SG-v-Department for Social Development (IS) [2010] NICom 17

Decision No:  C1/09-10(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 2 April 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 2 April 2008 is in error of law.  The error of law identified will be explained in more detail below.

2.	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.	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 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.

4.	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.

5.	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 income support (IS), and whether any overpayment is recoverable from her 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

6.	On 21 June 2006, a decision-maker of the Department decided that as a result of an earlier entitlement decision, dated 7 June 2006, an overpayment of IS, amounting to £12873.87, for the period from 30 September 2003 to 9 March 2006, had been made and which was recoverable from the appellant.  The earlier decision, dated 7 June 2006, had superseded a decision of the Department dated 30 March 2004, and removed entitlement to IS from 30 September 2003.

7.	An appeal against the decision dated 21 June 2006 was received in the Department on 7 July 2006.  On 3 August 2006, the decisions dated 7 June 2006 and 21 June 2006 were looked at again but were not changed.

8.	An oral hearing of the appeal took place on 3 October 2006.  The appellant was present and was represented.  The appeal was adjourned and a number of directions were issued by the legally qualified panel member (LQPM).  One of the directions related to the possibility of criminal proceedings being brought against the appellant.

9.	On 28 November 2007, the Department forwarded an addendum to the appeal submission to The Appeals Service (TAS).  In this addendum, the appeals officer indicates that she had been informed by Benefit Investigating Services that a prosecution had been ‘heard’ in the case and that a copy of the result of that was attached.  Attached to the addendum was a copy of a court results form which indicated that the appellant had pleaded guilty to an offence at Strabane Magistrates’ Court on 8 November 2007.  The sentence imposed by the magistrate was a conditional discharge for two years and a restitution order in the amount of £1170.32.

10.	The substantive appeal tribunal hearing took place on 2 April 2008.  The appellant was not present.  The Department was represented by a presenting officer.  The appeal tribunal disallowed the appeal, and confirmed the decision dated 21 June 2006.

11.	On 10 September 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS.  On 30 September 2008, the application for leave to appeal was refused by the LQPM, and this was notified to the applicant and her representative on 27 November 2008.

Proceedings before the Social Security Commissioner

12.	On 17 December 2008, a further application for leave to appeal to the Social Security Commissioner was received in TAS.

13.	On that date, the applicant’s representative was informed that the application would have to be made directly to the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

14.	On 29 December 2008, a further application for leave to appeal to the Social Security Commissioner was received in OSSC.

15.	On 8 January 2009 observations were sought from Decision Making Services (DMS) and these were received on 25 February 2009.  DMS opposed the application.

16.	Observations were shared with the appellant on 4 March 2009.

17.	On 7 April 2009, further observations were sought from DMS on the ‘lateness’ issue.  DMS opposed the application for special reasons.

18.	On 26 May 2009, I accepted the late application for leave to appeal for special reasons.

19.	Also on 26 May 2009, DMS were asked to provide additional observations on the following issue:

‘‘At Section 4.6 of the original appeal submissions there is reference to a decision of the Department dated 7 June 2006.  A copy of the relevant decision is attached to the appeal submission as tab No. 7.  The decision purports to be a supersession of an earlier decision of the Department, dated 30 March 2004, and disallows entitlement to income support 30 September 2003.  The decision states that the applicant:

‘… does not satisfy the conditions of entitlement for Income Support as on a balance of probabilities her partner was in remunerative work’.

The Department are asked to give details of the evidential basis upon which it concluded that, on the balance of probabilities, the applicant’s partner was in remunerative work.’

20.	A response to this direction was received in OSSC on 5 June 2009 which was shared with the appellant on 8 July 2009.

21.	On 27 July 2009, I granted leave to appeal and directed an oral hearing of the appeal.  In granting leave to appeal, I cited, as a reason, that:

‘Leave to appeal is granted as an arguable issue arises as to the extent to which the appeal tribunal determined that there was an accurate Section 69(5A) decision.’

22.	On 17 August 2009, a further submission was received from the appellant which was shared with DMS on 2 September 2009.  At the oral hearing, the appellant was meant to have been represented by her solicitor.  In the event, her solicitor, while elsewhere in the hearing venue, did not make an appearance.  The appellant indicated, however, that she was willing for the appeal to proceed without her representative’s attendance.  The Department was represented by Mr McGrath of the DMS section.  Gratitude is extended to both the appellant and Mr McGrath for their detailed and constructive observations, comments and suggestions.

Errors of law

23.	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.

24.	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 error of law in the instant case

(i) The effect of the criminal proceedings

25.	In her application for leave to appeal to the LQPM, the appellant submitted that the decision of the appeal tribunal was in error of law in the manner in which the period of the overpayment was calculated.  The appellant made reference to the criminal proceedings before the Magistrates’ Court, submitting that it had been there agreed that the overpayment should be in the amount of £1133.32 for the period from 1 January 2006 to 9 March 2006.  The appellant submitted that the appeal tribunal should:

‘… have been guided by the details recorded by the Court Officer in Court reflecting the actual terms of the over payment of which I was convicted upon my own plea.  It was not considered necessary either by myself nor by my legal representatives to attend the hearing by the Tribunal as both my legal representatives and I felt we could depend upon the Tribunal to apply the law correctly and seek the correct amount namely £1133.22.  In effect the Tribunal is seeking to attach an overpayment amount to me spanning a period which the Prosecution themselves admitted could not be substantiated and of which there was no evidence.’

26.	This submission was repeated in the application for leave to appeal to the Social Security Commissioner, and in further correspondence from the appellant in response to the observations on the application, received from DMS.

27.	In the instant case, as part of the social security decision-making process, a decision-maker of the Department decided, on 21 June 2006, that as a result of an earlier entitlement decision, dated 7 June 2006, an overpayment of IS, amounting to £12873.87, for the period from 30 September 2003 to 9 March 2006, had been made, and which was recoverable from the appellant.  The earlier decision, dated 7 June 2006, had superseded a decision of the Department dated 30 March 2004, and removed entitlement to IS from 30 September 2003.

28.	Those decisions were made under the provisions of the Social Security Administration (Northern Ireland) Act 1992, the Social Security (Northern Ireland) Order 1992, and the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.  The appellant had the right to appeal against the decision dated 7 June 2006, to an independent appeal tribunal.  The duty of the appeal tribunal was to consider, in light of submissions made by the appellant and/or her representative whether the decision, made by the decision-maker on 21 June 2006, was correct.

29.	Quite separately to the decision made by the decision-maker on 21 June 2006, which related to benefit entitlement and the overpayment of a social security benefit, a decision was made that consideration should be given to further investigation of the circumstances giving rise to the alleged overpayment of the relevant benefit.  Although I cannot be certain, it is highly likely that this further decision was taken in line with the Department for Social Development’s highly-publicised policy to tackle and combat benefit fraud.  As part of that policy the Department has produced and publicised a number of documents which set out the policy and the investigation process and outcomes.  These documents are in the public domain and are available at: http://www.stopbenefitfraudni.gov.uk/publications.htm

30.	The Department’s stated policy is set out as follows:

‘8.	Benefit Investigation Services (BIS)

8.1	BIS is the unit responsible for the investigation of external benefit fraud and, where appropriate, instigating legal proceedings against offenders.  It is managed from locations across Northern Ireland, and is organised into a number of different teams, each of which performs a specific role.

8.2	Allegations of fraud are received in BIS from a variety of sources, including staff, the public, other government bodies and data matching exercises.  Data matching compares information provided by customers in relation to their benefit claims with information held by other Government departments, particularly Her Majesty’s Revenue and Customs, and highlights any discrepancies.

8.3	When referrals are received in BIS they are assessed as to their suitability for investigation.  Referrals that are selected for investigation are passed to professionally trained operatives who use a variety of investigative techniques and tools to gather as much evidence as is necessary to either prove or disprove the allegation.  These include the use of special surveillance powers authorised under the Regulation of Investigatory Powers Act 2000 and information gathering powers using the Social Security Fraud Act (NI) 2001.  Authorisation to use Fraud Act powers allows investigators to gather information from listed organisations such as banks, building societies and credit reference agencies.  From the outset, all investigations are conducted in an even-handed and non-discriminatory fashion.

8.4	If, on conclusion of the investigation, there is sufficient evidence to prove a fraud allegation, the case is considered for a sanction.

8.5	The sanction that is applied is based on the seriousness of the offence and/or the individual circumstances of the case.  The sanctions available are:

•	Formal caution;

•	administrative penalty (similar to a fine); or

•	recommendation for prosecution.

8.6	If the decision is to recommend prosecution, a prosecution brief is prepared and sent to the Public Prosecution Service for Northern Ireland (PPSNI).  They have the final decision as to whether or not to proceed with the prosecution.  Their decision is based on the strength of evidence available and whether it is in the public interest to pursue proceedings against a customer.

8.7	Cases where very serious criminality is uncovered may be referred to the Police.  All Police referrals will comply with the Acceptance Criteria and Evidence Pack as detailed in the MOU between the Northern Ireland Public Sector and the Police Service of Northern Ireland.  This may ultimately result in the prosecution of the individual(s) involved.’

31.	A separate publicised document ‘Social Security Benefit Fraud Sanction Policy’ makes it clear that a case will normally be referred to the Public Prosecution Service where the gross overpayment is significant.

32.	In the instant case, such a referral to the Public Prosecution Service was made, which led to the criminal proceedings, and sentence imposed, as set out above.

33.	In Great Britain decision CIS/683/1994, Commissioner Henty said the following, at paragraph 5:

‘5. The grounds of appeal to the tribunal are set out in a solicitor’s letter dated 24.5.93 (T17):

…

“2. The sentence imposed upon [the claimant] of imprisonment was combined with an order that he make no compensation in respect of the monies obtained by deception.

The claimant takes up this point in his grounds of appeal to the Commissioner at p29/30:
 
“The point of law is that no Minister of State has power to set aside a decision given by a High Court judge as to compensational restitution – unless that falls within the powers of the Home Secretary regarding the setting aside of such judgments.”

From this, I can only think that what was being advanced was in essence a submission that since the Magistrates had not thought fit to make a restitution order, then the Secretary of State was bound and could not receive overpayment under section 119, Social Security Act 1975 and section 53 of the 1986 Act.  The rights granted by the Secretary of State by these sections are statutory rights and I cannot see what decision by anyone under the Powers of Criminal Courts Act 1973 could, in any way, disturb those rights.  I accept, however, that if an order had been made in favour of the Department, if and in so far as that order had been satisfied, the right to repayment or recovery would pro tanto have abated.  But the fact that magistrates might not make a compensation order does not mean to say that a person is deprived of any other rights he might have.  Compensation orders are not intended to be a straight alternative to civil process …’

34.	Section 119 of the Social Security Act 1975 and section 53 of the Social Security Act 1986 gave the Secretary of State the right to recover overpayments of social security benefits and was the forerunner to section 71 of the Social Security Administration Act 1992 and the Northern Ireland equivalent, section 69 of the Social Security Administration (Northern Ireland) Act 1992.

35.	I approve of the decision of Commissioner Henty in CIS/683/1994 and accept and apply it as setting out and representing the law in Northern Ireland.  The principles in CIS/683/1994 mean that the failure or deliberate omission to make a compensation or restitution order in criminal proceedings, arising from circumstances in which social security benefits have been overpaid, does not negate the right of the Department to seek to recover those overpaid social security benefits under separate statutory powers, such as section 69 of the Social Security Administration (Northern Ireland) Act 1992.  Where a restitution or compensation order is made, however, and is satisfied, in so far as the amount set out in the order is re-paid to the Department, and the amount, and period to which it relates, overlaps with any amount and period for which there could be a separate right of recovery, under other statutory powers, the right to recover the amount paid pursuant to the order is abated.

36.	In the instant case all of this means that even though the restitution order made by the magistrate in the criminal proceedings before him was for a specified amount relating to a particular period that order, in itself, does not prevent the Department from seeking to recover overpaid social security benefits, or prevent an appeal tribunal from adjudicating on any decision relating to overpaid social security benefits, in an amount or for a period which relates to, or overlaps with, the amount or period the subject of the restitution order.  If, however, the amount set out in the restitution order has been re-paid to the Department and the amount and period to which it relates overlaps with any amount and period for which there could be a separate right of recovery, under other statutory powers, the right to recover the amount paid pursuant to the order is abated.

37.	That does not mean that the Department cannot make a decision, or that an appeal tribunal cannot confirm a decision that there has been an overpayment of a social security benefit for a particular period, including the period and amount, the subject of the restitution order.  It means that, if and when the Department seeks to recover the full amount of any overpayment confirmed by the appeal tribunal, it cannot be paid twice for the amount and period in relation to which the restitution order has been satisfied.

(ii)	The section 69(5A) decision

38.	In C6/08-09(IB), I said the following about section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, at paragraphs 48 to 54:

‘Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992

48.	As was noted above, the decision under appeal to the appeal tribunal was a decision dated 17 May 2007, in which a decision-maker of the Department issued a decision which raised an overpayment of IB against the appellant for various periods during which he was in detention in prison.

49.	Section 69(5A) of the Act provides that:

‘(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.’

50.	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.

51.	Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

52.	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. …’

53.	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. …’

54.	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 set out the consequences where no such proper notification had been made.’

39.	In the instant case, a decision-maker of the Department made a decision, a copy of which was attached to the original appeal submission as Tab No 7.  The decision was in the following terms:

‘I have superseded the decision of the Department dated 30/3/04.  This is because I am satisfied that the decision was given in ignorance of a material fact.  This was that according to information received from B.I.S customer was living with her partner from 30/9/03 and therefore does not satisfy the conditions of entitlement for Income Support as on a balance of probabilities her partner was in remunerative work.  Therefore my decision is that (the claimant) is not entitled to Income Support from 30/9/03.  Please implement decision and have overpayment raised accordingly.’

40.	An overpayment decision was duly raised, which became the decision under appeal to the appeal tribunal.  On 21 June 2006, a decision-maker of the Department decided that as a result of an earlier entitlement decision, dated 7 June 2006, an overpayment of IS, amounting to £12873.87, for the period from 30 September 2003 to 9 March 2006, had been made and which was recoverable from the appellant.

41.	In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has stated the following at paragraphs 1, 2 and 6:

‘1.	The Claimant claimed and was paid Income Support from 04.01.1996

2.	A supersession decision was subsequently made by the Department on 14.06.2006 stating that the Claimant was not entitled to Income Support from 30.09.2003 …

6.	It is the Department’s case that the Claimant was living with her partner (…) from 30.09.2003 and that the Claimant therefore did not satisfy the conditions of entitlement for Income Support as on the balance of probabilities, her partner was in remunerative work.’

42.	The reference to 14 June 2006 in paragraph 2 is incorrect.  The correct date of the supersession decision is 7 June 2006, with the decision being issued to the appellant on 14 June 2006.  It is arguable, therefore, that the appeal tribunal was alert to the requirement to identify a decision which satisfied the requirements of section 69(5A), and that was the decision of the decision-maker dated 7 June 2006.  Identification is not enough, however.  The appeal tribunal is under an obligation to ensure that the section 69(5A) decision is accurate and correctly made.

43.	In the instant case, I am of the view that the decision dated 7 June 2006 is problematic, for the following reasons.  Section 123(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that a person in Northern Ireland is entitled to IS provided that he satisfies a number of conditions set out in sub-paragraphs (a) to (h).  The condition in sub-paragraph (c) is that the claimant is:

‘… not engaged in remunerative work and, if he is a member of a couple, the other member is not so engaged.’

44.	Remunerative work is defined in regulation 5 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended.  Regulation 5(1) and (1A) provide that:

‘5.—(1) Subject to paragraphs (2) to (5), for the purposes of Article 21(3)(c) of the Order (conditions of entitlement to income support), remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than16 hours a week being work for which payment is made or which is done in expectation of payment.

(1A) In the case of any partner of the claimant paragraph (1) shall have effect as though for “16 hours” there shall be substituted “24 hours”.’

45.	The reference to the ‘Order’ is to the Social Security (Northern Ireland) Order 1986, and the conditions set out in Article 21(3)(c), of that Order replicate the conditions of entitlement in section 123(1)(c) of the 1992 Act.

46.	It follows from this recitation of the relevant legislative provisions that it is possible, subject to other conditions of entitlement, to continue to have an entitlement to IS where the claimant is engaged in remunerative work for less than 16 hours per week, or where the claimant is a member of a couple, where the claimant’s partner is engaged in remunerative work for less than 24 hours per week.

47.	In the instant case, the appellant, on her initial claim to IS was awarded the benefit as she satisfied the conditions of entitlement including the condition that she was not engaged in remunerative work, that is work exceeding 16 hours per week, for which payment was made or was done in expectation of such payment.  Further, she was not, at the date of the initial claim to benefit, a member of a couple where her partner was engaged in remunerative work, exceeding 24 hours per week, for which payment was made or was done in expectation of such payment.

48.	Inherent in the supersession decision, dated 7 June 2006, is a finding that by 30 September 2003, the appellant was a member of a couple and that her partner was engaged in remunerative work, exceeding 24 hours per week, for which payment was made or was done in expectation of such payment.

49.	I directed DMS to give details of the evidential basis on which the Department had concluded that, on the balance of probabilities, the applicant’s partner was in remunerative work from 30 September 2003.  The response from DMS was as follows:

‘In the decision dated 7-6-06 it was stated that,

“according to information received from BIS customer was living with her partner from 30-9-03 and therefore does not satisfy the conditions of entitlement for Income Support  as on balance of probabilities her partner was in remunerative work.”

I would submit that the “BIS” in the decision refers to the Departments’ Benefit Investigation Services and the information relates to an Interview Under Caution and a copy of a remortgage application to the Nationwide Building Society.

In the remortgage application at section 4 headed “About your income” (…) has stated that the name and address of his employer was Seagate Technology, Springtown Industrial Estate.

In response to the question “Length of service” (…) stated 09 / 09.

I would submit that the on balance of probabilities this signifies length of service as 9 years and 9 months.

(…) stated that his type of employment was permanent.

Finally (…) signed and dated this application on 30-9-03.

In the Interview Under Caution which was conducted on 25-3-06 (the claimant) stated that she lived with her two sons, her daughter and (…).

At question 131 (the claimant) was asked “did he (…) work full time?”

In reply (the claimant) stated that, “he works 4 days and 4 nights and that’s shift work”

The interviewer then remarked, “Right that’s over 37 hours a week anyway”

To which (the claimant) replied “yeah”

I would submit that taking into account the evidence supplied by the Benefit Investigation Services (BIS) that the decision maker decided that on the balance of probabilities (…) was in remunerative work for the period in question.’

50.	It seems to me that the evidence-gathering and fact-finding with respect to the determination that the appellant’s partner was engaged in remunerative work, and that the remunerative work exceeded 24 hours per week, for which payment was made or was done in expectation of such payment, would have to be more rigorous than that set out in the appeal submission.

51.	I accept that there is a Nationwide mortgage application form in which disclosure of employment status is made by an individual alleged to be the appellant’s partner.  The form is dated, however, 30 September which is the date from which the Department has alleged that the appellant became a member of a couple.  Further, the Department, in the overpayment decision dated 21 June 2006, that the appellant was not entitled to IS from 30 September 2003 to 9 March 2006.  Inherent in that decision is a conclusion that during that period she was a member of a couple and that her partner was engaged in remunerative work and that the remunerative work exceeded 24 hours per week.  It could be the case, however, that there were changes in the employment status or terms and conditions of employment of the appellant’s alleged partner during the period from 30 September 2003 to 9 March 2006.  In my view, the issue could have been settled without difficulty by a request for information from the relevant employer by those conducting the inquiry into the appellant’s circumstances, and the provision of the relevant information to the decision-maker.

52.	While I also accept that the appellant is alleged to have provided information concerning her partner’s employment status, and terms and conditions, the responses to very general questions would be insufficient to draw a conclusion that during the lengthy period from 30 September 2003 to 9 March 2006, the appellant’s partner was engaged in remunerative work and that the remunerative work exceeded 24 hours per week, for every week of the period.

53.	How did the appeal tribunal deal with the remunerative work issue?  As was noted above, in the statement of reasons for the appeal tribunal’s decision, the appeal tribunal, at paragraph 6 noted that:

‘6.	It is the Department’s case that the Claimant was living with her partner (…) from 30.09.2003 and that the Claimant therefore did not satisfy the conditions of entitlement for Income Support as on the balance of probabilities, her partner was in remunerative work’

54.	Later in the statement of reasons, the following is recorded:

‘On balance, therefore, we find the Claimant was living together as husband and wife with the said (…) and we find, she was not entitled to Income Support for the period 30.09.2003 – 09.03.2006 amounting to £12,873.87.’

55.	There is no analysis of the basis for the conclusion that the appellant was not entitled to IS for the relevant period, in terms of section 123(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, and regulation 5 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended.  There is no assessment of the available evidence relating to remunerative work or findings in fact concerning that issue.  Accordingly, I conclude that the appeal tribunal has failed to satisfy itself that the decision which the Department submitted had satisfied the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992.

(iii)	The overpayment decision
 
56.	There is in place a legislative mechanism for the recovery of all social security benefits which have been overpaid.  Section 69(1) Social Security Administration (Northern Ireland) Act 1992, as amended provides that:

“(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 the section applies;

	(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.”

57.	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 Social Security Administration (Northern Ireland) Act 1992) and regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (which has an equivalence in regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987).

58.	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.”

59.	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 which the claimant might reasonably be expected to know would affect his entitlement to benefit.’

60.	In the instant case, in the appeal submission, the appeals officer has noted the following, at paragraph 4:

‘… (a) (The claimant) knew that she was living together as husband and wife with (…) from 30/09/03.

(b) It was reasonable to expect (the claimant) to disclose this fact because she her [sic] income Support order book notes at note 22 informs her to inform her Social Security Office if someone comes to stay your address [sic] and she was issued with information leaflet INF4 on 30/03/04 and this leaflet informed (the claimant) to tell her Income Support Office if she or anyone she was claiming for start living with someone or get married.

(c) (The claimant) did not report the fact that she was living as husband and wife with (…) from 30/09/03.

(d) As a result of the failure to disclose an overpayment has occurred that is recoverable from (the claimant).’

61.	In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal records that:

‘We find furthermore that the Claimant failed to disclose the material fact that she was living together with her partner and as a consequence the said sum of Income Support would not have been paid but for the failure to disclose.  Accordingly, the said sum is recoverable.’

62.	There is no other reference in the statement of reasons of the legal and evidential source of the duty on the appellant to disclose a change of circumstances, and the appeal tribunal has clearly failed to address this most significant of issues.

63.	The failure to address the legal and evidential source of the duty on the appellant to disclose a change of circumstances by the appeal tribunal renders its decision on that aspect of the appeal erroneous in law and it must, accordingly, be set aside.

Disposal

64.	The decision of the appeal tribunal dated 2 April 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.

65.	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 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. 

66.	The appeal is to be re-listed as an oral hearing.

67.	The Department is directed to produce a further appeal submission which addresses:

(i)	the legal basis on which the Department submits that the appellant was not entitled to IS from 30 September 2003 to 9 March 2006;

(ii)	if the legal basis for the appellant not being entitled to IS from 30 September 2003 to 9 March 2006, is that the appellant was a member of a couple and that her partner was engaged in remunerative work, and that the remunerative work exceeded 24 hours per week, for every week of the period, the Department is to set out the evidential basis on which this submission is made;

(iii)	the legal and evidential source of the duty on the appellant to disclose a change of circumstances; and

(iv)	any other issues arising.

68.	It will be for the appellant to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.

69.	The appeal tribunal is directed to:

(i)	satisfy itself that there is in place a decision which meets the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, and that there is a sufficient evidential basis to support such a decision; and

(ii)	consider, in light of the analysis above, the legal and evidential source of the duty on the appellant to disclose a change of circumstances, and consider whether the decision which is the subject of the appeal is correct.

(signed):  Kenneth Mullan

Commissioner

2 March 2010