VH-v-Department for Social Development (CA) [2010] NICom 95

Decision No: C1/10-11(CA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

CARER’S 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 30 September 2008

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 30 September 2008 is in error of law. The error of law identified will be explained in more detail below.

3.	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.

4.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access, and there may be further findings of fact which require to be made. Further I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

5.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

6.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of carer’s allowance (CA), and for which period, remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

7.	The decision under appeal is a decision of the Department, dated 26 October 2006, which decided that there had been an overpayment of CA, for the period from 29 September 2003 to 4 September 2005 amounting to £4474.10, which was recoverable from the applicant. An appeal against the decision dated 26 October 2006 was received in the Department on 31 October 2007.

8.	The appeal tribunal hearing took place on 30 September 2008. The appellant was present and was represented by the Law Centre (NI). The appeal tribunal disallowed the appeal, and confirmed the decision dated 26 October 2006.

9.	On 10 February 2009 an application for leave to appeal to the Social Security Commissioner was received in The Appeals Service. On 4 March 2009, the application for leave to appeal was refused by the legally qualified panel member.

	Proceedings before the Social Security Commissioner

10.	On 30 March 2009, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

11.	On 19 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 June 2009. DMS opposed the application. Observations were shared with the appellant on 23 June 2009. On 31 July 2009, a further submission in reply to the Department’s observations was received in OSSC. On 20 August 2009, the further submission was shared with DMS.

12.	On 28 September 2009, DMS was asked to provide further observations in respect of a specific question. On 15 October 2009, the further submissions in response to the request dated 28 September 2009 were received in OSSC on 15 October 2009 and were shared with the appellant and her representative on 16 October 2009.

13.	On 9 November 2009 further correspondence was received from the appellant’s representative which was shared with DMS on 11 November 2009.

14.	On 25 November 2009 I directed an oral hearing of the application. The oral hearing was listed but had to be postponed on two separate occasions. The oral hearing eventually took place on 19 May 2010. At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mr McGrath of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

15.	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.

16.	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.”

	Was the decision of the appeal tribunal in the instant case in error of law?

17.	The appeal tribunal has provided a detailed, analytical statement of reasons for its decision. Where then did the appeal tribunal go wrong in law?

18.	The decision under appeal to the appeal tribunal was a decision of the Department dated 26 October 2006, which decided that there had been an overpayment of CA, for the period from 29 September 2003 to 4 September 2005 amounting to £4474.10, which was recoverable from the applicant. A copy of the relevant decision is attached to the appeal submission prepared for the oral hearing of the appeal as Tab No 21. The stated basis for recovery of the overpaid benefit is a failure by the appellant to disclose the material fact that she had commenced a full-time course of education. The Department’s position is that the appellant’s claim form to carer’s allowance was received in the Department on 5 November 2003. In that claim form the appellant was asked, at Part 11, whether she had been on a course of education since the date which she wanted to claim CA. The appellant’s answer to that question was ‘no’.  The Department’s position is that on 5 November 2003 the appellant was on a full-time course of education and had been on such a course since 29 September 2003. The claim form was dated as signed on 2 September 2003.

19.	The appellant had been in receipt of CA from 11 August 2003. At the oral hearing of the appeal, the appellant’s representative submitted to the appeal a copy of a hand-written letter from the appellant’s father. In this letter, the appellant’s father states that the appellant completed the application to CA on 2 September 2003. There then follows a very detailed account of how the appellant’s father, who worked in Belfast, hand-delivered the completed application form to the Department’s offices in Castle Court, Belfast on 3 September 2003. The appellant’s position is that when the claim form was handed in on 3 September 2003, the answer to the question concerning the full-time course of education was true, as she did not commence the course until 29 September 2003.

20.	How did the appeal tribunal assess the evidence from the appellant’s father? In the record of proceedings for the appeal tribunal hearing, the following is recorded:

‘Representative

Department backdated to August.

Date of claim 21 September 2003.

Not engaged in Education at that time.

She had completed A levels June 2003.

Working part time in Debenhams.

When form was completed information correct.

Things changed subsequently.

Course 30/9/2003 due to end May 2007.’

21.	I am certain that the reference to the date of claim being ‘21 September 2003’ should read ‘2 September 2003’. It would appear to me that the appellant’s representative was submitting that the claim form was actually submitted in early September 2003 and, at that time, the claimant had not commenced a full-time course of education.

22.	In the statement of reasons for the appeal tribunal’s decision, the following is recorded:

’15.	I find that the original claim was submitted on 5 November 2003 and not 2 September 2003. In reaching this conclusion I am influenced by the date stamp from the post room which elsewhere I have found to be accurate and the start date of payment and the absence of evidence of any query by the Appellant about delay in processing her claim. Her father has not attended in person to give evidence on this point. The statement I have been given was handed in at the hearing and was only written the day before the hearing. This means the Department has not had an opportunity to respond. Furthermore, almost five years have passed since the incident.

16.	I considered the possibility that the document was handed in on 3 September and remained unprocessed in Castle Court until 5 November 2003. If this were the case I believe the Department itself would have made some reference to it. Balancing the scenarios I find the probable date the form was received was that indicated by the date stamp.’

23.	It is clear, therefore, that the appeal tribunal’s view of the evidence contained in the letter from the appellant’s father was influenced by the fact that the father had not attended to give oral evidence concerning its contents; that it was handed on the day of the hearing; that it was only written the day before the hearing; and that the Department had not had the opportunity to respond. It is clear, additionally, that the appeal tribunal had doubts about the context and relevance of the evidence from the appellant’s father.

24.	It seems to me that the manner in which the appeal tribunal has addressed the evidence from the appellant’s father is problematic, in two respects. Firstly the doubts about the context and relevance of the evidence, noted in the previous paragraph, were sufficient, in my view, for the appeal tribunal to exercise its inquisitorial function to explore that further. It is important to remember that this evidence was fundamental to the appellant’s appeal. The appeal tribunal could, for example, have raised those doubts with the appellant, and the appellant’s representative, at the oral hearing. It could have sought to resolve those doubts by asking the appellant’s representative whether it would be beneficial for the appellant’s father to attend to give oral evidence about what is alleged to have happened on 2 and 3 September 2003. The appeal tribunal could have asked the appellant herself, who was present at the oral hearing of the appeal, to give evidence as how, and in what circumstances, she completed and forwarded her claim form. Finally, and in light of the appeal tribunal’s concern that the Department had not had the opportunity to respond to the evidence from the appellant’s father, the appeal tribunal could have afforded the Department that opportunity. There was no Departmental presenting officer present at the oral hearing of the appeal. Accordingly, the appeal tribunal might have adjourned the appeal in order that the relevant evidence could be provided to the Department for its comment. It could have been the case, for example, that the Department could have confirmed that the relevant form had, in fact, been handed in on 3 September 2003, or explained the processes and procedures when a claim form is handed in to an office in person. Although I have no way of confirming this, the appeal tribunal’s record of the raised doubts suggests that they occurred after the oral hearing of the appeal and not during it.

25.	The second way, in which I find the appeal tribunal’s assessment of the evidence from the appellant’s father to be problematic, is that the appeal tribunal, without expressly stating so, has rejected this evidence. It has determined, on the balance of probabilities that the form was handed in on 5 November 2003. By doing so, it must have determined that the evidence of the appellant’s father that it was handed in on 3 September was, on balance, not credible, or was outweighed by the other evidence which was before it. I am of the view that some sort of explanation of the appeal tribunal’s reasons concerning its assessment of the evidence from the appellant’s father was necessary.

26.	I would emphasise that the assessment of evidence is a matter for the appeal tribunal, and a Social Security Commissioner must be wary of interfering with the conclusions of an appeal tribunal based on its evidential assessment. In the instant case, the appeal tribunal was influenced by other factors such as the Departmental date stamp on the appellant’s claim form, the fact that she did not query the delay in the processing of her claim if it had been handed in on 3 September 2003, and the back-dating to August 2003, with the latter two factors suggesting that the appellant had accepted that the claim form had been handed in on 5 November 2003. I find no fault with the appeal tribunal’s acceptance of those factors. I would repeat, however, that the evidence from the appellant’s father was crucial to the appellant’s case. That evidence conflicted with the factors which the appeal tribunal accepted. The appeal tribunal ought to have dealt with the evidence from the appellant’s father in a more rigorous and systematic manner.

	An additional point

27.	In the written observations on the application for leave to appeal, DMS raised the issue as to whether there was a defect in the Departmental decision dated 26 October 2006. The stated defect was that the decision refers to the failure to disclose having occurred on or after 21 February 2004, the actual failure to disclose occurred on 5 November 2003 when, as the Department submits, the claim form was submitted. DMS submitted, however, that the defect had been corrected by the appeal tribunal, when it recorded that:

‘Further, in completing the application which I find was submitted on 5-11-03 and in the subsequent review form on 15-8-05 there was a misrepresentation by the appellant that she was not on a course of study.’

28.	DMS also submitted that the appeal tribunal had not addressed the issue as to whether there was in place a decision of the Department which satisfied the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) act 1992, as amended, but that this omission was not sufficient to vitiate the decision of the appeal tribunal.

29.	Finally, DMS submitted that there was no evidence that the appellant had been notified of a supersession decision dated 24 October 2006 (the section 69(5A) decision) had been notified to the appellant.  There was evidence, in the form of computer printouts that the supersession decision was carried out. DMS submitted that the printouts also stated that notification was not withheld, which, in the view of DMS, confirmed that notification had been made.

30.	The appellant’s representative responded to the observations by DMS to submit that the identified errors and omissions did amount to errors in law.

31.	In further observations and in oral submissions as part of the hearing of the application, DMS submitted that the issue of failure to disclose had become secondary to the issue of misrepresentation.

32.	I am of the view that these matters can be addressed by the Department in an additional submission for the re-hearing of this appeal before a differently-constituted appeal tribunal.

	Disposal

33.	The decision of the appeal tribunal dated 30 September 2008 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.

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

(i)	the decision under appeal is a decision of the Department, dated 26 October 2006, which decided that there had been an overpayment of CA, for the period from 29 September 2003 to 4 September 2005 amounting to £4474.10, which was recoverable from the applicant;

(ii)	the Department is directed to prepare a further submission for the appeal tribunal hearing to be conducted by the differently constituted appeal tribunal. The new submission should specifically address the legal and evidential basis on which the Department submits that there has been an overpayment of CA for a particular period. The Department should attach to that submission all of the evidence in its possession which relates to the legal issues identified as arising in the appeal. If the Department retains its stated position that the question of misrepresentation is secondary to the question of failure to disclose as the basis for the recovery decision, then this position must be set out in the further submission;  

(iii)	it will also be for the appellant and her representative to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal. If the appellant retains her stated position that the relevant claim for to CA was handed in to Castle Court by her father on 3 September 2003, she may wish to consider the nature and form of the evidence which she wishes to adduce in support of that position. Further, the Department may wish to advise the appeal tribunal of the practices and procedures for the receipt and record of claim forms received by hand, and whether there is any actual record of a claim form to CA being handed in to Castle Court in and around 3 September 2003;  

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

(signed):  Kenneth Mullan

Commissioner

21 October 2010