Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C6/98(JSA) (5 February 1999)

 


Decision No: C6/98(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 JOBSEEKERS ALLOWANCE Appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Social Security Appeal Tribunal dated 2 December 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Tribunal Chairman, against a decision dated 2 December 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The Tribunal had disallowed Mr T...'s appeal against a decision by an Adjudication Officer reviewing an earlier Adjudication Officer's decision awarding Income Support to Mr T... from and including 20 October 1993. The ground for review was that there had been a relevant change of circumstances since the decision was given, ie that Mr T...'s wife had started working on 1 February 1995 for the M… B… Day Nursery as a relief Nursery Assistant. The revised decision was that Mr T... was not entitled to Income Support for certain weeks and was entitled to a reduced amount for certain other weeks. The decision also was to the effect that an overpayment of Income Support amounting to £3870.94 had been made and was recoverable from Mr T... on the grounds that it was made as a result of his failure to disclose the material fact that his wife commenced work as set out above.
2. My decision is that the decision of the Tribunal is in error of law. The matter is remitted for rehearing by a differently constituted Appeal Tribunal which should hear the case afresh bearing in mind the views set out below.
3. Mr T... appealed on an OSSC1 (NI) form dated 26 April 1998. In essence his ground of appeal was that the Tribunal had erred in law in disbelieving his statement that he was not aware that his wife was working during the period 1 February 1995 to 18 September 1996.
4. Mrs McRory of Central Adjudication Services made observations on the appeal by letter of 23 September 1998. Mrs McRory did not support Mr T...'s ground of appeal but considered that the Tribunal had erred in law in other ways. The first ground upon which she considered the decision was an error of law was that the Tribunal had not considered regulation 5 and 6 of the Income Support (General) Regulations (NI) 1987. Regulation 5 dealt with the calculation of hours worked where there appeared to be a fluctuation in these hours and regulation 6 dealt with circumstances where a person was not to be treated as being in remunerative work. The relevant provision was regulation 6(f) which related to persons not required to be available for employment because they were caring for another person not being treated as engaged in remunerative work. Mrs McRory stated that the Tribunal could not properly determine the amount of any overpayment until it made full findings of fact in relation to the weeks when Mrs T... was in remunerative work (when there might be a complete exclusion from entitlement to Income Support) and the weeks when earnings were to be taken into account (when there might be only a reduced entitlement).
5. The second ground on which Mrs McRory considered the Tribunal had erred in law was in relation to the question of whether or not there had been a failure to disclose or a misrepresentation. The Tribunal, she submitted, had based its decision on Mr T...'s non disclosure of his wife's working and had not dealt with whether misrepresentation had occurred. She considered that this was an error of law as it was only if there was no misrepresentation that failure to disclose should be considered. She did acknowledge that the Adjudication Officer's submission had been confused in that respect. She did not support Mr T...'s ground of appeal stating that the Tribunal was entitled to believe or disbelieve a witness and that this was not an error of law. She cited decision CIS/12032/96 in support of her contention.
6. I consider that the Tribunal erred in law in that it did not consider regulation 5 of the above mentioned regulations. It is apparent from the evidence obtained from Mrs T...'s former employer that there was fluctuation in her earnings and presumably in the hours of work. In those circumstances the implications of regulation 5 should have been addressed and the Tribunal was in error of law in not so doing. As Mrs McRory has stated this could have an implication on the amount of the overpayment.
7. I do not consider that the Tribunal was in error of law in considering failure to disclose before it considered misrepresentation. The relevant legislation is section 69(1) of the Social Security Administration (Northern Ireland) Act 1992. Section 69(1) provides:-

"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 the benefit to

which this section applies; or

(b) any sum recoverable by or on behalf of the Department in

connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount at any

such 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."

8. It will be seen from this extract that there is no legal requirement that misrepresentation be considered before failure to disclose. There was no error in that respect.
9. Mrs McRory is however correct in that the reference to misrepresentation was not contained in the original Adjudication Officer's decision and was also made in a confused manner in the submission to the Tribunal. If the issue of misrepresentation is being raised before the new Tribunal a new submission should be prepared setting out clearly the Adjudication Officer's arguments in relation thereto.
10. As regards the Tribunal's not considering regulation 6 of the said regulations, I do not fault the Tribunal for not dealing with this matter if the issue was not placed squarely before them. However the matter should be considered by the new Tribunal.
11. I do not consider that there is any error in law in the Tribunal's disbelieving a witness. This they are entitled to do.
12. The matter will, however, have to be reheard and assessment of any evidence will be a matter for the new Tribunal.

(Signed): M.F.Brown

COMMISSIONER

5 February 1999