Recovery of overpayments – civil penalty – whether discretionary
Tribunal procedure and practice – whether right of appeal against the imposition of a civil
The claimant went abroad for two separate periods in order to receive medical treatment but failed to disclose
either absence to the Department for Work and Pensions. The Secretary of State decided that she had received two recoverable overpayments of income support totalling over £2,000 for both periods and also decided to impose a civil penalty of £50 under section 115D of the Social Security Administration Act 1992 (the 1992 Act) in respect of the second overpayment on the ground that the claimant had no reasonable excuse for failing to notify the Department of her absence abroad. The First-tier Tribunal (F-tT) dismissed the claimant’s appeal in her absence despite her request for a postponement due to ill-health. The Upper Tribunal gave permission to appeal in relation to the imposition of a civil penalty.
Held, dismissing the appeal, that:
the F-tT’s findings were sufficient to show that the claimant did not have a reasonable excuse for not
disclosing her absences abroad (paragraph 12);
the use of the word “may” in section 115D of the 1992 Act conferred a broad discretion as to whether a
civil penalty should be imposed, even if the claimant did not have a reasonable excuse for the non-disclosure, but not as to the amount of any penalty (paragraphs 13 and 14);
there was a right of appeal to the F-tT against the imposition of a civil penalty under section 115D of the
1992 Act because such a decision was made on an award for the purposes of section 12 of the Social Security Act 1998 (paragraph 19);
there was no injustice as a result of the refusal to adjourn because the claimant did not have an arguable
case that she had a reasonable excuse for not disclosing her absences abroad or that the imposition of the penalty was inappropriate (paragraph 22).