Secretary of State for Work and Pensions v IL (ESA): [2025] UKUT 200 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Butler on 20 June 2025.
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Judicial Summary
This appeal is about the Secretary of State鈥檚 ability to recover an overpayment of universal credit, new-style jobseekers鈥� allowance or new-style employment and support allowance. Recovery of these is governed by section 71ZB(1)(a) to (c) of the Social Security Administration Act 1992.
The Upper Tribunal decided that section 71ZB(1)(a) to (c) of the Social Security Administration Act 1992 allows for universal credit, new-style employment and support allowance (鈥淓SA鈥�) and new-style jobseeker鈥檚 allowance (鈥淛SA鈥�) overpayments to be recoverable, irrespective of how they have arisen. The Upper Tribunal followed the earlier decision of the Upper Tribunal in LP v SSWP [2018] UKUT 332 (AAC), which dealt with this issue in relation to universal credit overpayments. The Upper Tribunal also followed the conclusion in LP that a claimant鈥檚 right of appeal against decisions to recover overpayments of benefits covered by section 71ZB(1)(a) to (c) only extend to the size of the overpayment being recovered.
The High Court decision in R (o.a.o. K) v SSWP [2023] EWHC 233 (Admin) does not enable a First-tier Tribunal to decide that a benefit overpayment covered by section 71ZB(1)(a) to (c) is not recoverable where it arose due to the Secretary of State鈥檚 actions or failures.
The above position is not changed by the decision by the European Court of Human Rights (ECtHR) in 膶akarevi膰 v Croatia (Application 48921/13). The matters addressed in 膶akarevi膰 are instead potentially relevant to a judicial review challenge against a decision by the Secretary of State not to waive recovery of an overpayment of universal credit, new-style JSA or new-style ESA.