Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C10/02-03(IS) (20 March 2003)

 


Decision No: C10/02-03(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT Appeal to the Social Security Commissioner on a question of law from the decision of the Appeal Tribunal dated 6 December 2001. DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 6 December 2001 of an Appeal Tribunal sitting at Dungannon. That Tribunal had disallowed the claimant's appeal in relation to an overpayment of Income Support and had found that on 22 October 1995 the claimant had misrepresented the material fact that he was receiving Industrial Disablement Benefit when he completed Income Support claim form A1. The Tribunal further found that as a consequence Income Support amounting to £7,365.49 for the period 23 October 1995 to 31 July 2000 was paid which would not have been paid but for the misrepresentation and accordingly that amount was recoverable from the claimant. The claimant had not attended the Tribunal hearing. This hearing was the second hearing in relation to the claimant's appeal on the overpayment decision. A previous Tribunal had set aside the decision accepting the claimant's statement that he had not received notification of the hearing. On this present occasion the Tribunal obviously decided to proceed. I have no copy of the record of proceedings, as same was not requested in time by the claimant.
2. On his grounds of appeal to me contained in an OSSC1 form dated 5 August 2002 the claimant stated that he did not receive notification of the Tribunal hearing on 6 December 2001.
3. I held an oral hearing of the case which the claimant attended and at which the Department was represented by Miss Murray of the Decision Making and Appeals Unit. At hearing the claimant again reiterated that he had not received any letter informing him of the date of the Tribunal hearing. He also stated that had he attended he could have put forward his case in relation to the overpayment. This case essentially was that he had made enquiry from the Department about Industrial Injuries benefit and had been told that this would not matter from the view point of Income Support. The claimant initially told me that he had been told by Dungannon Social Security Office not to fill in on the Income Support claim form that he received Industrial Disablement Benefit. He informed me that he had rung Dungannon Social Security Office because he thought that getting Industrial Disablement Benefit would interfere with his getting the disability premium of Income Support. He later told me that he merely overlooked on the form to fill in that he was getting Industrial Disablement Benefit. He also later informed me that he was not sure of the content of the telephone conversation between himself and Dungannon Social Security Office as regards filling in the form.
4. Miss Murray submitted that if the claimant did not receive a letter notifying him of the Tribunal hearing on 6 December 2001 there would have been a breach of the rules of natural justice. She stated, however, that it was highly improbable that the claimant did not receive the letter notifying him of the second hearing. He had no problem with other letters other than the one notifying him of the first Tribunal hearing. The claimant had given evidence to me to this effect.
5. The claimant had also initially informed me that he had told the first Tribunal to proceed in the matter and that he had been happy enough with the decision that that Tribunal had made (which was to disallow his appeal). He said that he had not intended to attend that Tribunal but had rung and had told the Tribunal to carry on. Miss Murray then produced a copy of the letter written by the claimant dated 1 May 2001 indicating that on 2 April 2001 he had asked the first Tribunal for a new date. The claimant viewed this letter and confirmed that he had written it and said that his recollection might not be good after this time.
6. I find the claimant to be an honest person in that he states what he does consider to be the correct fact situation. However, I do find that his recollection is not accurate. I do consider that he received the letter notifying him of the Tribunal hearing on 6 December 2001 and I also consider that he did not receive any advice that Industrial Injuries Benefit would not be counted towards computing his Income Support entitlement nor did he receive any advice that he should not fill in on the Income Support claim form that he was in receipt of Industrial Injuries Benefit. Such advice would be inaccurate, it would be highly improbable that it would be given and I do not find the claimant's memory reliable in relation to these matters.
7. That being so I consider that the Tribunal did not err in law. It was entitled to proceed and it was also entitled to its conclusion that the Department had satisfied the burden on it of proving that the overpayment had been made by reason of a misrepresentation of a material fact. The claimant had been asked in part 7 of the Income Support claim form dated 22 October 1995 to indicate any other benefits that he had coming in. He indicated Incapacity Benefit and Disability Living Allowance but had not indicated that Industrial Injuries Benefit was in payment. The claimant does appear to have completed the form himself and in particular the section as to other benefits in payment. At part 14 of that form he signed a declaration that the information that he had given on the form was correct and complete. This was obviously wrong. He had been and was aware that he had been in receipt of Industrial Disablement Benefit and continued to receive it. This declaration amounts to a misrepresentation of the material fact that Industrial Disablement Benefit was in payment and of the material fact that complete information had not been given. The misrepresentation was innocent in that there was no intention to deceive but it was nonetheless a misrepresentation.
8. I consider that there was no error on the Tribunal's part; neither in proceeding when it did nor in the decision which it reached. That being so the claimant's appeal is dismissed.

(Signed): M F BROWN

COMMISSIONER

20 MARCH 2003