DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is that the decision of the Whittington House appeal tribunal, held on 5th February 2002 under reference U/45/164/2001/01569, is not erroneous in point of law.
The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State supports the appeal, but not in a way that is to the claimant’s advantage.
The history of the case
3.	The claimant was awarded income support from and including 7th January 1991. From and including 20th August 1993, his wife was awarded invalidity benefit. This became incapacity benefit on the inception of that benefit on 13th April 1995. Both invalidity benefit and incapacity benefit should have been taken into account as income in determining the claimant’s entitlement to income support. However, it was not. This was only discovered by the decision-maker dealing with the claimant’s income support award in 2001. This discovery led to a recoverable overpayment decision for the inclusive period from 20th August 1993 to 5th April 2001. The claimant’s appeal to an appeal tribunal was dismissed. 
The nature of disclosure
4.	The factual basis of the claimant’s case is this. His wife’s invalidity benefit and incapacity benefit had been dealt with at the same office as his income support claim. In claiming, she had mentioned that she wanted to claim for her husband, but had not mentioned  that he was receiving income support. He accepted at the tribunal hearing that he had not mentioned the fact that his wife was receiving another benefit. In those circumstances, the essence of the claimant’s case is that the same office knew of both the awards. The claimant had no need to do anything more. It was irrelevant that the two benefits were dealt with by separate sections of the office.
5.	Although the claimant’s representative has put the case in a variety of different ways, in essence they all turn on the nature of disclosure of a material fact.
6.	Section 71 of the Social Security Administration Act 1992 provides for the recovery of overpayments that have arisen as a result of a failure to disclose a material fact. The nature of disclosure has to be analysed in its context. That context is the prevention of overpayments of benefit. The natural focus for that disclosure lies in the award to which the fact is material. In this case, that is the income support award. In order to amount to disclosure, the information must become known in a way that links it with the claim to which it is material. In this case, there was no reason for anyone dealing with the claimant’s case to suspect that there might be a case involving the claimant’s wife in a different section of the same office. Equally, there was no reason for anyone dealing with the wife’s case to suspect that there might be a case involving her husband in a different section of the same office. That is the short answer to the claimant’s arguments. There was nothing that amounts to disclosure.
Summary
7.	The Secretary of State supports the appeal. However, whatever error the tribunal may or may have made, it was correct in law to dismiss the appeal. In those circumstances, what should I do? I could set aside the decision and substitute my own to the same effect. But that would be an empty exercise. I have chosen instead to concentrate on the outcome and dismiss the appeal. 

Signed on original	Edward Jacobs
Commissioner
26th September 2002