Secretary of State v B - a postscript

from the ECHR

http://www.bailii.org/eu/cases/ECHR/2012/255.html

The judgement is not entirely unhelpful and for once, this is a ECHR judgement which is easy to read!. 

While the discrimination point was lost (in my view on the particular facts of the case), the court held that as a principle a reduction in benefits to repay an overpayment is an interference with personal possessions, so potentially a number of Convention rights flow from this for most overpayment cases.

Para 41: “...the Court observes that in order to recover the overpaid benefit the Secretary of State reduced the applicant’s future award of income support. Even after the increased award was superseded, the applicant continued to meet the criteria for the basic award (without the child allowance and family premium). She therefore had an assertable right to the receipt of income support at this reduced rate. The Court has previously accepted that the reduction of a benefit to which an applicant is entitled may amount to an interference with a possession (see, for example, Moskal v. Poland and Ásmundsson v. Iceland, both cited above). Consequently, the Court considers that the reduction of the award to which the applicant was entitled, albeit to recover overpaid benefits, could be said to have interfered with a “possession” for the purposes of Article 1 of Protocol No. 1 of the Convention.

It therefore follows that the applicant’s interests fall within the scope of Article 1 of Protocol No. 1, and of the right to property which it guarantees.”

The DWP will need to review the implications of this case for their guidance on waiver and recovery of overpayments following the enactment of the overpayment provisions in the Welfare Reform Bill and HMRC ought to be considering it now in respect of tax credit recovery.

Does this open up the right to appeal against a discretionary decision on recoverability?

I merely posed the question.  I’m no expert in this area of the law but it just raised the possibility in my mind and may be worth further examnination by a lawyer who specialises in this subject.

In my mind the logical flow is:

1.According to B v UK, recovery of overpaid benefit from other benefits triggers Article 1 of Protocol 1 to ECHR.  This therefore falls within “civil rights” under the ECHR.

2.Article 1 of Protocol 1 to ECHR states that we can only be deprived of our property rights “subject to the conditions provided for by law”.  The decision to recver is in accordance with the law but is one-sided and cannot be independently scrutinised or altered by a body with power to change this.  The only court-based remedy is judicial review which is fairly constrained.

3. Article 6 (1) gives a right to a fair and public hearing when determining civil rights (long and complex discussion in anotated Social Security Legislation vol 3 on this).

4.  The decision whether to recover or not recover a recoverable overpayment impinges on property rights and is now therefore clearly part of one’s civil rights.  (Assuming that all the requirements as regards recoverability are made out).

5. The lack of a right of appeal against the discretion to recover an overpayment therefore appears to be contrary to Article 6.

Good morning.

Quite separate from issues raised with regard to appealability of discretion not to recover overpayments and rights to possession, I look with interest at the issues addressed at paragraphs 58 and 59 of the Judgement.  Paragraph 58 seems to support the premise that reasonableness of declaration can be offered as a defence against recoverability in issues of mental capacity.  However, this premise appears to be overcome at paragraph 59 when the judgement considers that “the Court accepts that requiring decision-makers to assess levels of understanding or mental capacity before deciding whether or not overpaid benefits were recoverable would hinder their recovery and thereby reduce the resources available within the social security fund.”  Whether one accepts that such a premise is proportionate or not is debatable.  That said, however, the judgement is what it is.

The judgement then opines that “...a legitimate aim, namely that of ensuring the smooth operation of the welfare system and the facilitation of the recovery of overpaid benefits.

In light of the above, are there perhaps people who might satisfy the reasonableness test of declaration and mental capacity without calling on a decision-maker to assess understanding etc. and thus avoiding hindrance of the “smooth operation of the welfare system”.  It may be, for example, that a person detained under Section of the Mental Health Act, and possibly others, would satisfy the reasonableness test without any further assessment by a decision-maker. 

Such a scenario might rejuvenate nullified Regulations about reasonableness of declaration.

Any thoughts?

The problem, of course, is that neither the government nor the higher British courts are bound by the decisions of the Strasbourg court.  They must take them into consideration but are then free to ignore them.  There is a whole stack of decisions of the ECHR that successive governments have simply left to rot, particularly where they conflict with primary legislation.

Thank you for your comment.

I think that that is so if a judgement relates to Primary Legislation of Member States: such as in declarations of incompatibility (is that the phrase?).  However, were a judgement relates to Secondary Legislation, as in this case of reasonableness, I think that the European Court has primacy and must be followed by Member States’ Courts at all levels.  I may be wrong of course.

Thank you.

Patrick

Patrick Hill - 06 March 2012 11:59 AM

Thank you for your comment.

I think that that is so if a judgement relates to Primary Legislation of Member States: such as in declarations of incompatibility (is that the phrase?).  However, were a judgement relates to Secondary Legislation, as in this case of reasonableness, I think that the European Court has primacy and must be followed by Member States’ Courts at all levels.  I may be wrong of course.

Thank you.

Patrick

Patrick- the bindingness of ECtHR decisions in UK courts is considered by the House of Lords in Kay & Anr. v LB Lambeth [2006] UKHL 10 . See paragraphs 40 to 45. Basically the principle (aside from the exceptions discussed there) is that:

1. Where there is a superior court domestic decision that says one thing; and

2. Subsequently the ECtHR rules to the contrary; then

3. Inferior domestic courts must continue to follow the superior domestic decision until it is itself overturned domestically.

This is quite different from Court of Justice of the EU decisions (which are immediately binding and cancel UK decisions to the contrary etc).

Martin

Furthermore, primary legislation cannot be struck down by the ECHR.  A declaration of incompatibility can be made but British courts must follow primary legislation.

British courts and tribunals are perfectly willing to read down secondary legislation to make it compatible with ECHR jurisprudence, primarily because the convention has been incorporated into British law as the Human Rights Act.  And, it is here and where there are no conflicting decisions of the higher British courts, that there is more scope for the lower courts to apply the jurisprudence of the ECHR.

Oh dear.  Thank you all again. 

All that you have both said is, of course, helpful and no doubt correct.  I should add, however, that that my initial post was meant as a point of interest that might assist in matters of non declaration and associated overpayments.  I made reference to paragraphs 58 and 59 of the judgement and the information therein as support and guidance for a potential challenge to 1st tier and 2nd tier appeals with a view to higher courts thereafter should it be appropriate.  There is no suggestion that paragraphs 58 and 59 should be viewed as a judgement on which to hang a case, but better viewed as an authoritative opinion on which to build and expand the argument of reasonableness and mental capacity.  I understand that current UK case law tends not assist argument in this area so any help from any legal source must assist. 

Incidentally, I’m struggling to find paras 40 to 45 of the case you cite though.  I’ll keep trying.

Thank you everyone, and I hope to bump into you at NAWRA, either on the Thursday evening get together or at the meeting on Friday if you’re going.  Please make youself known to me; it’s nice to put a face to a name.

Again thank you for your helpful remarks; they’ve certainly given me food for thought.

Patrick

Hi Patrick,

Sorry- the link to the case is in my post where it says Kay and Anr…... in rightsnet orange: just click it and the case will open.

Or try this one: http://www.bailii.org/uk/cases/UKHL/2006/10.html

I agree also that there are some good bits in B - although I am not sure whether you could find a case where the DM would not need to make a decision one way or the other about whether a claimant understood the materiality of a fact. There may be some cases where such a decision is very easy to come to as the evidence is strong. However, a decision would still need to be made. There are always easy cases- that does not necessarily mean that there is scope for arguing in an easy case that the ruling in B should not apply.

The view of the Court that requiring decision makers to determine what a claimant knew was material is annoying as the benefit system is riven with examples where the decision maker needs to assess whether the claimant knew a fact was relevant (retrospective supersession of DLA on ground of change of circs in disability not reported etc). Indeed in some overpayment cases the DM will in fact already have considered and decided exactly that issue in order to create the overpayment- how can it then be said that it is bad policy to force the poor DM to make such a decision when he decides whether to recover the same overpayment?

M