Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C7/94(IS) (21 December 1994)

 


C7/94(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

Appeal to the Social Security Commissioner

on a question of law from the decision of

Newcastle Social Security Appeal Tribunal

dated 16 November 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant appeals, pursuant to leave granted by me, against the decision of Newcastle Social Security Appeal Tribunal, whereby it was held that £304 income support paid to the claimant during the period 8 January 1993 to 4 March 1993 was recoverable from her.
2. By a decision issued on 17 August 1993, the Adjudication Officer then in charge of this case reviewed and revised a previous decision awarding the claimant income support from and including 23 October 1992. It was said that there had been a relevant change of circumstances since the previous decision was given; namely that the claimant's daughter L( left school on 4.12.92. The Adjudication Officer's revised decision was that the claimant was due a reduced rate of income support for the period from 8.1.93 to 4.3.93 and that as a result there had been an overpayment amounting to £304. The Adjudication Officer further decided that, on 4.12.92, or as soon as practicable after that date, the claimant had failed to disclose the material fact that her daughter had left school and that accordingly income support amounting to £304 was recoverable from the claimant.
3. The claimant appealed against the Adjudication Officer's decision in the following terms:-

"I wish to appeal the decision that Income Support has been

overpaid from 8 January 1993 to 4 March 1993 amounting to

£304.00.

L... had not decided to leave school on 4 December. She had

been off school because she was sick. She decided to leave

school in March 1993. If she had decided to leave school in

December she would have signed unemployed."

4. In her submission to the Appeal Tribunal, the Adjudication Officer set out the information upon which she had decided that the claimant's daughter had left school on 4 December 1992. It was said that on 8 March 1993 the claimant had reported that her daughter had left school on 26 February 1993 and had started work on 1 March 1993, and that the claimant had returned her child benefit order book. On 26 May 1993 Child Benefit Office advised that child benefit had stopped from 11 January 1993 and it was stated that Child Benefit Office had contacted L...'s school who had confirmed that she left school on 4 December 1992. It should be noted that the Adjudication Officer's decision, which was not issued until 17 August 1993, concerned only the income support alleged to have been overpaid for the period from 8 January 1993 to 4 March 1993. This amounted to £304 which was said to be recoverable from the claimant because she had failed to disclose the material fact that her daughter left school on 4 December 1992. I note in passing that the claimant continued to be paid income support in respect of L... for some time after 4 March 1993, when she had unquestionably left school, and that accordingly, if there was an overpayment, it was considerably in excess of the amount said to be recoverable from the claimant.
5. The claimant did not attend and was not represented at the hearing of her appeal before the Appeal Tribunal. As they were fully entitled to do, the Tribunal decided to proceed in her absence and in due course recorded the following findings of fact:-

"The tribunal find that L... left school on 4 December 1992.

There was a failure to disclose a material fact in that

Mrs B... did not notify the Department that her daughter

had left school on 4 December 1992."

The Tribunal's unanimous decision was:-

"Appeal disallowed - £304.00 Income Support paid to claimant

during the period 8 January 1993 to 4 March 1993 is recoverable

from Mrs B...."

Their reasons for decision were:-

"Section 69 Social Security Administration (NI) Act 1992.

Mrs B... failed to disclose a material fact namely that her

daughter left school on 4 December 1992."

6. In her application for leave to appeal to the Commissioner the claimant repeated her assertion that her daughter L... had been absent from school because of illness and had not decided to leave until February 1993, when her decision was reported to the Kilkeel Office. The claimant also stated that she had not been well enough to attend the Tribunal.
7. In response to an invitation to comment upon the application for leave to appeal to the Commissioner, the Adjudication Officer now concerned with the case expressed the opinion that the Tribunal had failed to comply with the provisions of regulation 25 of the Social Security (Adjudication) Regulations (Northern Ireland) 1987, (the Adjudication Regulations), in that there was nothing in the record of their decision and reasons to indicate that they had taken any account of the information from the claimant that her daughter had not left school on 4 December 1992 but was only sick. The Adjudication Officer pointed out that, in a case in which the claimant did not appear and was not represented, it was particularly important for the Tribunal to spell out their reasons for decision in detail and to make it clear that all relevant evidence had been taken into consideration.
8. I decided to hold an oral hearing of the application. In doing so I was influenced to some extent by the claimant's assertion that she had not attended the hearing before the Appeal Tribunal because she had not been well enough to do so. I was, however, disappointed to find that the claimant failed to attend or be represented at the hearing of her application, and that she had ignored a request that she should notify the Commissioners' Office if she was unable to be present. At the hearing, the Adjudication Officer, Mr C McLaughlin, drew attention to the complete absence from the record of the Tribunal's decision of any reference to the claimant's assertion that her daughter had been sick, and that this had been the reason for her absence from school from 4 December 1992 until the end of February 1993. If there had been anything to indicate that the Tribunal had taken this piece of information into account in arriving at their decision that the daughter had left school on 4 December 1992, all would have been in order. As matters stood, there had, in Mr McLaughlin's opinion been a failure to comply with the provisions of regulation 25 of the Adjudication Regulations.
9. Following the grant of leave to appeal by me, the claimant was asked to complete the usual notice of appeal. In it, the grounds upon which she relies were stated as follows:-

"I have nothing to add to statement already given. I still

say as a single parent I was entitled to money received for

L.... But I do not wish to attend the appeal, and would

like it to go ahead in my absence."

The claimant also requested an oral hearing of her appeal, stating as her grounds:-

"Understood appeal would go ahead without me being present.

Would still like it to do so."

10. In his observations on the appeal Mr McLaughlin submitted that although the Tribunal had erred in law in failing to comply with the provisions of regulation 25 of the Adjudication Regulations, they had nevertheless been correct in holding that the claimant had failed to disclose the material fact that her daughter L... had left school on 4 December 1992 and that as a result an overpayment of income support for the period 8 January 1993 to 4 March 1993 was recoverable from the claimant. Mr McLaughlin went on to consider the effect of the provisions of regulation 6 of the Child Benefit (General) Regulations (Northern Ireland) 1979, in determining whether for child benefit purposes a young person was receiving full-time education. Those provisions concern periods of interruption of full-time education, and as I understand it, any such period must not only be preceded by a period of actual full-time education but in addition must be followed by a resumption of full-time education. Mr McLaughlin pointed out that as L... did not return to school after 4 December 1992 the period in question in this case could not be considered as an interruption of full-time education, and the claimant's daughter could only be treated as being in relevant education for child benefit purposes, and therefore for income support purposes, up to and including 10 January 1993. This is not a point which has hitherto been raised in this case, and while I have no doubt that Mr McLaughlin's analysis of the law is correct, I propose to continue to deal with the claimant's appeal on the basis that her daughter should not be regarded as having left school on 4 December 1992 if her absence thereafter was due to illness. The Adjudication Officer's decision was that L... had left school on that date and the Appeal Tribunal made a specific finding of fact to that effect. They were not asked, and did not purport, to decide whether there had been an interruption of full-time education for child benefit purposes, and in my view it is unnecessary to consider that aspect of the case. If L... was genuinely ill and did not leave school until 26 February 1993 the claimant could not in my opinion be held to have failed to disclose a material fact.
11. The first matter to be considered is whether the Appeal Tribunal's decision is erroneous in point of law. For my own part I think it more than likely that the Tribunal took full account of the claimant's assertion that L... had not left school; but was absent through illness until 26 February 1993. Nevertheless, I have to agree that there is nothing in the Tribunal's decision to indicate that they gave any thought to that possibility. Accordingly I accept that the Tribunal erred in law in failing to comply with the provisions of regulation 25 of the Adjudication Regulations, as submitted by Mr McLaughlin. I therefore allow this appeal and set aside the decision of the Appeal Tribunal. I should, however, at once make it clear that the claimant will not derive any benefit from the success of her appeal, because, although the Tribunal may have erred in point of law, I agree with the decision which they reached. I am, moreover, of the opinion that this is a case in which it is expedient that, in the exercise of my power under section 21(7)(a)(ii) of the Social Security Administration (Northern Ireland) Act 1992, I should make fresh or further findings of fact and give the decision which I consider to be appropriate in the light of them. Having taken account of all the information which has been made available to me I find myself unable to accept the claimant's assertion that L...'s absence from school from 4 December 1992 until 26 February 1993 was due to illness. One would expect such an explanation to be accompanied or supported by some kind of documentary proof: perhaps a doctors line or a medical certificate. At the very least I would have expected the claimant to attend one or more of the hearings which have been held in this case; but she has made it clear that she is not prepared to do so. I also bear in mind the information from L...'s school to the effect that she had left on 4 December 1992. In all the circumstances I am, as I have said, not prepared to accept that L...'s subsequent absence was caused by illness, and I confirm the finding of fact that she left school on 4 December 1992.

In the light of this finding and having rejected the assertion that L...'s absence from school after 4 December 1992 was due to illness, I further find that on that date or as soon as practicable thereafter, the claimant failed to disclose the material fact that her daughter L... had left school and that as a result there was an overpayment of income support amounting to £304 for the period 8 January 1993 to 4 March 1993 which is recoverable from the claimant by the Department. On the basis of those findings my decision is the same as that of the Appeal Tribunal; namely that the claimant's appeal against the Adjudication Officer's decision is disallowed and that £304 income support overpaid to the claimant for the period 8 January 1993 to 4 March 1993 is recoverable from the claimant.

12. Although it is not a matter which is relevant to this appeal, I would again refer to the point which I made in the final sentence of paragraph 4 above. Whatever view may be taken of the income support payable to the claimant in respect of her daughter L... for a period prior to 4 March 1993, it is beyond question that there was no entitlement to any such benefit after that date. Despite the fact that it had then been reported that L... had left school and had started work, income support in respect of her continued in payment for some considerable time. From enquiries I have made I understand that in addition to the £304 which I have held to be recoverable from the claimant, she received further overpayments of income support amounting to £469.20 for the period from 5 March 1993 to 11 May 1993. As these overpayments resulted from the failure of the Department to act on the information which they had been given, there can be no question of recovery from the claimant. It may therefore be of some comfort to her to know that on any showing she has received income support in excess of her proper entitlement.
13. The claimant requested an oral hearing of her appeal; but having considered the circumstances of the case and the reasons put forward for the request I am satisfied that a hearing is not required. The request has accordingly been refused.

(Signed): R. R. Chambers

CHIEF COMMISSIONER

21 December 1994