Court of Appeal

Published June 27, 2007

Hooper v Secretary of State for Work and Pensions

Before Lord Justice Ward, Lord Justice Dyson and Lord Justice Thomas

Judgment May 24, 2005

A government fact sheet was not clear and unambiguous enough so that overpayments of incapacity benefit were not recoverable from a person receiving the benefit who took up part-time paid employment without notifying the Secretary of State for Work and Pensions in breach of statute.

The Court of Appeal so held in a reserved judgment, inter alia, allowing an appeal by the applicant, Michael Hooper, from Mr Commissioner Jacobs who had upheld a claim by the Secretary of State for Work and Pensions for a repayment of £6,990.

Mr Simon Cox for Mr Hooper; Mr Martin Chamberlain for the secretary of state.

LORD JUSTICE DYSON said that the commissioner upheld the Social Security Appeal Tribunal’s decision that the applicant, who suffered mental disability, was in breach of regulation 32(1) of the Social Security (Claims and Payments) Regulations (SI 1987 No 1968) entitling the secretary of state to recover the overpayment that had been made in consequence of the applicant’s failure to notify within 42 days of his commencing work.

On the introduction in 2002 of new permitted work rules setting out exempt work that a claimant was permitted to do without loss of benefit, the secretary of state had sent all recipients of the benefit a fact sheet that stated: “You should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.”

The applicant, then unemployed, read the fact sheet and put it away. In September 2002 he started part-time work as a school cleaner. He failed to notify that he was working.

The issue was whether the applicant had failed to disclose a material fact in breach of section 71(1) of the Social Security Contributions and Benefits Act 1992.

The question that thus arose was whether the terms of the fact sheet were sufficient to amount to a requirement that the applicant should notify the secretary of state that he was starting work before he did so.

The words “you should tell the office” and “you should fill in the application form” were not the language of clear and unambiguous mandatory requirement.

If the secretary of state wished to impose a requirement on claimants within the meaning of regulation 32(1), it was incumbent on him to make it absolutely clear that that was what he was doing. Lord Justice Ward and Lord Justice Thomas gave concurring judgments.

Solicitors: Will Rolt, Bath; Solicitor, Department of Work and Pensions.

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