LH v Secretary of State for Work and Pensions (RP)

In a detailed submission, written by Mr Wayne Spencer, the Secretary of State argued that following the decisions of the Tribunal of Commissioners and the Court of Appeal in R(IS) 9/06 the ‘failure’ in failure to disclose amounted to a failure to discharge a legal duty to disclose, and the relevant duties to disclose were to be found in this case in regulation 32(1A) and 32(1B) of the Social Security (Claims and Payments) Regulations 1987. It was further argued, somewhat charitably in my view given the opacity of the tribunal’s reasoning, that the first duty the appellant had been under was under regulation 32(1A) and resulted from the written instruction he had received in the leaflets referred to above which, it was argued, required him to notify the Department if his spouse received any benefit. The second duty, this time under regulation 32(1B), arose from the 18 June 2004 telephone conversation. The Secretary of State continued to argue at this stage in the proceedings that this conversation had made the appellant aware that his wife’s pension would affect his own entitlement if it was equal to or more than the dependency increase he received for his wife. Once furnished with the information that his wife’s pension was of a greater amount than the dependency increase, the appellant could reasonably have been expected to know that this change might affect his benefit and so was a change he should notify to the Secretary of State.

The Secretary of State argued that at this last stage in its analysis the tribunal had erred in law by failing to investigate whether anything said by Ms Rowley in the telephone conversation of 18 June 2004 had modified any duty the appellant may have been under such that he did not need to further communicate with the Pensions Service in Newcastle-upon-Tyne when the exact amount of his wife’s state retirement pension became known to him. Reference was made here to R(A)2/06. In a later submission, which I address below, the Secretary of State resiled from this argument, and in any event it is not necessary to address it in substance.

The Secretary of State’s argument then turned to the point I had raised in giving permission to appeal about whether the appellant could fail to disclose to the Pensions Service office in Newcastle-upon-Tyne anything to do with his wife’s pension which it was also paying. Mr Spencer referred to paragraphs 19 and 25 of the Tribunal of Commissioner’s decision in R(SB) 15/97 in which they said:

“19.

In Foster v Federal Commissioner of Taxation (1951) 82 CLR 606, an Australian decision cited to us by Mr. Powell, Latham CJ said at pages 614 and 615—

“In my opinion it is not possible, according to the ordinary use of language, to ‘disclose’ to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware. There is a difference between ‘disclosing’ a fact and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the ‘discloser’ knows) was previously unknown to the person to whom the statement was made. Thus. . . .the failure of the [plaintiff] to repeat to the Commissioner what he already knew did not constitute a failure to disclose material facts.”

“25.

The Shorter Oxford English Dictionary (3rd edition) defines the verb to “disclose” as meaning to “open up to the knowledge of others; to reveal”. We respectfully agree with Latham C.J.’s opinion that disclosure consists in the statement of a fact so as to reveal that which so far as the discloser knows was previously unknown to the person to whom the statement was made.”

Mr Spencer accepted that if this view was taken it was arguable that the appellant could not disclose his wife’s pension and therefore could not fail to make such a disclosure. However he argued, relying on GK –v- SSWP [2009] UKUT 98 (AAC), that a new understanding of “failure to disclose” had been introduced following R(IS)9/06 which renders any inherent meaning of “disclose” irrelevant in the context of section 71(1) of the SSAA 1992. Paragraph 23 of GK was referred to, which says:

“it seems to me that following the decision in B and in particular the remarks of Buxton LJ cited above, section 71 is sufficient to provide a remedy for breaches of all those duties as long as the terms of such duties are capable of falling within the word “disclose” (as the Tribunal of Commissioners and Court of Appeal held those imposed by regulation 32 are). Therefore, a breach of a regulation 32 duty will lead, subject to questions of causation, to entitlement to recover under section 71. Insofar as paragraph 16 of CIS/1887/2002 is to be read as suggesting that a breach of regulation 32 requirements may escape the sanction of section 71 if it does not also fall within an additional test linked to an inherent meaning of the word “disclose”, I would respectfully decline to follow it. Rather, B has clarified the meaning to be given to “failure to disclose” in the context of section 71 so as to prevent the possibility of such a double test arising. Likewise, where in CG/5631/1999, a decision of a Tribunal of Commissioners, it is stated, though without argument, that:

“It is well established that there can be no failure to disclose something which is already known to the person to whom disclosure might otherwise be owed”

I do not consider that it remains good law following the decision of the Court of Appeal in B, which I am required to follow.”

It was argued by the Secretary of State that on this analysis if there had been a breach of regulation 32(1A) or 32(1B) of the Claims and Payments Regs “it follows without further ado that there has been a failure to disclose for the purposes of section 71(1)”. The argument continued:

“There is nothing that necessarily prevents a duty arising in relation to something the relevant office already knows….the Secretary of State is entitled to instruct the claimant to repeat or confirm a material fact that the office in question already knows …..; and if a claimant fails to do this, he will have failed to discharge a duty imposed by regulation [32(1A) or (1B)] (as appropriate) and thereby will have failed to disclose the fact in question.”

The Secretary of State’s written argument continued, however, that this general rule may sometimes have to be qualified in the case of changes that emanate from the very office to which the claimant is required to disclose a change of fact, and various different decisions of the social security commissioners and judges of the upper tribunal (AAC) were cited in support of this argument, such as CSB/677/1986, CIS/546/1991, and CIS/1887/2002. Particular reliance was placed in this regard on paragraph 21 of GJ –v- SSWP (IS) [2010] UKUT 107, where the following was said:

“The requirements in INF4(IS) 4/06 and its predecessors were made under these regulations, and must be read in that context. The regulations can only provide for information or evidence to be provided that falls within section 5(1)(h)-(j) of the 1992 Act. Neither they nor any requirements made under them can require pointless information to be given, and the regulations and the requirements need to be construed where possible so that they only require potentially relevant information to be given. Thus it is clear that there can be no breach of an obligation to provide information to the local office of a change of benefit that the same local office has just notified to the claimant. That is not, in my view, because of the application of the doctrine of waiver as suggested by Judge Ward in paragraph 22 of [GK], but because there is no conceivable basis on which such information could lawfully or sensibly be required, or indeed wanted, by the local office. Both the regulations and the requirements are to be construed to exclude such absurdities.”

It was suggested by Mr Spencer on behalf of the Secretary of State that it was perhaps possible to subsume the approaches taken in all of the cited cases within the dictum of Lord Hoffman in paragraph 22 of Hinchy –v- SSWP [2005] UKHL 16; [2005] 1 WLR 967 (also reported as R(IS)7/05) that “a disclosure which would be thought necessary only by a literal-minded pedant (see, for example, CSB/1246/1986) need not be made”. In any event, it was argued that the analysis in GJ was correct and that the tribunal had erred in law in failing to consider whether information about actual payment of the appellant’s wife’s own state retirement pension could conceivably be required in the circumstances of this case. It was said further in this regard that consideration should have been given to the office arrangements within the Pensions Service and to whether those responsible for paying the dependency increase in the appellant’s state retirement pension would have become aware of the appellant’s wife having “actually been awarded a retirement pension in her own right”.

However, no information or evidence was been provided by the Secretary of State on this appeal about any division in the Pension Service’s office in Newcastle-upon-Tyne between one part of the office dealing with dependency increases in retirement pensions and another part dealing with the appellant’s wife’s retirement pension. Nor has any evidence been provided to show that the information provided to the appellant clearly identified different parts of the said office in Newcastle-upon-Tyne dealing with dependency increases in retirement pensions and the retirement pension themselves. And, in my judgment, it is not obvious what such differences would have been given that the said office was responsible for dealing with retirement pensions, of which the dependency increase are simply a part.

In directing an oral hearing of the appeal I raised, again, whether the appellant’s letter of 21 May 2004 constituted proper disclosure of the appellant’s wife’s pension to the relevant part of the DWP before any overpayment had begun, as this point did seem to have been addressed directly in the Secretary of State’s written response on the appeal.

In a further written response from Mr Spencer it was argued, indeed accepted on behalf of the Secretary of State, that on the First-tier Tribunal’s findings concerning the letter of 21 May 2004 and the telephone call of 18 June 2004, the appellant had made timely notification (in advance) that his wife would be getting her own state retirement pension from the end of May 2004 and he had therefore “fully and finally discharged the duty to disclose under regulation 32(1A) [of the Claims and Payments Regs]”. This was because the requirement imposed by the relevant part of the BR2215 leaflet set out in paragraph 8 above was for the appellant to “Tell [his] Pension Centre….if [his] spouse]…. gets any…pension…from the Department for work and Pensions…”, and that he had done. It was accepted that the First-tier Tribunal had therefore erred in law in holding the overpayment was recoverable from 31 May 2004, as the relevant disclosure had been made in May 2004.

The further submission argued, however, but stepping back from the submissions referred to in paragraphs 6, 9 and 18 above and providing a different argument, that the First-tier Tribunal had been correct to hold that the appellant was in breach of the duty imposed by regulation 32(1B) of the Claims and Payments Regs by failing each year, from February 2005, to report the annual uprating increases in his wife’s retirement pension to the Pension Service’s office in Newcastle-upon-Tyne. It was argued that in effect the tribunal had considered that each annual uprating of his wife’s retirement pension was a change of circumstances that the appellant might reasonably have been expected to know might affect the dependency increase he was receiving for his wife, and which he therefore could reasonably be expected to disclose back to the office administering his retirement pension. On this basis, it was argued by the Secretary of State that the tribunal was entitled to find that each of the appellant’s failures to notify the annual uprating increase to his wife’s retirement pension was both a separate breach of regulation 32(1B) and a failure to disclose for the purposes of section 71(1) of the SSAA 1992.

Mr Spencer added in this submission that it seemed highly unlikely that Ms Rowley would have made any comments about whether or not the appellant needed to report any subsequent increases in his wife’s retirement pension, thus in effect dropping his support for the appeal on the R(A)3/06 ground referred to above.

In his skeleton argument on behalf of the Secretary of State Andrew Bird of counsel accepted that the First-tier Tribunal’s decision that there had been failure to disclose effective from 31 May 2004 could not stand in law given the tribunal’s finding that the appellant had sent the letter of 21 May 2004 and had spoken to Ms Rowley on 18 June 2004. However he continued to argue on behalf of the Secretary of State that the appellant had acted in breach of regulation 32(1B) of the Claims and Payments Regs, and so had failed to disclose for the purposes of section 71 of the SSAA 1992, in not reporting the annual uprating in his wife’s retirement pension each year from February 2005. Even if the appellant did not know the precise quantum of his wife’s pension, he was aware that state retirement pensions were uprated each year (as his pension was) and so was aware that his wife’s pension was subject to the same increases.

The remaining issue of law, it was argued, was whether there could be said to be failure to disclose a fact when another part of the same office knew the same fact. The evidential basis for there in fact being another part of the Pension Service’s office in Newcastle-upon-Tyne was not set out. It was said that the default position was correctly set out in GK. Applying the Court of Appeal’s decision in R(IS) 9/06, it was argued there had clearly been an obligation to “notify” the fact of the appellant’s wife’s annual uprating increases to her retirement pension under regulation 32(1B) based on what the First-tier Tribunal had found the appellant had been told by Ms Rowley. Following Hinchy, the appellant was not entitled to assume that the office determining the quantum of his pension would know about these annual uprating increases (to his wife’s pension) and automatically take them into account.

The appellant, by now represented by the Free Representation Unit and, through them, by Toby Fisher of counsel, made a number of arguments against any of the overpayment being recoverable from him.

He first adopted, unsurprisingly, the Secretary of State’s concession that the overpayment was not recoverable from 31 May 2004, as it could not credibly be argued that the appellant had failed to disclose the fact that his wife had started to receive her own retirement pension with effect from the end of May 2004.

Turning then to the argument that the appellant had failed to disclose the annual uprating in his wife’s pension, it was argued that this conclusion was not open on three bases.

It was argued in the alternative that if there had been a failure to disclose the annual increase in the appellant’s wife’s state retirement pension from February 2005, this did not cause any overpayment.

I need only address in detail the first argument made by the appellant as in broad terms, and for the reasons given below, I accept it. As that argument is determinative of the appeal in the appellant’s favour, I need not address any of the other arguments he made. I will, however, address in passing the argument, albeit in another context, on regulation 32(1B). If this appeal is to go any further, the arguments I have not needed to decide can be resurrected, if necessary; and if they are determinative in any other case then they can be addressed in that case.

The fundamental issue in any event on this appeal is what is caught by the phrase “failure to disclose” in section 71 of the SSAA 1992 and whether breach of regulation 32(1A) or 32(1B) of the Claims and Payments Regs, to use Mr Spencer’s words, “without further ado” and in and of itself amounts to a failure to disclose for the purposes of section 71. Even though section 71 may only set out the consequences of any breach of duty, as a matter of law it only mandates an overpayment to be recoverable where there has been (as relevant to this case), a failure to disclose.

It is important in my judgment to begin the analysis by focusing on what is in issue on this appeal and what has fallen away. It is no longer any part of the Secretary of State’s argument that the appellant was under a continuing obligation to disclose his wife’s receipt of her own retirement pension after the end of May 2004. It is at the very least doubtful, in my judgment, what scope there is for such a continuing obligation, and R(SB)54/83, following R(IS)9/06. If a claimant has in fact notified the DWP office named on the leaflet of evidence or information that leaflet required to be notified, then very arguably the necessary disclosure has been made and no further duty to disclose the same information could be said to arise under that leaflet pursuant to regulation 32(1A) of the Claims and Payments Regs. A difference might arise where the notification was not successful, but that in my judgment is not answered by any notion of a continuing obligation but rather, at least very arguably, by the obligation or requirement to notify not having been met in the first place On the same facts as posited it is likewise difficult to see where regulation 32(1B) of the Claims and Payments Regs would have any purchase (i.e. where the required information had been notified), because it is difficult to see what the change in circumstances would then be such that regulation 32(1B) could be said to apply.

More importantly, however, it is now accepted that the appellant had fulfilled his duty under regulation 32(1A) of the Claims and Payments Regs by notifying the Pension Service’s office at the NE 98 1BA postcode address in Newcastle-upon-Tyne in advance that his wife was to get her own state retirement pension and the date from which she was to receive it. The importance of this point may, with respect, possibly have been lost on the Secretary of State. I say this because it was the fact that the appellant’s wife was getting a state retirement pension in excess of the dependency increase the appellant was receiving in his state pension which, in essence, was the reason for the overpayment (Footnote: ²). (I stress that I am not here seeking to stray into, or decide anything on, causation, though this point would plainly be relevant to that argument.) However, the Secretary of State has accepted on this appeal that the appellant had done all he had been required to do by notifying the office in Newcastle-upon-Tyne (in advance) of the fact that his wife was to get her own state retirement pension, and further accepts that the leaflets did not require the appellant to tell that office of the amount of his wife’s pension.

Moreover, the Secretary of State has abandoned any argument that the 18 June 2004 telephone call gave rise to a duty on the appellant, pursuant to regulation 32(1B) of the Claims and Payments Regs, to notify the same office of the amount of his wife’s weekly entitlement to her state retirement pension once it became known to her and then him. I can see why that argument was abandoned, and it is at this stage that I wish to touch on the argument made on behalf of the appellant concerning regulation 32(1B), albeit that argument is made in the context of notifying the annual uprating increases in the appellant’s wife’s pension from February 2005.

I say I can see why the Secretary of State has abandoned the regulation 32(1B) argument concerning the appellant notifying the amount of his wife’s state pension for the following reasons. First, whether there was such a duty has to be seen in the context of what had gone before the telephone conversation and that includes what the leaflets did and, just as importantly, did not say. This it seems to me must follow not only from the “any change of circumstances….he might reasonably be expected to know might affect…” (my underlining) language of regulation 32(1B), with its focus on knowledge the claimant might reasonably be expected to have, but also from what Baroness Hale said in paragraph 55 of Hinchy, in respect of what is now regulation 32(1B):

“…..the claimant cannot reasonably be expected to know that something might affect his claim to benefit unless the Secretary of State has made it clear what sort of changes might do so.”

This is not to say that the telephone conversation is irrelevant, plainly that cannot be so, but is to say that it cannot be the sole determinative basis for the regulation 32(1B) duty in a case, as here, where information has been provided by the Secretary of State to the appellant.

Assuming that a reasonable claimant would, and the appellant had, read both of the leaflets referred to above, what they said needed to be reported (notably, simply to “your Pension Centre”) was: (i) if your spouse gets any pension from the DWP; (ii) if you get the dependency increase in your state pension for your spouse, it will be affected if that person earns more than a certain amount; and (iii) (this time in the BR2189 form) “Contact your pension centre to tell us about a change in your circumstances and to find out what changes you must tell us about….We need you to tell us about things like…a change in the earnings of…a wife you get an increase in State Pension for [and] a change in occupational or personal pension of a..wife you get an increase in State Pension for” (p.9 of the 2/10 version of this leaflet), and “if your…wife is under 60…and you are getting an increase in your pension for them, please let us know immediately if they start work or if their earnings, including any occupational or personal pension, change” (p. 7 of 2/07 version of leaflet).

None of the leaflets therefore required any notification to be made about the amount of, or increases to, a spouse’s own state retirement pension. Although I need not decide the point, I can therefore see the force in the appellant’s argument that a reasonable claimant in the same position as the appellant on reading these leaflets might reasonably assume that having informed the Pension Centre in advance that his wife was to get her own state retirement pension, the lack of any requirement in the leaflets to inform the Pension Centre of the level of, or increases in, his wife’s state retirement pension meant that Pension Centre had, or could obtain, such information for itself, and so such information did not need to be provided by him. That might then have provided the necessary starting point for any regulation 32(1B) argument concerning whether the appellant was required to notify the Pension Centre in Newcastle-upon-Tyne of the amount of his wife’s state retirement pension after the 18 June 2004 telephone conversation.

If this would have been the correct starting point for such an argument, it is arguable that the note the appellant made contemporaneously of the 18 June 2004 telephone call - “Money for other people [i.e. the dependency increase] will depend on level of [wife]’s pension” – would not, in the context of what I have just said, have placed any requirement on the appellant to notify the Pension Centre of the amount of his wife’s state pension when it was first received. The reasons for this are twofold. First, given the leaflets, arguably it would not have been reasonable for the appellant to know that his providing this information might affect the level of his state pension in a context where the leaflets indicated such information did not need to be provided by him. Second, and for similar reasons, it may arguably be difficult to characterise that his knowledge of the level of his wife’s state pension – a pension which he had already told the relevant office his wife was to receive - was a change of circumstances which the appellant might reasonably have been expected to know needed to be notified back to that office, or indeed any office, because it might affect his state pension. Accordingly, it is at least arguable that the handwritten note alone provided no proper basis for a finding of breach of regulation 32(1B).

A better case for a finding of such a breach might have arisen when the appellant’s later recollection of that conversation is added in to the considerations. However, that recollection was provided over 9 years after the events and may lack cogency for that reason alone. Moreover, the wording “providing my wife’s pension is less than the dependants allowance, I should still be eligible to receive the dependants allowance” may not necessarily have provided a good basis for a finding that the appellant’s knowledge (Footnote: ³) of the level of his wife’s state pension was a change of circumstances that he might reasonably have been expected to know might affect his pension and so was required to be notified to the Pension Centre by him. It would certainly have been arguable, in my judgment, that even here, given the information provided in the leaflets, it might not have been reasonable for the appellant to realise that his providing his knowledge of this information to the Pensions Centre might affect his state pension. He might instead have reasonably taken the view, as he expressed it, that the Pensions Centre itself would have decided whether he should continue to receive the dependency increase.

In any event, I am not required to decide any such argument as it is not one that was made before me. Nor need I address the argument that the appellant was under a regulation 32(1B) duty to notify the annual uprating increase in his wife’s state pension, as that argument is subsumed within the main argument as to whether he could disclose that information. The argument is that the appellant failed to disclose from 2005 onwards the fact of his wife’s annual uprating in her state retirement pension.

It is worth repeating the critical part of the Secretary of State’s argument on this point. This was that following Hinchy the appellant was not entitled to assume that the Pension Service’s office in Newcastle-upon-Tyne would know about the annual uprating increases to his wife’s state pension and automatically take them into account. Stating the argument in my judgment, and with all due respect to the Secretary of State, reveals the absurdity of it. The annual uprating of benefits is a matter fixed by the Secretary of State in Social Security Benefits Up-rating Orders made annually pursuant to Part X of the SSAA 1992. Section 150 of that Act is within Part X and provides by subsection (1) that the:

“Secretary of State shall in each year review the sums specified [in various parts of the Security Contributions and Benefits Act 1992 , including those covering retirement pensions]…in order to determine whether they have retained their value in relation to the general level of prices obtaining in Great Britain estimated in such manner as the Secretary of State thinks fit”.

The uprating orders do not, for obvious reasons, descend to the updating named individuals’ benefits or pensions on an individual basis. Instead, the levels of benefits or pensions are uprated on a category by category, or pension by pension, basis, and by a fixed percentage amount per category or pension.

The effect of the Secretary of State’s argument is that the appellant had failed each year to disclose the fact and the amount of the fixed annual uprating in his wife’s state pension to the Pensions Service’s office in Newcastle-upon-Tyne. In my plain judgment that was not information which the appellant could as a matter of law disclose to that office.

The meaning of the word “disclose” has been well settled under section 71 of the SSAA 1992 and its like-worded predecessors. As the Tribunal of Commissioners said in R(SB)15/87 “disclosure consists in the statement of a fact so as to reveal that which so far as the discloser knows was previously unknown to the person to whom the statement was made”. As was helpfully pointed out in WH –v- SSWP [2009] 132 (AAC) (at paragraph 29), the notion of ‘disclosure’ meaning revealing (in the mind of the discloser) something to another has support elsewhere in non-social security caselaw (see Attorney General –v- Associated Newspapers Limited [1994] 2 AC 238 at 255 and BCCI –v- Price Waterhouse [1998] Ch. 84 at 102), but the definition in R(SB)15/87 is sufficient for section 71(1) of the SSAA 1992 (Footnote: ⁴).

Given this test of what is meant by disclose, I cannot identify any sensible factual or legal basis upon which it may be said that the appellant could disclose to the Pension Service’s office in Newcastle-upon-Tyne that his wife’s state pension had each year been uprated in accordance with the relevant uprating order, along with his and all other state retirement pensions. He could ‘notify’ them of that information but he would not be disclosing it to them. That information was plainly known to the Secretary of State and the appellant’s state pension’s office in Newcastle and, just as importantly, in my view the appellant would have known that that office knew that his wife’s pension, which it must be recalled it is accepted he had properly disclosed to them his wife had been getting from May 2004, would likewise be uprated. Why? Because it was the same species as the state retirement pension he had been getting from 1998 which he had had uprated.

Before I develop this conclusion further I should say that in so far as what I say above turns on findings of fact, these are findings I am entitled to make. This is because it is common ground before me that the decision of the First-tier Tribunal on this appeal was erroneous in point of law and should be set aside, and it is therefore open to me to re-decide the first instance appeal making such findings of fact as are necessary to do so. In my view, I should re-decide the appeal given the overall length of these proceedings and the age of the appellant, and the opportunity both sides have had in the course of the Upper Tribunal proceedings to lay out their respective cases.

It is instructive to note that in Hinchy Lord Hoffmann was of the view that “[a] disclosure which would be thought necessary only by a literal minded pedant…..need not be made”(at paragraph [23]). Lord Hoffmann referred specifically here to the commissioner’s decision CSB/1246/1986. In that case it had been decided that a recoverable overpayment had arisen in respect of the claimant’s means-tested supplementary benefit because he had failed to disclose the material fact that his wife’s unemployment benefit had increased under the annual uprating provisions. The supplementary benefit and unemployment were administered by separate offices. In allowing the claimant’s further appeal Mr Commissioner Rice held that the officials responsible for the claimant’s supplementary benefit:

“knew, or ought to have known, that unemployment benefit was to increase on a specific date in accordance with the general uprating provisions. Such information was manifestly within the knowledge of [those officials]…..information which is public knowledge - and the uprating provisions fall within this classification - is something which the claimant is not obliged to disclose.”

The decision in CSB/1246/1986 was decided after R(SB)15/87 but without reference to it. In my judgment, its reasoning and conclusion is consistent with the meaning of disclosure put forward in R(SB)15/87, for the reasons I have explained in paragraph 49 above, and it supports the decision I have arrived at on this appeal. It is also a line of authority supported by the House of Lords in Hinchy (Footnote: ⁵). This line of reasoning is also supported by the GJ case referred to in paragraph 22 above, where, to repeat, Judge Mark said “[no] requirements made under [section 5(1)(h) to (j) of the SSAA 1992] can require pointless information to be given”. I note that in another appeal Mr Spencer submitted for the Secretary of State, relying on GJ, that there will not be a failure to “disclose” if the claimant knows that there is no point in telling an authority about the relevant fact because he knows that the authority is already aware of it: BD –v- SSWP [2016]UKUT 0162 (AAC) at paragraph 33. For the reasons I have already given, I consider that that submission of law was soundly made, being based properly on authority such as R(SB)15/87.

It seems to me that the above conclusion I have arrived at holds good even if in fact the appellant’s state retirement pension (with the dependency increase) and his wife’s state retirement pension were administered by separate offices. I say this because of the nature of the specific information which it is said in this case that the appellant had not disclosed, namely the annual uprating of his wife’s state retirement pension. To adopt the language of CSB/1246/1986, that information was public knowledge and so would have been known to any separate office administering the wife’s state retirement pension and, I am satisfied, the appellant would have known that the office responsible for administering his state retirement pension would have held that knowledge and would have known that the office dealing with his wife’s pension held the same knowledge and would have uprated her pension accordingly.

However, in so far as it matters, on the evidence before me in my judgment there is no good evidence that there were separate offices of the Pensions Service administering the appellant’s and his wife’s state retirement pensions. I bear in mind that the onus of proving that the overpayment is recoverable from the appellant rests on the Secretary of State. Nothing, however, in the evidence, which I have read and reread, shows that the state retirement pensions were administered in separate offices or in identified separate parts of the same office. The appeal response made by the Secretary of State to the First-tier Tribunal referred homogeneously to the “Benefits Agency” and the “Department”, and, notably, refers to “the Department” both in terms of the place where the appellant had to notify information and the place whose records showed that his wife had been notified of her entitlement to her state retirement pension on 15 June 2004; all of which suggests that both pensions were being dealt with by the same, per R(SB)15/87, “office”. And the benefits were one and the same – state retirement pensions – administered for two people living at the same address, which points to the likelihood of them being dealt with by the same office.

Furthermore, after I gave permission to appeal and raised expressly the question whether the appellant could have failed to disclose a fact “which the Pensions Service already knew, namely that his wife had qualified for a state retirement pension her own right”, no argument and evidence was presented by the Secretary of State showing that the benefits were in fact separately administered. At highest, in paragraph 14 of his first submission to the Upper Tribunal, Mr Spencer raised the issue of remitting the appeal back to another First-tier Tribunal for it to make findings “as to whether the office arrangements (including any computer links) were such that the particular officers that were responsible for making decisions about the increase to the [appellant]’s retirement pension would automatically and inescapably become aware of the fact that the [appellant]’s wife had actually been awarded a retirement pension in her own right”. I do not read this, however, as evidencing that there were in fact different offices but simply that this issue might need to be explored.

Therefore, insofar as it is necessary for me to do so, I find on the evidence before me that the two state retirement pensions were not administered in separate offices. (This case is therefore not wholly dissimilar to CIS/4422/2002.)

On this basis I accept the further submission on behalf of the appellant that, following CSB/677/1986, it would have been absurd for the appellant to have written a letter to the Pension Service’s office in Newcastle-upon-Tyne in or after February 2005 saying:

“Dear Sir or Madam,

You are aware that:

a.

I am in receipt of a state retirement pension which includes an increase for my wife.

b.

My wife in in receipt of her own state retirement pension.

c.

There recently has been an uprating of all state retirement pensions.

d.

Both my wife’s and my own state retirement pensions have been uprated in line with the general uprating.

I write to inform you of all these facts you already know.”

For the reasons given above, this plainly in my judgment could not amount to disclosure to the appropriate office, and so there could have been no failure to disclose where, as in this case, such a letter was not sent, even assuming on the facts that the failure to send such a letter might have amounted to a failure to notify for the purposes of regulation 32(1A) or 32(1B) of the Claims and Payments Regs.

I must address, however, the Secretary of State’s argument against all of the above based on paragraph 23 in GK –v- SSWP [2009] UKUT 98 (AAC). That argument is that paragraph 23 of GK is correct in holding that the effect of the Court of Appeal’s decision in B -v- SSWP (R(IS)9/06) is that where there has been a breach of regulation 32(1A) or 32(1B) “without further ado” there has been a failure to disclose for the purposes of section 71(1) of the SSA 1992. I agree with the Secretary of State that this is the effect of what is said in paragraph 23 of GK, though I note that in that case the fact in issue had not become known to the relevant part of the office and, in any event, the claimant was not aware that the fact had become known to any part office. However, I do not, with respect, agree with the analysis in paragraph 23 of GK. This is for the following reasons.

Most fundamentally, I do not consider that any part of the ratio of the Court of Appeal’s decision in R(IS)9/06 was concerned with the meaning of “disclose”. The concern the Court of Appeal had was with what was meant by “failure” and the identification of the corresponding duty a claimant could “fail” to meet. More particularly, it was concerned with whether “failure” (a) could admit of a test of what was reasonably to be expected (per R(SB)21/82), and (b) whether the individual characteristics of a claimant (e.g. where she could not appreciate that which needed to be notified or disclosed) were relevant to whether the claimant was in breach of a duty to disclose.

This is apparent, in my judgment from the judgments of the Court of Appeal in R(IS)9/06. Lord Justice Sedley, who gave the leading judgment, identified the appellant’s case in paragraph 9 of the Court of Appeal’s judgment as being “that a claimant who is unable to understand that she has an obligation to report something has not “failed to disclose” it”, and in paragraph 27 he framed the question as “is a claimant under any legal obligation to report more than she can reasonably be expected to report?” (thus bringing in the test from R(SB)21/82). Further, at the end of paragraph 36 he said “[i]f there is a reason for construing “failure” as involving fault, it has to be better than [the argument that had just been made]”, and in the next paragraph he spoke about “failure” presupposing obligation and that it was in regulation 32 of the Claims and Payments Regs that the obligation was found, and that obligation could not admit of any additional or secondary “reasonably to be expected” test (paragraph 40).

None of this indicates to me that Lord Justice Sedley (with whom Sir Martin Nourse agreed and Lord Justice Buxton thought that nothing he said departed from what Sedley LJ had said) was seeking to address the meaning of “disclose”, let alone positively change its long held meaning as set out in R(SB)15/87, which itself was based on the ordinary meaning of the word. On the face of regulation 32 of the Claims and Payments Regs and section 5(1)(h)-(j) of the SSAA 1992, neither is defining the meaning of the word “disclose” for the purposes of section 71(1). Nor can I see that either statutory provision, and particularly section 5(1)(h) to (j) of the SSAA 1992, empowers the cutting down or changing of the ordinary meaning of “disclose” in section 71(1) of the same Act.

The Tribunal of Commissioners whose decision was upheld by the Court of Appeal (with both then reported in R(IS)9/06) accepted that “the Secretary of State is only entitled to recover overpaid benefits in the specific circumstances prescribed by the statutory scheme” (paragraph 11 of its decision). The entitlement to recover is found in section 71(1) of the SSA 1992 and not section 5 of the same Act or regulations made under it. These last two statutory provisions do not, therefore, create any right of recovery of overpaid benefits. They are concerned, as their language makes plain, with imposing duties on persons to “furnish” or “notify” information and evidence. Nor can I identify anything in their statutory language which expressly, or by implication, sets out what the consequences are for failure to furnish or notify the information.

Accordingly, to be entitled as a matter of law to recover the benefit overpaid in this appeal the Secretary of State had to show, ignoring misrepresentation which does not arise on this case, that there had been a “failure to disclose” a material fact. If any failure to notify or furnish information did not amount to a failure to disclose then I cannot see any escape from the conclusion that in those circumstances section 71(1) provides no legal authority for the overpayment to be recovered. This conclusion is supported in my view by the Supreme Court’s decision in R(CPAG) –v- SSWP [2010] UKSC 54; [2011] 2 AC 15, in which it held that section 71(1) (or some other specific statutory provision) provides an exclusive code for recovery, and so if section 71(1) is not met the Secretary of State cannot seek recovery of the overpaid sum.

I note that the Tribunal of Commissioners in R(IS)9/06 addressed (in paragraph 24 of their decision) an argument that the duty necessary for there to be a failure to disclose could not be found in section 5(1)(h) –(j) of the SSA 1992 because it was (only) concerned with furnishing and notifying information and not disclosing it. The commissioners said that they did not consider these differences to be significant because the word “disclose” was wide enough to include the concepts of “furnish” and “notify”. That I entirely accept and in any event is binding on me. However, it is not in my judgment authority for a proposition that “disclosure” is limited to the acts of furnishing or notifying information. Beyond the passage in paragraph 24, there is no discussion of the meaning of the word disclose, or the legal basis for it, nor any suggestion that R(SB)15/87 was wrongly decided. Like the Court of Appeal, the focus of the Tribunal of Commissioner’s concern was on where the legal obligation that could give rise to a failure to disclose was to be found and whether such an obligation could accommodate, or be varied by, the personal attributes of the claimant.

I find nothing therefore in R(IS) 9/06 that limits disclosure to furnishing or notifying. In consequence, and for the reasons I have given above concerning the common knowledge of the uprating provisions, in my view it is legally possible for a person to fail to notify information in breach of regulation 32(1A) or 32(1B) but not necessarily have failed to disclose that information under section 71(1) of the SSAA 1992.

Particular reliance was placed in paragraph 23 of GK on paragraph 47 of Lord Justice Buxton’s judgment in the Court of Appeal in R(IS)9/06, where he said:

“Read in isolation, the phrase “failed to disclose” might seem to be addressed to some sort of deliberate concealment, or conscious suppression, of a material fact. That might well be its application where the fact in issue is not one addressed by specific regulations, but is nonetheless determined to be “material”. But that cannot be the expression’s meaning or application where, as in our case, the fact in question is mandated for transmission to the Secretary of State by a specific regulation.”

I do not, however, see this passage as running contrary to the conclusion I have arrived at above. As I have already noted, Buxton LJ did not appear to consider he was saying anything different to Sedley LJ, and I have been unable to identify anything in Lord Justice Sedley’s judgment that cuts down the meaning of disclose identified in R(SB)15/87. Furthermore, the above passage from Lord Justice Buxton’s judgment has to be read in the context of the case being argued before him, in no part of which was it argued that the claimant could not disclose the information to the relevant office because she knew that office already held the information. The context can be seen if the remainder of Buxton LJ’s paragraph 24 is set out:

“Provided, as the Commissioners found in their paragraph 62, Mrs B knew the fact and was able to communicate it to others, then the language of failure to disclose comfortably fits her case. It is nothing to that point that she did not understand the materiality of the fact. That issue is determined in respect of this fact by regulation 32(1).”

Two other points have a bearing in terms of where Buxton LJ’s judgment is directed. First, his paragraph 48 which immediately follows makes it clear, in my view, that he was fully aware of the distinction between ‘failure’ and ‘disclose’ and indeed recognises expressly that the decision in R(SB) 21/82 which the Court of Appeal was concerned with was relevant only to the word ‘failure’ and had not sought to give any special meaning to the word ‘disclose’. That language makes it most unlikely in my judgment that Buxton LJ was ascribing any special meaning to the word disclosure contrary to its ordinary meaning as identified in R(SB)15/87. Second, it does not seem to me that the language used by Buxton LJ in the passage from paragraph 47 cited in GK necessarily rules out “failure to disclose” arising in cases other than ones where the disclosure was mandated by regulation 32(1A) or 32(1B) of the Claims and Payments Regs.

The third reason why I do not find this part of the decision in GK to be convincing is because I do not consider that the decision in CIS/1887/2002 can properly be explained away on the basis of the legal notion of waiver. Mr Bird for the Secretary of State eschewed any reliance on this aspect of GK and was unable to explain how it might apply. The decision in CIS/1887/2002 is in my view better understood as being consistent with the long settled view of the meaning of the word disclosure under section 71(1) of the SSA 1992; a meaning which for the reasons I have given has not been disturbed by R(IS)9/06. GK itself recognises that some factual situations, such as in CIS/1887/2002, should not be allowed to give rise to a recoverable overpayment under s. 71(1), but seeks to achieve this by the use of waiver. In my judgment, there is no need to introduce further legal concepts into the statutory scheme governing overpayments under section 71(1) of the SSAA 1992.

I appreciate that the conclusion I have arrived at suggests that the “failure to disclose” in section 71(1) might extend beyond the obligations to furnish and notify found under section 5(1) of the SSAA 1992 and in regulation 32 of the Claims and Payments Regs. That may mean that the obligation to disclose, if not in regulation 32, has to be found elsewhere, perhaps by implication under section 71. Whether that is so or not cannot, however, in my judgment alter the need to establish disclosure (ignoring misrepresentation) before an overpayment can lawfully be found to be recoverable under s.71(1) of the SSAA 1992.