Reply To: Recovering OPs while appeal pending


Ms Commissioner Fellner wrote at para 15 of CIS/2654/1999 in the context of entitlement to IS while an appeal was pending against an Incapacity Benefit decision:

” I agree with the submissions on behalf of the Secretary of State that the appellant was entitled to the benefit of paragraph 25 of Schedule 1B until the day before my colleague’s dismissal of his application for leave to appeal, ie until 29 3 99. I agree with the holding in CIS/210/94 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the “determination” of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion. Indeed, it might be said that an appeal continues to be undetermined until any time allowed for appealing (or applying for judicial review of) the latest decision has elapsed, though I need not decide this since the appellant here had long been reawarded income support on the basis of incapacity by the time his application for leave to appeal was refused.”

Mr Commissioner Rice also noted at para 6 of R(SB)5/91

6. The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:
“9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83.”
The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:
“Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State’s right of action accrue. To accept that notification of the date of the adjudication officer’s decision as the relevant date will mean that the Secretary of State was entitled as of that moment to recover notwithstanding that there was an appeal in progress. It would not I think be the intention of Parliament to provide for appeals against an initial determination if such were the case . . .”

Those decisions do support the notion that recovery while an appeal is still pending is not only maladministration , it is unlawful. I suggest that such recovery could possibly give rise to a claim for restitution following Norwich CC v Stringer (2000)