DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is (1) to give the Appellant permission to appeal and (2)  to allow the appeal.

The decision of the Bournemouth First-tier Tribunal dated 7 February 2012 under file reference SC185/10/00778 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is in a position to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:  

The Appellant’s appeal against the Secretary of State’s overpayment recovery decision of 14 December 2007 is allowed. That decision was of no effect as the previous entitlement decision of 25 September 2007 had not been notified to the Appellant. It followed that at the time the overpayment recovery decision was made, the requirement in section 71(5A) of the Social Security Administration Act 1992 had not been met. This is without prejudice to any further action the Secretary of State may decide to take in relation to the alleged overpayment.

This decision is given under sections 11, 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary
1.	I give the Appellant permission to appeal to the Upper Tribunal and at the same time allow his appeal. The decision of the Bournemouth First-tier Tribunal dated 7 February 2012 involves an error on a point of law and is set aside. I can re-make the First-tier Tribunal’s decision and do so as above. The effect of this decision is that if the Secretary of State wishes to recover the alleged overpayment of income-based jobseeker’s allowance (JSA), then he will have to go back to square one and start again.

The complex wider dispute between the Appellant and the DWP
2.	The present appeal is merely one episode in a much longer-running dispute between the Department for Work and Pensions (DWP) and the Appellant about his entitlement to JSA over a period of several years. 

3.	A separate FTT decision, taken by a different tribunal judge, also in Bournemouth, but on 19 October 2011 (under FTT reference 185/11/00597) is the subject of a parallel appeal before the Upper Tribunal (CJSA/1095/2012). That other case concerned a much smaller overpayment of JSA (of £228.61 in respect of the later period from 25 December 2008 to 29 April 2009). The Secretary of State and the other FTT decided that overpayment was recoverable on the basis of a failure to disclose. I have allowed the Appellant’s appeal against the FTT decision in that other case, but to no avail as I have also re-made the decision with the same end result, based on a misrepresentation (see CJSA/1095/2012). That other appeal has no direct bearing on the present appeal.

The background to this appeal before the First-tier Tribunal
4.	The case of the Department for Work and Pensions (DWP) is that the Appellant received JSA at a time when the capital limit for entitlement was £8,000 and when he and his then wife had just over £12,000 in ISA accounts, assets of which the DWP was at the time unaware. As a result, the DWP says, he was overpaid JSA for a considerable period. 

5.	The DWP’s case is that an entitlement decision was taken on 25 September 2007. The effect of that decision, it is said, was that the earlier decision of 6 April 2005, awarding JSA with effect from 20 April 2005, was superseded. The new decision, again so it is said, is that there was no entitlement to JSA from that date and an entitlement to a reduced rate of JSA from 13 April 2006, when the capital limit was raised to £16,000. 

6.	The DWP decision-maker then made a consequential overpayment recovery decision on 14 December 2007. That decision was that there had been a total overpayment of JSA amounting to £6,017.31 for the period from 20 April 2005 to 12 September 2007. Nearly all of this sum (£5,981.31) was found to be recoverable (for the period from 20 April 2005 to 29 August 2007). That decision was notified to the Appellant on the same day. The appellant wrote on 21 December 2007 asking for an explanation of the figures in order to decide whether to appeal. That letter of 21 December was not on the appeal file sent by the DWP to the FTT office – however, a copy has since been provided by the Appellant, who has wisely kept a full record and copies of his correspondence (see p.241).

7.	The Appellant’s forward entitlement to JSA was also stopped with effect from 13 September 2007. At the same time the Appellant was in the process of getting divorced. There was considerable further correspondence between the Appellant and the DWP in which he sought to have his entitlement to JSA reinstated with effect from September 2007. The Appellant became increasingly frustrated with the Department and angry that he was having to live off savings as he had been left without any other income. His correspondence with the DWP was apparently getting nowhere.

8.	At this juncture it should be pointed out that the appeal file before the FTT was plainly inadequate. It appeared to have been complied at random. Correspondence was not in chronological order. Some letters were duplicated. Others were omitted altogether (see paragraph 6 above). Rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) is quite clear: “The decision maker must provide with the response… copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise”. As Judge Wright has noted in ST v Secretary of State for Work & Pensions [2012] UKUT 469 (AAC) (at paragraph 25):

‘The key word here is “relevant”. The use of the word “must” also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession...’

9.	That simply did not happen in this case. The consequence was that the FTT’s task was made immeasurably more difficult.

10.	To cut a very long story short, and after extensive correspondence, on 8 October 2009 a decision maker reconsidered the overpayment recovery decision of 14 December 2007 but saw no reason to revise it. The DWP subsequently treated the Appellant’s letter of 18 January 2010 as an out of time appeal against the 14 December 2007 decision. On 31 August 2010 a tribunal judge, noting that there had clearly been earlier correspondence, very sensibly admitted the Appellant’s appeal.

11.	On 24 February 2011 a decision-maker seems to have treated the appeal as also an appeal against the entitlement decision of 25 September 2007. That decision was also reconsidered but left unchanged.

The appeal before the First-tier Tribunal
12.	On 2 September 2011 the appeal finally got before a FTT. The FTT judge had to adjourn for lack of time. The case was re-listed on 19 October 2011. On that occasion the other appeal (CJSA/1095/2012) was heard and disposed of, but the present appeal had to be adjourned again with directions, due to further questions which had arisen on the papers and which the DWP needed to address. The DWP failed to comply with those directions, and on 7 December 2011 the Department was barred from further involvement in the appeal (I subsequently joined the Secretary of State for the purpose of the present proceedings).

13.	The case finally came on for hearing before District Tribunal Judge (DTJ) Ponting on 7 February 2012. DTJ Ponting allowed the appeal in part and revised the decision of 14 December 2007. In his decision notice he recorded that there was a recoverable overpayment of £5,675.17 for the rather shorter period of 20 April 2005 to 11 May 2007 (the day before the Appellant and his then wife separated). DTJ Ponting also noted that there was a separate dispute about arrears of JSA from September 2007, which was outside the FTT’s jurisdiction.

14.	In his statement of reasons, DTJ Ponting rejected the Appellant’s argument that the value of the ISAs, which had been put aside to cover the expected shortfall on endowment policies when their mortgage was to be repaid, could be disregarded. The Judge also decided that the Appellant had made misrepresentations when stating on JSA claim forms in April and November 2005 that neither he nor his wife had any ISAs. He then explained why the recoverable overpayment related to a slightly shorter period.

The proceedings before the Upper Tribunal
The observations and directions on the application for permission to appeal
15.	When I issued directions  and observations on the application for permission to appeal on 26 September 2012, I gave detailed reasons which are now appended (any following references in square brackets refer to the relevant paragraphs in those observations). I identified three main points in the Appellant’s grounds of appeal, namely that on his argument: (1) there had been no overpayment of benefit as the ISAs were subject to a capital disregard ([3]-[5]); (2) there had in any event been no misrepresentation and so no recoverable overpayment of JSA ([6]-[7]); and (3) the FTT did not address all the issues in dispute between him and the DWP ([8]-[29]).

16.	As to point (i), I indicated that I regarded the argument about a disregard as misconceived. The disregard for the “surrender value of any policy of life assurance” (paragraph 20 of Schedule 8 to the Jobseeker’s Allowance Regulations 2006 (SI 2006/207) applies solely while the claimant /policy-holder has an ongoing life assurance policy; it does not apply to the proceeds once that policy is cashed in.

17.	As to point (ii), I pointed out that this ground of appeal was not persuasive either, as a misrepresentation could be entirely innocent. Thus the “fact that the Applicant may have intended the ISAs to be applied to meeting the mortgage debt does not detract from the simple fact that the ISA monies were at that date funds owned by the Applicant and his wife. That was a material fact that had to be disclosed, irrespective of what the Applicant himself believed or how he had ‘earmarked’ the money” (at [7]).

18.	As to point (iii), the position was much more problematic. In my observations I specifically raised the questions as to whether (1) there had in fact been an entitlement decision taken on 25 September 2007, referring to the period from April 2005, and (2) if there was, had that decision been properly communicated to the Appellant before the overpayment decision was taken. As I noted then (at [19]), “the second question is crucial, as an effective revision or supersession decision is a necessary precondition for an overpayment decision – see section 71(5A) of the Social Security Administration Act 1992. Moreover, according to the House of Lords, a decision is not fully effective until it is notified (see R (Anufrijeva) v Secretary of State for the Home Department & Another [2003] UKHL 36).”

19.	As regards point (iii), I also raised the separate issue of the Appellant’s JSA entitlement for the period after 13 September 2007. This issue had not been before the FTT. However, the appeal bundle included a copy of a decision taken on 21 August 2009 reinstating arrears of JSA with effect from 20 September 2007. The Appellant advised that he had not been notified of that decision at the time that it had been taken, and had only become aware of it some 18 months later in March 2011 when the Tribunals Service had sent him the appeal bundle for the hearing. He also stated that he was still waiting for payment of those arrears. Although strictly these matters were outside the FTT’s jurisdiction, it seemed to me a sufficiently serious allegation that the Secretary of State should be asked to comment on it.

The Secretary of State’s submissions on the application for permission to appeal
20.	B A Wilson has made a detailed written submission on the application on behalf of the Secretary of State. The application is not supported, but helpfully agrees to the appeal being decided at the same time as the application. The Secretary of State’s submission agrees with my observations on grounds of appeal (i) and (ii) above.

21.	As to point (iii), B A Wilson concedes that (a) it is not possible to confirm whether or not an entitlement decision was made on 25 September 2007 for the period from April 2005; and (b) there is in any event no indication in the papers that the Appellant was ever notified of the decision of 25 September 2007. If that is the case, it is accepted by the Secretary of State that section 71(5A) would not be satisfied. However, B A Wilson points out that in such circumstances there is nothing in law to stop the Secretary of State effectively going back to the beginning and starting again. In other words, the Secretary of State could now make a fresh revision or supersession decision in relation to the period of the claimed overpayment of JSA (see R(IS) 13/05 at paragraph 15), with fresh appeal rights.

22.	On the other matter, the Secretary of State’s representative has made inquiries and has established that indeed (a) the decision of 21 August 2009 was not notified to the Appellant at the time and (b) the arrears in question had not been paid. However, the submission continues, “I understand from the benefit office concerned that steps are now being taken to rectify this mistake as quickly as possible.”

23.	I must just interpose here that I find that state of affairs as extraordinary and that concession as welcome but astonishing.

The Appellant’s submissions on the application for permission to appeal
24.	The Appellant in essence repeats his previous arguments as regards points (i) and (ii). As regards point (iii), he not unreasonably asks “what was the reason I was not informed of a decision which was in my favour?”. He confirms that he has now received part arrears of JSA from 20 September 2007 as a result of the Upper Tribunal’s intervention, but that the sum repaid did not include housing costs. He says he has written to the DWP three times about the matter without getting a response.

The Upper Tribunal’s analysis
The application for permission to appeal
25.	Although I did not, and do not, regard the Appellant’s first two points as arguable, there is undoubtedly sufficient on point (iii) to justify giving permission to appeal. Both parties are content for me to proceed to decide the matter on appeal which I accordingly do.

The appeal
26.	The FTT’s decision is not open to challenge on grounds (i) and (ii), for  the reasons canvassed in the grant of permission to appeal. The assets in the ISA  accounts were capital in the Appellant’s hands, whatever their intended purpose. There was also a misrepresentation on the claim forms, as DTJ Ponting identified, albeit one that was innocent and based on a misunderstanding as to the legal position. I also understand the Appellant’s argument that he might have arranged his financial affairs differently. However, this does not undermine DTJ Ponting’s reasoning on this point.

27.	However, the FTT’s decision does involve an error of law because of point (iii). In particular, and at its narrowest, the overpayment decision of 14 December 2007 was invalid as the Appellant had not been informed of the prior 25 September 2007 entitlement decision (whatever terms that decision was in). As a result, there was a breach of the requirement in section 71(5A) of the Social Security Administration Act 1992.

28.	Accordingly, I must set aside the decision of the First-tier Tribunal dated 7 February 2012. In fairness to that FTT I must add that its consideration of the case was not helped by the woeful state of the papers before it.

29.	There is no point sending this matter back for re-hearing by a fresh FTT. I can re-make the decision that the tribunal should have made. It is in the following terms:

The Appellant’s appeal against the Secretary of State’s overpayment recovery decision of 14 December 2007 is allowed. That decision was of no effect as the previous entitlement decision of 25 September 2007 had not been notified to the Appellant. It followed that at the time the overpayment recovery decision was made, the requirement in section 71(5A) of the Social Security Administration Act 1992 had not been met. This is without prejudice to any further action the Secretary of State may decide to take in relation to the alleged overpayment.

30.	The Appellant should be under no illusion. He may have won this battle but he may or may not win the war. As noted above, at paragraph 21, the Secretary of State may now start the whole process all over again. He may make a fresh revision or supersession decision in relation to the period of the overpayment of JSA in dispute (see R(IS) 13/05 at paragraph 15). I would respectfully suggest that if that course of action is to be adopted, it will need to be carried out by a decision-maker with relevant specialist experience and expertise.

31.	I have considered whether or not it would be appropriate for the Upper Tribunal to “perfect” the inadequacy of the 25 September 2007 decision, assuming that that was a matter that was indeed before the FTT. I do not think that would be proper, for two main reasons.

32.	First, I do not think it is the Upper Tribunal’s job to try and reconstitute the decision of 25 September 2007 from the various clues and fragments on file. It is the Secretary of State’s function to get these decisions “right first time”. There is also no guarantee at all that the file contains all the relevant documentation.

33.	Second, I am conscious that the Appellant was, on the Secretary of State’s own concession, not sent the decision of 25 September 2007 at that time and, to make matters worse, was not notified of a positive decision in his favour made on 21 August 2009 which has only now been implemented, more than three years later (and then possibly not in full). Presumably whatever other action is taken, the Secretary of State should now deal with the Appellant’s queries on that late payment of JSA arrears.

Conclusion
34.	For the reasons above, I give the Appellant permission to appeal and allow his appeal. I also set aside the FTT’s decision for error of law and re-make it in the terms set out above.

Signed on the original			Nicholas Wikeley
on 22 February 2012				Judge of the Upper Tribunal

Appendix	Appeal No. CJSA/2356/2012 

Observations on the application for permission to appeal (26 September 2012)

REASONS

Introduction
1.	In order to give permission to appeal, I must find that one (or more) of the proposed grounds of appeal is arguable, in the sense that there is a realistic (rather than a remote or fanciful) prospect of success. An appeal on a point of law is not simply an opportunity to re-argue the case on its facts. Rather, it has to be arguable that the First-tier Tribunal (FTT) erred in law in some way in its approach to the appeal before it. 

2.	Reading the Applicant’s grounds of appeal, it seems that he has three main points; he says (1) there was no overpayment of benefit; (2) there was no misrepresentation and so no recoverable overpayment; (3) the FTT did not address all the issues in dispute. Whilst I can understand the Applicant’s frustration at the course of his dealings with the Department for Work and Pensions (DWP) over the years, the present FTT’s decision on the overpayment decision may withstand scrutiny on the first two grounds of appeal for the reasons that follow. There is, however, a major question mark over the way in which this case appears to have been handled by the Department, which relates to the third ground of appeal. For that reason, I am directing the Secretary of State’s representative to make a submission at this stage on this application for permission to appeal before finally deciding whether or not to grant the Applicant permission. The views that follow are therefore only a provisional assessment of the strength of the grounds of appeal and are subject to further argument. 

Was there an overpayment of JSA at all in relation to the period from April 2005 until 2007?
3.	The first ground of appeal concerns the Applicant’s assertion that there was no overpayment in the first place. He says that this is because the capital which was derived from surrendering the endowment policies to pay off the mortgage was disregarded capital. My provisional view, put simply, is that this argument will not wash. The FTT (District Tribunal Judge [DTJ] Ponting) made his findings on this matter at para [2] of the decision notice and paras [3] & [6] of the statement of reasons. There seems to be no obvious error of law there.

4.	The Applicant seeks to rely on paragraph 20 of Schedule 8 to the Jobseeker’s Allowance Regulations 2006 (SI 2006/207). This provides for a disregard of any capital in the form of “the surrender value of any policy of life assurance”. The wording is quite specific. It does not refer to the capital proceeds that a policy-holder receives when they actually cash in their policy. Instead, it refers to the situation where a policy-holder still has an ongoing life assurance policy. The disregard relates solely to the value on the open market that such a continuing policy would have. Once the policy is cashed in, then the proceeds are capital to be taken into account, whether kept in the bank, in ISAs or under the mattress (unless, of course, as DTJ Ponting explained, there is some new disregard that applies to those funds). On the face of it, the Applicant’s reliance on this statutory disregard is therefore misconceived.

5.	In the present case there was in any event a decision taken on 03 March 2009 (document 144) that the Applicant’s action in applying those proceeds to paying off his mortgage did not amount to a deprivation of capital on his part. That decision has understandably not been appealed and appears to have been entirely sensible.

If there was an overpayment for that period, was it recoverable due to a misrepresentation?
6.	The second ground of appeal is a challenge to the FTT’s finding that the overpayment was recoverable on the basis of a misrepresentation. DTJ Ponting made his findings on this matter at para [3] of the decision notice and paras [3] & [7] of the statement of reasons. Again, there is no apparent error of law there. In part the Applicant is seeking to re-argue the facts, which is not possible where the right of appeal is limited to points of law. In other respects, the Applicant seems to misunderstand the way in which section 71 of the Social Security Administration Act 1992 properly operates.

7.	There is no suggestion here that the Applicant’s actions were in any way fraudulent. However, the language of section 71 makes it clear that an innocent misrepresentation can give the Secretary of State the right to recover a consequential overpayment. There was a clear and categorical statement in November 2005 by the Applicant (on behalf of himself and his then spouse) that their then joint savings amounted to less than £3,000 (see document 12), which statement was untrue. The fact that the Applicant may have intended the ISAs to be applied to meeting the mortgage debt does not detract from the simple fact that the ISA monies were at that date funds owned by the Applicant and his wife. That was a material fact that had to be disclosed, irrespective of what the Applicant himself believed or how he had “earmarked” the money. Contrary to his assertions, the FTT would therefore seem to have been entitled to conclude that (a) there was indeed an overpayment for the relevant period; and (b) it was a recoverable overpayment on the ground of misrepresentation.

Should the FTT have considered other matters in dispute between the parties?
Introduction
8.	The third main ground of appeal is that the FTT was “one sided” and should have considered all relevant matters in dispute between the Applicant and the DWP. This is where the case becomes much more complex. The Applicant says that if the FTT can decide how much he owed the DWP, then it must be able to decide how much the DWP owed (or indeed still owes) him. The answer to this is yes, up to a point, but only if there is a valid appeal against a relevant decision of the Secretary of State on the issue in question which is actually before the FTT. This is because the benefits system, as Mr Commissioner Powell (as he then was) explained in Social Security Commissioner’s decision CA/1020/2007 (at paragraph 12), is a “decision based” system:

“What is meant by this is that the system proceeds, or is based, on formal decisions being given. If a benefit is awarded it must be awarded by a formal and identifiable decision. If that decision is to be altered by, for example, increasing or decreasing the amount involved, it can only be done by another formal and identifiable decision.  Likewise a decision is required if the period of the award is to be terminated, shortened or extended.”

9.	Furthermore, under the Social Security Act 1998 (section 12) and the Tribunals, Courts and Enforcement Act 2007, the FTT’s jurisdiction is confined to hearing an appeal against a particular identified decision made by the Secretary of State. The FTT is not a sort of all purpose complaints bureau to adjudicate on all disputes, at whatever point in time, between the DWP and an individual claimant. It is obvious that the Applicant has a number of grievances against the DWP. However, arguably the FTT may not have been properly concerned with all those matters. 

10.	I should explain that in order to make an effective recovery of an alleged overpayment of benefit in respect of a specified period, the DWP needs to make both an “entitlement” decision and an “overpayment” decision. In principle these are both decisions of a type that can be the subject of an appeal to the FTT. Typically such appeals are heard together, as the issues are obviously inter-related.

The entitlement and overpayment decisions for the period 2005-2007 in this case
11.	In the present case the DWP (so it is said) made an entitlement decision on 25 September 2007 (the supersession decision evidenced at document 13) followed by an overpayment decision taken on 14 December 2007 (documents 36 and 162). There was extensive correspondence from the Applicant (some of which seems to have elicited no response from the DWP). What was treated as his appeal letter was dated 30 December 2009 (doc 1). That in turn was response to the DWP’s letter of 22 December 2009. One of the (many) unsatisfactory aspects of this case is that this last letter does not appear to be on the file. The entitlement decision in respect of this overpayment was eventually reconsidered by the DWP on 24 February 2011 (document 167) and the overpayment decision had already been looked at again on 08 October 2009 (document 153). Both decisions were left unchanged. 

12.	Although the DWP’s letter of 22 December 2009 was not in the tribunal bundle, a copy has been located on the FTT administrative file. This DWP Debt Management letter is principally about another and much smaller alleged overpayment of JSA of some £228.61 for the period from 25 December 2008 to 29 April 2009 (based on a Secretary of State decision dated 25 November 2009). The Applicant’s appeal against that decision was heard and dismissed by a different FTT on 19 October 2011 (ref SC185/11/00597). The Applicant appealed that decision to the Upper Tribunal under ref CJSA/1095/2012. Mrs Jill Douglas has provided a submission dated 9 July 2012 supporting that appeal. I shall issue my decision in that separate appeal shortly.

13.	I note that the Applicant’s same appeal letter of 30 December 2009 was also treated as the appeal letter in SC185/11/00597 (CJSA/1095/2012). That was entirely proper, as the main focus of the DWP letter of 22 December 2009 was the much smaller overpayment. However, it is also plain that the Applicant’s response sought to raise much wider issues.

14.	The position is further confused by the fact that the FTT administrative file also contains two AT37 notification of appeal forms sent in by the DWP to the FTT in this case involving the much larger overpayment (185/10/00778). The first form, dated 25 March 2010, refers to the date of the DWP decision under appeal as being 14 December 2007 and the date of appeal as 25 January 2010. The second form, dated 28 February 2011 (after the Applicant’s ‘late’ appeal had been admitted), refers to the decision date again as 14 December 2007, the date of reconsideration as 8 October 2010 (which seems to be a misprint for 2009) and the date of the appeal as 28 October 2010.

15.	However, what is clear to me is that the Applicant had repeatedly raised issues about his possible entitlement to JSA and his alleged liability for overpayments over a long period of time. The FTT administrative file includes his letter to the FTT of 18 May 2010 which includes a helpful schedule of extensive correspondence from 19 October 2007 to 1 December 2008. It is not clear why this did not find its way into the tribunal bundle.

16.	At least as far as the DWP was concerned, the scope of the FTT’s jurisdiction in the current matter was confined to the decision under appeal, summarised at Section 3 of page C (page 3 of 11) of the DWP’s submission to the tribunal. This referred to an alleged overpayment covering the period from 20 April 2005 to 12 September 2007, i.e. the overpayment decision of 14 December 2007. If that was right, then it followed that the FTT simply had no jurisdiction to consider the issue of entitlement or payability for the period after 13 September 2007. On this basis, DTJ Ponting’s role therefore was solely to consider the Applicant’s appeal against the overpayment recoverability decision. 

17.	However, there may be an argument that, given the extensive correspondence referred to above, DTJ Ponting should have considered whether or not the Applicant, as well as appealing the overpayment decision of 14 December 2007, was also appealing the prior entitlement decision of 25 September 2007. The best evidence of that decision is, it seems, the screen-print at document 13. Unless I am mistaken, the file does not include either a copy of a formal entitlement decision (in the format of document 36) or a copy of a decision letter in ‘plain English’ notifying the Applicant of that decision. 

18.	The DWP submission to the FTT states that this entitlement decision was a computer-generated decision to the effect that he had nil entitlement as from 20 April 2005 and a reduced entitlement as from 13 April 2006. The submission asserts that this was notified on 16 October 2007. I have two problems with these statements. First, unless I am mistaken the screen-print at document 13 makes no reference to any question of entitlement for any period earlier than June 2007. Second, we do have the Applicant’s letter of 19 October 2007 (document 32), which refers to a letter of 16 October 2007. However, he describes it as “advising that I am not entitled to JSA from 13 September because of savings”. If the letter had advised that he was not entitled to JSA with effect from a date in April 2005, I would rather have expected him to say as much (and take issue with it). 

19.	So, in summary, the question which then arises is two-fold: (1) was there in fact an entitlement decision taken on 25 September 2007 referring to the period from April 2005?; and (2) if there was, was that decision properly communicated to the Applicant before the overpayment decision was taken? The second question is crucial, as an effective revision or supersession decision is a necessary precondition for an overpayment decision – see section 71(5A) of the Social Security Administration Act 1992. Moreover, according to the House of Lords, a decision is not fully effective until it is notified (see R (Anufrijeva) v Secretary of State for the Home Department & Another [2003] UKHL 36).

The question of entitlement for the period after 13 September 2007
20.	There is then the question of entitlement for the period after 13 September 2007. It was, of course, a main plank of the Applicant’s argument that he should have been paid JSA with effect from 13 September 2007. This would have been within the jurisdiction of the FTT only if there was a valid appeal before it in relation to a decision which governed that period. This in turn may depend on the answer to the preceding questions posed.

21.	I simply make the following observations in the hope that the Secretary of State’s representative may be able to make a submission on this application which in turn may assist in bringing this matter to a close. I stress that the comments that follow are based solely on the papers on file and available to me – and, given the hit-and-miss nature of the FTT bundle, I accept that there may be other relevant documents not available to me.

22.	First, I have already referred to the decision on 3 March 2009 that the Applicant had not deprived himself of any capital by paying off his mortgage debt (document 144). That decision was taken by M L. On the same day, V G, a different decision maker, took a decision that backdated JSA should be paid to the Applicant for the period from 7 August 2008 (document 146). However, she also decided that JSA was not payable back to 13 September 2007, on the basis that the claim to backdate to then was late (hence the reference to regulation 19(4) of the Social Security (Claims & Payments) Regulations 1987 (SI 1987/1968) on document 147). It appears from the Applicant’s submission to the FTT (document 193) that that decision was duly put into payment as regards the arrears from August 2008.

23.	Second, however, there was then a further decision by M L dated 21 August 2009 (documents 151-152). This accepted that the marital separation had been effective from the date of decree nisi on 20 September 2007 (although the FTT, of course, ultimately took a different view on the facts). This decision stated that JSA arrears should be paid for the period from 20 September 2007, and should include housing costs (until the mortgage was paid off). Moreover “the customer should be notified on form DR3”. The decision maker noted this decision was unlikely to affect the overpayment for the earlier period before September 2007, as the periods did not directly overlap (i.e. the issue in the present appeal to the FTT). 

24.	The Applicant seems to have two complaints about this. First, he says that he was not advised at the time about the 21 August 2009 decision and only learnt about this decision when, in March 2011, over 18 months later, he was sent the papers for the tribunal hearing. Second, he states that he has still not been paid arrears for the period from 13 September 2007 (as he says) or 20 September 2007 (as required by the 21 August 2009 decision) and presumably through to 6 August 2008 (the day before the 3 March 2009 decision reinstated payment of benefit). So the applicant’s grievances seem to be (a) non-notification and (b) non-payment. Not unreasonably, he asks if the FTT does not have jurisdiction, then who does? I would suggest the position on those two matters is as follows, but would invite the comments of the Secretary of State’s representative.

25.	As regards the alleged non-notification, the decision of 21 August 2009 was plainly a decision on behalf of the Secretary of State made under the Social Security Act 1998. It was stated to be either a revision or a supersession of the 25 September 2007 decision. As such, the DWP should have given the Applicant notice of that decision (Social Security (Decisions and Appeals) Regulations 1999 (SI 1999/991), regulation 28 and see Anufrijeva above at paragraph 19). The legislation does not specify any time limit for such notification, so presumably a “reasonable time” should be implied. Assuming what the Applicant says is accurate, I do not see how 18 months can be with a reasonable time, not least as the notification was in the course of a separate appeal. However, it may be that nothing much now turns on the issue of notification and its timing. It might perhaps give rise to a complaint of maladministration to the Ombudsman, but that is not an issue for either the FTT or the Upper Tribunal.

26.	I say above “assuming what the Applicant says is accurate...”. In fact I have no reason at present to doubt that. I say that because in his letter of 10 November 2009 (document 3), written more than 2 months after the 21 August 2009 decision, he wrote “I am still waiting to have my benefit backdated from 13 September 2007 to August 2008. Please see attached copy of a letter I sent to V G in February 2009. There were many letters previous to that which were sent with no response. I am still awaiting a response.” His further letter, two months later, of 18 January 2010 (document 156) is in similar terms. All that correspondence is entirely consistent with the view that the Applicant was sent a notification of the 3 March 2009 decision but not of the 21 August 2009 decision. If he had been sent a letter to that effect, I would rather have imagined he would have referred to it as official authority to support his request. 

27.	As regards the alleged non-payment of benefit pursuant to the decision of 21 August 2009, it is clear law that the FTT can only decide issues of entitlement and disentitlement. It has no power under the social security legislation to enforce an award for payment of benefit (see Social Security Commissioner’s decision R(IS) 7/91 at paragraphs 14-17 – that case was decided under the Social Security Acts 1975 and 1986, but I see no reason why the result should be any difference under the 1998 Act). However, legislation also provides that, subject to certain special rules on payability (e.g. that JSA is paid fortnightly in arrears), “benefit shall be paid in accordance with an award as soon as is reasonably practicable after the award has been made” (Claims and Payments Regulations, regulation 20, emphasis added). It seems that it is not possible to enforce payment where an underpayment is alleged via the county court; rather any right to an outstanding payment of arrears of benefit can be enforced by taking judicial review proceedings in the Administrative Court (see Danquah v Official Solicitor [1996] EWCA Civ 792, unreported, reference LTA 96/6972/G, 24 October 1996).

28.	Finally, I note with concern that the FTT specifically directed the DWP to provide the tribunal with information on the issue of the payment (or non-payment) for the period from 20 September 2007 to 6 August 2008 (directions dated 19 October 2011, direction 2b, document 200). The DWP did not comply with that direction and the FTT then barred the Department from further participation in the appeal on 7 December 2011 (document 202). On the face of it the Department’s non-compliance with a clear direction from the FTT is, to put it mildly, unsatisfactory.

29.	Ultimately the position should be fairly simple. Either the Applicant was notified at the time of the decision dated 21 August 2009 or he was not. Likewise, either he has been paid arrears from September 2007 under the authority of that decision or (as he argues) he has not. The Secretary of State’s submission on this application for permission to appeal to the Upper Tribunal should also answer those questions.

	(Signed on the original)	Nicholas Wikeley		
		Judge of the Upper Tribunal

	(Dated)	26 September 2012