whether the Respondent would suggest that she was obliged to do so. From the tone of the various “client conversation prints” at FTT 91, the job coach was happy to be supplied with payslips rather than any other information, albeit I recognise that she was expressing concerns that these were not always being supplied as quickly as she would like.
On any view, the timing would have made it challenging for the Appellant to supply the requested information in time for the Respondent to take action, in a case like this where her earnings, and therefore her potential JSA payment, may have fluctuated from week to week, and where she may not have known in advance what her hours would be. My impression is that she earned above the relevant limits to prevent any JSA payment in most weeks in school term, but this is not always so (e.g. the week of 9 April, week of 23 July, 1 October, 19 November), and she did not earn at all in what I suspect were half term weeks (e.g. 11 June) or school holidays. In any case, she may not have known until the end of the relevant week how much work she would have. It is not clear to me over what timescales she was expected to supply this information, in the view of the Respondent, and / or whether she complied with this duty in any case. It may be different in different weeks. For example, she supplied four payslips on 26 May, as I say above. The last of these appears has a “process date” of 7 May 2021. Was it good enough to supply this on 26 May, even if this was too late for the first payslip supplied on 26 May (process date 2 April). It seems impossible to answer this without knowing when the Appellant herself obtained these payslips, and what instructions she was given about supplying them to the Respondent.
The timing issue may also be important to causation of the overpayment. On any view, the Respondent would have a very limited time between disclosure of earnings for a given week, and payment of JSA, so even if the Appellant did provide disclosure immediately on receipt of the payslip, it is questionable whether the Respondent would action that in time to prevent JSA being paid, or to have it reduced, for the next payment. If the Respondent cannot show that it would have altered the payment in time, there may be a question about whether any overpayment would be “in consequence” of the failure to disclose hours which would, by their nature, only be available to the Appellant herself shortly before JSA was to be paid.
In these circumstances, it is at present unclear what specific failures of disclosure could be said to have “caused” the overpayments in this case, or what obligations of disclosure, in relation to payslips or otherwise, the Respondent would wish to argue that the Appellant was under. For example, is it said that the Appellant was required to disclose her payslips, or her hours of work, at the very moment that the Appellant received them, and / or within a specific period of time following receipt? If so, is it said, and / or does it need to be the case, that this was made clear to the Appellant? What system does the Respondent have in place to ensure that such notifications are actioned in time to stop benefit being paid?
There may be an even more fundamental problem, although I would certainly like the Respondent’s submission about it, which relates to the week in which the relevant earnings payments are to be credited for the purposes calculating JSA entitlement. My very provisional understanding of this is that this is governed by reg 96 of the Jobseeker’s Allowance Regulations 1996, which provides in reg 96(1)(b) that earnings are to be treated as paid on the first day of the benefit week in which it is due to be paid, albeit there is then provision for it to be a “succeeding benefit week in which it is practicable to take it into account”. I am unsure of the effect of this, but it may be that it means that earnings are to be attributed to the start of the week in which they are paid, and hence before they are actually paid or indeed, in a case like this, before the work for which they are paid is undertaken. In that case it would be impossible for the Appellant to have provided disclosure of her hours or earnings in time for the relevant JSA payment to be affected, in which case there can be no question of failure to disclose so as to give rise a right to recover an overpayment under section 71 of the 1992 Act.
It may be that an answer to this is found in the fact that reg 9(6(1)(b) permits earnings to be credited to a later week on grounds of practicability, and / or that JSA is paid in arrears (see reg 26A of the Social Security (Claims and Payments) Regulations 1996. But even if that is so, in the sense that it cures the potential logical problem I have identified in the previous paragraph, it remains the case that the timescale for the Appellant to provide disclosure, and for the Respondent to act upon that disclosure, is likely to be very short indeed. On the other hand, if the Respondent can credit earnings to a later week under reg 96(1)(b), that may also bear on the extent of the duty which the Appellant has to disclose in the first place, or whether the Respondent was correct to treat this as overpayment instead of adjusting future JSA payments within a “practicable” period after the payslips were provided.
More generally, is it right that the Respondent, having received payslips as early as May 2021, and therefore being in a position to take action (whether by overpayment or otherwise) at that point in respect of the April / May earnings, should wait until February 2022 to do so?’
On 14 November 2024, Judge Buley also issued directions, including requiring the respondent to provide further written submissions and an opportunity for the appellant to do so, should he wish.
It follows from Judge Buley’s classification that there are three periods in which the various entitlement and overpayment decisions fall. I adopt the classification of these periods in this decision. The periods are:
Period 1: 9 December 2020 – 22 December 2020 (alleged overpayment = £148.70);
Period 2: comprising (i) 31 March 2021 – 4 May 2021 (£218.96), (ii) 5 May 2021 – 27 July 2021 (£791.94) and (iii) 29 September 2021 – 30 November 2021 (£503.33);
Period 3: from 1 December 2021.
The respondent’s submissions
On 20 June 2024, the respondent provided written submissions. On 20 January 2025 the respondent provided a second set of written submissions addressing Judge Buley’s questions and the issues he raised in his observations.
The respondent’s submissions supported the appeal in respect of ‘period 3’ as there was no overpayment in respect of the period ‘3’ from December 2021 onwards. This was because it was accepts the appellant had informed the DWP in advance of commencing work that she was due to start renumerated employment and further the appellant’s work may have been limited to school term-time, in which case the average hours per week would be less than 16 when averaged over the longer period.
In respect of periods 1 and 2 the respondent accepts that the non-disclosure in December 2020 did not contribute or cause the later overpayments. However, the respondent relies on an on-going disclosure duty. The respondent argues there was a duty to disclose that arose each month. Although the respondent accepts that the appellant did disclose the required information, in the form of the provision of payslips, the respondent argues that this was not done in a timely manner such that it was a material non-disclosure for the purposes of section 71. The respondent does not comment precisely upon what would be timely.
The respondent submissions state that they rely upon ‘regulation 24(4) of the JSA Regs 1996. This sets out that ‘A claimant shall furnish such certificates, documents and other evidence as may be required by the Secretary of State for the determination of the claim’. In this case, the Secretary of State needed information on the hours worked and earnings received from the appellant to work out the appellant’s entitlement to benefit. Critically, regulation 24(9) of the JSA regs 1996 sets out ‘Where, pursuant to paragraph (4) a claimant is required to provide certificates, documents or other evidence he shall do so within seven days of being so required or such longer period as the Secretary of State may consider reasonable’.
In respect of the issue regarding which week earnings should be attributed to for the purpose of JSA, the respondent submits,
‘What should have happened is as follows. The claimant was paid monthly, so they should have declared what they got paid at the end of every month. A weekly amount would then have been calculated under reg.97(1)(b), and we would have taken that amount into account for the number of weeks specified at reg.94(2)(a). Under reg.96(1)(b), we would either take it into account from the first day of the benefit week in which it was due to be paid, or as necessary from the first succeeding benefit week. (There is no provision which allows the Secretary of State to adjust the JSA award in the weeks subsequent to the information being provided and thereby preventing an overpayment arising.) Of course, that cannot happen if the information is not provided timeously – as happened in this case’.
The respondent accepted that no duty to disclose arose until the appellant received her payslips. The key question in this case is whether the appellant provided their payslips within a reasonable time. The respondent further accepted that it could not assist the tribunal further with when the appellant received their payslips.
The appellant’s submissions
On 14 April 2025, the appellant provided written submissions. They accepted that there was an overpayment in period 2, but not in period 1 or 3. The submissions contained a number of arguments in support of Judge Buley’s observations, including the following,
‘The DWP has sought to completely re-cast its decision in response to Mr Buley KC’s observations. As the Judge observed (para 20(i)), the basis for the DWP’s supersession decision (upheld at mandatory reconsideration) was the Appellant’s failure to disclose her employment in December 2020. However instead, for the first time, the DWP have submitted that the Appellant was subject to an ongoing duty to notify the DWP of her hours worked and pay received by submitting copies of her payslips on a monthly basis. However, given her subsequent notification of employment on 30 March 2021, as the Judge observed, and the DWP have now accepted, that initial failure of disclosure was not causative of any subsequent overpayment after period 1.
That appears to have been the basis on which the appeal against the overpayment decisions was dismissed; in paragraph (90)€ of the FtT’s statement of reasons. The FtT Judge held that ‘had [the Appellant] advised the DWP on 11 December 2020 that the income had increased as they received earnings from part-time employment, they would not have been entitled to income based Jobseeker’s Allowance, and the payments would have ceased’.
Instead, for the first time, the DWP have submitted that the Appellant was subject to an ongoing duty to notify the DWP of her hours worked and pay received by submitting copies of her payslips on a monthly basis. However, the Appellant submits as follows.
‘Firstly, this is not an argument open to the DWP to pursue on an appeal to the Upper Tribunal, given that it was not the basis for its own decision nor that of the FTT.
Thirdly, the DWP’s argument is not consistent with Regulation 24 of the JSA Regulations 1996:
;
Regulation 24(4) read with Regulation 24(9) presupposes that an explicit request for ‘certificates, documents and other evidence’ has been made by by the Secretary of State because Regulation 24(9) specifies a time limit for providing that information “where pursuant to paragraph (4) a claimant is required to provide… ‘ moreover the duty under Regulation 24(4) must be distinguished from the separate duty on a claimant under Regulation 24(7) to provide simple notifications to the Secretary of State of “of any change of circumstances which has occurred which he might reasonable be expected to know might affect his entitlement to a jobseekers’ allowance’.
…therefore the duty under Regulation 24(4) is not a free-standing or implied duty to provide documentary evidence whenever there has been a material change of circumstances affecting a claimant’s JSA entitlement; it must be expressly triggered by the DWP making a request of the claimant to provide such evidence;
…the duty under Regulation 24(4) read with Regulation 24(9) is to provide requested evidence within seven days or within such period as the Secretary of State may require. This implies that the Secretary of State must specify a deadline for compliance and, more importantly, that it may extend beyond (potentially well beyond) 7 days depending on the circumstances. The only evidence as to deadlines specified by the work coach for supplying copies of her payslips in this case reveals that the appellant complied on two of the three occasions (and is inconclusive as to the third)…
Fifthly, the Appellant endorses the Judge’s observation in para 22 that there is a “fundament problem’ with the DWP’s argument, in that the effect of Regulation 96(1)(b) of the JSA Regulations 1996 is that earnings are deemed to have been paid at the beginning of the benefit week in which they are due to be paid. For someone on a zero-hours contract who is offered work on a daily basis or on very short notice (as in the Appellant’s case), this would make it impossible to disclose hours and earnings in time for the scheduled JSA payment to be adjusted. The DWP’s response, in paras 11-12, simply does not engage with this point of principle.’
The legal framework
Section 71 of the Social Security Administration Act 1992 allows for an overpayment to be recovered by the Secretary of State where a person has ‘failed to disclose a material fact and in consequence of the misrepresentation or failure a payment has been made in respect of a benefit…’
Regulation 24 (4) of the Jobseekers Allowance Regulations 1996 (SI 1996/207) (the ‘1996 Regulations’) provides ‘A claimant shall furnish such certificates, documents and other evidence as may be required by the Secretary of State for the determination of the claim’.
Regulation 24 (5) of the 1996 Regulations provides, ‘A claimant shall furnish such certificates, documents and other evidence affecting his continuing entitlement to a jobseeker's allowance, whether that allowance is payable to him and, if so, in what amount as the Secretary of State may require’.
Regulation 24 (9A) then provides ‘(9A) Where, pursuant to paragraph (5) or (5A), a claimant is required to provide certificates, documents or other evidence, he shall do so within the period applicable under regulation 17(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999’.
Regulation 17(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides,
A person to whom paragraph (2) refers must either–
supply the information or evidence within–
a period of 14 days beginning with the date on which the notification under paragraph (3) was sent to him or such longer period as the Secretary of State allows in that notification; or
such longer period as he satisfies the Secretary of State is necessary in order to enable him to comply with the requirement; or
satisfy the Secretary of State within the period applicable under sub-paragraph (a)(i) that either–
the information or evidence required of him does not exist; or
that it is not possible for him to obtain it.
Regulation 51 of the 1996 Regulations provides ‘For the Act ‘remunerative work’ means (a) in the case of a claimant, work in which he is engaged or, where hours of work fluctuate, is engaged on average for not less than 16 hours per week’.
Regulation 83 of the 1996 Regulations describes applicable amounts, it provides,
‘Except in the case of a claimant to whom regulation 84, 85 (applicable amounts in other cases applies, a claimant's weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case-
an amount in respect of himself or if he is a member of a couple, an amount in respect of both of them, determined in accordance with sub-paragraph (1), (2) or (3) paragraph 1 of Schedule 1;
Regulation 93 of the 1996 Regulations 93 provides, (1) For the purposes of sections 3(1) (the income-based conditions) and 3A(1) (the conditions for claims by joint-claim couples) (the income-based conditions) the income of a claimant shall be calculated on a weekly basis-
by determining in accordance with this Part, other than Chapter VI, the weekly amount of his income; and
by adding to that amount the weekly income calculated under regulation 116 (calculation of tariff income from capital).
Regulation 96 of the 1996 Regulations provides,
‘Date on which income is treated as paid
Except where paragraph
applies , a payment of income to which regulation 94 (calculation of earnings derived from employed earner's employment and income other than earnings) applies shall be treated as paid–
in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;
in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.
Conclusions
Period 1 – failure to give adequate reasons
The FtT concluded that there was a material non-disclosure of the paid remuneration in December 2020 by the appellant. The FtT gave no reasons as to why it did not accept the appellant’s evidence on this point specifically that she had made the necessary disclosure to her work coach. Nor, did the FtT give reasons for why it came to this view, despite the respondent’s acceptance that it had not kept full records of the interactions between the appellant and the respondent in this period of time.
Period 2 – non-disclosure not materially consequential
I agree with the appellant and respondent’s submission that any overpayment in 2021 was not contributed to by a non-disclosure that occurred in December 2020. However, for the reasons set out below this point does not determine this appeal.
Period 2- procedural unfairness
In respect of period 2, the respondent now seeks to say that there was a series of non-disclosures. This does not appear to have been their position before the FtT and it was not the reason for the decision at the time it was made. The appellant argues forcefully that the respondent cannot now raise this point before the UT for the first time.
It is unclear the extent to which FtT considered ongoing non-disclosures. However, if this argument was considered or ventilated before the FtT, it was certainly unfair to do this without the appellant being present or being aware in advance that this argument was going to be made. The appellant had no opportunity to address any further alleged failures on her part to disclosure information. This is even more significant given the respondent now accepts that the necessary information was in fact disclosed, but argues that this was not done in a timely manner. No findings of fact were made by the FtT on this issue. Although this is an error of law, for the reasons set out below, there is a further point of law that means this point does not determine this appeal in relation to period 2.
Period 2 - Scope of obligation to disclose
For the reasons given above at paragraphs 42 to 44 I have already formed the view that the FtT’s conclusions on period 2 contained an error of law. However, given the potential implications of the questions posed by Judge Buley for the administration of JSA (IB) and overpayments, I have gone on to consider the questions he posed and the submissions made by both parties in response to these questions.
In this case, the respondent attributed the income earned to the periods of 9/12/20 and 22/12/20, 31/3/21 and 4/5/21 and 29/9/21 and 30/11/21 which is when the payslips the appellant provided stated the income was earned. This then resulted in an overpayment for those weeks.
Both parties accept that it follows from this that there was an overpayment. The issue is whether the overpayment is recoverable. This in turn depends on section 71 and whether or not there was material non-disclosure.
There can be no failure to disclose within the meaning of section 71 unless there is a duty upon the appellant to make a disclosure. When this duty arises and what is the legal basis for the duty, was the essence of the questions Judge Buley posed in his judicial observations.
The respondent argues that there was an ongoing obligation to disclose. They accept that payslips were disclosed by the appellant and that these made clear the hours worked and related remuneration. However, they submit that the obligation requires timely disclosure and it was this part of obligation that was breached.
The respondent relies on regulation 24(4) of the JSA 1996 regulations as the origin of the duty to disclose payslips.
I do not agree that regulation 24(4) is pertinent in the circumstance of someone continuously claiming JSA (IB) since 2015. In the given circumstances, it appears that regulation 24 (5) that was the applicable provision.
The time of provision for documents under Regulation 24 (5) of the 1996 Regulations is set out in relation to Regulation 24 (9A) which cross-references to Regulation 17(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This requires the information within’
a period of 14 days beginning with the date on which the notification under paragraph (3) was sent to him or such longer period as the Secretary of State allows in that notification; or
such longer period as he satisfies the Secretary of State is necessary in order to enable him to comply with the requirement’.
I therefore agree with the appellant’s submissions that under regulation 24 there is a requirement for a request for the information to be made and the timeliness of any compliance with the request is necessarily linked to when that request occurred. In this case it is clear that pay slips were provided at various points throughout 2021. It is also clear that a request was made for pay slips at a certain point or points. However, it is not clear that there was a failure to provide any information either within 14 days of the request (per regulation 17 (4) (a)) or a longer period such that the appellant satisfied the Secretary of State is necessary in order to be able to comply with the requirement (regulation 17 (4)(b)) as the exact chronology of any requests remains unclear.
If no request was made there cannot have been a failure to provide material information under regulation 24. There are no clear factual findings as to when such requests were made and the evidence before me does not clarify the matter. Therefore, it is not open to me to determine whether there was a breach of the obligation under regulation 24 (5) leading to material non-disclosure under section 71. That issue would have need to be remitted to the FtT for consideration, however I think that the position in relation to period 2 can be decided on another point.
Judge Buley raised the general issue of whether income must be attributed under regulation 96 of the benefit week in which it is earned. As he pointed out if that was the case, then there cannot be an obligation to disclose when an employee does not yet know how much they will earn or how many hours they will work in advance of the benefit period either commencing or concluding. It could be fairly common for employees on zero-hour contracts to not have this information in advance. If the effect of regulation 96 is that the income must be attributed to the benefit week in which it is earned, then there can be no duty to disclose income earned either in advance or during that week, as that would in many cases be impossible.
I do not find that regulation 96 means that income can only to be attributed to the week in which it was earned. Nor, do I agree that the respondent’s submission that ‘There is no provision which allows the Secretary of State to adjust the JSA award in the weeks subsequent to the information being provided and thereby preventing an overpayment arising’ is an answer to this issue.
It is not a case of adjusting the JSA in subsequent weeks, rather considering on what date the payment of income is deemed to have been ‘treated as paid’ under regulation 96. Regulation 96 provides for the time at which income is ‘treated’ as having been paid. Regulation 96 (1) (b) allows for income to be treated as having been paid in the ‘first scheduled benefit week in which it is practicable to take it into account’. This considers the calendar date (or week) on which the payment is treated as having been made.
In response to Judge Buley’s question about regulation 96 (1), the respondent submits that as the appellant was paid monthly, she should have declared her earnings on a monthly basis and a calculation would have been conducted in accordance with regulation 94 (2) of the JSA regulations.
Regulation 94 (2) deals with how to calculate the period a payment is to be taken into account once you have determined the ‘date on which the payment is treated as having been made’.
The concepts of when income is to be ‘treated as paid’ and how you calculate the period over which such earnings are to be taken into account for the purposes of assessing entitlement to JSA (IB) are different, albeit related concepts.
There is nothing in regulation 94 or 96 that prevents the respondent from treating the payment date as being the first succeeding benefit week after the information is provided on the basis that this was when it was ‘practicable to take it into account’ in accordance with regulation 96 (1) (b) of the 1996 Regulations.
In the circumstances, given that income can be taken into account and treated as paid at a later date, the law does not require a claimant of JSA (IB) to do the impossible and disclose information about earnings prior to having knowledge of the same.
Once the income is disclosed and is treated as having been paid under regulation 96 (1) (b) of the 1996 Regulations, it is then, under regulation 93 treated as income for the purposes of section 3 of the Jobseekers Act 1995 (the ‘1995 Act’).
Meeting the income test under section 3 of the 1995 Act partially determines eligibility for JSA (IB). It provides,
‘The conditions referred to in section 1(2A)(b) are that the claimant—
(a)has an income which does not exceed the applicable amount (determined in accordance with regulations under section 4) or has no income;’
The relevant applicable amounts are set out in regulation 83 of the 1996 Regulations, read with paragraph 1 of schedule 1 of the same regulations.
It follows, that there is no requirement that the respondent must treat the income as having been paid in the week in which it was earned for the purposes of eligibility and specifically section 3 of the 1995 Act or regulation 96 of the 1996 Regulations.
However, the above discussion does not apply this in this case.
In this case, the respondent did treat the income as having been paid in the week in which it was earned. It is on the dates 9/12/20 and 22/12/20; 31/3/21 and 4/5/21 and 29/9/21 and 30/11/21 that the respondent states the overpayment occurred. The issue on this appeal is whether there was a recoverable overpayment in those periods on the basis of material non-disclosure.
The appellant could not have had her payslips or information as to how much she was going to earn before the periods of overpayment. Therefore, there cannot have been material non-disclosure that caused the overpayments in period 2.
As the civil penalty charged relates to the overpayment in period 2, this also falls away and cannot be charged as there is no recoverable overpayment for this period.
Period 3 – failure to consider relevant evidence/inadequacy of reasons
This relates to the period from 1 December 2021 onwards. The respondent determined that because the appellant had obtained remunerative work from this date onwards for over 16 hours per week (which, it is not disputed, she disclosed to the DWP before commencing work) she was therefore no longer entitled to JSA.
The FtT recorded at paragraph 50 of its statement of reasons, that ‘On 2 February 2022, there was a decision that an overpayment of JSA (income-based) which accrued from 1 December 2021 as the appellant was in remunerative work was not recoverable as it had resulted from an official error. There is no record of a formal decision having been made regarding this’.
The respondent accepts that the FtT made an error of law in respect of the eligibility decision from 1 December 2021 onwards. The conclusion at paragraph 63 of the FtT’s decision is that, from 1 December 2021 the appellant ‘had been in remunerative work. The appellant stated that they commenced work on 1 December 2021 for 20 hours per week’.
However, it is clear from the written evidence in the bundle before the FtT that the appellant submitted to the DWP in writing on 23 December 2021 that the work she was doing was only during term time and therefore she was only working 15 hours per week on average.
This was material as the entitlement decision was dependent on working 16 or more hours per week.
This was plainly material evidence that the FtT did not consider, or if it did, then it failed to give adequate reasons why in spite of this, it still reached a conclusion that the appellant was not eligible for JSA. For these reasons, the appeal in respect of period 3 is allowed.
For these reasons, I allow the appeal.
The issues for the First-tier tribunal will be limited to:
Whether there was an overpayment in period 1; and If there was an overpayment, was it recoverable?
Was the appellant entitled to JSA (IB) from 1 December 2021 onwards?
Louise Price
Judge of the Upper Tribunal Authorised for issue on 5 June 2025