[2007] NISSCSC CSC3_06_07(IS) (11 January 2007) 

Decision No:  C3/06-07(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 15 September 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, with leave by a Commissioner, by the claimant against a decision dated 15 September 2005 of an appeal tribunal sitting at Lurgan.  I consider I can properly decide this appeal without a hearing.  My decision is given in the final paragraph. 

2.	The background to the appeal is that by a decision dated 13 November 2000 the Department superseded a decision dated 17 May 2000 awarding income support (IS) to the claimant from 29 June 2000 as there had been a relevant change of circumstances since that decision was made i.e. disability living allowance (DLA) was no longer in payment for the claimant’s daughter Ursula.  The decision terminated the award of IS from 7 September 2000. By a subsequent decision dated 21 October 2001 (as revised by a decision of 10 May 2005) the Department decided that an overpayment of IS had occurred for the period 7 September 2000 to 1 November 2000 amounting to £89.40.  It decided further that this sum was recoverable from the claimant because it was made as a result of a failure to disclose and/or a misrepresentation by the claimant of the material fact that DLA was no longer in payment for his daughter.  The misrepresentation was stated to be that the claimant signed a declaration on his order book each fortnight to the effect that he had correctly reported any facts which could affect the amount of his payment and that he was entitled to the payment whereas he had not reported the termination of the DLA award.

3.	The revising decision dated 10 May 2005 was a decision made on revision under regulation 3(4A) of the Social Security and Child Support (Decision and Appeals) Regulations (Northern Ireland) 1999 following the claimant’s appeal against the decision dated 21 October 2001 (the overpayment decision).  The decision of 10 May 2005 wrongly purported to revise the decision of 13 November 2000 but in fact it had no grounds nor power to do so and that decision remained as previously i.e. the disallowance of IS from 7 September 2000 remained.  The tribunal erred in confirming the entire decision of 10 May 2005.  What it was, in fact, dealing with was the overpayment decision only, there being no appeal against the decision dated 1 November 2000 terminating the IS award from 7 September 2000.  In his determination A9/05-06(IB) dated 9 June 2006 the Chief Commissioner comments further on this matter.  I therefore proceed to deal with the overpayment decision only.   My decision is given in the final paragraph.

4.	The tribunal found, relying on the claimant’s own evidence that prior to 13 September 2000 (the tribunal actually wrote 2001 but I am satisfied this was a misprint for 2000) he had been in receipt of DLA for his daughter.  This was paid by order book.  When the award of DLA and the order book ran out the claimant did not report this to IS as he assumed that his DLA renewal claim had been successful and everything would be sorted out later.  In the event he was notified about the non renewal of his daughter’s DLA about November 2000 and he then contacted IS and returned his order book.

5.	The tribunal concluded that it was clear that the claimant had failed to disclose this relevant change of circumstances when he should have done, about 13 September 2000, as his order book instructions read

“Any benefit goes up or down!! You must send us a letter or Form A9 if this happens to your money or your partner’s money or you or your dependant’s money”.

6.	The tribunal concluded further that the claimant had misrepresented the material fact of his daughter no longer being in receipt of DLA when he signed his order book declaring:

“… I have properly reported any facts which could affect the amount of my payment”.

7.	The claimant appealed to a Commissioner. The grounds were that the tribunal erred and exhibited bias by concluding that although he had not received official notification of his daughter’s DLA ceasing, he should have notified the Department once she ceased to receive it and also that the wrong case-law was applied.

8.	The Department has been represented in the appeal to a Commissioner by Mr Donnan of its Decision Making Services Branch.  I am grateful for his assistance. The Department commented by letter dated 15 February 2006.  It submitted that the claimant did have a valid argument relating to the level of information given to him when he contacted DLA branch.  The information which he had received seemed to suggest that he should expect his daughter’s DLA award to be renewed as the reason he had not heard from them was due to a backlog situation which was causing a delay in the issue of order books and giro cheques.  The claimant had stated that he was informed that he would be contacted when time permitted and he would not lose out on benefits – the payments due from 13 September 2000 would be paid by giro cheque if it was not possible to issue an order book in time.

9.	However, the Department submitted that the advice given by DLA branch was irrelevant to the claimant’s IS claim as the instructions were clear that he must inform IS branch if his benefits went up or down.  The Department relied in its submission on the decision of the House of Lords in the case of Hinchy v Secretary of State for Work and Pensions [2005] UKHL16.  Amongst other passages in Hinchy the Department referred to a passage from paragraph 33 of the judgment of Hoffmann LJ (with which the majority of the Law Lords concurred) as follows:

“The instruction in the order book is not concerned with the terms upon which the benefit is payable but with the amount of money coming in.  Miss Hinchy’s weekly DLA payments had gone down to zero and that in my opinion was a notifiable change of circumstances.”

10.	The Department therefore submitted that, despite the information he received from the DLA office, the claimant was still required to report to the IS office that his daughter’s award had expired and he was not currently receiving DLA for her.  It is apparent therefore that the Department considered that the tribunal had not erred in law in its substantial conclusion in this case.

11.	The Department did, however, submit that there was an error in the tribunal’s decision on the basis that the tribunal should have remedied the wording of the decision dated 10 May 2005 which was not, in its submission a supersession of the decision dated 13 November 2000 but was merely identifying it.  I agree with the Department on that point.

12.	The Department further submitted that the tribunal should have satisfied itself that an evidential basis existed for the assertion that DLA had ceased to be in payment for the claimant’s daughter from and including 13 September 2000. It had also failed to satisfy itself that the decision dated 13 November 2000 had effect from the correct date.  By subsequent letter of 24 April 2006, in response to my question as to what would be the advantage to the claimant of my re-examining and correcting defects in the wording of decisions, the Department submitted that this would be of no advantage to the claimant.  I was further informed that the date when DLA ceased could not now be formally verified by DLA branch. However, the Department continued to submit that the tribunal was entitled to reach the decision that it did on the basis that it was probable that this date had been verified at the time the overpayment was raised.

13.	The claimant made further comment by letters dated 26 February 2006 and 14 May 2006.  Regrettably he embarked on allegations of corruption and criminality on the part of various departmental officials including Mr Donnan and of bias on the part of tribunals.  He produced absolutely no evidence to substantiate these allegations and I do not find them to be substantiated.  In the case of Mr Donnan in particular these allegations are particularly reprehensible as Mr Donnan has gone to considerable lengths to assist the claimant by pointing out any inadequacies and errors which he considers exist in the tribunal’s decision.  There is no indication of bias on the tribunal’s part.  It is regrettable that the claimant should behave in this manner and it is unhelpful in dealing with the issues in this case.

14.	In fact I do consider there to be an error in the tribunal’s decision and it is on the basis of the absence of verification of the date when DLA ceased to be paid for the claimant’s daughter.  Mr Donnan correctly points out that there was no evidence produced to the tribunal as to the date when the payment of DLA ceased.  On the evidence which was produced it obviously did cease at some stage prior to the claimant reporting the matter to IS which seems to have been on or around 6 November 2000.  Mr Donnan also informs me that no evidence of the date of cessation of payment is now available.  I doubt if the claimant could now accurately recall the date.

15.	Admittedly there was no issue taken before the tribunal as to the date of cessation of payment.  It is, however, for the Department to prove its case.  I am not prepared to presume that dates were verified in October 2001.  The Department should have produced evidence to substantiate the date of cessation.  In addition the tribunal was dealing with the matter some five years after the alleged date of cessation.  The tribunal should have made enquiry as to evidence of the date of the cessation of DLA payment. This was after all the relevant change of circumstances on which the ability to make recovery was based.  It erred in failing to do so.  I set its decision aside for that reason.

16.	I consider that this is a case where I can give the decision which the tribunal should have given.  While it appears from his own evidence that the claimant was aware at some time prior to being notified of cessation of entitlement that the DLA benefit money for his daughter had ceased, I find it impossible to ascertain precisely when this occurred.  I am not prepared to assume that this matter was verified at the time the overpayment was raised in October 2001.  I have been singularly unimpressed by the decision-making in this case and particularly by the making of assertions unsupported by evidence.  The amount involved is very small and we are now some six years after the event.  It does appear that there was some overpayment of IS prior to November 2000.  It may be that it began on 7 September 2000 as the claimant did not appeal the termination of the IS award from that date.  However he had received payment of IS to 1 November 2000 so was possibly not concerned till the overpayment was raised.  I must bear in mind that the burden of proof of overpayment having taken place and of the amount thereof was on the Department. As I can reach no conclusion, other than on assumptions for which there is no evidential basis, as to when the DLA award ceased, I cannot reach any conclusion as to the correct amount of the recoverable overpayment. That being so I am unable to determine the amount of any recoverable overpayment.  The burden is on the Department to prove that amount.  It has failed to discharge that burden and I determine the recoverable amount to be nil.  The claimant wins his appeal.

(signed):  M F Brown

Commissioner

11 January 2007