File no: CIS 2960 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal.  For the reasons below, the decision of the tribunal is not erroneous in law.

2	The appellant is appealing with my permission against the decision of the Wakefield appeal tribunal on 16 May 2001 that income support amounting to £1,526.29 was overpaid to the appellant and was recoverable from her.

3	This case concerns a decision of the Secretary of State that the appellant had been overpaid income support over a period of three years because she had failed to disclose that she was receiving what is usually called one parent benefit (more correctly described as an increase of her child benefit). A second reason also caused the overpayment in the last few weeks of the period under review. The appellant conceded to the tribunal that there was an overpayment because of that second reason. 
 	 
4	The key issue in dispute was whether the appellant had failed to disclose that she was receiving the one parent benefit. More specifically, had she fulfilled her duty under regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (as amended) to report her change of circumstances? The Departmental case was that if she had read the yellow pages in her order book, she would have known that she had to report the increase in child benefit, and she would have done so. But she had not done so. The claimant’s case, put at its simplest, was (1) that she had made the application for both benefits at the same time by handing in the forms together at the same office, and (2) that the Department also knew of the additional child benefit awarded on the application, so the local office should also have known. The representative cited Commissioner’s decision CIS 5848 1999 in support of the submission. 

5	The tribunal recorded an exchange between the presenting officer for the Department and the representative for the appellant about whether there was an information exchange in place between those who decided child benefit and increases and those who decided income support. The presenting officer gave evidence about links within the Department.  The officer stated that the only way the local office would know of the additional child benefit is if a claimant told it. There was no automatic link between the offices; “the technology is not there”. 

6	The tribunal (a single member) reserved its decision.  In a considered statement, the tribunal relied on the decision in CG 4494 1999, obtained by the chairman from the internet after the hearing. On the basis of that decision, the tribunal held that in this case the information held by one section of the Department could not be imputed to the other part. It made the relevant findings of fact to establish that the overpayment was recoverable for the full period.

7	I granted leave to appeal to establish whether there was substance in the main ground of appeal. This was whether the tribunal had reached the right conclusion about the application of CG 4494 1999 to the facts, or whether the exception in CG 5631 1999 applied. 

8	In the submission on the appeal, the secretary of state's representative attempted to reargue the exception to the general approach in CG 4494 1999 that was established by CG 5631 1999. I do not that this question arises in this case. In any event, I am bound by CG 5631 1999 just as much as by CG 4494 1999. It is not open to either party to give me alleged additional factual background to those cases or to argue that the Tribunal of Commissioners had misstated or understated the legal position. That can only be done by appeal to a higher court.  

9	Nor do I accept that the issue can be resolved simply by relying on the sweeping assertion of the Commissioner in CIS 377 1993 that “the presenting officer, being an officer of the Department, must be deemed to know the general procedure of the Department as a whole.” In my view that remark was taken too widely and out of context in the submission made to me.  If I am wrong about that view, then I respectfully disagree with that conclusion. Presenting officers cannot be expected to be, and should not be assumed to be, omniscient. Indeed, it is clear the information supplied to me by the secretary of state's representative that this presenting officer was not omniscient, and did not tell the tribunal that the child benefit computers do generate printed notifications to local offices about additional child benefit. This should have been done in this case so as to set the amount of income support against the arrears of additional child benefit. The secretary of state's representative accepted that on the balance of probabilities in this case that system failed. But it was not an automatic system. 

10	I accept that there is no automatic link at any relevant time between the child benefit staff of the Benefit Agency and the income support staff of the Agency. The   only automatic link applying to child benefit is the link to widow’s benefits on which I commented in CG 2888 2000 recently.  CG 5631 1999 does not apply. CG 4494 1999 does, and the tribunal rightly applied it. I reject the criticism that the tribunal did not deal with CG 4494 1999 adequately. On the contrary, the steps taken by the tribunal to ensure timely application of the law appear to me to be exemplary. 

11	I fully accept that the appellant was not attempting deliberately to defraud the Agency, and there is no finding by the tribunal that she was. But this is a claim under section 71 of the Social Security Administration Act 1992, not a penalty proceeding, and an innocent failure to disclose is also covered. The other issues raised in the grounds of appeal are issues of fact or are issues that should have been raised at the original tribunal hearing and on which the representative declined the proffered opportunity for an adjournment. They cannot be raised now. 
  
								David Williams
								Commissioner
								23 January 2002
[Signed on the original on the date shown]