Wed 20-Jul-05 09:55 AM by ken

The Court of Appeal has this morning issued its judgment in B v Secretary of State for Work and Pensions, an appeal from the tribunal of commissioners decision in CIS/4348/2003.

Upholding the tribunal of commissioners decision, the Court of Appeal's judgment means that the test of whether disclosure is 'reasonably to be expected' no longer has any place in overpayment caselaw.

For further details see todays rightsnet news story Overpayment recovery and whether disclosure of a material fact must be 'reasonably expected'

Another devastatingly harsh decision which gives no quarter to people who find great difficulty when dealing with a large organisation such as a government department.
So much for the courts having sympathy for "the little people".

judgment now available @ http://www.bailii.org/ew/cases/EWCA/Civ/2005/929.html

This is not quite true reasoableness is not an issue where a claimant has been given unambiguous istructions/information. If the client has ambiguous information then reasonableness is still a defence this is clearly outlined in cis/4348/03( The subject of the above appeal) and confirmed by Commissioner Howell inCIB/1985/2004 (Issued in feb 2005)Also see issue 110 Advisor publication.

Sorry if this has been asked elsewhere in another thread, but in paras 41-43 of the decision, the court refers to a policy document that the Department have which outlines when it is fair to recover the overpayments. The court advises this should be issued to groups like the CPAG and CABx. Has this materialised and can anyone direct me to a copy if it has?

hi Big Lee,

Not certain that this is what the Court of Appeal are refering to, but the DWP Overpayment Recovery Guide - that contains guidance on the DWP's policy and procedures for overpayment recovery - is available in the toolkit area of rightsnet.

Tue 23-Aug-05 03:25 PM by shawn

... understand that the Court of Appeal has refused leave to appeal and CPAG are now looking at applying directly to the House of Lords for leave.

If granted, case likely not to be heard until the end of 2006.

(thanks to mike at dial leeds for the update)

I have two appeals that had previously been suspended due to "Hinchy" appeal. The appeals have now been re-listed for hearing at the end of this month.
Does anyone know if CPAG have applied for leave to appeal to H of L and are these appeals now being held back to await the outcome of that application?

Eddie,

HINCHY, as distinct from "B", has already been heard in the HofL. The decision (Hinchy) was found in favour of the DWP.

In summary (and a bit oversimplified), the Hinchy judgement means that if one part of the DWP has information, it is not enough to assume that another part of the DWP has the same information.

In the case of "B", there are different issues. In summary (again in danger of oversimplifying), the Court of Appeal found that a failure to disclose did not depend on reasonableness. So long as there is/was a duty to disclose, then that duty could not be absolved of by way of, for example, the lack of capacity to make that disclosure. This is the case that CPAG are currently trying to overturn by seeking leave to the HofL.

Hope that clarifies.

Regards

Thanks Kevin for your reply. I was aware that "B" and "Hinchy" were different cases but in my two appeals it looks like the hinchy arguments have been undermined by that judgement but there are arguments about whether disclosure was reasonable. What I was trying to establish was: are similar type case now being suspended at tribunal stage pending the outcome of CPAG's application?

In respect of the issue of appeals being stayed, I simply don't know - sorry

As an aside, I would disagree that any of the Hinchy principles have been weakened (at least not yet). Hinchy was heard in a higher court, so carries rank.

Regards