Northern Ireland - Social Security and Child Support Commissioners' Decisions



[2005] NISSCSC C6_03_04(IS) (07 July 2005)

Decision No: C6/03-04(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 26 February 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with my leave, against a decision of the appeal tribunal sitting at Newry on 26 February 2002 ("the appeal tribunal"). For the reasons which I give, the appeal tribunal's decision is not erroneous in point of law and accordingly this appeal fails.
2. The appeal is concerned with a repayment claim. On 2 November 1999, an adjudication officer made a decision that the claimant had been overpaid income support and that the overpayment had arisen because he failed to disclose the fact that he was not receiving incapacity benefit from 30 May 1996, because he had failed the all work test. (That test has been renamed and is now known as the personal capability assessment. For simplicity, I shall refer to it by its old name). The period of the overpayment, as subsequently corrected, was from 30 May 1996 to 21 July 1999, and the amount, as corrected, was £11,509.50.
3. The claimant appealed that decision. After a number of adjournments the matter was heard by the appeal tribunal on 26 February 2002. The appeal tribunal dismissed the appeal. The claimant applied to the chairman of the appeal tribunal for leave to appeal to a Commissioner. His grounds of appeal did not identify any error of law. Instead, the claimant stated that he wished to have his case reheard by a Commissioner and also that the medical condition from which he suffers is such that he ought to have won. Neither of these is a permissible ground of appeal. It is not therefore surprising that the chairman refused him leave.
4. The application for leave was renewed and came before me. I granted leave but did so on a limited basis. Namely so that the decision of the appeal tribunal might be considered in the light of the judgment of the Court of Appeal in England and Wales in Hinchy v. Secretary of State for Work and Pensions (EWCA [2003] Civ. 138). For simplicity, I shall refer to that case as the "Hinchy case".
5. The decision of the Court of Appeal in the Hinchy case was then appealed to the House of Lords. The claimant's appeal was stood over to await the outcome of that appeal. The House of Lords decision has now been given. The citation number is [2005] UKHL 16. It does not support the claimant's appeal. I shall explain why.
6. The claimant was born on 21 September 1970. On 16 October 1995, he made a successful claim for income support. He was at the time receiving incapacity benefit and his entitlement to income support depended on his entitlement to that benefit. In turn, entitlement to incapacity benefit depended on his ability to satisfy the all work test. On about 29 May 1996, the claimant failed that test. His entitlement to incapacity benefit ceased on 30 May 1996. As a consequence he was no longer entitled to income support.
7. Unfortunately, the relevant part of the Department which deals with income support did not appreciate that the claimant was no longer receiving incapacity benefit. He continued to receive income support until the correct position came to light in about July 1999. Steps were then taken to bring the award of income support to an end and, in due course, the decision referred to above was made seeking to recover the amount of the overpayment. A regrettable element of confusion occurred when, after the claimant had been directed to return it, his income support order book was simply re-issued to him and he was able to cash further orders. However, the corrected period and the final amount do not take these further orders into account. It is, accordingly, unnecessary for me to say anything more about this aspect of the matter.
8. The claimant's appeal to the appeal tribunal was based principally on two grounds. First, he asserted that he was unaware that he had failed the all work test in 1996 and was unaware that he was thereafter no longer entitled to incapacity benefit. The appeal tribunal considered the evidence, including that which the claimant gave at the hearing, and found that he was aware of these matters. That was a finding of fact, supported by evidence, and there can be no appeal against the appeal tribunal's conclusion. The right of appeal to a Commissioner is confined to errors of law and does not extend to factual matters.
9. The claimant's second principal ground of appeal was that, in all the circumstances, disclosure could not reasonably have been expected of him. To understand that ground, it is necessary to say something about a popular misconception. We live in an age of computers which can store vast amounts of data and then retrieve relevant information within seconds. Most of us have had the experience of phoning some very large organisation, such as an electricity board, and being asked for, say, our post code. This small item of information is enough, when typed into the organisation's computer system, to bring up on screen all our details within a matter of seconds. We have become used to this and assume that it is the norm.
10. We accordingly assume that the Department for Social Development and the corresponding Department for Work and Pensions in Great Britain, have details of all of those claiming benefit on their computers. Consequently, if a person is receiving more than one benefit, full details of all his benefits will be readily available. Further, if one benefit ceases or is adjusted it will be immediately apparent what adjustments may be required to any other benefits he is receiving. The reality is, however, different.
11. The benefit system, which includes at one extreme child benefit and at the other retirement pensions and death grants, is so comprehensive that we are all entitled, or have been entitled or will become entitled to some kind of benefit at some time. A comprehensive computer system would have to cover the entire population. Further, it would have to be capable of dealing with the current very many different benefits and also be capable of being adapted to include benefits which have yet to be invented. Such a system is not yet in being. Benefit records are still kept in different ways and in different parts of the country.
12. This means that the loss of one benefit – in the present case incapacity benefit – does not automatically trigger the loss of another benefit or alert those responsible to take the necessary steps. For this reason, obligations are imposed on those receiving benefit to notify the Department if any changes occur which may affect their entitlement. The need for notification is obvious in respect of most changes – for example, a new job, a change of address or the receipt of a large sum of money – because the Department cannot possibly know about these matters and therefore cannot check to see whether adjustments to benefit need to be made, until it is given the information. However, the obligation to notify which is imposed on recipients extends to changes in benefit which are made by one part of the Department and which may, but as matters stand at the moment will not necessarily, be known to other parts.
13. In the present appeal the appeal tribunal found as a fact that the necessary obligation had been imposed on the claimant and that when his incapacity benefit ceased, he was under a duty to notify the Department of this fact. Had he done so, the necessary steps would have been taken to bring his income support to an end. No overpayment would then have occurred. The appeal tribunal also found that it was reasonable for the claimant to do so. Pausing there, these were factual matters in relation to which there was ample evidence to support the appeal tribunal's conclusions.
14. That left the issue whether, given that the failure to notify related to one of the Department's own decisions, it was reasonable in all the circumstances to require notification from the claimant. The appeal tribunal applied the law as then understood. Such law being the same in both Northern Ireland and Great Britain. The appeal tribunal disposed of the point in the following way: -

"As was noted above, the appellant's representative argued that administrative systems existed within the Department, permitting one benefit branch to make contact with another benefit branch, in order that information concerning lack of entitlement to Social Security benefits might be passed between benefit branches. The appellant's representative argued that the administrative system of notification between branches had clearly failed in the present appeal, and that such fear [sic] should not be laid at the door of the appellant. The Adjudication Officer has confirmed that administrative systems for notification do exist within the Department, but that the presence of such administrative systems does not abrogate the duty on an individual claimant to disclose material facts to the actual Officer or branch of the Department responsible for the administration of the relevant benefit. Further, the failure of administrative systems does not affect the raising and recoverability of an overpayment of benefit.

The issue of the exchange of information between Officers of the Department, and with in individual branches of the Department has been the subject of considerable discussion and analysis by the Social Security Commissioners. Details of that analysis are set out at pages 53-57 of Volume 3, Social Security Legislation 2002. The conclusion of the authors, on the basis of their analysis of the relevant decisions, are that the advent of administrative systems "has not yet reached the point where the possibility of data matching within the Department will provide much protection for claimants where overpayments arise because of the interrelationship of conditions of entitlement to different benefits. It remains the safest to disclose information to the office handling the particular benefit, preferably in writing rather than relying upon an officer of the Department to reduce the disclosure to writing". It is clear that, despite the fact that the increased use of technology permits different officers of the Department, different offices of the Department, and different branches of the Department to communicate internally with each other, it has not yet been accepted, despite the number of Commissioners Decisions on the issue, that disclosure to one specific officer, office, or branch, is effective disclosure to the correct officer, office, or branch.

Accordingly, the appeal tribunal finds that the appellant cannot rely on the existence of an administrative system for notification between branches of the Department, and, more particularly, the failure of that system in the present case, as the basis for arguing that the overpayment of the relevant benefit is not recoverable."

15. The question for the House of Lords in the Hinchy case, was whether that view of the law is correct. The House of Lords has held that it is. At paragraph 32 of the judgments Lord Hoffman, after referring to a remark made by one of the members of the Court of Appeal that the "claimant is not concerned … about the internal administrative arrangements of the department", said:

"32. I quite agree. The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the "simple instruction" in the order book. …"

16. It follows that, in the appeal before me, the appeal tribunal which dealt with the claimant's appeal applied the law correctly. That being so, I must dismiss his appeal.

(signed): J P Powell

Deputy Commissioner

7 July 2005