Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C43/99(IB) (12 June 2000)

 


Decision No: C43/99(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to the Social Security Commissioner

on a question of law from a Tribunal's decision

dated 23 March 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal leave having been granted by myself by the claimant against a decision dated 23rd March 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.
2. That Tribunal had dismissed the claimant's appeal against a decision of an Adjudication Officer in relation to Incapacity Benefit. It decided that the claimant was over paid the sum of £658.92 of Incapacity Benefit in the period 5th May 1998 to 11th June 1998. It decided further that this payment was recoverable because he failed to disclose either on 5th May 1998 or as soon as possible thereafter the material fact that he had started work.
3. The claimant's appeal to me was based on the grounds that the Tribunal made a decision supported by insufficient evidence and breached the rules of natural justice. The claimant considered that the Tribunal had erred in law in respect of the matters outlined above by failing to investigate what had happened to the closing medical certificate which he had sent in. He stated that the Tribunal had not investigated whether the certificate had been lost in the post or received in Castle Court but not directed to the proper office nor had it specifically found whether or not he had sent in the certificate.
4. The claimant also alluded to the Tribunal's finding that it was the Department which had telephoned him on 15th June enquiring as to whether or not he had returned to work whereas he had stated that he had actually telephoned the Department on that date.
5. I held a hearing of the appeal which was attended by the claimant and by Mr Fletcher of Central Adjudication Services. I am obliged to both for their assistance in this matter.
6. Mr Fletcher opposed the appeal. He submitted that while it was arguable that the Tribunal had failed to make a specific finding as to whether or not the claimant had actually posted in his final certificate within days of his return to work, following decision CSB/1325/1986 posting a letter did no more than manifest an intention to disclose. A claimant who chose to disclose a material fact by post rather than by telephone or in person obviously did so at some (albeit small) risk. Following paragraph 9 of that decision it is obvious that were there was, as there was here, an onus on the claimant to make disclosure and once the letter had gone astray there could be no disclosures.
7. As regards the Tribunal's findings of fact Mr Fletcher submitted that the Tribunal had made an implicit finding that the certificate had not been received and had specifically found that neither the claimant nor his wife made specific telephone disclosure of the relevant material facts. These findings were, in the circumstances, sufficient to meet the legislative requirements. He based his contentions in relation to this on the Tribunal's finding of fact 5 which stated:-

"... The Tribunal finds as a fact that neither the claimant nor his wife specifically advised the Department of his definite return to work intending that a note be taken of same and his claim consequently terminated."

8. Mr Fletcher contended that while it was possible to suggest that this finding was inferring that no action had been taken to specifically advise the Department of a definite return to work (ie. the claimant did not forward a final certificate or telephone to notify his return to work), in Mr Fletcher's submission it was more likely that the finding related solely to telephone notification and he therefore submitted that there was no specific finding as to whether the final certificate was posted.
9. My decision is given in the final paragraph.
10. I agree with Mr Fletcher that there was no specific finding as to whether the final certificate was posted. I also agree, however, that the Tribunal did find that no notification was received. I did consider whether posting of a letter, even if the letter was not received, was sufficient to discharge the obligation to disclose. Having considered CSB/1325/1986 I consider, though this is not a concluded view as I am deciding the case on a different issue, that it probably is not enough. Failure to disclose arises where no disclosure is made in circumstances where a disclosure is reasonably to be expected. In this case the Tribunal concluded that no disclosure was made and that disclosure was reasonably to be expected. Attempted disclosure is not disclosure. The absence of a finding as to whether or not the claimant had posted the letter, in circumstances where there was a specific finding that the letter had not been received, would not, per se, render the Tribunal's decision in error of law.
11. In this case, however, amongst the Tribunal findings, one of its influential findings was that the claimant had been telephoned by the Department on 15th June 1998. This was contrary to the claimant's assertion that he had been the person who made that telephone call. As there was no indication that the presenting officer had any personal knowledge of the situation with regard to the telephone call, I can only assume that the Tribunal based its finding in relation to that on the BF500 form which is part of the papers before the Tribunal and is tabbed 2 in those papers. That form contains various matters but is headed by a section marked with an asterisk. The asterisk indicates that one of two alternatives is to be deleted. The relevant section records the name of the customer and that a telephone call was made. The two alternatives are "made to/received from" the relevant person. In this case that person was the claimant. On the form which was part of the evidence before the Tribunal neither alternative was deleted, the phrase "made to" was underlined. On this basis and it appears on this basis alone the Tribunal reached the conclusion, contrary to the claimant's express evidence, that he had been telephoned by the Department rather than telephoning the Department as he stated.
12. I consider that there was no evidence upon which the Tribunal could make that finding that the Department had telephoned the claimant. The form in question is extremely ambiguous and does not indicate who made the call. The underlining does not indicate the author of the form. It could as easily be a careless attempt to delete the words "made to" as record that the Department had initiated the call. Also there is an obvious question which springs to mind as to why, if the Department knew nothing about the applicant's claim and in circumstances where his wife's claim had not yet been made, it should telephone him. The Tribunal did not investigate that matter.
13. The substance of telephone call in question was recorded in the form of a report and together with the heading section related above is as follows:-

"RE [claimant] returned to work on 5.5.98.

[The claimant] has phoned us twice about this and sent in a closed Med 3.

[The claimant] agreed to state in writing that he returned to work on 5.5.98 and I suspended his claim.

(Overpayment)"

14. On this evidence the Tribunal has concluded that the claimant did not make the relevant telephone call. I do not consider that the evidence permits it to do so. Any Commissioner must be extremely cautions of overturning findings of fact. It is not the Commissioner's function to substitute his own findings for those of the Tribunal where the Tribunal's findings are within the bounds of those sustainable on the accepted evidence. In this case, however, I consider that that finding is not sustainable. The BF500 form is at its least ambiguous and the claimant had not been considered in any way a dishonest witness. In addition in the claimant's favour is the fact that his wife claimed the benefit after the date of that telephone call so that no inquiry was being made on foot of her claim.
15. I do think that this finding influenced the rest of the Tribunal's decision. It obviously formed a view about the accuracy of the claimant's recollection and it is also natural that in circumstances where the claimant had taken the trouble to raise the issue of his return to work with the Department and to raise the fact that it had continued to pay him, it is more likely that his statements as to posting of a letter would be accepted. If postage is accepted it is much more likely that it will be accepted that the letter, albeit not comprised in departmental records, was received. There were no findings as to whether or not the letter was posted in this case and I think that this was influenced by the unmerited finding in relation to the telephone conversation. The finding on the telephone conversation made it look as though the claimant had continued to receive the benefit without informing anyone until such times as the Department raised the issue with him.
16. I set the Tribunal's decision aside because a finding in material of fact was made which was not based on evidence.
17. I consider that this is a case where I can give the decision which the Tribunal should have given. I find the claimant to be an honest witness whose recollection of what took place in relation to the posting of the closing certificate and the telephone conversation of 15th June 1998 is accurate. I find that he did post in the closing certificate and that it was received in the Department. I therefore find that he did not fail to make disclosure of the material fact that he had started work on 5th May 1998. I further find that as soon as he found that the Department had not acted on the disclosure which he made he notified it again.
18. I therefore consider that while the claimant was overpaid benefit in the sum of £658.92 this sum is not recoverable. It is also worth noting in this connection that as the claimant's wife did not seek to backdate her alternative claim for Incapacity Benefit to the date when the claimant's own claim should have ceased, though she could have done so, any loss which the Department has suffered is either nil or of a very small amount.
19. I set the Tribunal's decision aside for the reasons set out above and substitute my own decision as set out above. The claimant's appeal is allowed.

(Signed): M.F. Brown

COMMISSIONER

12 JUNE 2000