CB (as executor of YB’s estate) v The Secretary of State for Work and Pensions

On 21 March 2022, the Secretary of State made revisions of entitlement and recoverable overpayment determinations in respect of five pension credit claims made from May 2005 to August 2020. The overpayments were found to result from misrepresentations, in each of the five claims, by Mr YB as to the amount of capital he had. The Secretary of State found that the overpayments were recoverable from Ms CB, executor of YB’s estate.

Ms CB appealed to the First-tier Tribunal.

The First-tier Tribunal grouped together and labelled the decision maker’s decisions as follows—

The First-tier Tribunal recorded at paragraph 8 of its Statement of Reasons that Ms CB’s representative, Mr Mikulski, had “confirmed that decisions 1, 2 and 4 were not in dispute”. Ms CB did not dispute that in the permission to appeal application. Strictly speaking, however, a challenge to decision 3, that the overpayments are recoverable under section 71(1), must mean that decision 4 is challenged to the extent that recoverability is challenged at all. I take the lack of challenge to decision 4 to mean that, if the overpayments are indeed recoverable under section 71(1), then it is not disputed that the person from whom they are recoverable is the executor to the estate.

The First-tier Tribunal on 17 August 2023 dismissed Ms CB’s appeal against all five recoverability determinations. The First-tier Tribunal made that decision based on evidence other than actual evidence of the paper or telephone claims made in this particular case.

The First-tier Tribunal refused permission to appeal to the Upper Tribunal.

Ms CB applied to the Upper Tribunal for permission to appeal to the Upper Tribunal in respect of the recoverability determinations, that is, the First-tier Tribunal’s decision so far as relating to the Secretary of State’s decision 3 for all five claims, on the following five grounds—

I gave permission to appeal to the Upper Tribunal on Ground 2 in relation to claim 5. I refused permission to appeal on the rest of Ground 2, and on Grounds 1, 3, 4 and 5.

The parties have both agreed to my finding that there were the errors of law set out at paragraphs 14 and 15 below. The appellant however invites the Upper Tribunal to decide the issues itself rather than remitting and, in the alternative, to remit to a freshly-constituted First-tier Tribunal panel.

The grounds said, among other things—

“13.

The [First-tier Tribunal] Judge had earlier queried the lack of records from the 2020 claim, as opposed to the perhaps more understandable lack of records from the 2005 claim. Mrs Futers told the FTT that 2020 documentation was “possibly still available” and that the “appeal writer and decision maker haven’t provided that”.”

I find that the First-tier Tribunal erred in failing to explore whether evidence was in fact still available as to the declarations made for the 2020 claim. Whether that meant adjourning the whole hearing or just the question as to claim 5, that possibility should in my judgment have been explored.

In refusing permission to appeal to the Upper Tribunal, the First-tier Tribunal pointed out that there had been no application to adjourn. Where the failure to seek an adjournment was a failure by an experienced representative, an argument might be made that the appellant is fixed with that failure. The representative here however was via the Free Representation Unit, and his level of experience may not have been high. But in any event, the First-tier Tribunal’s jurisdiction is inquisitorial. There was the possibility of not having to piece together claim 5 in the way that claims 1 to 4 had been pieced together. The First-tier Tribunal should in my judgment have followed up that possibility and erred in law in failing to do so.

In granting permission to appeal to the Upper Tribunal, I proposed allowing the appeal so far as relating to whether the overpayment was recoverable for claim 5 and remitting for the Secretary of State (i) to supply to the First-tier Tribunal all evidence the Secretary of State has relating to claim 5, or (ii) to confirm to the First-tier Tribunal that a comprehensive search has been made in all possible places for such evidence and that none has been found. The Secretary of State has agreed to that proposal. The appellant asks however that – for efficiency, expediency and finality – this exercise be done in the Upper Tribunal instead, and that the Upper Tribunal give a substituted decision.

I understand why the appellant makes that request. But the First-tier Tribunal is the more appropriate forum for findings of fact to be made on this. I am therefore remitting. I do however accept the appellant’s invitation to direct a freshly-constituted panel.

It is for all of the above reasons that I allow the appeal so far as relating to whether the overpayment is recoverable for claim 5, and that I remit that question to a freshly-constituted panel.

I therefore direct as follows—