Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C4/97(IS) (4 February 1998)

 


Decision No: C4/97(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 the Londonderry Social Security Appeal Tribunal dated 28 February 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision of a Social Security Appeal Tribunal which held that claimant had been overpaid £11,465.09 income support in respect of the period 1 April 1991 to 3 June 1996 and that that amount was recoverable. Although in the findings of fact and the reasons for the decision no mention is made of any recoverable amount or why any amount should be recoverable. In any event the situation is that it is alleged the claimant worked in a cafe in Limavady from 1 April 1991 to 3 June 1996. Claimant admitted working in the cafe but argued that she was not paid and also that she only worked at lunch times.
2. In giving reasons for its decision the Tribunal found that she had misrepresented and failed to disclose the material fact that she was working. It then went on to give the following reasons for its decision:-

"... Since there has been misrepresentation and failure to disclose,

the claimant is not entitled to Income Support and no question of

rates of pay or hours worked required consideration by the Tribunal.

The Tribunal accepts that the claimant was recovering from an

operation and did not work for a period of 8 weeks following an

operation on 8 November 1993, and that it is appropriate to deduct

a sum of £352.00 (8 weeks at £44.00 per week) from the amount to

be recovered."

3. Claimant sought leave to appeal against that decision and was granted leave by the Chairman and set out in a long letter the points in dispute. Two points were raised, the first point can be stated simply that claimant was a volunteer, that she was not paid for her work and therefore was not obliged to report same. The second point is set out at length in the letter of appeal as -

"It is clear therefore that even if the Commissioner is not prepared

(as he should be) to determine that our client was working in a

voluntary capacity that did not merit payment under the terms of the

General Regulations our client was certainly entitled to rely on the

fact that she did not work the hours at the rate as determined by the

Department. The Tribunal are wrong in suggesting that once it is

accepted that there was a failure to disclose a material fact the

full amount of the payment made by the Department must be recouped

in full without regard to what the Department would have paid had

our client disclosed the fact and the rate of pay and hours she put

forward. The Department may only recover the difference between

what they would have paid and what they actually did pay. In

assessing this difference one must take into account the hourly

rate and number of hours worked."

4. I arranged an oral hearing at which claimant was not present nor was she represented. The Adjudication Officer was represented by Mrs McRory.
5. Mrs McRory readily accepted that the Tribunal had erred, both in saying that because claimant had misrepresented or failed to disclose certain facts that she was not entitled to income support and in holding that no question regarding rates of pay or hours worked required consideration by the Tribunal. Mrs McRory conceded that was clearly wrong, that the Tribunal should at first have considered whether or not it reasonable for claimant to provide her services free of charge and the Tribunal then should have gone on to consider notional earnings. She argued that central to the whole issue of overpayment is the question whether or not it was reasonable to treat the claimant as working a number of hours, at the rates of pay and for the periods decided by the Adjudication Officer. Mrs McRory also submitted that the Tribunal erred in failing to take an account of alternative wages put forward at the Tribunal. There was no record that the Tribunal considered these at all and if it did and rejected them, it should have given reasons for so doing. It should also have considered Mr O...'s ability to pay wages. Mrs McRory said that the Tribunal should have considered the question of rates and hours worked and that the evidence from the claimant was that she worked 12 1/2 hours per week which would considerably reduce the overpayment and if she was working 12 1/2 hours per week then she was not in remunerative work and that was a question which the Tribunal had not considered. She accepted that the Tribunal had erred in not properly considering whether or not claimant would have been entitled to income support under certain circumstances and that would have considerably reduced the overpayment.
6. I am satisfied that the Tribunal erred in not considering rates of pay and not making proper findings as to the hours which claimant worked, whether or not she was in remunerative employment and in considering, because there was a misrepresentation, that she was not entitled to income support in any circumstances.
7. I therefore allow the appeal and set the decision of the Tribunal aside. I refer the matter back to be reheard by a differently constituted Tribunal, that Tribunal shall consider the points raised above. Claimant would be well advised to appear before the new Tribunal and if possible to be represented.

(Signed): C C G McNally

COMMISSIONER

4 February 1998