SL-v-Department for Social Development (IS) [2010] NICom 67
Decision No: C8/10-11(IS)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 9 May 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.
2. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
3. The decision of the appeal tribunal dated 9 May 2008 is in error of law. The error of law identified will be explained in more detail below.
4. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
5. I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given. My decision is that there is not in place a valid decision which complies with the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as analysed in CIS/3228/2003. Accordingly, there is not also in place a valid overpayment decision in respect of overpaid income support (IS) amounting to £2765.83, for the period from 29 April 2005 to 5 February 2007.
6. Any further decision as to whether there should be remedial decision-making in connection with the overpayment of IS will be for the Department to make.
Background
7. On 19 August 2007 a decision-maker of the Department decided that an overpayment of IS, amounting to £2765.83, for the period from 29 April 2005 to 5 February 2007, had been made, which was recoverable from the applicant. The basis of the overpayment was stated to be a failure to disclose. An appeal against the decision dated 19 August 2007 was received in the Department on 24 September 2007.
8. The appeal tribunal hearing took place on 9 May 2008. The hearing is described as an ‘oral’ hearing. The applicant was not present but a presenting officer (PO) from the Department was. The appeal tribunal disallowed the appeal, and confirmed the decision dated 19 August 2007.
9. On 1 October 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 9 October 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).
Proceedings before the Social Security Commissioner
10. On 14 November 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC). The applicant was, by now represented by the Citizens Advice Bureau.
11. On 13 January 2009 observations were sought from Decision Making Services (DMS) and these were received on 11 February 2009. DMS opposed the application. Observations were shared with the applicant, and his representative, on 24 February 2009.
12. DMS was directed, on 15 April 2009 to provide additional information. On 6 May 2009 a reply was received from DMS in connection with this request.
13. On 3 July 2009, I directed an oral hearing of the application. The first oral hearing of the application was scheduled for 18 September 2009. Unfortunately the applicant was unable to attend on this date due to a requirement to attend for in-patient treatment in Scotland. A second oral hearing of the application was scheduled for 27 November 2009. This oral hearing was adjourned in order for DMS to make available additional materials and evidence and for the applicant to adduce further evidence in connection with his failure to attend the original appeal tribunal hearing.
14. On 23 December 2009 correspondence was received in OSSC pursuant to a request from myself. On 26 January 2010, a further submission was received from DMS pursuant to the terms of the adjourned hearing on 27 November 2009.
15. The final oral hearing of the application took place on 22 March 2010. At the oral hearing of the application, the applicant represented himself and the DMS was represented by Mr McGrath. Gratitude is extended to both the applicant and Mr McGrath for their detailed and constructive observations, comments and suggestions.
Errors of law
17. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:
“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”
Was the decision of the appeal tribunal in the instant case in error of law?
The adjournment issue
18. The appeal tribunal hearing, held on 9 May 2008, was listed as an oral hearing. The applicant did not attend. The record of proceedings for the appeal tribunal hearing records that:
‘Per clerk
Notification issued to (the claimant) on 22 April 2008 to …, Belfast.
No AT6 was returned.
Case called for 10.15 am. (The claimant) had not arrived by 11.35 am. Tribunal proceeded in his absence.’
19. On 1 October 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. In the application, the applicant submitted, amongst other grounds, that:
‘Tribunal held in clients [sic] absence with no opportunity for adjournment (client received last minute appointment with psychiatrist and was too ill to notify board.’
20. It is unclear to me why, in light of the information concerning the reasons for the failure to attend the oral hearing of the appeal, the application for leave to appeal to the Social Security Commissioner was not, in the first instance, treated as an application to set aside the decision of the appeal tribunal, under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended. As a minimum, I am certain that it was incumbent on the clerk to the appeal tribunal to clarify with the applicant as to whether his intentions were to make an application for leave to appeal to the Social Security Commissioner, or to make an application for setting aside the appeal tribunal’s decision. In any event, the LQPM proceeded to refuse leave to appeal to the Social Security Commissioner on foot of the application.
21. At the oral hearings of the application for leave to appeal to the Social Security Commissioner, the applicant gave further evidence concerning his inability to attend the oral hearing of his appeal before the appeal tribunal. He gave evidence that he had wished to attend the oral hearing but had become very ill. He was given a date to attend a psychiatrist which he regarded as an emergency appointment. The date of this appointment coincided with the date of the appeal tribunal hearing. The applicant gave further evidence that the exacerbation of his illness, and his requirement to obtain treatment was his primary consideration and was the reason why he was unable to contact anyone within TAS to indicate his inability to attend. Before the final oral hearing of the application before me, the applicant produced medical evidence from his general practitioner confirming that the applicant’s anxiety and depression had been exacerbated by the thought of attending the oral hearing of the appeal, and that he had been attending a consultant psychiatrist.
22. Two specific issues now arise. The first is the extent to which the appeal tribunal, at the oral hearing held on 9 May 2008, was obliged when the appellant did not attend to consider whether to adjourn the appeal. The second is whether, given the benefit of the additional information concerning the reasons for the failure of the appellant to attend, there has been a breach of the rules of natural justice in deciding to proceed with the case.
23. In relation to the first issue, an appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion. Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence. A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion.
24. In C7/08-09(IB), I said the following about the appeal tribunal’s power to adjourn an appeal, at paragraphs 62-64.
‘62. Appeal tribunals should, of course, consider critically the issue of adjournment. The appeal tribunal should first ask whether the evidence to be obtained is necessary and if so whether it is likely to assist in determining the matter when the case comes back. The precise nature and relevance of the additional evidence should be identified. Only if the evidence is material to the issues arising in the appeal, and not presently available to the appeal tribunal, should an adjournment to obtain that evidence be considered. Appeal tribunals should also take into account the opportunity which the parties have had to obtain the evidence, the need to avoid delays to others and whether there is a reasonable prospect of obtaining the evidence. A conflict of evidence between parties may not necessarily be resolved by seeking further evidence. Rigorous evaluation of the available evidence to resolve the conflict is often more appropriate.
63. Additionally, it should not be assumed that because an appeal tribunal gives a direction as to evidence, it will be supplied. Some thought should also be given to how long the delay might be in obtaining evidence, especially in relation to medical reports which may not be given priority by medical practitioners. Consideration should also be given to the person who will take responsibility for (i) obtaining the evidence and (ii) preparing the evidence.
64. In summary, adjournments for further evidence require very careful consideration to determine whether they are really needed and, if so, whether they will achieve the intended outcome of providing the additional evidence needed.’
25. I am also mindful of what was said by Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):
“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers. It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning … If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”
26. In the instant case, there is some indication of the reasoning employed by the appeal tribunal, in arriving at its decision not to adjourn the appeal tribunal hearing, in the record of proceedings for the appeal tribunal hearing. It is clear from that record that the appeal tribunal satisfied itself that the appellant had been given proper notification of the date and time of the oral hearing of the appeal, and that the appeal tribunal’s decision to proceed was taken some 80 minutes after the scheduled time for the commencement of the hearing, thus satisfying itself that the failure to attend was not caused by delay.
27. In relation to the second adjournment issue, the appeal tribunal cannot be faulted for not knowing that the appellant had apparently been forced to attend for what he regarded as emergency psychiatric treatment, and that as a result of an exacerbation in his medical condition was unable to inform TAS of his inability to attend the oral hearing of the appeal. Accordingly, at the time of the making of the decision to proceed with the oral hearing of the appeal, that factor could not be taken into consideration.
28. In C22/00-01(IB), Commissioner Brown stated the following, at paragraphs 13 to 15:
‘13. I am impressed and influenced by the fact that while there may be some confusion between the 27th and 29th September the doctor did see the claimant either shortly before or on the day of the Tribunal and advised her that she was not fit to attend. It is unfortunate and the claimant is to be faulted in that she herself did not advise the Tribunal of this but appears to have left the matter to her doctor. Nonetheless, in the light of the doctor’s statement and of his having seen her so close to the time of the Tribunal I must accept that the claimant was unfit to attend the Tribunal.
14. I must therefore ask myself whether or not there was a breach of the rules of natural justice in the Tribunal, albeit unwittingly and with out fault, deciding to proceed in this case. The claimant had obviously had numerous chances of attending a Tribunal and had not attended and it is obvious that a Tribunal cannot endlessly adjourn. Sooner or later a decision must be made. However, in light of the fact that the claimant’s condition was likely to improve so that she could attend and indeed it appears that it did improve, I am of the view that the Tribunal in all probability would have adjourned had it known the circumstances which I now know. I should state that if I was dealing simply with a situation of a claimant informing her doctor after the Tribunal that she had been ill and was unable to attend I would have been less impressed. It is the evidence from the doctor of attendance on either the 27th or 29th September 1999, before the Tribunal and his express contemporaneous advice that the claimant was unfit to attend, which impresses me.
15. With hindsight therefore and without faulting the Tribunal I set the decision aside as in error of law …’
29. In the instant case, and despite the failure by the LQPM to treat the application for leave to appeal to the Social Security Commissioner as an application for setting aside the decision of the appeal tribunal, I am of the view that had the appellant, on or shortly before the appeal tribunal hearing date, made TAS and/or the appeal tribunal aware of the reasons why he would be unable to attend the appeal tribunal hearing, and emphasised his desire to be present to give oral evidence, then the appeal tribunal in all probability would have adjourned.
30. As in C22/00-01(IB), therefore, and with hindsight, I set aside the decision of the appeal tribunal as being in error of law.
Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992
31. Section 69(5A) of the Act provides that:
‘(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.’
32. In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded. Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.
33. The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS). At paragraph 4 he stated:
‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision. In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable. Put like that, the sequence of decisions is logical. The two decisions can be contained in a single document provided that the sequence is apparent. Section 69(5A) is an important safeguard. Tribunals, rightly, are alert to see that it has been complied with. Nothing I am going to say casts doubt on their vigilance. A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner. Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken. …’
‘… It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”. The latter being based on the former. I use the word “distinct” deliberately. Since the recoverability decision is based on the entitlement decision it must be proceeded by it. Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first. …’
35. Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a section 69(5A) decision, to a claimant, and set out the consequences where no such proper notification had been made.
36. In the instant case, the section 69(5A) or entitlement decision is dated 4 July 2007 and reads as follows:
‘I have revised the decision of the Decision Maker dated 24/06/05 and all subsequent decisions after that date on the award of Income Support from 29/04/05 to (the claimant). I am satisfied the decision was made in ignorance of a material fact, that is that (the claimant) was in receipt of a War Disablement Pension.
My decision is that Mr Morrow [sic] is entitled to a reduced rate of Income Support from 29/04/05 as he had income from a War Disablement Pension which was not taken into account on his original assessment.’
The reference to ‘Mr Morrow’ in the second paragraph is clearly an error.
37. At the second oral hearing of the application, Mr McGrath submitted that the decision dated 4 July 2007 was problematic, and that it had not been properly considered by the appeal tribunal. The principal basis on which the decision was stated to be problematic was the analysis undertaken by Commissioner Bano at paragraphs 20 and 21 of CIS/3228/2003, where he stated:
‘20. The second reason why the decision in the terms recorded in the certified record did not comply with section 71(5A) is that it did not did not set out the revised amounts of benefit to which the claimant was entitled in each benefit period. I consider that a decision awarding a claimant benefit of a stated amount can only be effectively revised if it is replaced by a new decision which also specifies the amount of benefit (if any) to which the claimant is entitled, in the light of the fact which was not taken into account when the original decision was made. A revision decision to the effect that an earlier decision awarding benefit of a specified amount has been ‘revised’, but which does not state the amount of the revised entitlement is, in my judgment inchoate. If a revision (or supersession) decision resulting in an overpayment is made separately from a recovery decision, it will therefore be necessary for the claimant’s revised benefit entitlement to be calculated as part of the revision decision before a valid overpayment recoverability decision can be made under section 71(1).
21. I therefore consider that the evidence does not establish a decision satisfying section 71(5A) of the Administration Act, and that, accordingly, no valid over payment recoverability decision was made under section 71(1). The tribunal’s decision must therefore be set aside …’
38. Section 71(5A) of the Social Security Administration Act 1992 is the Great Britain equivalent to section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992. In the instant case, the decision dated 10 July 2007 does not comply at all with the requirements set out in paragraphs 20 and 21 of CIS/3228/2003, in that the decision did not specify the amount(s) of the revised entitlement(s) to IS. As Commissioner Bano put it - that renders the decision dated 10 July 2007 inchoate. More significantly, it crumbles the foundations of the overpayment or recovery decision under section 69(1).
39. Further, the appeal tribunal did not undertake its duty to ensure that there was in place a decision which did satisfy the requirements set out in section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992. Accordingly, the decision of the appeal tribunal is in error of law.
Failure to disclose
40. The overpayment decision, dated 19 August 2007, was stated to be on the legal basis that the appellant had failed to disclose the material fact that he was entitled to a war disablement pension. In his letter of appeal against the decision dated 19 August 2007, the appellant indicated that the War Pensions Branch had notified IS of his entitlement to a war pension. In the appeal submission, the appeals writer attached details of notifications by the Service Personnel and Veterans Agency (SPVA) to the IS section at Knockbreda Jobs and Benefits Office, on 10 February 2005 and 18 March 2005. The appeals writer submitted, however, that the appellant did not have a live claim to IS on those dates.
41. At the oral hearing of the appeal the appeal tribunal was re-informed by the Departmental PO that faxes had been sent to Knockbreda on what was stated to be 10 February 2005 and 10 March 2005 but repeated that the appellant did not have a live claim to IS on those dates. In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has considered the receipt of faxes with information concerning the entitlement to a war pension but concluded that:
‘The Claimant indicated in his letter of appeal that Pensions Branch told Income Support on 3 different occasions a Pension was in payment. The Department have indicated 2 such occasions on 10/2/2005 and 18/3/2005 when information was faxed through to them from the Service and Personnel Agency but at this time the claimant was not in receipt of benefit. It is not considered to be appropriate notice by this Tribunal that notification of an award of pension in respect of a person not claiming income support at the date of such notification can later be taken as good notification of an award for the purpose of a future claim. The case of Hinchy v Secretary of State for Work and Pensions makes it clear that the onus is on the claimant to inform the appropriate office of all circumstances relating to his claim. It is clear that when he applied for benefit in April 2005 that (the claimant) knew he was in receipt of the War Pension but he failed to disclose it in the section relating to pensions.’
42. As part of the proceedings before the Social Security Commissioner, the appellant submitted correspondence from the SPVA dated 24 June 2008. In this correspondence, the SPVA indicate that ‘… a total of seven enquiries were issued to the Belfast office to advise then [sic] of your WDP award and to request information about any recoveries necessary. Unfortunately, following the seventh request your case was sent to our file store in error and no further action was taken …’ I directed that further enquiries be made from the SPVA to provide details of the enquiries which had been issued to Knockbreda Jobs and Benefits Office, outside of the two faxes sent on 10 February 2005 and 18 March 2005. In a reply dated 18 December 2009, the SPVA indicated that further enquiries had been made on 6 May 2005, 16 June 2005, 26 July 2005, 8 September 2005 and 24 October 2005. The SPVA indicated that no documentation had been held on file in connection with these enquiries.
43. I also directed DMS to obtain the appellant’s case papers in order to see whether there were any further details of the enquiries which had been made. In a further submission dated 26 January 2010, DMS indicated that:
‘I have had Knockbreda JBO undertake various searches for any records of any correspondence received from the Service Personnel and Veterans Agency but no correspondence can be found.
I have now obtained the case papers but I have been unable to locate any record of these correspondences.
However I have located an A6 form dated 23-6-05 on which it states,
“ per PD151 – IB, WP,DLA” and “T/call to WP. Nothing in payment”
The PD151 is actually “Common Enquiry” computer dialogue screen PD151007.
On 6-7-05 a copy of this dialogue screen was printed in which it shows under “VIEW RECORD INTEREST”
Business Interest Record Interest Record Interest Office Location
Type Type Start Date End Date
03 WP S 29/04/2003 Veterans Agency
I have been informed that when (the claimant) submitted his claim to Income Support on 29-5-05 that part of the steps taken to process his claim would have involved checking this PD151 dialogue screen to establish what other benefits were in payment.
Having had sight of this information the processor contacted Incapacity Benefits Branch, Disability Living Allowance Branch and War Pensions. This information is recorded on the Form A6 dated 23-6-05.
The copy of the screen print is dated 6-7-05 which is after the date of the A6 but the processor would have been alerted to the possibility of other benefits in payment when building the case on to the computer system i.e. prior to 6-7-05.
Copies of this screen print and the A6 have been enclosed. (Appendix 1)
Therefore although I have been unable to locate any correspondence issued to Knockbreda JBO from the Service Personnel and Veterans Agency I have been able to find reference to War Pension (WP) and a record of a resulting phone call.
However this telephone call dated 23-6-05 has recorded that War Pension was not in payment.
I note that both the presenting officer at the tribunal hearing and the appeal writer mention the faxes from the Service Personnel and Veterans Agency dated 10-2-05 and 18-3-05.
The tribunal hearing took place on 9-5-08 and the appeal submission was prepared on 11-1-08.
However the decision maker who made the decision dated 19-8-07 does not mention these faxes.
In the letter from the Service Personnel and Veterans Agency dated 24-6-08, which was handed in at the Commissioners hearing, it is noted that unfortunately (the claimant’s) file had been sent to the store without the arrears of his War Pension having been issued to him. This letter also states that it was not until the Service Personnel and Veterans Agency received a letter from the Royal British Legion in September 2007 that any further action was taken and that following this letter further enquiries where sent to the “Income Support Office in Belfast”
This explains why a copy of the original faxes was received in Knockbreda JBO on 3-10-07. This is after the decision of 19-8-07, which doesn’t mention them, but before the dates of the submission and the tribunal hearing which do mention them.’
44. At the oral hearing of the application for leave to appeal, Mr McGrath accepted that the information concerning the notifications from SPVA to Knockbreda JBO, particularly those notifications which coincided with the dates on which the appellant had a live claim to IS, had the potential to have an impact on the decision-making process and, most significantly, a decision as to whether there had been a failure to disclose. Further, Mr McGrath conceded that the notifications which were made before the appellant’s claim once again became live should have been retained on the appellant’s file and would also, therefore, have had the potential to have an impact on any decision on benefit entitlement. I am in agreement with those concessions.
45. The appeal tribunal did not, of course, have the more detailed information from the SPVA concerning the further notifications which were made, in addition to those sent by way of fax on 10 February 2005 and 18 March 2005.
Misrepresentation
46. As was noted above, the overpayment decision, dated 19 August 2007, was stated to be on the legal basis that the appellant had failed to disclose the material fact that he was entitled to a war disablement pension. The appeal submission was written in terms of a failure to disclose and the appeal tribunal confined itself to consideration of the overpayment resulting from a failure to disclose. In the initial observations on the application for leave to appeal to the Social Security Commissioner, and in further oral submissions made at the second oral hearing of the application, Mr McGrath submitted that consideration should also have been given to the possibility that the appellant misrepresented a material fact, in addition to, or as an alternative to, having failed to disclose that material fact. Having decided that the decision of the appeal tribunal is in error of law on the basis that there is not in place a decision which satisfies the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as analysed in CIS/3228/2003, I am not required to consider Mr McGrath’s submissions on misrepresentation.
Disposal
47. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.
48. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.
49. The decision of the appeal tribunal dated 9 May 2008 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
50. I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given. My decision is that there is not in place a valid decision which complies with the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as analysed in CIS/3228/2003. Accordingly, there is not also in place a valid overpayment decision in respect of overpaid IS amounting to £2765.83, for the period from 29 April 2005 to 5 February 2007.
51. Any further decision as to whether there should be remedial decision-making in connection with the overpayment of IS will be for the Department to make.
(signed): Kenneth Mullan
Commissioner
6 July 2010