Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C12-95(IS) (7 August 1995)

 


Decision No: C12/95(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 Lurgan Social Security Appeal Tribunal dated 9 May 1994 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 when he reviewed previous decisions of Adjudication Officers awarding supplementary benefit and income support to the claimant. These held that an overpayment of supplementary benefit and income support had been made to the claimant and that it was recoverable in respect of the period from 30 August 1985 to 28 November 1985, 29 November 1985 to 9 January 1986 and from 14 July 1988 to 28 September 1988, all dates included.
2. I arranged an oral hearing at which claimant appeared in person and the Adjudication Officer was represented by Mrs McRory.
3. The facts are set out in the decision of the Tribunal and as far as I am concerned the only point at issue was whether or not the Tribunal was correct in holding as it did, that no proper disclosure had been made and that there was a continuing duty on the claimant to make disclosure.
4. The Tribunal recorded long and detailed findings of fact as follows:-

"(a) Claimant was in receipt of Supplementary Benefit from 18 May 1983

to 10 April 1988 and thereafter in receipt of Income Support and

during the periods from 30 August 1985 to 9 January 1986 and

14 July 1988 to 28 September 1988 the weekly amounts paid to

him were those set out in the third column in the Breakdown of

Revised Overpayment attached to the submission at Tab 7.

(b) While these weekly amounts were being paid the Supplementary

Benefit and Income Support branches were not aware of the

material fact that Claimant's wife was in receipt of maternity

allowance from 26 August 1985 to 28 December 1985, Sickness

Benefit from 18 July 1988 to 5 August 1988 and Invalidity

Benefit from 6 August 1988 to 26 September 1988 and Income

Support branch only became aware of these benefits on and

following the receipt of a memo dated 9 November 1988 which it

received from Central Benefits Branch in reply to an enquiry.

(c) Had the Supplementary Benefit and Income Support branches been

aware of these benefits during the whole of the periods in

question the weekly amounts of benefit paid to claimant would

have been those set out in the fourth column of Tab 7.

(d) We are satisfied that claimant knew of his wife's benefits (he

has not denied knowledge) and that he did not disclose directly

to Supplementary Benefit or Income Support Branches that his

wife was in receipt of these benefits (and he does not allege

that he did so) and in consequence he received a total

overpayment of £968.04 (as calculated in Tab 7) in respect of

the periods 30 August 1985 to 9 January 1986 and 14 July 1988

to 28 September 1988.

(e) We are also satisfied that, although Supplementary Benefit and

Income Support Branches were not aware of Mrs McC...'s benefits

Central Benefits Branch was aware of them as were various

counter clerks in the unemployment section of the local office

were Mrs McC... signed the unemployment register and that it was

stated by Mrs McC... in her application form for maternity

allowance (which would have been received by Central Benefits

Branch) that her husband was in receipt of Income Support.

However, we do not accept that claimant himself made a report

to the desk clerk in the unemployment section as stated by

him and that he was referred to Income Support section were

he again reported the circumstances. There is no record that

he did so and we find, on the balance of probabilities that

he did not do so.

(f) For the reasons set out at part 4 hereof we find that such

reports as were made to various branches and offices of the

Department did not satisfy claimant's obligation to disclose

the material fact to the relevant branches i.e. Supplementary

Benefit and Income Support branches.

(g) As to whether or not the amount of the overpayment is

recoverable we find that claimant did not have good cause

for his continuing failure to disclose his wife's benefits

to the Income Support branch and therefore the amount is

recoverable."

It also recorded reasons for its decision as:-

"Claimant has argued that since at least one branch of the Department

was aware of his wife's benefits then the amount of benefit paid to

him was paid in that knowledge and must have been correct so there

could not have been an overpayment. We cannot accept that argument

because in R(SB) 15/87 the Commissioners spell out exactly to whom

disclosure should be made as follows, "his duty is best fulfilled

by disclosure to the local office where his claim is being handled

whether in the claim form or otherwise in terms that make sufficient

reference to his claim to enable the matter disclosed to be referred

to the proper person". In claimant's case the contacts were between

his wife and the Central Benefits branch, which is not in the local

office or between his wife and the unemployment benefits counter

clerk at the local office. We do not accept that the latter contact,

which was in connection with her own benefit would have been "in

terms that made sufficient reference" to claimant's Income Support

claim. Further we do not accept that it would be logical for

claimant himself to have reported his wife's benefit to the

unemployment benefits clerk. In any event, even if it was to be

accepted (and we do not accept it) that claimant could have been

of the opinion that his wife's contacts were sufficient disclosure

R(SB) 54.83 recognises a continuing obligation to ensure that the

Adjudication Officer is in possession of all information relevant to

the benefit claimed. Claimant is an intelligent man and he could

not have been unaware that Supplementary Benefit and Income Support

are means-tested benefits which would be affected by family income.

If he had thought that sufficient disclosure had been made then

when there was no reduction in the level of his benefit the

continuing obligation would have applied.

We accept Mrs B…'s evidence that she prepared the figures in

Tab 7 and that they are correct and we accept the forms UB80.ES

(Tax) and T.B.8. as establishing the amounts actually paid to

claimant.

The legislation relating to recovery of overpayment is fully quoted

in the submission and it is drafted in such a way that it does not

matter whether a failure to disclose is fraudulent or innocent. Once

it is found that there has been such a failure without good cause

then recovery must follow. Claimant has taken exception to the

premature action of the recovery section of the Department in making

deductions from his benefit but that is of no relevance to this

appeal which is only concerned with whether there has been an

overpayment and whether it is recoverable."

5. It must be borne in mind that a Commissioner hears appeals on points of law "unadulterated by the facts" as Lord Devlin once said.
6. Turning to the findings of fact the Tribunal did not accept claimant's statement that he, the claimant made a report to the desk clerk in the Unemployment Section as stated by him or that he was referred to the Income Support Section where he again reported the circumstances, because there was no record that he did so. As far as supplementary benefit and income support paid in respect of claimant's wife is concerned, the Tribunal found that claimant's wife said that Central Benefits Branch was aware of them "as were various counter clerks in the unemployment section of the local office where Mrs McC... signed the unemployment register, and that it was stated by Mrs McC... in her application form for maternity allowance (which would have been received by Central Benefits Branch) that her husband was in receipt of income support". The Tribunal went on in the findings of fact to say that "such reports as were made to various branches and offices of the Department did not satisfy claimant's obligation to disclose the material fact to the relevant branches i.e. Supplementary Benefit and Income Support branches".
7. In the reasons for the decision the Tribunal set out claimant's argument that since one Department was aware of his wife's benefits then the amount of benefit paid to him was paid in that knowledge, "and must have been correct so there could not have been an overpayment". The Tribunal rejected that argument and based its rejection on a decision of a Tribunal of Great Britain Commissioners R(SB) 15/87 and the Tribunal quoted correctly from that decision when it said that that decision spelt out exactly to whom disclosure should have been made as follows:- "his duty is best fulfilled by disclosure to the local office where his claim is being handled either in the claim form or otherwise in terms that make sufficient reference to his claim to enable the matter disclosed to be referred to the proper person". It then went on to decide, "We do not accept that the latter contact, ie (that is his wife's contacts which are recorded above) which was in connection with her own benefit would have been "in terms that made sufficient reference" to claimant's Income Support claim". If one reads the full text of the paragraph from which the Tribunal quoted it is clear that it referred to only one form of disclosure. What the Tribunal of Commissioners said was that the duty is best fulfilled in that way and went on to say that if claimant does this it is difficult to envisage any circumstances in which a further duty to disclose the same matter can arise. In other words, once a claimant has disclosed to the local office where his claim is being handled in terms to make sufficient reference to his claim, then he has made all the disclosure he is obliged to make and there is no question of him having any continuing obligation to make a further disclosure, because he has made a disclosure. What happens after that does not concern him. But the Tribunal of Commissioners in the same paragraph went on to say, "But, as was pointed out in R(SB) 54/83, there can be other occasions when a duty can be fulfilled by disclosure elsewhere. This can happen, for instance, if an officer in another office of the Department of Health and Social Security or local unemployment benefit office accepts information in circumstances which make it reasonable for the claimant to think the matters disclosed will be passed on to the local office in question. It was in reference to this sort of case that the Commissioner included in paragraph 18 of Decision R(SB) 54/83 his statement about a continuing duty. A claimant who has made such disclosure has not in fact made disclosure to the right person or in the right place, but he has done something which has the effect that, for the time being at least, further disclosure is not reasonably to be expected of him". Then the Tribunal of Commissioners went on in paragraph 29 to consider the question by whom disclosure should be made and decided that the Regulations required "any person" to make the disclosure, but went on to say:-

"In our judgment disclosure must be made, in connection with the

claimant's own benefit, by the claimant himself or, on his behalf,

by someone else. In this context we would consider that disclosure

could fall within the ambit of having been made "on behalf" of the

claimant if someone else were to give information concerning the

claimant in the course of some entirely separate transaction (for

example, in connection with the informant's own claim for benefit),

provided that:-

(a) the information was given to the relevant benefit office;

(b) the claimant was aware that the information had been so given;

and

(c) in the circumstances it was reasonable for the claimant to

believe that it was unnecessary for him to take any action

himself."

This view has been reinforced by the Court of Sessions in Scotland in the recent case of Riches -v- Secretary of State for Social Security.

The Commissioners went on to say:- "Whether or not a claimant has made disclosure will therefore be a question of fact to be decided upon the evidence before the tribunal ..."

8. It is difficult then to see how the Tribunal on the evidence before it, came to the conclusion that the contacts between claimant's wife and the Central Benefits Branch and the local office did not satisfy the obligation to disclose. That of course would then raise the question, as the disclosure was made by someone other than the claimant, whether or not there was a continuing obligation on the claimant to make further disclosure. But if there is a continuing obligation then there must be a period between the beginning of the overpayment and the realisation that the information supplied had not been acted upon where recovery cannot be expected.
9. In that connection it is unfortunate that the Tribunal ran separate periods together because the evidence should be separated as to what disclosure was made for the period from 30 August 1985 to 9 January 1986 which is a completely separate period and completely different evidence as relating to the period after 14 July 1988 which is 2½ years later. I am satisfied that the Tribunal should have dealt with those periods separately and should have dealt with the evidence separately and made separate findings relating to each period. Particularly in view of the fact that the Adjudication Officer's supplementary submission to the Tribunal in paragraph (f) recorded:-

"Part 1, paragraph 7 - There is no dispute that Mrs McC... stated

on her form MA1 claim for maternity allowance that her husband was

in receipt of Income Support, and even though it was completed and handed

to the receptionist at the Social Security Office it would not have

been passed to the Supplementary Benefit/Income Support Section but

would have been forwarded directly to Central Benefits Branch.

As a result Mr McC... may have felt he had discharged his

responsibility to disclose the fact. It appears departmental

procedure was not followed in this case to notify the Social

Security Office of the claim to Maternity Allowance and in

accordance with Commissioners decision R(SB) 18/87 paragraph 17

Mr McC... would have been under a continuing obligation to

disclose, as the disclosure was not made to the appropriate office."

10. That submission, which accepts that claimant's wife gave a form to the receptionist at the Social Security Office does not tally with the reasons given for the decision which were that she had contact with the unemployment benefit clerk at the local office.
11. The Tribunal went into the matter very thoroughly and I am very reluctant to send the matter back but unfortunately there are several errors in law which I have identified above. I therefore grant leave to appeal for that reason.
12. I am satisfied that I can deal with the appeal without a further hearing and I propose so to do. I find that the Tribunal erred in law as indicated. I set the decision aside and refer it back to be reheard by a differently constituted Social Security Appeal Tribunal. That Tribunal shall consider the points which I have raised.
13. Claimant made many serious and in my opinion wild unsustainable allegations against many people, none of which were relevant, nor in my opinion valid. My advice to him is that at any subsequent hearing he should concentrate on relevant matters and not get himself bogged down in irrelevancies.

(Signed): C.C.G. McNally

COMMISSIONER

7 August 1995