SD-v-Department for Social Development (IS) [2012] NICom 309

Decision No:  C6/11-12(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 5 July 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 5 July 2011 is in error of law.  The error of law identified will be explained in more detail below.

2.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is primarily for two reasons.  The first is that the reason why the decision of the appeal tribunal is in error of law is that it failed to deal with a fundamental aspect of the decision which is under appeal to it.  That aspect was, in summary, whether any overpayment of income support (IS) has arisen as a consequence of misrepresentation of a material fact.  The respondent did not attend the oral hearing of the appeal before me.  Accordingly, the issue of whether there has been any overpayment of IS as a consequence of misrepresentation of a material fact has never been put to her.  Secondly, further findings of fact require to be made.  I cannot make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

Background

4.	In a decision dated 10 April 2003 the Department decided to supersede an earlier decision of the Department and, further, decided that the claimant was not entitled to IS from 31 March 2003.  The claimant was notified of the decision dated 10 April 2003 on 11 April 2003 and she did not appeal against the decision dated 10 April 2003.  On 25 October 2008 the decision dated 10 April 2003 was revised.  The appellant was notified of the decision dated 25 October 2008 on 27 October 2008.  Once again, the appellant did not appeal against the decision dated 25 October 2008.

5.	On 14 October 2009 a decision-maker decided that an overpayment of IS had been made for the period from 28 January 1998 to 23 March 2003 amounting to £9651.65 which was recoverable from the appellant.  The appellant was notified of the decision of 14 October 2009 on the same date.  An appeal against the decision dated 14 October 2009 was received on 29 October 2009.  On 10 November 2009 the decision dated 14 October 2009 was reconsidered and was revised.  The revised decision was to the following effect:

‘As a result of the decision dated 25th October 2008 an overpayment of Income Support has been made for the period 28th January 1998 to 6th April 2003 (both dates included) amounting to £8,726.65.

On 2nd February 1998, or as soon as possible afterwards, (the claimant) failed to disclose the material fact that her husband was in receipt of an occupational pension.

Furthermore, she also misrepresented this material fact when she signed the declaration on her order book each week throughout the period 3rd February 1998 to 6th April 2003 that she had correctly reported any facts which could affect the amount of her payment, and that she was entitled to the said payment.  On 26th June 2000 (the claimant) again misrepresented this material fact when she signed her A2 claim form declaring that neither she nor her husband were in receipt of an occupational pension, when in fact her husband was in receipt of such a pension.

As a consequence, Income Support amounting to £8,726.65 from 28th January 1998 to 6th April 2003 (both dates included), as detailed on the schedule, was paid which would not have been paid but for the failure to disclose and misrepresentation.

Accordingly, that amount is recoverable from (the claimant).’

6.	The appellant was notified of the substance of the decision dated 10 November 2009 on 11 November 2009.  She was also notified that as the further decision dated 10 November 2009 was more advantageous to her than the decision dated 14 October 2009, her extant appeal against the decision dated 14 October 2009 would lapse.  She was also informed, however, that should she disagree with the decision dated 10 November 2009 then she could appeal against it.  The appellant did exercise a right of appeal against the decision dated 10 November 2009 by way of correspondence received from her on 4 March 2010.  The decision dated 10 November 2009 was reconsidered on 6 February 2011.  The decision dated 10 November 2009 was changed in that the amount of the overpayment was reduced by the sum of £4.26 which was stated not to be recoverable as it had not arisen as a consequence of a failure to disclose.  Despite this reduction, it was submitted that the appeal should continue and the appellant was notified of that fact on 7 February 2011.

7.	The appeal tribunal hearing took place on 5 July 2011.  The claimant was present and was represented.  The Department was not represented.  The appeal tribunal allowed the appeal and issued a Decision Notice to the following effect:

‘Appeal allowed

Full disclosure was made and was ignored by the various offices within the Department.’

8.	On 14 October 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 1 November 2011 the application for leave to appeal was allowed by the legally qualified panel member (LQPM).  The LQPM identified, as a potential point of law arising:

‘As set out in the Department’s application for leave’

	Proceedings before the Social Security Commissioner

9.	On 17 November 2011 the appeal was received in the Office of the Social Security Commissioners.  On 21 November 2011 the appeal was forwarded to the claimant.  On 23 January 2012 the appeal was shared with the claimant’s representative who was also invited to make written observations on the appeal.  No such observations were received.  On 28 February 2012 I directed an oral hearing of the appeal and requested that the parties to the proceedings prepare case summaries.  A case summary was received from Mr Donnan of Decision Making Services (DMS) on 19 April 2012.  The oral hearing was arranged for 29 May 2012.  In advance of the oral hearing, a telephone call was received in the Office of the Social Security Commissioners from the appellant’s representative on which he indicated that neither he or the appellant would be attending the oral hearing.  Nonetheless, I directed that the oral hearing should proceed given that the decision which was subject to appeal in the appeal tribunal below involved a substantial overpayment.

10.	The oral hearing took place 29 May 2012.  The Department was represented by Mr Donnan and I am grateful to him for his detailed written and oral submissions on the issues arising in the appeal.

	Errors of law

11.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

12.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

13.	The answer to this question is very straightforward.  As was submitted by Mr Donnan, a decision-maker of the Department, on 10 November 2009, had decided that an overpayment had arisen as a consequence both of a failure to disclose and misrepresentation.  The appeal tribunal, in the statement of reasons for its decision, had decided that the claimant had made full and proper disclosure to the Department that an occupational pension was in payment to the claimant’s husband.  Accordingly, it could not be said that the overpayment had resulted from a failure to disclose a material fact.  Mr Donnan conceded that the appeal tribunal was entitled to arrive at these conclusions based on an assessment of all of the evidence which was before it, including the oral evidence of the claimant.  Despite that, however, Mr Donnan submitted that it was incumbent on the appeal tribunal to go on to consider whether, as was decided by the decision-maker, whether the overpayment could have resulted, in the alternative, as a consequence of misrepresentation of a material fact.  The appeal tribunal had failed to address the issue of misrepresentation and had, accordingly, failed to exercise its inquisitorial role.

14.	I have to agree with the submissions made by Mr Donnan.  I have set out above the detail of the decision of 10 November 2009.  The duty of the appeal tribunal was to consider whether that decision was correct.  The appeal tribunal did consider the issue of whether the overpayment had arisen in consequence of a failure to disclose on the part of the claimant.  It was incumbent, however, on the appeal tribunal to go on to consider whether all or any of the overpayment had also arisen in consequence of misrepresentation of a material fact.  The failure of the appeal tribunal to address this integral aspect of the decision under appeal renders its decision as being in error of law.

	The legal and evidential aspects of the decision under appeal

15.	In the appeal to the Social Security Commissioner, in the case summary prepared for the oral hearing of the appeal and in his oral submissions at the oral hearing, Mr Donnan has set out in some considerable detail the legal and evidential issues which are relevant to the decision under appeal.  I have set out above the reasons why I cannot exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given, although I had hoped that the direction of an oral hearing would have rendered remittal unnecessary.  The detailed submissions which Mr Donnan has made are relevant to the ultimate disposal of this appeal.  As will be noted below, I am directing the Department to prepare a further submission for the further appeal which will take place before a differently constituted appeal tribunal.  Although it is entirely a matter for the Department, it seems to me that the appeal tribunal will derive considerable assistance from the existing analysis already undertaken by the Department in re-determining the issues arising in the appeal.  It is important to note, in this respect, that Mr Donnan’s submissions, in keeping with his role as amicus curiae, address all aspects of the decision under appeal.

Disposal

16.	The decision of the appeal tribunal dated 5 July 2011 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

17.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

	(i)	the decision under appeal is a decision of the Department, dated 10 November 2009, the detail of which is set out above;

	(ii)	the Department is directed to produce a further submission for the appeal tribunal hearing which addresses the legal and evidential basis upon which the Department submits that there has been a failure to disclose/misrepresentation on the part of the appellant giving rise to a decision which satisfies section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended.

	(iii)	the further appeal should proceed by way of an oral hearing.  The appellant is encouraged to attend the oral hearing and it is hoped that she will continue to be represented.  This is because the appeal tribunal to which the appeal is remitted will be addressing issues relevant to the decision under appeal which were not addressed by the first appeal tribunal and the appellant may wish to make submissions in connection with those issues;

	(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Chief Commissioner

24 July 2012