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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2009] NISSCSC C10_07_08(IS) (04 March 2009) URL: http://www.bailii.org/nie/cases/NISSCSC/2009/C10_07_08(IS).html Cite as: [2009] NISSCSC C10_07_08(IS), [2009] NISSCSC C10_7_8(IS)

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[2009] NISSCSC C10_07_08(IS) (04 March 2009)

Decision No: C10/07-08(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 3 September 2007 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Department for Social Development ("the Department"), with the leave of the chairman, against a decision of the appeal tribunal sitting at Londonderry on 3 September 2007 (the "appeal tribunal"). It is convenient to refer to the respondent as "the claimant". The claimant was the appellant before the appeal tribunal.
2. For the reasons which I give that decision is erroneous in point of law. I therefore set it aside and refer the case to a differently constituted tribunal ("the new tribunal") for a complete rehearing.

The issue

3. The issue in the appeal is whether a decision which was taken in a perfectly proper manner, but which was not notified or communicated to the person to whom it was addressed when it should have been, is necessarily without effect. To be more precise, suppose that a decision (Decision A) is taken by the Department but is not, at that stage, communicated to the person concerned. One of the consequences of Decision A, if valid, is that the Department can now take Decision B. The Department takes Decision B and sends a copy to the person concerned. However, that person has yet to receive notification of Decision A. Does that mean that Decision B is invalid for all purposes? Or, to put it another way, does a subsequent communication of Decision A cure any defect in Decision B which arises out of the previous failure to tell the person concerned that Decision A has been taken?
4. It is important to be clear about two matters. First, as explained below, the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision. In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable. Put like that, the sequence of decisions is logical. The two decisions can be contained in a single document provided that the sequence is apparent. Section 69(5A) is an important safeguard. Tribunals, rightly, are alert to see that it has been complied with. Nothing I am going to say casts doubt on their vigilance. A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner. Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken. However, it is not the case in the present appeal that the first decision – Decision A – has never been communicated to the claimant. It was been communicated to her but not until after she had been told about the decision seeking to recover overpaid benefit.
5. I shall explain how the issue to which I have referred arises in a moment. Before I do so I shall quote the statement of reasons which is admirably clear and concise.

"Under Section 69(5A) of the Social Security Administration (NI) Act 1992, 'an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised … or superseded …'. In this appeal, the Department sought to rely on a supersession decision dated 05.06.2006, but there was no evidence before the Tribunal, and apparently no evidence otherwise available, to prove that that decision of 05.06.2006 was notified to the Appellant. It follows that the Department cannot rely on that decision as a basis for recovery of the alleged overpayment, the requirements of Section 69(5A) above not being satisfied."

The background

6. In his speech in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, reported as R(IS) 7/05, Lord Hoffman accepted evidence submitted by the Secretary of State as to the sheer size and complexity of the scheme of welfare benefits administered in Great Britain by the Department for Work and Pensions and in Northern Ireland by the Department of Social Development. The range of benefits runs from child benefit to retirement pensions. Everyone living in the United Kingdom will have some contact with the welfare benefits system at some stage of their life. Many of us will have more than a little contact. In the Hinchy case the House of Lords accepted that both the annual amount of money involved and the number of beneficiaries were huge. One of the effects of such a large, complex and expensive system is that it has to be "decision based". By that I mean the system operates through a system of formal, and not informal, decisions which allows everyone involved in the system – whether they be beneficiaries, administrators, appeal tribunals or others with a legitimate interest – to see exactly what has been decided in any particular case.
7. Further, there are, of necessity, elaborate but extremely important provisions to safeguard beneficiaries by preventing one decision-maker from interfering with the decision of another simply because he or she does not agree with it. Three simple examples will illustrate the point. First, you are awarded, say, £71.69 per week for 18 months. The decision to award such money requires a formal decision which commits the public purse for the period concerned. An entry on the file or other records to the effect that "Jones says its OK", or something of that nature, is quite insufficient. You, and anyone else concerned, needs to know, among other matters, the exact amount you will receive each week and when the period of 18 months begins and ends. Secondly, if that award is terminated after, say, nine months another formal decision must be taken. That decision, while it may benefit the public purse, will be adverse to you. If, as is quite likely where those on benefits are concerned, you are financially disadvantaged, the loss of the sum involved may have serious consequences for you. You need to know from when, exactly, benefit ceases and you need to know the reason why it does. Unless you know the reason you cannot check to see whether the decision is based on correct facts and, if they are not correct, appeal the decision. The third example is where, during the course of the period of payment, the benefit is not terminated but the amount payable is adjusted – upwards or downwards. Once again, a formal decision is required which provides all the necessary information so that any dispute about the changed amount and the date from which it is payable can be avoided.
8. The need for formal decisions has two important consequences. First, everybody needs to know what were the terms of the decision. Not just at the time when the decision is made but thereafter whenever it is necessary to refer back to it. Secondly, it is important that the person most concerned is told what has been decided, whether in his favour or adversely to him, as soon as possible so that he can take appropriate action by, for example, appealing, or providing the decision-maker with further evidence or by making a new claim. The present appeal is concerned with the second of these consequences. In this case the relevant decision, which was dated 5 June 2006, was "made [as] an off line decision as the system only reviewed part of the overpayment period". That is to say, the decision would normally have been made using a computer but because of technical difficulties relating to the length of the relevant overpayment period the decision had to be made in the old-fashioned way using a pen and paper. It is in fact handwritten and a copy is included in the papers. There is, of course, nothing wrong in using computers either to assist with the making of decisions or with keeping records of them. Provided always, and this is important, that the decision can be recovered in an understandable form whenever it is necessary to do so. Problems will arise if either the decision cannot be recovered at all or else it emerges from the computer as a series of codes and no key to them is provided. All those concerned with the appeals system have experienced cases either where no copy of a decision can be obtained or else there is considerable debate as to what precisely the computer codes mean. However, in this case the decision under scrutiny was made in writing.
9. Commonsense, good practice and simple fairness all dictate that the decision should be communicated to the person most affected by it. I have already referred to some of the reasons why. The principle is not in doubt. Nor is there any doubt that a failure to communicate may have practical consequences for the decision. The issue for present determination is whether, if there has been a failure to communicate, the decision lapses or is deprived of legal effect?
10. The issue arises in the following context. An award of benefit, and in particular an indefinite award, cannot be terminated except by another decision. Further, such a decision must be what is known as a revision decision or a supersession decision. It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the "entitlement decision", which changes the entitlement to benefit for a past period through the process of revision or supersession, and the "recoverability decision". The latter being based on the former. I use the word "distinct" deliberately. Since the recoverability decision is based on the entitlement decision it must be proceeded by it. Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first. The rule has statutory force because section 69(5A) of the Social Security Administration (NI) Act 1992 is as follows - "subsection (1)" is the statutory provision which empowers the Department to recover overpayments of benefit. The italics are mine.

(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.

The requirement that two decisions be given means that the person concerned has the right to appeal each of the decisions. A decision is made that he is not entitled to a specific benefit from a specified date for reasons which are identified. A second decision, consequent upon the first, is then made that he has been overpaid, say, £5,000, and that the whole of that sum is recoverable from him. The person concerned may appeal the entitlement decision on the grounds that the Department is wrong and that he continued to satisfy the conditions for an award of benefit after the date specified in the decision. If he succeeds, the recoverability decision will fall away. If, however, he fails he can still appeal against the recoverability decision on the basis that, although he was not entitled to benefit from the specified date, the amount claimed is too much or that he has some other defence. For example, that he told the Department what the facts were but it failed to act on them.

11. I add that regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999 (No. 162) provides as follows – the italics are, again, mine.

28. (1) A person with a right of appeal under the Order or these regulations against any decision of the Department shall –

(a) be given written notice of the decision against which the appeal lies;

(b) be informed that, in a case where that written notice does not include a statement of the reasons for that decision, he may, within one month of the date of notification of that decision, request that the Department provide him with a written statement of reasons for that decision; and

(c) be given written notice of his legal right of appeal against that decision.

(2) Where a written statement for the reasons for the decision is not included in the written notice of the decision and is requested under paragraph (1)(b), the Department shall provide that statement within 14 days of receipt of the request.

The words "within one month of the date of notification of" the decision are repeated in regulation 32(1), which is as follows:

32. (1) Where an appeal lies from a decision of the Department or the Board or an officer of the Board to an appeal tribunal, ... the time within which that appeal must be brought is, subject to the following provisions of this part –

(a) subject to regulation 9A(3) [which relates to the correction of accidental errors], within one month of the date of notification of the decision against which the appeal is brought;

(b) where a written statement of reasons for that decision is requested and provided within the period specified in sub-paragraph (a), within 14 days of the expiry of that period; or

(c) where a written statement of the reasons for that decision is requested but not provided within the period specified in sub-paragraph (a), within 14 days of the date on which the statement is provided.

Regulations 28 and 32(2) make it clear that delay in providing notification of a decision does not affect a person's right to appeal or, indeed, to obtain a written statement of reasons for a decision. Time does not run until notification is given.

The facts

12. The respondent to the appeal before me (the "claimant") was the appellant before the tribunal below. She is a married woman who was born on 4 March 1950, and who in 1996, was living with her husband and their three children. In March of that year she made an application for income support (IS). Benefit was awarded from 5 March 1996. The claimant was then in receipt of carer's allowance ("CA"). However, her entitlement to CA ceased on 9 August 2004. When it did, her entitlement to IS also ceased. My understanding of her position is that the fact that her entitlement to IS ceased is accepted. The Department's case is that the fact that she was no longer entitled to CA was not known to the section, or office, of the Department responsible for her IS claim until about May 2006. When it did become known, it led the relevant section to make two decisions. The first of these was given on 1 June 2006. According to the Department's submissions to the appeal tribunal:

"On 01/06/06 a system review of [the claimant's] income support was carried out for the period 31/01/06 to 29/05/06. [The claimant] was notified of this decision on 01/06/06."

I have not been able to find a copy of that decision among the papers before me. It seems that the decision was carried out by, or with the aid of, a computer but the programme used only allowed the matter to be taken back a short way to 31 January 2006.

13. Consequently, a few days later, on 5 June 2006, a further decision was made. This was described as an "off line" decision. That is it was taken without the aid of a computer. It is the decision to which the appeal tribunal referred in the statement of reasons quoted at paragraph 5 above. copy of that decision is included in the papers. It is in the following terms.

"I have superseded the decision dated 30/4/04 and subsequent decisions from that date because I am satisfied that there has been a relevant change of circumstances from [when] these  decisions were given. This being that [the claimant's] carer's allowance was disallowed from 9/8/04.

My revised decision is that [the claimant] would not be entitled to IS from 4/10/04-30/1/06. This is because conditions of entitlement are not satisfied from that date.

Any overpayment that has occurred should be raised accordingly."

It should be noted that the period of the revised decision is 4 October 2004 to 30 January 2006, whereas the period referred to in the decision of 1 June 2006 was from 31 January 2006 to 29 May 2006. Between them, the two decisions covered the whole of the period from 4 October 2004 to 29 May 2006.

14. These two decisions were entitlement decisions. The argument before me has proceeded on the basis that it is common ground that the claimant was not notified about the second decision. What occurred was that, on 14 August 2006, an overpayment decision was made in respect of the entire period – that is from October 2004 to May 2006. The total overpayment was calculated to be £7,142.14. Later, after discussion with the claimant, a reconsideration of that, recoverability, decision was carried out on 4 October 2006. This resulted in an allowance of £150.40 being given for arrears of IS. However, notwithstanding this allowance, there was still left the sum of £6,991.74 outstanding.
15. It appears to be common ground that there was no failure to notify the claimant about the first entitlement decision. However, the appeal tribunal appears either to have failed to appreciate this or else it considered it to be immaterial. The Department submits that the appeal tribunal ought to have dismissed the appeal to the extent of the period covered by the first decision and gone on to calculate the amount owing in respect of that period. It submits that the appeal tribunal's failure to do so was an error of law. I agree. The appeal tribunal ought, at least, to have recorded that it was only the second entitlement decision that had not been notified and it should have gone on to consider the position of the first entitlement decision. However, since I am allowing the appeal for other reasons it is unnecessary to go any further into the matter.
16. It has not been suggested that either of the recoverability decisions were not communicated to the claimant. Further, as a consequence of the two recoverability decisions, various telephone conversations and a letter dated 8 September 2006, the claimant was in no doubt that her IS had been ended from 4 October 2004, on the grounds that her CA had ended on 9 August 2004. Further, she was aware that it was being said against her, that she had failed to disclose this to the proper authorities. What the claimant had not received at the time at which she appealed was either a copy of the decision of 5 June 2006, or some sort of formal notification of its terms and effect. It is, however, important to note that a photocopy of the actual decision of 5 June 2006, was included in the case papers. Consequently, by the time the matter was finally heard by the appeal tribunal, the claimant had been in possession of a copy of the decision for some time.
17. The claimant appealed against the overpayment decision dated 4 October 2006, on 18 October 2006. Her grounds of appeal are clearly stated in her appeal form.

"In reply to your letter dated 4/10/06 I now wish to appeal to an Appeal Tribunal against the decision of the Decision Maker who has decided that an overpayment of £6,991.74 in respect of the period 4/10/04 to 29/5/06 is recoverable from me.

Although Carers Allowance ended on 8/8/04, to the best of my recollection, Lisnagelvin [Jobs and Benefits Office] were notified of this by both Carers Allowance Branch and myself. Therefore the overpayment was caused by their failure to act on information received and not because of my failure to disclose the information.

Trusting that you will now give this matter your detailed consideration."

In other words, the claimant accepted that her CA had ceased in August 2004, but she appealed against the recoverability decision(s) on the basis that she had informed the relevant part of the Department but no action had been taken.

18. I should stress that, although these grounds were pressed at the hearing, they were not investigated by the appeal tribunal and no findings were made in relation to them. It follows that these grounds of appeal remain to be investigated. The claimant's extremely able representative carried out researches to try and establish whether the branch of the Department dealing with CA had, in accordance with the usual practice, notified the office dealing with the claimant's IS. The results were somewhat inconclusive. As I understand the claimant's present position, this particular defence – that is, that there had been a failure of the Department's internal notification procedures, has been abandoned in the light of the judgment of the House of Lords in Hinchy v Secretary of State for Work and Pensions. However, that still leaves open the issue whether the claimant herself informed Lisnagelvin Jobs and Benefits Office. The appeal tribunal failed to investigate this issue. The new tribunal must do so.
19. The matter first came before the appeal tribunal on 13 February 2007. On that occasion the hearing was adjourned to enable the parties to carry out various researches. It came back before the appeal tribunal, and was decided, on 3 September 2007. The claimant's defence that she had informed the relevant office when her CA was ended, was, as stated, not adjudicated upon. Instead, the appeal tribunal allowed her appeal for the reasons set out above. The Department then sought, and obtained, leave to appeal to a Commissioner.
20. I begin with a preliminary point. In its statement of reasons the appeal tribunal said that the "Department sought to rely on a supersession decision dated 05.06.2006, but there was no evidence before the Tribunal, and apparently no evidence otherwise available, to prove that that decision of 05.06.2006 was notified to the Appellant". In fact, by the hearing on 3 September 2007, the claimant knew all about the June 2006 decision because she had been in possession of a copy of it for several months. The appeal tribunal's comment only makes sense if what is meant is either, first, that the failure to notify the claimant of the entitlement decision before or at the time of the making of the overpayment decision rendered the latter decision unenforceable by virtue of the provisions of section 65(5A). Further, which is important, the appeal tribunal must be saying that the position could not be validated by a subsequent notification of the entitlement decision. The alternative meaning is that there was a requirement that the entitlement decision was notified within a certain time. Say, for example, a reasonable time. The failure to communicate it within that time meant that it lapsed and once that happened notification was no longer possible.
21. In my judgment, neither of such meanings is the law. In particular, the latter of the two meanings has never, so far as I am aware, been suggested. It is a meaning which, if it existed, one would expect to be the subject of detailed regulations. The use of the words "within one month of the date of notification" of the decision would suggest otherwise.
22. On the contrary, there are clear and well established lines of authority in both the courts and the decisions of Commissioners that the failure to notify a decision, such as a social security decision made by the Department, to the person or persons concerned, does not necessarily render that decision void, invalid or unenforceable for all purposes. The failure to do so will render the decision inchoate – which in this context means without full effect, of only partial effect or requiring further action to perfect. The Department in their submissions have referred to a number of authorities namely the decision of the House of Lords in the Anufrijeva case, with which I deal below, decision C4/06-07, which is a decision of Mrs Commissioner Brown, at paragraph 13 and Mr Commissioner Williams' reported decision R(P) 01/04 at paragraph 29. Subject to one comment I accept the principle spelt out by those authorities. I do not, however, accept Mrs Commissioner Brown's proposition that a decision has no legal effect until it has been communicated if, by that, she intended to state a universal proposition. A decision that requires to be communicated will not necessarily be without effect pending communication. It will depend on the circumstances and the decision may have considerable effect notwithstanding the lack of communication. It follows that a decision will, generally, be perfected by giving notice to the required person. Of course, there may be cases where such a long period has passed, or events may have occurred which render it no longer possible to perfect the decision. However, that is not this case and I say nothing more about such possibilities.
23. In my judgment the appeal tribunal erred by failing to adopt the following approach. By 3 September 2007 the claimant had been in possession of a photocopy of the decision of 5 June 2006 for a long time. The entitlement decision of 1 June 2006 had always been properly notified. The claimant accepted that her CA had ended in August 2004 and was not, therefore, contesting entitlement. The contest was with regard to recoverability. She said the amount concerned was not recoverable because she had notified the correct office of the ending of her CA. The appeal tribunal should have proceeded on the basis that by the time the appeal came to be heard the decision had been perfected and its task was to investigate the defence which the claimant was deploying.
24. The matter is put beyond doubt by the way in which the House of Lords proceeded in R -v- Secretary of State for the Home Department on behalf of Anufrijeva [2003] UKHL 36, reported at [2004] 1 AC 604. What happened in that case is instructive. Nadezda Anufrijeva arrived in Great Britain from Lithuania on 31 August 1998, and applied for asylum. She was given limited leave to remain and her claim was referred to the Secretary of State. On 4 September 1998, she made a successful claim for income support ("IS"). On 20 November 1999, a Home Office official made a file note which stated "for the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined ...". The "letter aside" was a letter, also dated 20 November 1999, which set out the reasons for refusing the application for asylum. That letter was addressed to the applicant but it was not sent to her in November 1999, and she was not told that her application for asylum had been refused. It was not until 25 April 2000, that she was sent written notice of the refusal together with the letter of 20 November 1999. The reason for the delay was the Home Office's then policy not to send out such letters when first written. However, the Home Office informed the Benefits Agency that the asylum claim had been refused and the Benefits Agency then terminated the applicant's award of IS on 9 December 1999.
25. The House of Lords, by a majority, held that Ms Anufrijeva was entitled to receive IS until proper notification of the determination made on 20 November 1999, was given to her on 25 April 2000. In other words, the House of Lords did not proceed on the basis that the determination of 20 November 1999, was without legal effect. Indeed, it made it plain that it had a number of effects following its making. Nevertheless. It could not operate to terminate Ms Anufrijeva's award of IS until she had been notified of it and of the relevant reasons. It was only when she knew what had been determined, and why, that she was in a position to contest the withdrawal of her IS.
26. The judgments of the House of Lords are largely taken up with the construction of draconian provisions contained in the immigration regulations. Such matters are not relevant for present purposes. However, the speeches do not proceed on the basis that the determination of 20 November 1999, was without effect but on the basis that one of its adverse effects – the loss of IS – could not operate until five months later when Ms Anufrijeva had been notified. Lord Steyn, at paragraph 32, referred to the decision being "provisional until notified". Lord Millett, at paragraph 43, said "... I do not subscribe to the view that the failure to notify the appellant of the decision invalidated it, but I have come to the conclusion that it could not be properly recorded so as to deprive her of her right to income support until it was communicated to her; or at least until reasonable steps were taken to do so. ...".
27. On the basis of the authorities it appears to me that a tribunal which hears an appeal against a recoverability decision should proceed as follows.

(1) If there has been no entitlement decision at all, the recoverability decision has been given in breach of section 69(5A) and any appeal against it must be allowed

(2) If it is unclear whether there has been an entitlement decision it will be for the tribunal to decide how to proceed. In some cases it may be appropriate to adjourn to allow the Department to carry out a search. Whether or not to do so is a matter for the tribunal's discretion and will depend on the facts. The Department should not expect to be automatically granted an adjournment in all cases. It is no part of a tribunal's function to act as some sort of long stop for the Department. To do so, without taking all relevant factors into account, might be a breach of Article 6 of the European Convention on Human Rights. A tribunal should probably refuse an adjournment, and allow the appeal before it, if the Department does adduce some evidence that there has been an entitlement decision but that evidence leaves the tribunal very unsure of the position.

(3) If it becomes clear that the entitlement decision has been taken but that it was not communicated to the particular appellant until after the recoverability decision, the tribunal must proceed on the basis that the latter decision is valid and operative.

(4) However, the tribunal will need to consider whether the appellant has suffered any sort of injustice or prejudice as a consequence of the late communication of the entitlement decision. If he or she has, the next question is whether steps should be taken to try and remedy the appellant's position. One obvious remedy is whether the appellant should be permitted to appeal against the entitlement decision and whether his or her time for doing so should be extended. That will depend on whether there are valid prima facie grounds for appealing. Another remedy may be to adjourn the recoverability appeal to enable the appellant to take advice with regard to the entitlement decision.

(5) If the entitlement decision is to be appealed, then the recoverability appeal must be adjourned to await the outcome. It will usually be convenient to adjourn it to the tribunal which hears the entitlement appeal so that both appeals can be heard together or one after the other.

(6) If, however, there has been no notification of the entitlement decision, even by the time the recoverability appeal comes before a tribunal, the position is in one sense even easier. Since the appellant has not been notified of the entitlement decision his or her time for appealing that decision has not yet started to run. In the absence of factors which make it unjust to do so, the tribunal can simply adjourn the recoverability appeal generally and leave it to the Department to notify the appellant of the entitlement decision. It will then be up to the appellant to decide what to do. If the entitlement decision is appealed it will usually be convenient for the two appeals to be heard together or one after the other. The recoverability appeal should be restored for hearing on its own if there is no appeal against the entitlement decision.

(7) There will be circumstances where the failure to notify the appellant of the entitlement decision will have caused serious prejudice to the appellant. A tribunal must do what it can to remedy this. In an extreme case this may mean allowing the recoverability appeal. An example might be where the entitlement decision can no longer be appealed but the facts suggest that, had it been communicated when it should have been, it could have been successfully challenged.

28. I return to the present appeal. The claimant had known about the decision of 5 June 2006 for some while before the hearing and she does not require any further notification. As I understand it, she accepts that she has not been entitled to IS since she lost her CA. Her defence is that she had told the appropriate Jobs and Benefits Office. The appeal tribunal erred in law for reasons which I have explained. It did not investigate the facts on which the claimant relied. I allow the appeal. The new tribunal must investigate the facts. In paragraph 12 of its submissions on the appeal to a Commissioner the Department refers to certain adjustments that may need to be made to the amount which it says that it is entitled to recover from the claimant. The matter should be gone into before the rehearing and the Department should supply the claimant, her representative and the new tribunal with clearly expressed calculations showing any adjustments which it concludes are required.

(signed): J P Powell

Deputy Commissioner

4 March 2009