Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C1/93(ICA) (10 November 1993)

 


Decision No: C1/93(ICA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INVALID CARE ALLOWANCE Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 12 January 1993 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal. I arranged an oral hearing of the application at which claimant was represented by Mr Les Allamby of Belfast Law Centre and the Adjudication Officer was represented by Mr Barry Kerr. At the hearing I granted leave to appeal and both parties consented to me treating the hearing as the appeal and this I propose to do.
2. Briefly the facts are that the claimant was in receipt of invalid care allowance in respect of his son. The son had been admitted to a hostel on 19 November 1990 and from that date claimant was not entitled to the invalid care allowance as he was not regularly and substantially caring for his son from that date. Claimant was in receipt of income support during the period and taking into consideration the reduction which was made in his income support because he was in receipt of the invalid care allowance a net overpayment of £371.20 was incurred for the period from 19 November 1990 to 20 July 1991, on the grounds that he failed to disclose the material fact that his son had been admitted to a hostel.
3. The Social Security Appeal Tribunal to which claimant appealed against the Adjudication Officer's decision made the following findings of fact:-

"1. Christopher, (claimant's son for whom he was receiving Invalid

Care Allowance) was admitted to a hostel on 19 November 1990.

2. From that date he no longer was caring for him so as to be

entitled to Invalid Care Allowance.

3. Claimant in November 1990 notified Attendance Allowance

Department of this change of circumstances but they failed

to notify Invalid Care Allowance Branch so that Invalid

Care Allowance could be stopped.

4. Claimant continued to collect Invalid Care Allowance till

20 July 1991 and made no further disclosure of the change

of circumstances."

The Tribunal's decision is recorded as:-

1. Adjudication Officer had grounds to review his decision

dated 13 November 1990.

2. Mr B... was not entitled to Invalid Care Allowance

following son's admission to hostel on 16 November 1990

as no longer caring for a severely disabled person from

that date.

3. Letter of 19 November 1990 from Social Worker Miss S

to Department of Health and Social Services was sufficient

initial disclosure of change of circumstances.

4. But he continued to receive Invalid Care Allowance for

almost 8 months.

5. He was not entitled to it from 14 January 1991 and is due

to repay the overpayment (less appropriate alteration of

Income Support)."

and the reasons for that decision are:-

"Claimant failed to discharge his continuing duty of disclosure

after 14 January 1991 (RSB54). It would have been reasonable

for him to assume that it would take some time for correction

of his benefit to be made. We consider the time lag to

14 January 1991 appropriate."

4. Mr Allamby had argued that claimant had at all times fulfilled his obligation and argued that the letter from the Social Worker, Miss S was a sufficient indication to the Department of the change of circumstances.
5. At the hearing before me the Adjudication Officer made a further written submission as follows:-

"CASE LAW

1. R(SB) 54/83, para 18

"The obligation to disclose is, however, a continuing obligation.

If, after disclosure has been made, a claimant continues to

receive his benefit at the existing rate, so that he has

reason to suspect that his disclosure was ineffective, he

cannot sit idly by. He must take further, and more effective,

steps to make the necessary disclosure."

2. Read in isolation this appears to apply to direct disclosure

to the paying office, but this was fettered subsequently by

a Tribunal of Commissioners in R(SB) 15/87, para 28, where

it was held that the principle of a continuing obligation

should be taken to refer to a claimant who has not in fact

made disclosure to the right person but reasonably expects

the information to be passed on to the right person (as per

R(SB) 54/83 itself - disclosure of information to UB Section

to be passed on to the Supp Ben section).

That para goes further and asserts that if disclosure is made

direct to the paying office "in terms that make sufficient

reference to his claim to enable the matter disclosed to be

referred to the proper person", then "it is difficult to

visualise any circumstances in which a further duty to disclose

the same matter can arise".

3. This case law is included in AOG guidance (12087 and 12093) and

is taken to mean that disclosure to the paying office direct

carried no continuing obligation.

SSAT DECISION

4. SSAT found as a fact (in "decision" box) -

"Letter of 19 November 1990 from Social Worker Miss S...

to DHSS was sufficient initial disclosure of change of

circumstances."

They then proceeded to apply the continuing obligation rule,

selecting 14 January 1991 as the appropriate date by which

Mr B... could have been expected to have taken further

positive steps to disclose.

5. Any disclosure made by the letter of 19 November 1990, would

have been to the wrong office ie Falls Road instead of AA Branch,

so on the face of it the continuing obligation rule could apply.

6. The letter of 19 November 1990 did not contain any reference to

Mr B...'s claim, only the son's. So it would not satisfy the

test in R(SB) 15/87, para 28, as it did not enable the matter

disclosed to be referred to the proper person.

In my submission the letter of 19 November 1990 was not sufficient

disclosure in connection with Mr B...'s ICA claim.

7. Tab 3 - Phone call from ICA staff to AAB staff on 22 July 1991 -

"Checked with AAB - claimant informed them of Christopher's new

address in November 1990 and they didn't inform us."

This evidence is crucial as it confirms that AAB, who administered

ICA at the relevant time, were in fact notified by Mr B..., at

the time, and at least in respect of the AA claim of his son

Christopher.

This evidence appears to be independent of the letter of

19 November 1990 which originated from the Social Worker, Miss S....

Phoned DLA Branch, who took over AA for under-65s from last year,

and they are unable to trace the AA file to confirm exactly how

Mr B... notified them and what was said.

8. In these circumstances, must accept that disclosure was made

direct to AAB in November 1990 and accordingly the continuing

obligation rule does not apply. The entire overpayment therefore

is not recoverable."

6. The Tab 3 which the Adjudication Officer refers to is among the papers and it is a note of a telephone call which confirms that in fact the claimant did notify the Attendance Allowance Branch that his son had gone into a hostel.
7. I accept the concession that sufficient notification was made. I hold that the Tribunal erred in law as stated and I therefore allow the appeal and set aside the decision of the Tribunal. I am satisfied this is a proper case for me to exercise the powers vested in me to give the decision that the Tribunal should have given, namely that although the Adjudication Officer was entitled to review his previous decisions and to revise them and that an overpayment of invalid care allowance had been made, nevertheless the overpayment was not recoverable as there was no failure to disclose a material fact that claimant's son had been admitted to a hostel.

(Signed): C C G McNally

COMMISSIONER

10 November 1993