Brown v Secretary of State for Work and Pensions <2007> EWCA Civ 89

http://www.bailii.org/ew/cases/EWCA/Civ/2007/89.html

This decision holds that the practice of the Secretary of State to withhold arrears accruing during a period of suspension and setting them off against a supposedly irrecoverable overpayment is unlawful.

SB suffers from autism and was in receipt of DLA care and mobility components. In 2001 he started at a boarding college funded by the Learning and Skills Council. This should have meant that he was not entitled to be paid DLA care component except during the vacation periods, but the component continued to be paid until 2003, when SB's attendance at college was disclosed on a renewal claim. DLA was suspended while the position was investigated, which took several months, including the summer of 2003 when SB should have been receiving care component as he was living with his parents.

Eventually, a decision was issued in September 2003 holding that SB had been overpaid. A later decision in January 2004 ruled that the overpayment was irrecoverable because disclosure by him was not reasonably to be expected (fortunately, before the decision of the Tribunal of Commissioners in B v SSWP ruled that to be irrelevant).

The Secretary of State's case, accepted by the Commissioner, was that reg 5 of the Payments on Account etc Regulations 1988 permitted him to withhold the arrears accruing in summer 2003, even though the overpayment was irrecoverable. The Court of Appeal allowed SB's appeal and ruled that the arrears had to be paid.

No application for leave to appeal to the House of Lords was made.

Advisers should check carefully any cases where there is an irrecoverable overpayment followed by a period of entitlement which has not been paid due to a suspension, since it is likely that arrears accruing during the suspension will have been withheld under the pre-Brown practice.


DISCLAIMER: This post is intended as a general contribution to the subject-matter under discussion. It is not intended to be relied upon as legal advice. Any person with a similar or identical problem should seek advice from a welfare rights adviser or a lawyer specialising in welfare rights law.