Hinchy v Secretary of State for Works and Pensions EWCA [2003] Civ 138

Disability living allowance – income support – overpayment – liability to repay

This was an appeal against the decisions of the Benefits Agency, the Whittington House Appeal Tribunal and the Social Security Commissioner that H was liable to repay £3,550.40 which had mistakenly been paid as a result of H’s failure to inform the income support section of the Benefits Agency that her entitlement to middle rate care component of the disability living allowance had expired and had not been renewed.

In support of his arguments, the Secretary of State relied on the instructions pages of the income support order book which requires claimants to send a letter or form if any benefit went up or down, and on the fact that H had used an order in her order book, thus declaring that she was entitled to the amount shown on the order whereas she had already been notified that she was entitled to a lesser amount.

H, in turn, argued that there had been no material non-disclosure in that the Secretary of State knew at all material times that her care component of the disability living allowance had expired and had not been renewed.  There was no suggestion, at any time, that H had acted dishonestly.

The Court of Appeal found in H’s favour: the Secretary of State administered H’s disability allowance through decision makers in the Benefits Agency; they knew that her middle rate care component was for a fixed term and was not renewed; they knew that the decision affected the amount and duration of income support payable and therefore should be available to the decision makers dealing with income support.

In those circumstances a reasonable Secretary of State would put in place, and would be expected to put in place, a system to enable the decision makers in the disability living allowance office to provide the decision makers in the income support office with knowledge of the material facts. In the present case, the information as to H’s disability allowance was within the knowledge of the Secretary of State acting through the decision makers in the disability allowance office. H was aware of that fact. It was reasonable for H to believe that that knowledge would reach the Secretary of State acting through his decision makers in the relevant income support office. There was therefore no need for H to give the information to the decision makers in the income support office. Disclosure to or knowledge of the decision makers in the disability allowance office was sufficient

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