Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C4-94(IS) (10 May 1994)

 


Decision No: C4/94(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT 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 Dungannon Social Security Appeal Tribunal dated 17 November 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 which upheld the decision of an Adjudication Officer that claimant was not entitled to income support from 25 July 1992 to 26 February 1993 and that there had been an overpayment of £957.90 which was recoverable by the Agency.
2. I held an oral hearing at which claimant was represented by Mr K..., Solicitor of Messrs P A D… & Company and the Adjudication Officer was represented by Mrs McRory.
3. There is no dispute about most of the facts in this case. The claimant was in receipt of income support. It came to the knowledge of the authorities that her husband was claiming unemployment assistance in the Republic of Ireland and consequently claimant would not have been entitled to income support for the period mentioned above and as a result there was an overpayment. The amount of the overpayment is not in dispute.
4. The law is to be found in section 69 of the Social Security Administration (Northern Ireland) Act 1992 which states:-

"69.-(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 this

section applies; or

(b).[not applicable];

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."

5. When the Department discovered that claimant's husband was receiving the benefit in Drogheda it carried out an investigation and the papers contained a record of an interview with the claimant. After asking her various relevant questions about her knowledge of her obligation to report change of circumstances, the interviewer records:-

"Q. It has come to light that your husband, B…, is receiving

unemployment assistance at Drogheda DSW from 27/7/92 at £53 per week. Did you not realise that you should have declared this to the Department?

A. I did not know that he was receiving this money but he will not

continue to sign in Drogheda.

Q. Do you have anything further to add to this interview.

A. No."

6. As a result of that interview the Adjudication Officer after considering quite properly that there were grounds to review the previous decision due to relevant change of circumstances - and that there had been an overpayment went on to decide:-

"On 31/7/992 or as soon as practicable after Mrs F... failed to

disclose the material fact that her husband was claiming unemployment

assistance in Drogheda. Accordingly income support amounting to £957.90

from 25/7/92 to 26.2.92 both dates inclusive is recoverable from Mrs F...." [It would appear that that should read 26/2/93].

7. Claimant appealed to a Social Security Appeal Tribunal. In his submission to the Social Security Appeal Tribunal the Adjudication Officer records the fact that Mrs F... was interviewed, copy interview was attached to the submission and then argued "Mrs F... did not report to the Income Support Office that her husband was in receipt of Unemployment Assistance from the Department of Social Welfare in Dublin." At no time would it appear that the Adjudication Officer made any decision as to whether or not the claimant was aware of this material fact and seemed to assume that because there had been an overpayment that that of itself meant that the claimant was guilty of a failure to disclose a material fact.
8. The Social Security Appeal Tribunal recorded the evidence and made the following findings of fact:-

"The claimant's husband was claiming benefit.

The claimant was aware of this fact.

The claimant did not report to Department this extra Income

which husband received from Drogheda.

There was an overpayment of £975.90 as a result.

Husband and wife lived together apart from times he went to

Drogheda on a Monday and Tuesday."

and decided that the amount was recoverable and gave reasons for its decision as:-

"The Tribunal were quite satisfied that the claimant Mrs F...

was aware of the fact that her husband was claiming benefit in

Drogheda."

9. At the hearing before me Mr K... made the point that there was insufficient findings of fact because the Tribunal failed to record why or how it came to the conclusion that claimant was aware of the fact that her husband was claiming benefit, and drew attention to the fact that in the record of the proceedings the Adjudication Officer merely recorded the facts that there had been an overpayment and there is no argument from the Adjudication Officer as to claimant's knowledge of the facts. Claimant in her statement denied knowledge and the Tribunal heard no argument from an Adjudication Officer that claimant had this knowledge. Mr K... also drew attention to the fact that the Chairman recorded that claimant's husband gave evidence, but there is no mention of the fact that the claimant herself gave evidence, nor was there any record of the evidence which she gave. Mr K... said that claimant's evidence was the most relevant and most material because the amount was not recoverable unless it could be proved that claimant knew that her husband was claiming benefit.
10. Mrs McRory also commented upon the fact that nothing was recorded about the claimant's evidence, but only a finding of fact which apparently was based on it. She said that if the Tribunal based its findings on the rejection of claimant's evidence it should have drawn attention to what her evidence was and why it was rejecting it.
11. I have considered what has been said and I have considered all the documents in this case. Clearly there was an overpayment and it is now settled law that a person cannot be guilty of a failure to disclose a material fact of which that person was not aware. So the whole case hinges on claimant's knowledge. Claimant in her initial statement said that she had no knowledge of the fact that her husband was claiming benefit. The Adjudication Officer recorded that he considered the evidence and decided that the amount had been overpaid because of claimant's failure to disclose a material fact, without having any evidence whatever to support that finding. Coming then to the Tribunal it is very difficult to understand why if the claimant's evidence was so material that the Tribunal failed even to record the fact that she gave evidence and it is also clear that the Tribunal erred in merely recording a conclusion where it should have recorded reasons for its decision. It merely recorded the conclusion that claimant was aware of the fact that her husband was claiming benefit, and in view of the fact that there is no record at the Tribunal hearing of the Adjudication Officer making any attempt to show that the claimant had knowledge of the material fact, then no one reading the decision would know how or why the Tribunal reached the decision it did.
12. I am satisfied that the Tribunal erred in law as stated above. At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal.
13. For the reasons set out above I allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal. At that Tribunal the Adjudication Officer should be required to produce whatever arguments there are to support the contention that claimant was aware of the material fact and the Tribunal would have to give reasons why it came to a particular conclusion.

(Signed): C C G McNally

COMMISSIONER


10 May 1994