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	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2006] UKSSCSC CIB_1146_2005 (24 May 2006) URL: http://www.bailii.org/uk/cases/UKSSCSC/2006/CIB_1146_2005.html Cite as: [2006] UKSSCSC CIB_1146_2005

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[2006] UKSSCSC CIB_1146_2005 (24 May 2006)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14 of the Social Security Act 1998. It is:

The decision of the Bristol appeal tribunal under reference U/03/186/2004/02762, held on 18 February 2005, is not erroneous in point of law.

History and background

2. The claimant was in receipt of invalidity benefit and incapacity benefit from 1986 until 2004. In August 2004, the Secretary of State decided that the claimant had not been entitled to incapacity benefit from 9 September 2002 to 20 April 2004 with the exception of 14 September 2002, 17 April 2004 and 18 April 2004. This was because the claimant had been working in circumstances in which he was to be treated as capable of work. As a result of this decision, the claimant had been overpaid by £6989.77. The Secretary of State further decided that that amount was recoverable from the claimant on the ground that he had failed to disclose that he was working. The claimant exercised his right of appeal, but the tribunal dismissed his appeal. The claimant appealed to the Commissioner, with the leave of a district chairman. His case has been stayed to await the ultimate outcome in the case of B. That case has now been decided and the parties have made their observations. The case has been referred to me as ready for decision.

The permitted work decision

3. This was not really put in issue in the letter of appeal or in the oral presentation at the hearing before the tribunal. There were some passing references to minor matters, but the case was presented as concerning recoverability only. The tribunal dealt with it on that basis and I consider that correctly reflects the way the appeal was presented.

The overpayment decision

4. The case put to the tribunal by the claimant's representative was summarised by the chairman in her record of proceedings:

'If there was an overpayment, amount not disputed, but it is disputed that it is recoverable on grounds as in CIB/3925/2003.'

I notice that the representative did not raise the causation issue that the Commissioner mentioned as a postscript to that decision. The only issue he raised was recoverability on the basis of the information in the mailshot. The tribunal was not required to consider any other issue (section 12(8)(a) of the Social Security Act 1998).

5. Whether or not the overpayment is recoverable is now governed by the decision of the Court of Appeal in B v Secretary of State for Work and Pensions [2005] EWCA Civ 929. The Court upheld the decision of the Tribunal of Commissioners in CIS/4348/2003. As a result of those decisions, I have to disregard the claimant's mental state and his memory difficulties, and any impact that they may have had on his ability to understand and comply with the duties imposed on him to report relevant matters to the Secretary of State. The issues for me are the terms of any duty imposed on the claimant and whether or not he complied with it.
6. The claimant was sent a mailshot setting out the new rules for permitted work for those receiving incapacity benefit. The mailshot was sent in March 2002 and the tribunal found as a fact that the claimant received it. I consider that the following passage, which is at page 13b of the papers, is the key one on this appeal. It appears under the heading: How does permitted work affect my benefit?

'You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.'

7. I read that passage as containing an instruction to the claimant to report that he was going to start work. The word 'should' in both places is not the most mandatory term that could have been used, but it is commonly used as a polite way of wording an instruction and that is how I read it. The Secretary of State was authorised to give instructions to claimants to provide information under regulation 32 of the Social Security (Claims and Payments) Regulations 1987. Accordingly, the claimant was under a duty to report the fact that he was going to start work.
8. I have read what Mr Commissioner Mesher wrote in CIB/3925/2003. He was concerned with the same mailshot as in this case. However, he was applying the law as it stood before B. I have to apply the law in B, which undermines the basis of Mr Mesher's reasoning. He applied the test of what was reasonably to be expected of the claimant, whereas that test has been disapproved in B and no longer applies.
9. There is no dispute that the claimant did not report that he was starting work or that he was undertaking it. This was only discovered by the Secretary of State on a routine check.
10. The tribunal correctly identified that the claimant was in breach of a duty to disclose and dealt adequately with the argument put for the claimant. It did not go wrong in law on the overpayment aspects of the case.

Disposal

11. I dismiss the appeal. The tribunal dealt correctly in law with the issues relating to the recoverability of the overpayment, which were the substance of the appeal before it. The claimant's representative has referred to a number of Commissioners' decisions. They have now been overtaken by the Court of Appeal's decision in B and to that extent their reasoning no longer applies. The representative has also said that there are still some outstanding issues. If there are, the appropriate way to raise them is with the Secretary of State by way of a supersession application. They did not arise before the tribunal.
12. One final word. The claimant's representative wrote (page 3c) that the claimant was incapable of dishonesty and deceit. I want to emphasise that the basis on which the tribunal decided this case did not depend in any way on fault on his part. The law on the recoverability of overpayments determines who should bear responsibility if benefit is paid without proper entitlement. In the circumstances of this case, the responsibility is the claimant's. That is all that the tribunal decided.

Signed on original on 24 May 2006

Edward Jacobs Commissioner