Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


Decision No: C4/06-07(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 6 June 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, leave having been granted by the Chief Commissioner, against a decision dated 6 June 2005 of an appeal tribunal sitting at Belfast. Mr Mark Campbell of Bernard Campbell and Company, Solicitors represents the claimant. The Department is represented by Mr Donnan of its Decision Making Services branch. The tribunal disallowed the claimant's appeal against a decision of the Department dated 5 April 2002 which decided that income support (IS):

(1) of £174.21 paid in respect of the period 20 January 2000 to 9 February 2000 and –

(2) of £5847 in respect of the period 10 February 2000 – 19 December 2001

had been overpaid and was recoverable from the claimant. The basis of the recoverability was that the overpayment at (1) above had taken place because the claimant had been awarded retirement pension (RP) from 24 January 2000 (he became 65 on 18 January 2000), RP was not paid until 7 February 2000 but it was backdated to 24 January 2000 and a payment was made for the arrears period of 24 January to 6 February 2000. However IS had been paid for the period 20 January 2000 to 9 February 2000 and was recoverable. It was recoverable under sections 72(2) and 72(4) of the Social Security Administration Act (Northern Ireland) 1992 and regulation 8(1) and (2) of the Social Security (Payments on Account, Overpayment and Recovery) Regulations (NI) 1988. Subject to a slight discrepancy as to dates and amounts which was mentioned by Mr Donnan (and which is dealt with later in this decision), I do not understand the claimant to dispute this recoverability and I say no more about that aspect. If I have misunderstood the matter, however, it can be raised with the new tribunal to whom I am remitting the case. The Department is to prepare a new submission for that tribunal as to the amount recoverable on the above basis.

2. The second part of the overpayment, that at (2) above, was, however the subject of more lengthy submissions. The Department sought recovery under section 69(1) of the said Act on the basis that the claimant had failed to disclose the material fact that he was in receipt of retirement pension. He had been overpaid IS as a result and the overpayment was recoverable. I held a hearing of the appeal essentially to deal with the submissions on that second part. The claimant attended accompanied by Mr Brownlee of counsel instructed by Mr Campbell. Mr Donnan attended. I am obliged to both representatives for their assistance but particularly to Mr Donnan for his lengthy and enlightening submissions. Both representatives were agreed that there was no need for me to set out the submissions in detail in this decision. Both were agreed in considering that the tribunal's decision was in error of law though there was some discrepancy in their reasons for so considering.
3. Mr Brownlee's main contention was that the tribunal had erred in concluding that the claimant had failed to inform the Department of receipt of RP whereas he had in fact done so and had returned his Order Book on several occasions. Mr Donnan, having checked Departmental records, disputed this. I mentioned at hearing that I could not trace any mention of this matter by the claimant to the tribunal. On taking instructions on that matter Mr Brownlee informed me that no mention had been made because neither his client nor his instructing solicitors had been informed of the resumed tribunal hearing on 6 June 2005. The first tribunal hearing on 28 April 2005 had been attended by the claimant and his solicitor and had been adjourned pending the decision of the House of Lords in the case of Maureen Hinchy v Secretary of State for Work and Pensions [2005] UKHL16.
4. Mr Donnan informed me that he had checked with the Tribunal Appeals Service (TAS) and been informed that notification was sent to the claimant on 19 May 2005, that the claimant had not returned the reply slip attached to the notification and that the solicitors were not notified of the hearing on 6 June 2005. I have some concerns about this last matter and I note the tribunal's record of proceedings on 6 June 2005 shows no enquiry as to notification to the solicitors and/or the claimant which I would have expected in light of the attendance at the previous hearing. It would, at the least, be good practice for tribunals in circumstances where a previous hearing was attended and a resumed hearing is not attended to check that proper notification has been sent out and to so record. It is also a matter of some concern that the solicitors were not notified. The requirement for notification of hearing (regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999) is that notification be given to every party but the solicitor would normally stand in place of his client for this purpose. The matter is not, however, central to my decision and I express no concluded view on it.
5. As regards the Department's support of the appeal, Mr Donnan submitted, in my view correctly, that in light of the iHinchy decision it was particularly important that focus be placed, as the tribunal had done in this case, on the instructions in the notes in the Order Book at the relevant time. He submitted, again in my view correctly, that the Department should have included paragraph 15 of those instructions in its submission to the tribunal. Mr Donnan submitted (and it was not disputed by Mr Brownlee) that paragraph 15 had been included in the said Order Book instructions at the said time. It reads as follows:

"Any new benefits – you must send us a letter of form A9 if you, or your partner, or your dependants start to get a new benefit."

The submission to the tribunal did not include this paragraph but did include paragraph 17 which reads as follows:

"New cash or money

You must send us a letter or form A9 if

you

or your partner

or your dependants get any new cash or money. Also tell us if your savings increase to more than £3,000 or, if they are over £3,000 now and go either up or down."

It is apparent that paragraph 15 is more obviously relevant to the circumstances in this case.

6. It is unfortunate that the Department did not supply the tribunal with all the Order Book instructions in use at the relevant time. It would be good practice for it to do so in future as the context of the overall instructions could influence construction of an individual instruction. The tribunal here relied on paragraph 17. I do not say it erred in so doing. Moreover it appears that paragraph 15 was in the said instructions at the relevant time and it is unequivocally relevant to receipt of benefits. The new tribunal should, however, be furnished with all the instructions sent to the claimant relevant to the period in question.
7. More crucial in this case are issues relating to supersession/revision. Mr Donnan submitted that the tribunal had erred in law in that the requirements of section 69(5A) of the Social Security Administration Act 1992 had not been fully complied with. This sub-section, so far as relevant to this case, provides that (subject to exceptions not relevant to this case) there shall be no recoverability under section 69(1) (the provision relied on to found recoverability) unless the decision(s) awarding the relevant benefit has been revised or superseded. In this case the Department by an "on line" decision dated 10 May 2001 awarded IS to the claimant from 8 February 2001. This decision was revised/superseded by a decision dated 18 December 2001. I understand that there are limitations in the Department's computer system for IS and for this reason the decision of 18 December 2001 had limited effect in that it revised/superseded only the decision of 10 May 2001 and not earlier decision(s) making award(s) for the earlier part of the recovery period (ie from 10 February 2000 – 7 February 2001). For that period there was no revision/ supersession decision to found recovery under section 69(1). The tribunal therefore erred in deciding that there could be a recovery for the period 10 February 2000 – 7 February 2001. Mr Brownlee, understandably, had little to add to this part of the submission which is, in my view, correct.
8. I set the tribunal's decision aside as in error of law for that reason. This is not a case where it is expedient that I give the decision which the tribunal should have given. I remit the matter to a differently constituted tribunal for rehearing and re-determination.
9. Mr Donnan submits also that there is a flaw in the decision dated 5 April 2002 as regards the periods and amounts recoverable. He submits that the said decision was based on the claimant's pay-day still being a Thursday whereas in fact it would have converted to a Monday. He submits that the two overpayment periods should actually be 24 January 2000 to 6 February 2000 and 7 February 2000 to 19 December 2001. This would slightly increase the amount deemed to be recoverable under section 69(1) as the period of recovery would commence three days earlier. I have not received submissions from the claimant's representatives on that matter as their contention is that no section 69(1) sum is recoverable. Not wishing to delay the case further, I direct the Department to prepare a submission for the new tribunal in connection with that matter. If the claimant disagrees he will have an opportunity to deal with the matter at the rehearing by that tribunal.
10. At present there appears to be no revising/supersession decision covering the termination of the award of IS for the period 7 February 2000 – 7 February 2001. That is not a defect which the tribunal or a Commissioner can remedy. The language of section 69(5A) is clear. Such decisions are needed for section 69(1) to operate. Prior to the rehearing and as a matter of urgency therefore such decision(s) should be made and notified to the claimant. He will have appeal rights against any such decision. I understand from what was stated at hearing, however, that the claimant does not dispute that his award of IS should have ended once RP came into payment. However, it would be helpful and speed up the ultimate decision in the case if the claimant would confirm when he receives the relevant revision/supersession decision(s) if such is the case, that no appeal will be lodged against them. If he does appeal against those decisions it would seem sensible for the appeal to be heard with the appeal against recoverability.
11. I have considerable sympathy with the tribunal in this matter. It was already dealing with issues relating to Hinchy and no one had raised any issue relating to section 69(5A). Nonetheless there was a failure of the inquisitorial role in not checking this matter. The fault however lies largely with the Department which should have ensured that it took all necessary decisions and should have set these out in its submission to the tribunal. This includes checking that section 69(5A) was complied with. I direct the Department to take the appropriate decisions (in so far as not already done) and to set this out in full in its submission to the new tribunal. I direct the tribunal to check that the entire period for which recovery is sought pursuant to section 69(1) is covered by such decisions.
12. One further matter remains. Mr Donnan has asked me to give some guidance as to the method by which certain of the defects in the Department's IS computer systems can be remedied in revision/supersession cases and as to the application of the doctrine of res judicata in certain circumstances. Many of the matters he raises are outside my jurisdiction. He has, for example, suggested various solutions to the problems caused by the limitations in the Department's computer system. He has recommended that a solution to this problem be that a formal off line decision be made to cover all relevant revision/supersession periods including those recorded on line. He submits that "res judicata" would not be an issue because this would merely be a part of the process of making a final decision. He suggests that it be stipulated that a claimant should be given only one "off line" notification (including appeal rights) informing him or her of the outcome decision made. Mr Donnan's suggested solution sounds sensible to me but it is no part of my jurisdiction to tell the Department what method (on or off line) it should use to make its decisions. It does appear to me that one decision covering the entire issue is preferable to two or more decisions (and a consequent possibility of confusion for claimants and increase in the number of appeals) but again this is not within my jurisdiction.
13. Mr Donnan expressed the view, relying on the decision of the House of Lords in the case of Anufrijeva v Secretary of State for the Home Department [2003] UKHL36, that until a decision is communicated to the affected party it is not, in principle, to have any greater status than as a step in the decision making process. Mr Brownlee, understandably, made no submissions on this issue. I offer the following views somewhat tentatively. They are not concluded. However, it appears to me that Anufrijeva affirms the guiding principle of British law that an "uncommunicated administrative decision" cannot bind an individual unless (as does not appear to be the case here) Parliament has legislated "in specific and unmistakeable terms" to displace this principle (paras 30 and 31). A decision is a decision but it is of no legal effect until it is communicated. It seems therefore that if a decision was made but not communicated, it is a decision but it has no legal effect. If it is never communicated it has no legal effect. Once it is communicated it does so. It appears that Mr Donnan was concerned with the effect of decisions covering part periods which were uncommunicated until a final decision covering the whole period was made. Following Anufrijeva, it appears to me that if the part period decisions are never communicated they are of no legal effect and therefore not decisions within Article 9, 10 or 11 of the Social Security (Northern Ireland) Order 1998 which patently do have such effect. Res judicata would not apply to uncommunicated decisions so long as uncommunicated and neither would there be need for revision or supersession. If communicated, however, the decisions become of legal effect.
14. I do not consider that I need go further in this matter. The tribunal decision is set aside as in error of law for breach of section 69(5A). The matter is remitted to a differently constituted tribunal. The Department should ensure that revision/supersession decisions are made covering all the periods for which recovery is sought under s.69(1). It should include details of these (with appropriate details relating to payment dates) in its submission to the tribunal. It should ensure that the claimant is notified of any decisions made. It should ensure that a proper computation of the sums of which recovery is sought is also before the tribunal. The claimant should not take my having upheld his appeal as being any indication of the substantive outcome of this case.

(signed): M F Brown

Commissioner

31 January 2007