CPAG archived test cases

White and Runkee v United Kingdom (ECHR):
Right of widowers to widows' pension
Application nos 42949/98 and 53134/99

Judgment was given in this case on 10 May 2007. The Court held that the UK government’s failure to pay widow’s pension to men did not discriminate against them on grounds of sex; there was no violation of Article 14 taken in conjunction with Article 1P ECHR. It upheld its previous decision in Willis v the UK ECHR-IV that failure to pay widow’s payment did discriminate against men, contrary to Articles 14 and 1P ECHR.

Widow’s pension
This means that no matter when the widower made his claim for a pension on the death of his wife, or which court he took his complaint to, he cannot get an equivalent to widow's pension (even though widows who were widowed before 9 April 2001 continue to have entitlement to that pension transitionally protected).

Widow’s payment
As for an equivalent to a widow's payment for a wife who died before 9 April 2001 (the gender neutral bereavement payment started for deaths of husbands and wives after that date), some form of claim or oral enquiry would need to have been made to the DWP by the widower within 3 months of his wife's death before 9 April 2001 AND he must have made a complaint to Strasbourg against the DWP's then refusal to award him a widow(er)'s payment by no later than 4 November 2005. If he missed EITHER of these deadlines then his claim will not succeed.

Widowed mother’s allowance
The same rules apply to claims for an equivalent to widowed mother's allowance by a man whose wife died before 9 April 2001, with the additional qualification (i) that he will need to have had children of child benefit age at the relevant time and (ii) that any entitlement will be time limited up to 9 April 2001 in any event, as after that date such entitlement would have been switched over in any event to bereaved parent's allowance.

Again, some form of claim or oral enquiry would need to have been made to the DWP by the widower after his wife's death before 9 April 2001 for an equivalent to WMA AND he must have made a complaint to Strasbourg against the DWP's then refusal to award him an equivalent to WMA by no later than 4 November 2005. Missing EITHER of these deadlines will be fatal to any WMA claim.

B -v- Secretary of State for Work and Pensions
Overpayment caused by failure to disclose – whether overpayment recoverable – whether failure reasonable

This was an appeal to the Court of Appeal from the Tribunal of Commissioner's decision in CIS/4348/2003.

The claimant had been overpaid income support for her children when she failed to disclose that they had been taken into care. The appeal tribunal found that disclosure was not reasonably required of the claimant until she had been advised by a social worker to report the change as prior to that her learning difficulties had reasonably prevented her from appreciating the need to inform the DWP of this change.

Reversing this decision, and 20 years of case-law, the commissioners held that a duty to disclose information for the purposes of s 71 Social Security Administration Act 1992 arose under regulation 32(1) Claims and Payments Regulations. They further held that this duty was not subject to any test of reasonableness, and that providing the claimant knew the fact in question, she had breached this duty, and the overpayment was recoverable from her.

The Court of Appeal upheld the Commissioners’ decision. In their view the meaning of “failure to disclose” in section 71(1) admitted of no qualification in favour of claimants who did not appreciate that they had an obligation to disclose something once they were aware of it. Non-compliance with regulation 32 was not only a necessary but also a sufficient condition of the Secretary of State’s entitlement to recover under s 71(1). The Court said the DWP would have to decide as a matter of discretion, whether to recover overpayments in cases like this one, where the claimant did not realise whether they were being overpaid. It was told that the DWP had a policy on how the discretion should be exercised. The Court said that it should be made available to organisations such as CPAG and Cit A. See the article from the Welfare Rights Bulletin summarising the guidance and a copy of the guidance.

Leave to appeal to the House of Lords has been was refused. The claimant has made an application to the European Court of Human Rights. We are waiting for a decision on admissibility.

Archived 05/07/07

Hinchy v Secretary of State for Work and Pensions (H of L)
Overpayments – failure to disclose

Mrs Hinchy had been overpaid income support when a severe disability premium continued to be paid when her fixed-term disability living allowance (DLA) award came to an end. It emerged during the case that the DSS (as it then was) had an internal card index system for transferring information about benefit awards from the Disability Benefit Unit to the income support office.

The Secretary of State sought to recover the overpayment under s 71 Social Security Administration Act 1992 on the basis that:

1. the claimant had failed to disclose the material fact that her DLA award had come to an end; and
2. s/he signed the counterfoil in her order book on 3 July 2000, which contained a declaration that she was entitled to a payment of income support which included a disability premium.

The Court of Appeal held that the overpayment was not recoverable from the claimant. It held that she had not failed to disclose the fact that her DLA award had stopped, because it was not possible to fail to disclose a fact the Secretary of State already knew: 'the word 'disclosure' requires something to be revealed or made apparent. That can only happen if the fact as stated is unknown to the recipient' (para 18). The Secretary of State cannot disclaim knowledge of his own decisions (para 39).

The House of Lords by a majority of 4-1 reversed the decision of the Court of Appeal and held that Mrs Hinchy had failed to disclose because she had not reported to her local IS office that her DLA had come to an end when her order book had instructed her to report such a change. Reading the social security scheme as a whole, and s 71 together with regulation 32 of the Claims and Payments Regulations, it was clear that the focus of the failure to disclose test was on the claimant doing something; and was not to be judged by an out of context test of what “disclose” could mean.

Comment: This is the end of the road for this case, and the House of Lords’ ruling means that the case law is back with the test laid down in R(SB)15/87 of the claimant having to report any changes to the local office concerned with that benefit. The focus of argument now, assuming that B (see below) is not successful, will have to shift to the quality of instructions given to claimants as to what they are required to report. Note, however, that the House of Lords’ decision does not say that CG/5631/1999 was wrongly decided, and so it remains arguable that you cannot have failed to disclose a fact if the local office actually knew that fact.

Archived 19/05/06