Decision No: C5/01-02(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to the Social Security Commissioner
 on a question of law from the decision
 of Coleraine Appeal Tribunal 
dated 31 July 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the decision of a Tribunal to the effect that the claimant was not entitled to Income Support for the period 25 September 1997 to 16 September 1998 and that an overpayment of £3,997.20 (sic) for Income Support for this period is recoverable from the claimant.  (It appears from a view of all the papers in this case that the overpayment figure ought to have been £3977.20)

2.	The background of the case is as follows.  The claimant was originally disallowed Incapacity Benefit as he failed the All Work Test.  He appealed this decision and also made a claim for Income Support.  Income Support was paid to the claimant pending the result of his appeal in accordance with Regulation 4ZA and Schedule 1B of the Income Support (General) Regulations (Northern Ireland) 1987.  On 6 February 1999, as a result of a routine investigation, it was established that a Tribunal on 26 September 1997 had disallowed the claimant’s Incapacity Benefit appeal but the claimant had not informed the Income Support section of this.  As a result of this failure to disclose and the continued misrepresentation by the claimant on signing the usual orders in his order book, the claimant was overpaid Income Support from 25 September 1997 to 16 September 1998 (amounting to £3,977.20) which the Department decided was recoverable from the claimant.  The claimant subsequently appealed to an Appeal Tribunal which upheld the decision of the Department.

3.	The Tribunal gave the following reasons for its decision:

“Claimant appealed against the decision to find him capable of work.  He continued to establish entitlement to Income Support until such times as his circumstances changed.  His appeal (on Incapacity) was heard on 26.9.97 and he lost his appeal.  At this stage he should have told the Income Support Office of the disallowance and the resultant change of circumstances.  He did not do so.  He received Income Support up to and including 16.9.98 in the sum of £3977.20.  The law states that where an overpayment has occurred as a result of claimant’s failure to disclose a material fact then the overpayment is recoverable.  The loss of the appeal is, in my view, a material fact.  Claimant has failed to disclose same.  An overpayment has resulted.  It is now recoverable.”

The unanimous decision of the Appeal Tribunal was as follows:

“Appeal disallowed.  Claimant not entitled to Income Support for the period 25.9.97 to 16.9.98 inclusive overpayment of £3997.20 (sic) Income Support for the above period is recoverable.”

4.	The claimant asked for a record of the Tribunal’s proceedings.  However, his request was outside the absolute time limit, and accordingly, was refused by the Legally Qualified Member.  (I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as a lack of a record is due to the claimant failing to comply with the statutory time limit).

5.	The Legally Qualified Panel Member refused leave to appeal on 11 May 2001.  However, leave to appeal was granted by a Commissioner on 27 February 2002.

6.	Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.

7.	The claimant, who is not represented, has made the following point in the appeal papers, namely, that he submits that the Tribunal has erred in law in concluding that he had misrepresented or failed to disclose the material fact that his Incapacity Benefit appeal had failed.

8.	The Department, through the Decision Making and Appeals Unit, now supports the appeal.  In particular, Mrs Murray, in a letter dated 11 January 2002 commenting on the claimant’s application for leave to appeal, has stated the following, which in the circumstances I consider appropriate to quote:

“Grounds of Appeal/Error in Law  

12. In his grounds of appeal to the Tribunal [the claimant] stated that as far as he could recollect he disclosed all facts relevant to his application and in a subsequent letter he stated that he was given misleading information.

13. The legislation governing the recoverability of an overpayment is contained in Section 69 of the Social Security Administration (Northern Ireland) Act 1992.  Section 69(1) provides:
“69(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure – 

(a)	a payment has been made in respect of a benefit to which this section applies; or

(b)	any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.”

14. In reported decision R(SB) 21/82 the Great Britain Commissioner commented that the words “fraudulently or otherwise” extended the scope of the provision to include “wholly ‘innocent’ misrepresentation or failure to disclose.”

15. In this case the Tribunal decided that [the claimant] failed to disclose the material fact that he lost his Incapacity Benefit Appeal and the resulting overpayment of benefit is recoverable from him.  In Decision R(SB)54/83 the GB Commissioner gives guidance on the subject of recoverability.  The Commissioner held that one of the conditions for recovering an overpayment on the grounds of failure to disclose is “…the disclosure by the person in question was reasonably to be expected…”.  This was endorsed in unreported decision C17/98(IS) where the Northern Ireland Commissioner stated at paragraph 17: “It is not enough for the Adjudication Officer to show that disclosure did not take place.  He must also show that disclosure was reasonably to be expected.  Failure to disclose not non-disclosure is the standard.”

16. It would appear from the reasons of the Tribunal that it failed to address this issue.  The Tribunal also did not address the issue of whether in the circumstances it would have been reasonable for [the claimant] to disclose the material fact that he lost his appeal on his claim to Incapacity Benefit.  By failing to address these points I would submit that the Tribunal has erred in law.  In decision R5/99(IB) the Commissioner held that a tribunal is required to deal with issues that arise either explicitly or implicitly.

17. The circumstances in decision C17/98(IS) mentioned above are similar to this case in many respects.  In that case the claimant also incurred an overpayment of income support because he failed to disclose that he lost his Incapacity Benefit appeal.  He also claimed that he was mislead by information on form INF4.  (It is not clear in this case what misleading information [the claimant] was given).  The Tribunal failed to address the point on the misleading information and by failing to do so the Commissioner held that the Tribunal had erred in law.

18. The Commissioner in that decision also expressed her concerns that the information contained in leaflet INF 4 did not specifically mention a reference to the need to report failure of the All Work Test (…..a specimen copy of form INF 4 and order book instructions which outline the circumstances that the claimant should report.  Like form INF 4 there is no specific reference in the order book instructions that advises the claimant to report the failure of the All Work test or losing an appeal to Incapacity Benefit).
(I can now advise that this problem has since been rectified).

19. [The claimant] adds in his appeal to the Commissioner that he completed the form honestly and that Income Support and Incapacity Benefit are completely separate and no details from the original claim to Income Support had changed.   I would reiterate that there is no suggestion that there was any fraudulent intent on [the claimant’s] behalf however there was a change in circumstances namely that the Incapacity Benefit appeal was disallowed.  It is agreed that the two benefits are separate which is why [the claimant] would have been required to report the fact that his Incapacity Appeal had been disallowed as Income Support was paid pending the outcome of this appeal.

20. [The claimant] has also stated that the Department would have records of his situation.  Whilst there are arrangements whereby Incapacity Benefit Branch would advise Income Support Section when an appeal is disallowed there are no records of this procedure being followed.  I would nevertheless submit that this failure would not exonerate [the claimant] from his duty to advise Income Support Section of the change in circumstances.  In Duggan v CAO (Appendix to R(SB) 13/89) May LJ gave judgement on the meaning of “in consequence of” in relation to overpayments.  He held that even if there were 2 causes of an overpayment namely the failure of the Adjudication Officer (or the Department) to investigate and the non-disclosure by the claimant, this did not and could not prevent the lack of non-disclosure by the claimant from having been one of the causes of the overpayment.  The overpayment was recoverable on that point.

CONCLUSION

21. To conclude, I would submit the tribunal have erred in law by not addressing the issue of whether or not [the claimant] was given misleading information and whether or not disclosure of the fact that he had lost his incapacity benefit appeal was reasonably to be expected from him.”

(I have taken the opportunity of correcting two typographical errors which have been corrected in bold in the quotation).

9.	I accept the substance of Mrs Murray’s excellent yet relatively succinct submission.  I see no point in repeating what is stated therein save to conclude that it seems likely that the Tribunal was not referred to the relevant authorities (other than R(SB) 21/82) which Mrs Murray has now referred to me.  Of course, without the record of proceedings, I am not in a position to say whether this is in fact correct.

10.	In the circumstances I conclude that the Tribunal in this case has erred in law by not dealing with the two relevant issues, namely, whether the claimant was given misleading information and also whether disclosure of the fact that he had lost his Incapacity Benefit Appeal was reasonably to be expected from him in the circumstances.  I therefore allow this appeal.  Accordingly I set the Tribunal’s decision aside and refer the case back for determination by a freshly constituted Tribunal.

(Signed):    J A H Martin QC

CHIEF COMMISSIONER

	24 May 2002