Dear Colleagues,



Following a decision on defamation last week, we now have the first significant decision of the UK Supreme Court which considers restitution. In Child Poverty Action Group v Secretary of State for Work and Pensions [2010] UKSC 54 (http://www.supremecourt.gov.uk/docs/UKSC_2009_0202_Judgment.pdf), the Court considered whether it was possible for the Secretary of State to recover social security benefit overpayments at common law, or whether a relevant statutory section (here s 71 of the Social Security Administration Act 1992) provide an exhaustive framework for recovery. The Supreme Court unanimously held that no such claim was possible, with Lord Brown giving the lead judgment.



"14. As is well known, common law restitution claims are, at the best of times, far from straightforward. Not the least of their difficulties, a difficulty at its most pronounced in the context of social security benefit claimants, is the defence of change of position. Part III of the 1992 Act provides, of course, not just for an express entitlement to recover overpaid benefits in cases of misrepresentation or non-disclosure, but also for the whole process of determining the facts relevant to such entitlement, including making provision for appeals to a tribunal. It seems to me inconceivable that Parliament would have contemplated leaving the suggested common law restitutionary route to the recovery of overpayments available to the Secretary of State to be pursued by way of ordinary court proceedings alongside the carefully prescribed scheme of recovery set out in the statute...."



Counsel for the Secretary of State had sought to draw an analogy with the recent House of Lords decisions in Deutsche Morgan Grenfell and Total Network, but to no avail:



"16. As for Mr Eadie’s reliance on the DMG line of cases with regard to the tax regime, for my part I find the suggested analogy unconvincing. This is not for the reasons suggested by the Court of Appeal (see in particular Lloyd LJ’s judgment at paras 33-35), namely that DMG involved an overpayment to the state whereas the present case involves an overpayment by the state; that, I would agree with Mr Eadie, is neither a logical nor a principled distinction. Rather it is because, whereas section 33 of the Taxes Management Act 1970 only purported to deal with overpayments of tax charged under an assessment, leaving other overpayments to be dealt with outside the statutory scheme, section 71 deals with the overpayment of benefit pursuant to erroneous awards in all cases and, by necessary implication, deals too with the conditions for the recovery of such overpayments."



Best wishes,



James



--
James Lee
Lecturer

Director of Careers
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B152TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk

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