WJW -v- Department for Social Development (CA) [2016] NICom 28 (05 August 2016)

WJW-v-Department for Social Development (CA) [2016] NICom 28

Decision No: C1/16-17(CA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

CARERS ALLOWANCE

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 20 June 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

2. The decision of the appeal tribunal dated 20 June 2013 is in error of law. The error of law identified will be explained in more detail below. 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. I am able to exercise the power conferred on me by Article 15(8)(a)(i) and (ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.

4. My substituted decision is that the Department on 19 October 2011 had grounds to supersede the decision dated 20 July 2005 which had awarded an entitlement to Carer’s Allowance (CA) from and including 17 January 2005. The relevant ground for supersession was that the decision dated 20 July 2005 was made in ignorance of, or was based on a mistake as to a material fact, namely, that the appellant had commenced employment on 1 April 2005 and, more particularly, that his earnings derived from that employment were in excess of the prescribed earnings limits for entitlement to CA.

5. As a result of the decision dated 19 October 2011 an overpayment of CA has occurred for the period from 24 January 2007 to 18 September 2011 (both dates included) which is recoverable from the appellant. The Department is to calculate the amount of the overpayment which has occurred.

6. The legal and evidential basis on which I have decided that there has been an overpayment of CA for a particular period and that the overpayment is recoverable from the appellant is set out in more detail below.

7. In summary, I have decided that the appellant has made a misrepresentation as to a material fact in his responses to the questions asked in a benefit review form signed by him on 24 January 2007 and received in the Department on 26 January 2007. More particularly his response that none of the changes listed in the form, including that he had started work as an employed person, had happened since 17 January 2005 was a clear misrepresentation of the material fact that a change had happened on 1 April 2005.

8. I have also decided that the misrepresentation was the cause of an overpayment of CA made to the appellant. Based on what the Department perceived to be the up-to-date statement of the claimant’s circumstances as of 24 January 2007, the Department continued to make payments of CA to the appellant to which he was not entitled. The payment of CA would not have been made but for the misrepresentation. I am satisfied that had the appellant indicated that there had been a change since 17 January 2005, in that he had commenced employment on 1 April 2005, the Department would have made the appropriate enquiries and would have ascertained the true extent of the appellant’s earnings which were in excess of the prescribed earnings limits for entitlement to CA. Accordingly, the Department is entitled to recover the amount of the overpayment of CA which occurred for the period from 24 January 2007 to 18 September 2011.

9. This decision will come as a disappointment to the appellant. His application for leave to appeal to the Social Security Commissioner has been successful. Despite that, I have decided that there has been an overpayment of CA, for a particular period, which is recoverable from him. Whether the Department proceeds to recover the overpayment is a matter for the Department and is beyond the jurisdiction of me as a Social Security Commissioner.

10. The appellant has been steadfast and persistent in his assertion that he made disclosure to the Department of the fact that he had commenced employment. He will note that I have decided that the Department cannot recover CA which has been overpaid for a particular period. My reasons for that aspect of my decision are that I was not satisfied that the Department had identified the source of a duty to disclose. I have decided, however, that the appellant, when completing a benefit review form, misrepresented a material fact. As is noted below, the contents of the benefit review form are the appellant’s own.

Decision making in the Department on the initial claim to CA

11. On 1 April 2005 a claim form to CA was received in the Department. A copy of the claim form is attached to the original appeal submission as Tab No 1. The claim form was signed by the appellant and was dated 30 March 2005. The appellant indicated that he wished to claim CA from and including 17 January 2005. At page 13 the appellant was asked the following question:

‘Are you currently working or have you worked for an employer during the 26 weeks prior to the date you want to claim Carer’s Allowance from?’

The appellant responded to this question by ticking the box ‘No’.

12. At page 29 of the claim form there is a declaration which was signed by the appellant on 30 March 2005. The declaration consists of a series of statements representing matters which the appellant, by signing, declares that he understands. The first and second of these are as follows:

‘I understand

that if I give information that is incorrect or incomplete action may be taken against me.

I understand

that I must promptly tell the office that pays my benefit of anything that may affect my entitlement to, or the amount of that benefit.’

13. Attached to the copy of the claim form is a copy of a ‘CA Registration Checklist’. This checklist has been completed in two sections by officers of the Department at ‘AA’ and ‘AO’ grades. Both officers have signed and dated the form 5 April 2005. It is clear that the purpose of the checklist is for officers to check whether certain aspects of the claim form are in order and whether additional action requires to be taken in connection with the claim.

14. At one part of the form, the AO is asked to indicate whether a ‘JB3’ is needed. She responds that it is required. In his original written observations on the application for leave to appeal, Mr McGrath submitted that form ‘JB3’ was ‘… a form requesting that an interview take place.’ Mr McGrath also submitted that prior to changes in the relevant legislative provisions taking effect from 31 October 2005 (‘the Social Security Work-focused Interview Amendment) Regulations (Northern Ireland) 2005 (S.R. 2005 No. 443)), claimants to CA such as the appellant were required to take part in a work-focused interview.

15. Attached to the claim form, as Tab No 3, is a copy of the record of a telephone call made to ‘Carer’s Allowance Branch’ on 12 April 2005. The record states:

‘Local office called about this customer on 12/04/05. The personal adviser dealing with the case had just telephoned the customer about his WFI and his wife advised that the customer was away from home working. Customer possibly not living at the given address and/or working.’

16. Attached to the claim form, as Tab No 4, is a copy of a completed form ‘JB4 (appt).’ The form is headed ‘Notification of Status of Work-focused Interview’. The form is signed and dated 20 April 2005 and in a section completed by a ‘personal adviser’ it is noted that a work-focused interview had taken place on 20 April 2005, that the appellant had participated and that the claim could proceed.

17. Attached to the claim form, as Tab No 5, is another record of a telephone call, made on 24 June 2005. The record states:

‘Rang customer. Spoke to his wife. She says that his source of income is his work pension and he normally lives in Northern Ireland. She has not been self-employed since 1989. She said that he had done some tiling work since he retired.’

18. On 24 June 2005 a form MF 17 was forwarded to the appellant. In this form the appellant was asked various questions about self-employment. The form was completed, signed and dated by the appellant on 4 July 2005. His response was as follows:

‘I am not self-employed. I retired from my work on May 2001 and am in receipt of a private pension.’

19. On 7 July a further form MF 17 was forwarded to the appellant. In this form the appellant was asked various questions about the ‘tiling’ work referred to in the record of the telephone call dated 24 June 2005. The appellant completed and signed the form on 16 July 2005. His response was as follows:

‘The ‘tiling work’ my wife referred to was (1) a shower cubicle wall for my next door neighbour (2) bathroom floor for a friend’s daughter and (3) various tiling work for our son and daughter who moved into new homes. I have received no form of monetary payment for any of this work.’

20. On 20 July 2005 a decision-maker decided that the appellant was entitled to CA from and including 17 January 2005. A copy of the decision notice is attached to the appeal submission as Tab No 8.

The further entitlement and overpayment decisions

21. The appellant completed a benefit review form on 24 January 2007. At page 3 of the form the appellant was advised of the following:

‘Part 1 - CHANGES YOU MUST TELL US ABOUT

Please tell us of any of the following changes have happened since 19/01/2005.’

There then followed a list of potential changes the second of which was:

‘You started work as an employed or self-employed person, either full-time, part-time or casual, whatever your earnings. Please send us your wage slips, accounts or a statement from your employer. You must also tell us if you become a partner or director in a business.’

22. The appellant’s response was to tick a box to indicate that none of the ‘… changes have happened since 19/01/05.’

23. In his written observations, Mr McGrath submits that:

‘On 12-10-10 an RD23 Common Transaction Exception Report was received from Her Majesty’s Revenue and Customs stating that the rejection type was “failed overlapping Contribution/Credit check” and that the tax year had shown an overlap of credits and contributions.

On 24-8-11 a reply was received from Mallusk Enterprise Park stating that (the appellant) had commenced employment as Estate Manager on 1-4-2005 and that he was monthly paid.

On 27-9-11 (the appellant) confirmed that he was working as an Estate Manager.’

24. On 19 October 2011 a decision-maker of the Department superseded the decision dated 20 July 2005 and disallowed entitlement to CA from and including 2 May 2005. I shall refer to this decision as the ‘entitlement decision.’ A copy of the entitlement decision is attached to the appeal submission as Tab No 15.

25 On 17 January 2012 another decision-maker decided that as a result of the decision dated 19 October 2011 an overpayment of CA had occurred for the period from 2 May 2005 to 18 September 2011 amounting to £16,733.85 which was recoverable from the appellant. I shall refer to this decision as the ‘overpayment decision.’ A copy of the overpayment decision is attached to the appeal submission as Tab No 20.

26. Following a request to that effect, the overpayment decision was reconsidered on 27 February 2012 but was not changed. An appeal against the overpayment decision was received in the Department on 13 March 2012.

Proceedings before the appeal tribunal

27. The appeal was first listed for hearing on 5 July 2012. The appellant was present and was not represented. There was no Departmental Presenting Officer present. The appeal was adjourned and the Legally Qualified Panel Member (LQPM) of the appeal tribunal issued detailed directions.

28. On 5 September 2012 an Appeals Officer contacted the clerk to the Appeals Service (TAS) to indicate that he was commencing the process of gathering the information directed by the LQPM. Further submissions were received in TAS on 2 October 2012. A further oral hearing was postponed at the request of the appellant. In the file of papers which is before me is a record of a telephone conversation which took place between the clerk to TAS and the appellant on 6 June 2013.

29. The substantive oral hearing of the appeal took place on 20 June 2013. The appellant was present and was represented. There was a Departmental Presenting Officer present. The appeal tribunal disallowed the appeal and issued a decision notice to the following effect:

‘(i) Grounds to supersede the award of Carer’s Allowance existed on 19/10/11.

(ii) The appellant was not entitled to Carer’s Allowance from and including 2/5/05 because he was gainfully employed and cannot be treated as not gainfully employed.

(iii) An overpayment has occurred from 2/5/05 to 18/9/11 amounting to £16733.85.

(iv) The overpayment is recoverable from the appellant as he failed to disclose the material fact he was in gainful employment.’

I will return to the appeal tribunal’s reasoning below.

30. On 4 March 2014 an application for leave to appeal was received in TAS. On 24 March 2014 the application for leave to appeal was refused by the LQPM.

Proceedings before the Social Security Commissioner

31. On 12 May 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 18 June 2014 observations on the application for leave to appeal were requested from Decision Making Services (DMS). In detailed written observations received on 29 July 2014, Mr McGrath, for DMS, opposed the application on the grounds submitted by the appellant.

32. Written observations were shared with the applicant on 30 July 2014. Written observations in reply were received from the appellant on 1 September 2014. On 23 September 2014 I accepted the late application for special reasons. On 13 October 2014 further correspondence was received from the appellant which was shared with Mr McGrath on 21 October 2014.

33. On 30 October 2014, and following a direction made by me, Mr McGrath was requested to clarify certain of the submissions which he had made in his original written observations on the application for leave to appeal. In response, a further written submission was received from Mr McGrath on 17 November 2014 which was shared with the appellant on 25 November 2014. On 22 December 2014 a further submission was received from the appellant which was shared with Mr McGrath on 15 January 2015. A further submission in reply was received from Mr McGrath on 28 January 2015 which was shared with the appellant on 4 February 2015. Correspondence was received from the appellant on 11 February 2015.

34. On 31 March 2015 I directed an oral hearing of the application. The oral hearing took place on 21 May 2015. The appellant was present and was represented by his son. The Department was represented by Mr McGrath. The appellant made cogent and articulate submissions on his own behalf. Mr McGrath expanded on his detailed written observations and submissions and made constructive suggestions and concessions.

35. There then followed a delay in the promulgation of this decision. This was occasioned by two factors. The first was that there was a second case in the Office of the Social Security Commissioners in which it was thought that the issues arising appeared to be similar. Accordingly, it was thought appropriate to await the outcome of that case before addressing the issues in the present case. As it turned out the second case was resolved without having to consider the issues which are dealt with below. The second factor was an increase in the workload in the Office of the Social Security Commissioners. While the delay was largely unavoidable, apologies are extended to the parties to the proceedings.

Errors of law

36. 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. What is an error of law?

37. 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.”

The legislative background relevant to entitlement to CA

38. Section 70(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 provides:

‘70(1) A person shall be entitled to a carer’s allowance for any day on which he is engaged in caring for a severely disabled person if-

(a) he is regularly and substantially engaged in caring for that person;

(b) he is not gainfully employed; and

(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.’

Regulation 8(1) of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976, as amended, provides:

‘8 (1) For the purposes of section 70(1)(b) of the Contributions and Benefits Act (condition of a person being entitled to a carer’s allowance for any day that he is not gainfully employed) a person shall not be treated as gainfully employed on any day in a week unless his earnings in the immediately preceding week have exceeded £102.00 and, subject to paragraph (2) of this regulation, shall be treated as gainfully employed on every day in a week if his earnings in the immediately preceding week have exceeded that amount.’

39. As at the date of the appellant’s claim to CA the earnings figure was £79 and that figure increased again until it reached the current figure of £102. It is accepted, however, that the appellant’s earnings during the overpayment period were always in excess of the prescribed amount - see Tab No 14 to the appeal submission.

The legislative background relevant to the recovery of overpaid benefits

40. Section 69(1) of the Social Security Administration (Northern Ireland) Act 1992 (‘the Administration Act’) 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.’

Section 69(5A) of the Administration Act provides:

‘(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) 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’

41. In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded.

42. Revisions and supersessions are provided for in Articles 10 and 11 of the Social Security (Northern Ireland) Order 1998 (‘the 1998 Order’), and regulations 3 and 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (‘the 1999 Regulations’), all as amended.

43. More particularly to this case, regulation 6(1) of the 1999 Regulations provides:

‘6(1) Subject to the following provisions of this regulation, for the purposes of Article 11, the cases and circumstances in which a decision may be superseded under that Article are set out in paragraphs (2) to (4).’

Regulation 6(2)(a)(i) and (b)(i) provides:

‘(2) A decision under Article 11 may be made on the Department’s own initiative or on an application made for the purpose on the basis that the decision to be superseded-

(a) is one in respect of which-

(i) there has been a relevant change of circumstances since the decision had effect …’

…

(b) is a decision of the Department other than a decision to which sub-paragraph (d) refers and-

(i) the decision was erroneous in point of law, or it was made in ignorance of, or was based on a mistake as to, some material fact, …’

Sub-paragraph (d) has not application in the present case.

Regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (‘the 1987 Regulations’), as amended, provides:

32(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner as the Department may determine and within the period applicable under regulation 17(4) of the Decisions and Appeals Regulations such information or evidence as it may require for determining whether a decision on the award of benefit should be revised under Article 10 of the 1998 Order or superseded under Article 11 of that Order.

(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require in connection with payment of the benefit claimed or awarded.

(1B) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall notify the Department of any change of circumstances which he might reasonably be expected to know might affect-

(a) the continuance of entitlement to benefit; or

(b) the payment of the benefit,

as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office-

(i) in writing or by telephone (unless the Department determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

(ii) in writing if in any class of case it requires written notice (unless it determines in any particular case to accept notice given otherwise than in writing).’

The basis of the Department’s decision-making

44. The entitlement decision of 19 October 2011 was a supersession decision made under Article 11 of the 1998 Order and was designed to fulfil the requirements of section 69(5A) of the Administration Act. As was noted above, there is a copy of the entitlement decision at Tab No 15 of the appeal submission. The decision is in a standard ‘template’ format. The ‘case’ is described as a ‘Change of Circumstances’. The decision type is described a ‘supersession’. The main narrative of the decision states:

‘Customer employed and earning in excess of the stipulated limit. I have superseded the decision made on 20/07/05, awarding entitlement from and including 17/01/05, as our customer is gainfully employed.’

45. In section 5 of the submission the Appeal Writer has submitted that the appellant was working and earning in excess of the prescribed earnings limit for the relevant tax years. The Appeal Writer asserted:

‘This, I would submit, constitutes a relevant change of circumstances.’

46. I return below to the ‘entitlement’ decision. At Tab No 17 of the appeal submission is a copy of what the Department submits is a representation of the notification of the supersession decision dated 19 October 2011. The notification informs the appellant that:

‘You are not entitled from 02/05/05. This is because your earnings are over the Carer’s Allowance earnings limit.’

47. There is a copy of the overpayment decision of 17 January 2012 at Tab No 20 of the appeal submission. This decision is designed to fulfil the requirements of section 69(1) of the Administration Act. The narrative of this decision reads:

‘As a result of the decision dated 19/10/11 an overpayment of Carer’s Allowance has been made from 02/05/2005 to 18/09/2011 (both dates included) amounting to £16733.85 as shown on the attached schedule.

On 01/04/2005, or as soon as practicable after, (the appellant) failed to disclose the material fact that he was gainfully employed.

As a consequence, Carer’s Allowance amounting to £16733.85 from 02/05/05 to 18/09/2011 (both dates included) was paid which would not have been paid but for the failure to disclose.

Accordingly that amount is recoverable from (the appellant)

THE LAW USED TO MAKE THIS DECISION

The Social Security Administration (NI) Act 1992 Sections 69(1), (2), (3), (5A, (6) and 11

…’

48. In the appeal submission itself, there is a detailed narrative on the basis for the overpayment decision. It includes the following:

‘In the present case, I would submit the following - on 01.04.05, or as soon as possible after this date, (the appellant) did not notify Carer’s Allowance Branch of the fact that he was working and earning in excess of the stipulated earnings limit …

I would submit that it was reasonable to expect (the appellant) to tell the Department that he was working as the benefit review forms issued by Carer’s Allowance Branch to (the appellant) informed him of the change of circumstances that must be reported. (The appellant) states that none of the listed changes have happened since 19.01.05 (Tab No 9).

I submit the yearly uprating notes issued to Carer’s Allowance customers each year, specimen copy at Tab No 25, informs clients of the change of circumstances which must be reported.

…

I would further submit that it was reasonable to expect (the appellant) to notify Carer’s Allowance Branch that he was working and earning in excess of the stipulated earnings limit as the instructions issued regarding automated credit transfers (DS 849) - specimen copy held at Tab No 24, also informs Carer’s Allowance customers to do so.

In the present case, I would submit that there is no dispute that (the appellant) was employed and earning in excess of the stipulated earnings limit.

I submit that had the appellant notified Carer’s Allowance Branch that he was working, the appropriate advice would have been given and payment of Carer’s Allowance for the period in question would have been suspended. Subsequently, there would have been no overpayment of Carer’s Allowance.’

What was the reasoning of the appeal tribunal?

49. The appeal tribunal noted that the appellant did not dispute that he had commenced employment on 1 April 2005 and that the figures for earnings provided by his employer were accurate.

50. In relation to the entitlement decision, the appeal tribunal concluded, at paragraph 30:

‘I am satisfied from the earnings figures produced that the appellant was not entitled to Carer’s Allowance as he was in gainful employment. This forms a proper basis for supersession of the decision awarding the benefit on 20 July 2005. Consequently, I find the Department have established grounds to supersede and that the decision doing so of 19 October 2011 is correct.’

51. The appeal tribunal then turned to the overpayment decision. It noted that the calculation of the amount of the overpayment was not disputed:

‘What was disputed is its recoverability. The fact this money has been paid when it should not have been does not necessarily mean it is automatically recoverable. Rather, in a case like the present the legislation requires that there must firstly be a valid supersession decision of the original award and then a second decision giving the basis for the overpayment and its recoverability. In the appellant’s case, it was that he failed to disclose a material fact. The material fact here is that he was in employment. The appellant’s case is that he did make this disclosure at the interview on 20 April 2005.’

52. The appeal tribunal then assessed the evidence available to it on the question of disclosure of the material fact that the appellant was, from 1 April 2005, working. The appeal tribunal’s conclusions were as follows:

‘Having considered all the evidence my conclusion is that the appellant did not disclose at the interview on the 20^th of April 2005 that he started work. Had he done so I believe this information would have been relayed to the Carers’ Allowance branch and further enquiries would have been made. I find this is supported by subsequent events. Firstly, there was failure by his wife to disclose the fact that he was employed in the subsequent telephone conversation. I appreciate that disclosure and recoverability relate to the appellant. However I raise this in my overall assessment of the credibility of the account. It is probable that the appellant and his wife had discussed events.

It would have been apparent that it was her response to the original phone call that caused the benefit enquiry in relation to the appellant working. Had he disclosed work at the pre arranged interview I believe this would have been noted and actioned. The fact it was not was, on the balance of probabilities, because he did not disclose this fact. I find this is supported by subsequent events. He is being disingenuous in suggesting he was limiting his answers to the specific questions asked. It should have been apparent to him that the Department were making enquiries about employment and he was not forthcoming about this.’

53. The appeal tribunal then turn to the question of whether the overpayment was recoverable:

‘I find that the Department have satisfied the burden of proof in reaching its decisions. In terms of disclosure, I am satisfied that the Department have established the appellant was aware of his duty to disclose. The Department’s submission refers to yearly notes issued and a specimen copy is provided at tab 25. This informs customers of changes in circumstances that must be reported. There is also reference to instructions on the automated credit transfers, specimens of which are provided at tab 24. The benefit was paid directly into the appellant’s bank.

…

It is my conclusion it was reasonable to expect disclosure and that there has been a failure to do so by the appellant. Because of this failure benefit was paid which otherwise would not have been paid. The Department, having followed the correct procedures, can recover the overpayment from the appellant.’

The submissions of the parties

54. Throughout the proceedings before me, in his initial written submissions and at the oral hearing of the application, the appellant has been consistent and resolute in his principal argument. That argument is summarised in his response to Mr McGrath’s written observations on the application for leave to appeal, as follows:

‘Having read the observations I would like to reiterate the following points:-

1. At the interview in April 2005 at Carrickfergus, as was required, I informed the department verbally that I had a part-time job. What was done, or in my case, failed to be done with this information, I know not.

2. At no time was I self-employed or ever had the desire to be.

3. When my wife said I was away out working, she didn’t mean I was out of the country working but I was working at my son, daughter or neighbour’s house, I did not get paid for this work.’

55. In summary, the appellant has submitted that while the Department’s position is that he had failed to disclose that he had commenced employment on 1 April 2005, he had disclosed that fact during an interview which was conducted on 20 April 2015. I shall return below to the appellant’s submission.

56. In the meantime I address two further matters raised by the appellant during the course of the proceedings before me. The first is that in correspondence dated 10 October 2014 the appellant attached a copy of an Inland Revenue Form P46. Section 1 of this form was signed by the appellant on 21 April 2005. Section 2 is noted as having been completed by the appellant’s employer on 25 April 2005. In his accompanying correspondence the appellant made the following submissions:

‘I submitted this form to the Inland Revenue on 21 April 2005 which was one day after the interview at your Carrickfergus Office.

While this in itself is not conclusive proof that I informed your department of my starting work it certainly substantiates this fact. It also shows that I was in no way trying to hide or misrepresent the fact that I was starting work, as I was well aware that somewhere along the line the government departments cross-reference information with each other.

On this occasion I feel that your office has made an oversight.’

57. I accept that the appellant signed and completed Section 1 of the form on 21 April 2005, which, as he has submitted, was one day after the interview conducted on 20 April 2005. I cannot, however, and with respect to his submission, accept that it was him who forwarded the completed Form P46 to the Inland Revenue and that he had also done this on 21 April 2005. There are two reasons for my conclusions on this issue. The first is that Section 2 of the form was completed by the appellant’s employer on 25 April 2005 some four days after the date on which the appellant has submitted it was forwarded by him to the Inland Revenue. Secondly, although Form P46 is no longer in use, its purpose when it was in use was for an employer to inform the Inland Revenue that a new employee, who did not have a Form P45, had commenced employment with the employer. What I do accept, however, is that the Inland Revenue was informed that the appellant had commenced employment on 1 April 2005 shortly after that employment had commenced.

58. The second additional matter which I wish to address in connection with the appellant’s submission is related to the first and arises through further correspondence received from the appellant on 22 December 2014. In this correspondence the appellant submitted:

‘I am totally aware of the lack of communication between government departments and in no way was relying on the Inland Revenue advising the department of my change of circumstances, but was, however, depending and relying on your Carrickfergus office passing this information on within its own department.

I re-iterate again that I did advise the department of my change of circumstances, in person, during my interview at your Carrickfergus Office on 20^th April 2005, at no time during this interview was I advised that I was required to put this information in writing.

The failure of the department to properly act on the information I gave them, has led to these unfortunate circumstances I find myself in at the moment, and my wife and I are being penalised for this failure.’

59. In response to this correspondence, Mr McGrath submitted the following:

‘This statement would appear to be at variance with (the appellant’s) previous statement contained within his letter dated 10 October 2014 when he stated in connection with him having sent form P46 to the Inland Revenue,

“.... I was well aware that somewhere along the line the government departments cross-reference information with each other.”

As noted in his latest correspondence (the appellant) has now stated that he was relying on the Carrickfergus office passing his information on within its own department.

As previously pointed out (the appellant’s) interview was conducted by a member of the Department for Employment and Learning (DEL) and not a member of the Department for Social Development (DSD).

Therefore (the appellant) did not, as he states in his correspondence, advise the department i.e. the Department for Social Development, of his change of circumstance

Even had (the appellant) informed the Department for Social Development at Carrickfergus JBO of his change of circumstances then as my previous response highlighted he was not entitled to make assumptions about the internal communications of the Department, his duty, as instructed, was to disclose such changes to the office administering his benefit, i.e. Disability and Carers Service.

As (the appellant) did not do this he failed in his duty to disclose.’

60. In a further response, the appellant submitted:

‘Irrespective of the state of communication relating to the departments the facts still remain that:-

1. I made disclosure verbally at the Carrickfergus interview, as at that time I was under the belief that the interview was about carer’s allowance, as this was the only benefit I was claiming, and was never informed otherwise.

2. The form P46 was submitted around the time of the interview.’

61. Although I could not be sure, point 2 above may be a concession that the Form P46 was not forwarded to the Inland Revenue by the appellant himself and was not forwarded, as he previously submitted, on 21 April 2015. I address below the substantive issue concerning internal communications between Departments.

62. Mr McGrath has made detailed written submissions on the various issues which have been raised by the appeal and augmented those written submissions at the oral hearing of the appeal.

63. In his initial written observations on the application for leave to appeal, Mr McGrath began by making reference to the requirement for the appellant, as of the date of his claim to CA, to attend and participate in a work-focused interview. This aspect of Mr McGrath’s submissions was referred to above.

64. Mr McGrath noted that when the appellant completed his application form to CA, on 30 March 2005, he was, in fact, not working, his employment having commenced on 1 April 2005. Mr McGrath conceded, therefore, that his response to the question on the application form concerning employment i.e. ‘N/A’ was, strictly speaking, correct. Mr McGrath noted, however, that there was a declaration on page 29 of the relevant form which stated:

‘I understand that I must promptly tell the office that pays my benefit of anything that may affect my entitlement to, or the amount of that benefit.’

65. Mr McGrath submitted that these instructions imposed a duty on the appellant to inform the ‘benefit paying office’ of any changes and he had failed so to do. He asserted that even if it had been accepted, although there was no record of it, that the appellant did disclose his employment as part of the interview conducted on 20 April 2005, this was not disclosure to the ‘benefit paying office’, Disability & Carers Service. He added that the appeal tribunal had found it was reasonable to expect disclosure and that there had been a failure to do so by the appellant. The failure to disclose by the appellant had led to the payment of benefit which otherwise would not have been paid. As the Department had followed the correct procedures it was permitted to recover the overpayment from the appellant. Accordingly, the decision of the appeal tribunal was not in error of law.

66. Mr McGrath added that he had contacted ‘Carrickfergus Jobs and Benefits Office’ (Carrickfergus JBO) and the ‘Disability and Carers Service’ (DCS). The latter administers CA in Northern Ireland. Mr McGrath stated that DCS had supplied him with a reconstruction of the notification which is issued to successful claimants to CA. He attached the notification reconstruction as an appendix to his written observations. Mr McGrath noted that at pages 4 and 6 of the notification the claimant was informed of changes which the claimant was required to inform DCS when they occurred. Mr McGrath submitted:

‘I would highlight the fact that this notification letter clearly states and instructs a Carer’s Allowance claimant that if any changes listed occur you must tell Disability and Carers Service.’

67. Mr McGrath turned to the appellant’s submission that he informed the individual who conducted the work-focused interview on 20 April 2005 that he was employed. He submitted that he had obtained copies of the information which was held on the Client Management System (CMS) in Carrickfergus JBO in respect of the appellant. He noted that the interview was conducted at 15.00 on 20 April 2005. The CMS noted that the appellant cared for his wife. In sections marked ‘Barriers to Employment’ and ‘Employment Details’ nothing was recorded. Mr McGrath submitted:

‘I would submit therefore that as information is recorded in respect of his personal circumstances and none is recorded regarding his employment details that (the appellant) did not disclose that he was employed.’

68. Mr McGrath noted that the member of staff who conducted the interview was part of the Department for Employment and Learning (DEL) which shared Carrickfergus JBO with members of the Social Security Agency (SSA) who are part of the Department for Social Development (DSD).

69. He added the following:

‘I have also received a note (appendix 4) from a supervisor of the staff who would have carried out the Work focused Interview.

In this note it is stated that,

“If during an interview a client mentioned that they were in paid employment the Personal Advisor would refer them to SSA.

DEL staff cannot and will not provide benefit advice to any client. DEL staff are not trained in that area and it is not our remit. Any client seeking benefit advice/guidance would be referred to SSA”

I would submit, as no record has been made in this interview that he was employed nor has it been alleged that he was referred to or reported this employment to the SSA that (the appellant) failed to disclose this material fact.’

70. Mr McGrath noted that in the record of proceedings for the appeal tribunal hearing it was recorded that the appellant had stated that:

‘I wasn’t aware of restrictions on earnings at work.’

71. Mr McGrath observed that in the notes which accompanied an application for CA it was stated that a claimant would not be entitled to the benefit if his/her earnings were above a certain limit. He submitted that the appellant would, therefore, have been aware of the earnings restriction in relation to entitlement to CA. He added that DCS had provided him with a ‘screen shot’ from their computer system. He attached a copy of the ‘screen shot’ as an appendix to his written observations. He noted that the ‘screen shot’ was a record of a telephone call received from the appellant’s wife at 10.29 a.m. on 20 April 2005. The ‘screen shot’ recorded:

‘Cust [customer] wife wanted to know earnings limit.’

72. Mr McGrath observed that the appellant’s work-focused interview took place on 15.00 on the same day. He asserted:

‘I would submit that that having been informed by the accompanying notes of the earnings restrictions and the fact that his wife phoned Disability and Carers Service on the morning of his WFI to enquire as to the earnings limit for Carers Allowance that (the appellant), contrary to his statement to the tribunal, was, on balance of probabilities, aware of the restrictions on earnings.’

73. Mr McGrath then made submissions on the outcomes if it was accepted that the appellant had disclosed, during the course of the work-focused interview on 20 April 2005, that he had commenced employment. He noted that every year before the appellant’s award of CA was ‘up-rated’ in April he would have received notification of the new rate of benefit. Mr McGrath asserted that the up-rating notification would have informed the appellant of the requirement to notify the Department of relevant changes including an increase in earnings. He added:

‘I would submit that (the appellant) would only have received his first notification of up-rating in early 2006 as the decision to award Carers’ Allowance was only made on 20-7-2005.

Therefore by not informing DCS of the increase in earnings due to the overtime he completed (the appellant) failed to disclose this material fact.

In a similar vein the award notice (appendix 1) that (the appellant) would have received shortly after he was awarded Carers Allowance on 20-7-05 states,

“Please keep this letter for future reference. If any of the changes listed in these pages occur you must tell the Disability & Carers Service what has happened”.

This letter also states,

“In particular, you must tell us about any of these changes:

You start work as an employed or self employed person, either full time or part time, temporary or casual, whatever your earnings

If you have already told us that you are working, you must tell us if your earnings go up or any expenses already claimed change. You must also tell us if you work any overtime or receive a bonus.”

Again I would submit that (the appellant) failed to disclose, as instructed, the change in his earnings as a result of overtime.’

74. Mr McGrath also noted that DCS, every two years, issue a benefit review form to recipients of CA. He observed that at Tab No 8 of the appeal submission there was a copy of a benefit review form, signed and returned by the appellant on 24 January 2007. Mr McGrath submitted:

‘On this form it states,

“Please tell us if any of the following changes have happened since 19/01/05.

You started work as an employed or self employed person, either full- time, part-time or casual, whatever your earnings. Please send us your wage slips, accounts or a statement from your employer. You must also tell us if you become a partner or a director in a business.”

(The appellant), at part 2 of this form “Your reply” has indicated that “none of the changes listed above have happened since 19-1-2005.

I would submit that having signed this form (the appellant) misrepresented the material fact that he had commenced employment on 1-4-2005.’

75. Mr McGrath noted that the overpayment decision stated that on 1 April 2005 the appellant had failed to disclose the material fact that he was gainfully employed. Mr McGrath submitted that the cause of the overpayment was not that the appellant had commenced employment on 1 April 2005 but that the earnings which he received on 30 April 2005 were above the prescribed permitted level to remain entitled to CA. Mr McGrath submitted:

‘Consequently although not instructed to report his earnings at this preliminary stage of his claim I would summit that there would be a reasonable expectation that (the appellant) would have known to report his earnings when he received them on 30-4-05.

…

I would submit therefore that the Tribunal may have concentrated solely on regulations 32(1) and 32(1A) of the Social Security (Claims and Payments) Regulations (NI) 1987, i.e. changes that the claimant was instructed to report, without giving due consideration to regulation 32(1B).’

76. As was noted above, Mr McGrath’s further submission dated 10 November 2014 was prepared in response to the appellant’s correspondence dated 10 October 2014. In that correspondence the appellant had referred to the co-referencing of information across Government Departments. Mr McGrath submitted:

‘In the House of Lords decision, R(IS) 7/05 (Hinchy (Respondent) v Secretary of State for Work and Pensions (Appellant) [2005] UKHL 16) it was held that,

“the claimant’s duty, whether implied by section 71(1) or derived from regulation 32(1), was to disclose to the office administering the benefit in question and she was not concerned or entitled to make assumptions about the internal administrative arrangements of the Department (paragraph 32);”

I would submit that this decision found that the claimant was not entitled to make assumptions about the internal communications of the Department but that they had to disclose, as instructed, to the office administering the benefit in question.

In this instant case (the appellant) was instructed to report changes about his employment and/or earnings to Disability and Carer’s Service.

As (the appellant) did not do this he failed in his duty to disclose.

Likewise this House of Lords decision found that the claimant was not entitled to make assumptions about the internal arrangements of the Department.

(The appellant) has stated,

“I was well aware that somewhere along the line the government departments cross-reference information with each other”.

I would submit that even if the Inland Revenue had constituted part of the Department for Social Development, which it does not, then in accordance with the House of Lords decision (the appellant) was still not entitled to make assumptions about the internal communications of the Department.

In applying the House of Lords decision I would submit that (the appellant’s) duty was to disclose to the office administering Carer’s Allowance i.e. Disability and Carer’s Service and by not doing so he failed in his duty to disclose.’

77. In his further submission dated 17 November 2014, Mr McGrath made the following submission:

‘In the submission to the Appeal Tribunal the appeal writer referred to Regulation 32 and 32(1A).

The appeal writer submitted that the yearly up rating notes issued to claimants each year, a specimen copy of which was held a TAB 25, informed claimants of the change of circumstances which must be reported.

These changes included,

· You start work as an employed or self -employed person, either full time or part time, temporary or casual, whatever your earnings.

· If you have already told us that you are working, you must tell us if your earnings go up or any expenses already claimed change.

The appeal writer relying on the GB Commissioners decision R(IS) 9/06 submitted that as (the appellant) had received instructions as to what changes he must report he had a legal duty to do so under regulation 32 (1A).

In my original submission to the Commissioner I expressed the view that the tribunal may not have given proper consideration to regulation 32(1B). My intention was to pre-empt the argument that if it were found that regulation 32(1A) was not satisfied then consideration should then be given to regulation 32(1B) where the question of what changes (the appellant) might reasonably be expected to know might affect his continued entitlement to or payment of benefit would arise.

However in the GB decision CDLA 2328/2006 the Commissioner stated at paragraph 20 that,

“There is nothing wrong in a tribunal relying on one paragraph rather than the other. The duties under paragraphs (1A) and (1B) are cumulative. The tribunal was entitled to rely on either duty. A finding that a claimant was in breach of paragraph (1B) is not rendered wrong in law just because the claimant was also in breach of paragraph (1A). What the tribunal must do is rely on one or the other and make clear which.”

In this current case I would submit that the Tribunal have made clear that it is relying on regulation 32(1A).

The Tribunal in its decision at paragraph 47 states,

“I am satisfied that the Department have established the appellant was aware of his duty to disclose. The Departments submission refers to yearly notes issued and the specimen copy is provided at Tab 25. This informs customers of changes in circumstances that must be reported.

Consequently having concluded that the Tribunal have relied on regulation 32 (1A) I would resile from my original statement that the tribunal may not have given due consideration to regulation 32(1B) as this was, in light of the above Commissioners decision, un-necessary.’

78. At the oral hearing of the application, Mr McGrath expanded on the written submissions which he had made. Following deliberations with me he resiled, to an extent, from his reliance on the application form to CA, and the accompanying notes, as a source of a duty to disclose. Mr McGrath continued to rely on the reconstructed notification letter, the annual uprating notices to claimants and the completed benefit review form as sources of the duty to disclose.

The proper approach to the legislative requirements relating to overpayments and their recovery

79. Section 69(5A) of the Administration Act states that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded. Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

80. The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS). At paragraph 4 he stated:

‘ … 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.’

81. In essence, the appeal tribunal will have to identify two decisions. The first is a decision which alters previous decision(s) awarding entitlement to benefit - that can be described as the entitlement or Section 69(5A) decision. The second is a decision that overpaid benefit is recoverable - that can be described as the recovery or Section 69(1) decision. At paragraph 10 of C10/07-08(IS), Commissioner Powell stated:

‘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.’

82. Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a Section 69(5A) decision, to a claimant, and setting out the consequences where no such proper notification had been made.

83. As was noted above, section 69(1) of the Administration Act provides that the Department shall be entitled to recover the amount of any payment which the Department would not have made but for a misrepresentation or failure to disclose, whether fraudulently or otherwise, by the claimant of a material fact.

84. In B v Secretary of State for Work & Pensions (reported as R(IS)9/06), the Court of Appeal for England & Wales upheld the decision of the Tribunal of Commissioners in Great Britain in R(IS)9/06. In that latter decision, the Tribunal of Commissioners had considered, in depth, the nature of the legal test in respect of failure to disclose, by analysing the relationship between section 71 of the Social Security Administration Act 1992 (the Great Britain equivalent to section 69 of the Administration Act) and regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (which has an equivalence in regulation 32 of the 1987 Regulations).

85. In summary, the Tribunal of Commissioners found that:

“1. Section 71 does not purport to impose a duty to disclose, but rather presupposes such a duty, the actual duty in this case being in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, which provides for (a) a duty to furnish information and evidence pursuant to a request from the Secretary of State, and (b) a duty to notify the Secretary of State of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit.

2. In relation to the duty to furnish information and evidence pursuant to a request, whilst there is no duty to disclose that which one does not know, if a claimant was aware of a matter which he was required to disclose, there was a breach of that duty even if, because of mental incapacity, he was unaware of the materiality or relevance of the matter to his entitlement to benefit, and did not understand an unambiguous request for information, and a failure to respond to such a request triggered an entitlement to recovery under section 71 of any resulting overpayment.

3. Insofar as R(SB) 21/82 imported words from regulation 32 into the construction of section 71 in stating that the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected, that decision and subsequent decisions that have relied on it were wrongly decided.

4. The form INF4 supplied to claimants contained an unambiguous request by the Secretary of State to be informed if a claimant’s children went into care and by not disclosing the fact to the Department, the claimant was in breach of her obligation under regulation 32, so that the Secretary of State was entitled under section 71 to recover the overpayment resulting.”

86. In C6/08-09(IB), I said the following, at paragraphs 40 to 42:

‘40. Firstly, as was noted above, the practical outcome of the cases referred to above is that an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of a failure to disclose, will have to consider where the requirement to provide the relevant information came from. This will necessitate identifying whether the case comes within the first or second duty in regulation 32.

41. In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant. That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book. It will not be enough, however, for the information leaflet or order book to be produced. The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.

42. In the case of the second duty, the requirement is that the change of circumstances is one which the claimant might reasonably be expected to know would affect his entitlement to benefit.’

Analysis

87. I begin with the entitlement decision. As was noted above, the entitlement decision of 19 October 2011 was a supersession decision made under Article 11 of the 1998 Order and was designed to fulfil the requirements of section 69(5A) of the Administration Act. The copy of the entitlement decision at Tab No 15 of the appeal submission is in a standard ‘template’ format and the ‘case’ is described as a ‘Change of Circumstances’. The writer of the appeal submission also submitted that the entitlement decision was a supersession on the basis of a relevant change of circumstances.

88. Regulation 6(2)(a)(i) of the 1999 Regulations allows for the supersession of a Departmental decision on the basis that there has been a relevant change of circumstances since the decision had effect. The decision which was to be superseded in the instant case was the decision dated 20 July 2005 in which it was decided that the appellant was entitled to CA with effect from 17 January 2005. It seems to me that the more obvious ground for supersession would have been under regulation 6(2)(b)(i), namely, that the decision dated 20 July 2005 was made in ignorance or was based on a mistake as to a material fact, namely, that the appellant had commenced employment on 1 April 2005 and, more particularly, that his earnings derived from that employment were in excess of the prescribed earnings limits for entitlement to CA. That the appellant continued to be in employment and maintained an earnings level in excess of the prescribed limits for entitlement to CA could not have been a change of circumstances after 20 July 2005 when those circumstances were relevant as of 20 July 2005.

89. It is arguable, therefore, that the decision-maker of the Department, in making the entitlement decision, identified the incorrect ground for supersession. As was noted above, the appeal tribunal has confirmed the entitlement decision dated 19 October 2011. I have noted that the appeal tribunal was satisfied from the evidence which it had before it that those earnings were in excess of the prescribed limits for entitlement to CA; and that, consequently, the appellant was gainfully employed and this formed ‘… a proper basis for supersession of the decision awarding the benefit on 20 July 2005.’ The appeal tribunal found that the Department had established grounds to supersede.

90. As I have already noted, it is arguable that the entitlement decision dated 19 October 2011 is problematic. It is equally arguable, therefore, that the decision of the appeal tribunal is in error of law. If it is, however, I find that the error is not material. The Department, in my view, had, on 19 October 2011, sufficient grounds for superseding the decision dated 20 July 2005. I have noted that the appellant did not challenge the entitlement decision by way of appeal.

91. The duties of an appeal tribunal, in determining an appeal against either a revision or supersession decision, were comprehensively analysed and reviewed by a Tribunal of Social Security Commissioners in Great Britain in R(IB)2/04. That decision is clear authority for the proposition that where an appeal tribunal identifies defects in a decision which purports to change the effect of a previous decision (e.g. failure to use the terms ‘revise’ or supersede’, failure to indicate that a previous decision is being revised or superseded, failure to identify the previous decision being revised or superseded, failure to specify the ground for revision or supersession, or reliance on the wrong ground for revision or supersession), the appeal tribunal has the jurisdiction to remedy those defects and make the decision which the Department ought to have made. In turn, and if necessary, I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given, in connection with the entitlement decision, as I can do so without making fresh or further findings of fact.

92. I turn to the overpayment decision. As was noted above, the basis of the overpayment decision dated 17 January 2012 was that on 1 April 2005, or as soon as practicable after, (the appellant) failed to disclose the material fact that he was gainfully employed. As a consequence, CA amounting to £16,733.85 from 2 May 2005 to 18 September 2011(both dates included) was paid which would not have been paid but for the failure to disclose.

93. Mr McGrath, in his initial written observations on the application for leave to appeal, noted that the cause of the overpayment was not that the appellant had commenced employment on 1 April 2005 but that the earnings which he had received on 30 April 2005 were in excess of the prescribed limits for retention of entitlement to CA. In making that submission, Mr McGrath may be conceding that there are aspects of the overpayment decision dated 17 January 2012 which were problematic.

94. More significantly, the analysis of the jurisprudence on the proper approach to the legislative requirements relating to overpayments and their recovery reveals that an adjudicating authority, such as a decision-maker or an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of a failure to disclose, will have to consider where the requirement to provide the relevant information came from. This will necessitate identifying whether the case comes within the first or second duty in regulation 32 of the 1987 Regulations.

95. In the instant case, the Appeal Writer has submitted that there were three and, possibly, a fourth different source for the requirement for the appellant to disclose the relevant information.

96. The first of these was correspondence which the Appeal Writer submitted was notification to the appellant concerning ‘automated credit transfer’ to the appellant’s bank account. The Appeal Writer referred to Tab No 24 of the appeal submission which, he submitted, was a ‘specimen copy’ of the automated credit transfer notification. The Appeal Writer also referred to Tab No 23 which, he submitted, contained computer printouts showing payments made by automated credit transfer. Although not specified, the Appeal Writer appears to be submitting that as there was reasonable proof that payments were made by automated credit transfer the appellant must have received the equivalent of the ‘specimen copy’ of the automated credit transfer notification. Accordingly, and as this document specified changes which he was obliged to disclose, this was the source of the regulation 32 duty.

97. The second source referred to by the Appeal Writer was the benefit uprating letter which he submitted would have been forwarded to the appellant each year when the uprating relevant to CA was confirmed. Once again, the Appeal Writer referred to Tab No 25 of the appeal submission which, he submitted, was a ‘specimen copy’ of the annual uprating letter and notes. In the submission of the Appeal Writer, this correspondence set out in clear terms the changes of circumstances which the appellant was obliged to disclose.

98. The third source referred to by the Appeal Writer was the benefit review form signed by the appellant on 24 January 2007. In connection with the benefit review form as a source of an obligation to disclose, the Appeal Writer did not have to prepare a ‘specimen copy’ but attached to the appeal submission as Tab No 9, the actual benefit review form completed by the appellant, signed on 24 January 2007 and received in the Department on 26 January 2007.

99. The final potential source alluded to by the Appeal Writer was the notification of the decision awarding entitlement to CA. The Appeal Writer made the following submission in connection with this as a source, which was more limited than the submissions which he made in connection with the other three:

‘I submit that the computer printout showing that the decision was made to (the appellant) is sufficient proof.

100. As was noted above, the sources of the duty to disclose identified by the appeal tribunal were the notification letter issued to the appellant concerning automated credit transfer to a bank account, a ‘specimen copy’ of which was attached to the appeal submission as Tab No 24 and the annual uprating letter, a ‘specimen copy’ of which was attached to the appeal submission as Tab No 25.

101. I begin with consideration of the original application form to CA. The application was signed by the appellant on 30 March 2005. He is asked questions about employment and self-employment. His response is that these questions are not applicable to him. It is axiomatic that the appellant, on 30 March 2005, was aware that he was commencing employment on 1 April 2005, two days later. Accordingly, it is, at the least, misleading of the appellant not to have given an indication on the claim form that he was due to commence employment in two days’ time. It is arguable that he was under a moral duty to set out the prospective state of affairs. He did not do so, however, and nothing can detract from a conclusion that his statement, as of 30 March 2005, was, strictly speaking, correct.

102. At the conclusion of the claim form, the appellant signed a declaration including an understanding that he had an obligation to ‘… tell the office that pays my benefit of anything that might affect my entitlement to, or the amount of that benefit.’ Mr McGrath also makes reference to guidance notes, which, he submits, are issued with a claim form to CA and which inform claimants of their duties to inform the Department about employment and self-employment.

103. Was there anything in the claim form to CA which created regulation 32(1), (1A) or (1B) duties on the appellant to make notifications to the Department? In relation to regulation 32(1) and 32(1B), the answer to that question has to be ‘no’. The regulation 32(1) duty is imposed, primarily, on a ‘beneficiary’ and the duty is furnish information or evidence as the Department may require for determining whether a decision on the award of benefit should be revised or superseded. When the appellant completed the claim form he was not a ‘beneficiary’. Going back through the relevant legislative provisions on interpretation, a ‘beneficiary’ is a person entitled to a benefit - see Schedule 17 to the Social Security (Northern Ireland) Act 1975. More importantly, when the appellant completed the claim form there was not a decision on the award of benefit capable of being revised or superseded. Such a decision was not made until 20 July 2005.

104. The regulation 32(1B) duty is also imposed on a ‘beneficiary’ and the extent of the duty is to notify the Department of any change of circumstances which the beneficiary might reasonably be expected to know might affect the continuance of entitlement to benefit or the payment of the benefit. Once again, as of the date of the completion of the claim form the appellant did not have an entitlement to benefit, let alone a continuing entitlement to benefit and nor was benefit in payment. The comments above concerning the meaning of ‘beneficiary’ are also apposite.

105. The regulation 32(1A) duty is also imposed on a ‘beneficiary’ and the extent of the duty is to furnish information or evidence as the Department may require in connection with payment of the benefit claimed or awarded. As was noted above, when he completed the claim form on 30 March 2005, the appellant’s answers to the questions about employment and self-employment were, strictly speaking, correct. I have already noted, however, that the appellant did, in addition to responding to the questions, sign a declaration including an understanding that he had an obligation to ‘… tell the office that pays my benefit of anything that might affect my entitlement to, or the amount of that benefit.’ I have to ask whether that instruction is, for the purposes of regulation 32(1A), clear and unambiguous.

106. It is clear that at the time of signing the declaration there was no office ‘paying’ benefit to the appellant. He had no entitlement, at that stage. I am of the view that, without more, the declaration on the claim form is not sufficient to impose a duty on the appellant to inform the Department, on receipt, on 30 April 2005, of his first wages from his employer, that he had commenced employment, had received wages and that both of these material facts, might affect his potential, at that stage, entitlement to CA.

107. I have said ‘without more’ because, while Mr McGrath, in his usual forensic manner, has recreated the guidance notes which, he submits, are issued with a claim form to CA and which inform claimants of their duties to inform the Department about employment and self-employment, there is no evidence that the appellant actually received such guidance notes or was aware of their contents. Had there been clear evidence that such guidance notes had been received by the appellant, and that he was, accordingly, aware of their contents, there would have been greater force in the argument that the combined effect of the claim form declaration and the guidance notes was to impose a regulation 32(1A) duty on the appellant as of 30 March 2005.

108. I turn to the interview which was conducted with the appellant at Carrickfergus JBO by a member of the DEL staff who was employed there on 20 April 2005. The interview fell into the category of ‘work-focused’ interview which a claimant to CA, at that time, was obliged to undertake. It is, of course, the appellant’s consistent, resolute and principal case that during the course of this interview he informed the member of staff who was conducting the interview that he was working.

109. I would make three observations about the relevance of the interview. The first is that as of 20 April 2005 the appellant had no regulation 32(1), (1A) or (1B) duties to make notifications to the Department. As was noted above, as of the period from 30 March 2005 to 20 July 2005 he was not, for the purposes of regulation 32(1), (1A) or (1B), a beneficiary a person by whom, or on whose behalf, sums by way of benefit were receivable.

110. The second observation is that even if the appellant, as at 20 April 2005, was under an obligation to disclose the material fact that he had commenced employment, the obligation was to disclose, the duty was to disclose ‘… to the office administering the benefit in question’ and the appellant was not ‘… entitled to make assumptions about the internal administrative arrangements of the Department.’ The latter is, of course, a paraphrasing of the conclusions of the House of Lords in R(IS) 7/05 (Hinchy (Respondent) v Secretary of State for Work and Pensions (Appellant) [2005] UKHL 16)). That decision sets out the principles in relation to the office to which a proper disclosure is to be made and the disentitlement of a claimant to make assumptions about internal arrangements in the Department.

111. In the instant case the interview on 20 April 2005 was with a member of the staff of DEL and was for a specific purpose relating to that Department. CA is administered by DCS on behalf of DSD. Although it is not relevant to the instant case, I note that the supervisor of the staff who carried out the work-focused interview has observed that DEL staff would not and could not provide social security benefit advice as they were not trained to do so and that the provision of such advice was beyond their remit. She added that anyone seeking benefit advice or guidance would be referred to the SSA.

112. My third and final observation on the context of what may or may not have been said at the interview on 20 April 2005 is that it makes no difference to my decision which, as will be noted below, is concerned with the greater relevance of the benefit review form and a misrepresentation arising from the contents of that form. My outcome decision turns on misrepresentation rather than a failure to disclose.

113. I turn to the relevance of three items of documentation submitted by Mr McGrath to be potential sources of regulation 32(1) and (1A) duties to disclose. These documents are:

(i) the correspondence notifying the appellant of his entitlement to CA;

(ii) the annual correspondence informing claimants to social security benefits, including claimants to CA, that their payments had been uprated; and

(iii) the notification to the appellant concerning automated credit transfer of payment to a bank account.

114. As was noted above, the sources of the duty to disclose identified by the appeal tribunal were (ii), a ‘specimen copy’ of which was attached to the appeal submission as Tab No 24 and (iii), a ‘specimen copy’ of which was attached to the appeal submission as Tab No 25.

115. The difficulty with relying on any or all of these sources is that in each instance there is no clear evidence that the appellant did receive the documentation or, more significantly, that the instructions contained therein were, when received, the same as those reconstructed for the present proceedings. In this regard, I repeat what I said in paragraph 41 of C6/08-09(IB):

‘41. In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant. That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book. It will not be enough, however, for the information leaflet or order book to be produced. The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.

116. The emphasis is my own. In the case of each of the three documents, Mr McGrath has been candid in emphasising that what were supplied were reconstructions of documents which would have been supplied. The reconstruction of the notification to CA, submitted by Mr McGrath as Appendix 3 to his initial written observations is illustrative. It begins as follows:

‘ ****DISCLAIMER****

Please note that this is not a duplication of what was issued to the customer, it is a reconstruction. It only contains the text issued to the customer. Information such as rates and dates are not included because they are not retained once the notification has been issued. The date contained within the filename is not the date that CACS requested the notification, and does not provide any further guarantee with regards to the actual date of production and dispatch

****DISCLAIMER****’

117. The jurisprudence is clear that the practical outcome in the case of the first duty under regulation 32 requires the provision of proof by the Department that the requirement to provide information was made to the claimant. I cannot be certain that the appellant has been instructed to disclose specific matters. In identifying, as the sources of the first duty to disclose under regulation 32, the documents at (ii) and (iii) above, the appeal tribunal has erred in law. As will be noted in greater detail below, I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given, in connection with the entitlement decision, as I can do so having made further findings of fact.

118. I cannot also be certain that in all of the circumstances of the case, disclosure was reasonably to be expected. In the case of the second duty under regulation 32, the requirement is that the change of circumstances is one which the claimant might reasonably be expected to know would affect his entitlement to benefit. At the date of the award of entitlement to CA - that is, at 20 July 2005 - the appellant was employed and was earning in excess of the prescribed limits for entitlement to CA. A possible relevant change of circumstances after 20 July 2005 was an increase in his earnings through overtime. Would disclosure of that change of circumstances have reasonably been expected when it is not clear that the appellant did receive information specific to the link between earnings limits and CA entitlement? I accept, however, that there may be arguments in the other direction given that there is evidence that the appellant’s wife, on the morning of 20 April 2005, made specific enquiries concerning the prescribed earnings limits for entitlement to CA. It is to be noted, however, and tellingly, that the enquiry was made by the appellant’s wife and not by the appellant himself. I have also considered whether the nature of the questions which were asked of the appellant in the application form to CA were such that he was on notice of a requirement to disclose a change of employment status in the future. I cannot, on balance, find that they were such as to put him on notice.

119. I turn to the benefit review form, a copy of which was attached to the appeal submission as Tab No 9. It was signed by the appellant on 24 January 2007 and was received in the Department on 26 January 2007. Unlike the reconstructed guidance notes, the reconstructed CA allowance notification and the ‘specimen copies’ of the annual uprating correspondence and the notification to the appellant concerning automated credit transfer of payment to a bank account, the document at Tab No 9 is the appellant’s own.

120. As was noted above, at page 3 of the form the appellant was advised of the following:

‘Part 1 - CHANGES YOU MUST TELL US ABOUT

Please tell us of any of the following changes have happened since 19/01/2005.’

121. There then followed a list of potential changes the second of which was:

122. The appellant’s response was to tick a box top indicate that none of the ‘… changes have happened since 19/01/05.’ The appellant also signed the following declaration:

‘I understand that if I give information that is incorrect or incomplete, action may be taken against me.

I declare that the information I have given is correct and complete.’

123. The significance of benefit review forms such as that at Tab No 9 was explored by the Court of Appeal for England and Wales in R(IS) 6/03 (Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526). In paragraph 44 of the decision the court held:

‘In paragraph 16 of his decision the Commissioner held that the department was entitled to rely on each income support review form as an up to date and accurate statement of the appellant's circumstances. I accept Miss Laing's submission that this was a correct analysis. The evident purpose of the review form is to get the claimant to provide such information. In my view the department must be entitled to rely on that information as a more up-to-date and accurate statement of the claimant's circumstances than any information it may have received in the past from a local authority or other third party about a claimant's circumstances. If, therefore, the form contains a material misrepresentation and the department makes payments of income support to which the claimant was not entitled on the true facts, the most natural inference is that the misrepresentation was a cause of the overpayments even if the department had other information in its possession which indicated that the historical position was different and from which, on further investigation, the true current position could have been ascertained.’

124. In the instant case, I am wholly satisfied that the Department was entitled to rely on the benefit review form signed by the appellant on 24 January 2007 and received in the Department on 26 January 2007 as a more up-to-date and accurate statement of the claimant’s circumstances than any information which it received in the past. Accordingly, the appellant cannot sustain an argument that the information given in the benefit review form is qualified by any earlier disclosure to the Department such as a disclosure during the course of the interview conducted on 20 April 2005.

125. I am also wholly satisfied that the appellant has made a misrepresentation as to a material fact in his responses to the questions asked in the benefit review form. More particularly his response that none of the changes listed in the form, including that he had started work as an employed person, had happened since 19 January 2005, was a clear misrepresentation of the material fact that this change had happened on 1 April 2005.

126. I am also wholly satisfied that the misrepresentation was the cause of an overpayment of CA made to the appellant. Based on what the Department perceived to be the up-to-date statement of the claimant’s circumstances as of 24 January 2007, the Department continued to make payments of CA to the appellant to which he was not entitled. The payment of CA would not have been made but for the misrepresentation. I am satisfied that had the appellant indicated that there had been a change since 19 January 2005 in that he had commenced employment on 1 April 2005, the Department would have made the appropriate enquiries and would have ascertained the true extent of the appellant’s earnings which were in excess of the prescribed earnings limits for entitlement to CA. Accordingly, the Department is entitled to recover the amount of the overpayment of CA which occurred for the period from 24 January 2007 to 18 September 2011.

Disposal

127. The decision of the appeal tribunal dated 20 June 2013 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.

128. I am able to exercise the power conferred on me by Article 15(8)(a)(i) and (ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given.

129. My substituted decision is that the Department on 19 October 2011 had grounds to supersede the decision dated 20 July 2005 which had awarded an entitlement to CA from and including 17 January 2005. The relevant ground for supersession was that the decision dated 20 July 2005 was made in ignorance of, or was based on a mistake as to a material fact, namely, that the appellant had commenced employment on 1 April 2005 and, more particularly, that his earnings derived from that employment were in excess of the prescribed earnings limits for entitlement to CA.

130. As a result of the decision dated 19 October 2011 an overpayment of CA has occurred for the period from 24 January 2007 to 18 September 2011 (both dates included) which is recoverable from the appellant. The Department is to calculate the amount of the overpayment which has occurred.

(signed): K Mullan

Chief Commissioner

8 June 2016

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> WJW -v- Department for Social Development (CA) [2016] NICom 28 (05 August 2016) URL: http://www.bailii.org/nie/cases/NISSCSC/2016/28.html Cite as: [2016] NICom 28

Northern Ireland - Social Security and Child Support Commissioners' Decisions