The Administrative Appeals Chamber of the Upper Tribunal has given an important judgment on the meaning of a “failure to disclose” a material fact for the purposes of section 71 of the Social Security Administration Act 1992 (’SSA 1992’).
The Appellant had, over the course of 9 years, received an overpayment of retirement pension of more than £25,000. The Secretary of State contended that his overpayment was due to a failure to disclose the material fact that his wife’s pension had been uprated on an annual basis and therefore sought to recover the overpayment under section 71 of the SSA 1992.
The scope of the duty to disclose material facts for the purposes of section 71 of the SSA 1992 had previously been considered in detail by the House of Lords in Hinchy  UKHL 16 and by the Court of Appeal in B v Secretary of State for Work and Pensions  EWCA Civ 929. The Secretary of State argued that those cases established a strict duty on the Appellant to disclose any material facts that might alter his entitlement to state pension. That Appellant argued that there was no such duty because it was absurd to suggest that the Appellant was obliged to disclose to the Secretary of State information that the Appellant knew was already known to the Secretary of State.
The Upper Tribunal concluded that there could be no obligation to disclose a fact that the Appellant knew was already known by the decision maker. The judge distinguished between an obligation to ’notify’ and an obligation to ‘disclose’; while there might legitimately be an obligation on a person (A) to ‘notify’ a person (B) about a fact that A knows is already known by B, the same can not be said about a duty to ‘disclose’.
The judgment supports a less strict interpretation of Hinchy and B than the Secretary of State has traditionally applied. In addition, it gives substance to the passing observation of Lord Hoffmann in Hinchy that a disclosure which would be “thought necessary only by a literal-minded pedant” need not be made.
Click here for the judgment.
Toby Fisher appeared for the Appellant.