The Secretary of State for Work and Pensions v Ms M Cotter (ESA): [2026] UKUT 384 (AAC)
Upper Tribunal Administrative Appeals Chamber decision of Judge Price on 21 September 2026.
Read the full decision in .
Judicial Summary
This case concerned whether an overpayment of Employment and Support Allowance (ESA) paid to the respondent, could be recovered by the Secretary of State.
The respondent had received Incapacity Benefit (IB) from 2005 and was also receiving an occupational pension. She did not inform the Department for Work and Pensions (DWP) about that pension until December 2018. Because the pension should have been taken into account when calculating her benefit entitlement, both her IB and, later, her ESA were overpaid.
The First-tier Tribunal found that the IB overpayment was recoverable from April 2007 onwards because MC had been sent a form requiring her to report changes affecting her benefit. However, it decided that the ESA overpayment, covering the period from November 2011 to December 2018, was not recoverable because it was not satisfied that MC had been adequately informed of any duty to disclose the pension in connection with her ESA claim.
The Secretary of State appealed.
The Upper Tribunal allowed the appeal. It held that the First-tier Tribunal had made an error of law in its interpretation of the recovery provisions in section 71 of the Social Security Administration Act 1992. The Upper Tribunal explained that a recoverable overpayment can arise where a person has failed to disclose a material fact, even if the original duty to disclose arose in relation to a different benefit. What mattered was whether the failure to disclose caused the later overpayment.
The Upper Tribunal found that the First-tier Tribunal had wrongly treated the ESA overpayment as requiring a separate disclosure duty specific to ESA. It also failed properly to consider the significance of its own finding that MC had been aware, since 2007, of an obligation to report changes relating to her occupational pension. That finding was relevant when deciding whether she could reasonably have been expected to know she should report the same information while receiving ESA.
The decision of the First-tier Tribunal was set aside. The case was remitted for the First-tier Tribunal to determine the amount of ESA overpayment.