AT-v-Department for Social Development (IS) [2010] NICom 91

Decision No:  C4/09-10(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 3 June 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 3 June 2008 is in error of law.

 

2.    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.

 

3.    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 as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

 

4.    My substituted decision is that an overpayment of income support (IS), amounting to £2,320.45, overpaid for the period 28 September 2005 to 19 September 2006, had been made, of which only the amount for the period 28 September 2005 to 5 October 2005 is recoverable from the appellant.

 

       Background

 

5.    The appellant had been awarded IS from 6 April 2005.

 

6.    During a routine visit to the appellant, in May 2006, to review her IS entitlement it was discovered that she had become a full-time student in September 2005.  It was also discovered that the appellant was receiving a student bursary and a student loan.

 

7.    On 15 September 2006 a decision-maker of the Department superseded the appellant’s IS award on the basis that her student income should be taken into account against her IS entitlement.  The appellant was subsequently notified that she was not entitled to IS.  She did not appeal against this decision, nor did she ask for an explanation of it, or make an application for it to be reconsidered.

 

8.    On 7 February 2007, a decision-maker of the Department decided that an overpayment of IS, amounting to £2,320.45 had been overpaid for the period 28 September 2005 to 19 September 2006, had been made, of which £2,205.55 was recoverable from the appellant in relation to the period 28 September 2005 to 27 June 2006.

 

9.    The appellant appealed against the overpayment decision dated 7 February 2007, in a letter received on 2 March 2007, on the basis that she had not failed to disclose information regarding her student income and that she had provided the relevant details on several occasions.

 

10.   The substantive appeal tribunal hearing took place on 3 June 2008, after a series of adjournments and postponements.  The appeal tribunal disallowed the appeal and confirmed the overpayment decision dated 7 February 2007.

 

11.   On 8 December 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 19 December 2008 the application for leave to appeal was refused by the legally qualified panel member.

 

       Proceedings before the Social Security Commissioner

 

12.   On 3 February 2009 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.

 

13.   On 19 May 2009 observations were sought from Decision Making Services (DMS) and these were received on 18 June 2009.  DMS opposed the application on grounds identified by them.

 

14.   Observations were shared with the applicant on 25 June 2009.  On 20 August 2009 I directed an oral hearing of the application.  The oral hearing of the application took place on 9 November 2009.  Following the oral hearing of the application I granted leave to appeal.  In granting leave to appeal, I cited, as reasons, that arguable issues arose as to:

 

(i)       whether the appeal tribunal had before it all of the evidence relating to disclosure of a material fact;

 

(ii)      whether the appeal tribunal correctly recorded the period over which the relevant social security benefit was said to have been overpaid, and, accordingly the amount of the overpaid social security benefit;

 

(iii)      whether the appeal tribunal adequately addressed the question as to whether there was in place a decision which satisfied the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) act 1992, as amended.

 

15.   The appellant had not attended the oral hearing of the application.  I directed, therefore, that there should be a further oral hearing of the appeal in order that the appellant could attend.  I also directed the Department to take certain remedial action with respect to the decision-making in the case.

 

16.   The further oral hearing of the appeal took place on 3 February 2010.  At the oral hearing of both the application and the appeal, the appellant was represented by Mr McAleese, and the Department was represented by Mr Donnan of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       Errors of law

 

17.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

18.   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 appeal tribunal’s confirmation of the decision under appeal

 

19.   There is an error of law in the appeal tribunal’s decision which is immediately identifiable.

 

20.   The decision under appeal to the appeal tribunal was a decision of the Department, dated 7 February 2007, in which a decision-maker of the Department decided that an overpayment of IS, amounting to £2,320.45 had been overpaid for the period 28 September 2005 to 19 September 2006, had been made, of which £2,205.55 was recoverable from the appellant in relation to the period 28 September 2005 to 27 June 2006.

 

21.   The decision of the appeal tribunal was to confirm the decision dated 7 February 2007.  The error in this decision was conceded by DMS, in the initial observations on the application for leave to appeal, as follows:

 

‘Returning to the considerations on disclosure having been made from 22/05/06, I would submit that by the time this case went for a new hearing on 03/06/08, the issue of the timing of disclosure became confused.  This was mainly the fault of the Department in continually referring to the visit that was arranged for reviewing (the claimant’s) IS entitlement having been carried out in June 2006.

 

It can be seen that the Department’s presenting officer made this mistake on a number of occasions which I will highlight below:

 

(i)       in the Department’s initial submission to the Appeals Service dated 03/05/07; Section 4, paragraph 3 states the visit was carried out in June 06.  (This was despite evidence, contained at Tab 4 of the same submission, clearly showing that (the claimant) dated her review form for IS as being 22/05/06 and a screen print from the IS computer system recording the visit as being scheduled for 22/05/06).

 

(ii)      in an addendum submission made by the Department on 04/04/08, the presenting officer again submitted to the tribunal that a routine visit was carried out in June 06.

 

(iii)      then at the appeal hearing itself on 03/06/08, the record of proceedings records that the presenting officer stated “we have no record of disclosure until 6/2006”.

 

All these submissions were in support of the Department’s stance at the time that the overpayment of IS that occurred as a result of non disclosure of (the claimant) becoming a student, was recoverable from her for the period 28/09/05 to 27/06/06.  I would respectfully submit that the tribunal was misled by the Department in this regard as there is clear evidence in this case of disclosure having been made on 22/05/06.

 

Having said that, I would emphasise that the tribunal should already have been aware from previous submissions by (the claimant’s) representative that no recovery was possible in this case after 22/05/06.

 

The Department accepts the principle that a claimant cannot be held as failing to disclose something which they have already disclosed.  Paragraph 26 of R (SB) 15/87 held that:

 

“…once disclosure had been made to a particular person there can be no question of his being under any obligation to repeat that disclosure to the same person…”

 

Therefore, once (the claimant) informed the visiting officer on 22/05/06 of her student income and this information was copied and passed to the IS decision maker, then from 22/05/06 at least, (the claimant) would have satisfied the requirement to notify the Department of the change to her circumstances and it was in the hands of the IS decision maker to take appropriate action to reassess her IS entitlement.

 

However, this is not what happened in this case.  In cases where an issue arises over whether an award of a relevant benefit should be revised or superseded, the Department may suspend payment of that benefit.  This is in accordance with regulation 16 (1) and 16 (3) (a) (ii) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  This would allow sufficient time to gather necessary evidence before the new decision superseding or revising the award of benefit could be carried out.

 

The IS decision maker did not take such action in this case but I submit that he should have in order to prevent further overpayment of IS occurring beyond 22/05/06.  I should point out that (the claimant) student income was not subject to be taken into account in the IS assessment from 28/06/06 to 05/09/06 (as the overpayment decision reflects in this case).  However, an overpayment of IS did occur again from 06/09/06 to 19/09/06 because the IS decision maker did not finally make a decision on how to treat (the claimant’s) income until 15/09/06.

 

I would submit that the incorrect submissions regarding the overpayment being determined as recoverable in this case up to 27/06/06 stem from the fact that the student income was subject to a full disregard from 28/06/06.  The overpayment decision maker decided on 07/02/07 to make the overpayment recoverable up to and including 27/06/06 and it seems that the disclosure made on 22/05/06 was overlooked at the time.

 

This led to the Department’s presenting officer to make submissions to the Appeals Service on recovery being sought up to 27/06/06; although the error made in the overpayment decision should really have been noticed before submissions were made and furthermore the presenting officer made errors of her own in continually referring to the review visit having been conducted in June 2006.

 

I would therefore submit that the tribunal has erred in law in this case by confirming the overpayment decision dated 07/02/07 as correct in seeking recovery of overpaid IS for the period 28/09/05 to 27/06/06.  This was partly due to the tribunal being misled by the Department’s incorrect submissions on the date of disclosure being June 2006.  However the tribunal had previously heard submission from (the claimant’s) representative that recovery was not possible in this case following disclosure made on 22/05/06.

 

In addition, it can also be seen from the tribunal’s record of proceedings dated 03/06/08, that the Legally Qualified Member recorded that “Tab 4 records a visit to her on or about 22/05/06”.  This indicates that the tribunal mistakenly ignored the significance of this date by determining the overpayment of IS to be recoverable to 27/06/06.’

 

22.   I am in agreement with the concession which has been made by DMS, and agree that the decision of the appeal tribunal is in error of law, on the basis of its failure to properly determine the period during which IS was overpaid.

 

       The section 69(5A) issue

 

23.   Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 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’

 

24.   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.

 

25.   Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

 

26.   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.’

 

27.   In essence, the appeal tribunal will have to identify two decisions.  The first is a decision which alters previous decision(s) awarding entitlement to benefit – that can be described as the entitlement or section 69(5A) decision.  The second is a decision that overpaid benefit is recoverable – that can be described as the recovery or section 69(1) decision.  At paragraph 10 of C10/07-08(IS), Commissioner Powell stated:

 

‘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.’

 

28.   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.

 

29.   In the instant case, and in the observations on the application for leave to appeal to the Social Security Commissioner, DMS has submitted that the entitlement or section 69(5A) was problematic, as follows:

 

‘In conclusion, I would provide some comment on the entitlement decision made in this case upon which an overpayment has been determined.  I have examined it to ensure it is a valid decision properly superseding (the claimant’s) entitlement to Income Support.  (The claimant) has not appealed against this decision in the past – the decision subject to her appeal is the overpayment decision dated 07/02/07 (as confirmed by the tribunal on 03/06/08).

 

However, in order for the Department to seek recovery of the sum overpaid in this case, then section 69(5A) of the Social Security Administration (NI) Act 1992 needs to be satisfied.

 

…

 

The Department originally informed the tribunal (at Section 4, paragraph 6 of the appeal submission) that a supersession decision was made on 15/09/06 to take (the claimant’s) student income into account.  I would now submit that the Department’s presenting officer did not take sufficient care that this decision was accurate, nor did she properly inform the tribunal of the decision making process that occurred in this case.

 

I have taken the opportunity to request full computer records of the entitlement decisions made in this case and I would clarify the exact position for the Department as follows:

 

Firstly, on examination of the decision of 15/09/06 (at Tab 8 of the Department’s appeal submission) there are a few discrepancies which require comment.  The decision does properly set out the amount of student income that should be taken into account, however the following defects should be noted:

 

(i)       the decision maker records that the decision awarding IS dated 16/08/05 is identified as requiring supersession.  This is incorrect as it should have been the decision that originally awarded IS (dated 20/04/05) that was identified as requiring supersession.  This is because there were no other decisions made altering (the claimant’s) entitlement between the date IS was originally awarded and the date the change to her circumstances was discovered.

 

(ii)      the decision does not specify under what grounds the supersession is made.  The regulation used for the decision is quoted as being regulation 6 (2) of the Decisions and Appeals Regulations (NI) 1999, but it is not clarified what particular sub paragraph is relevant.  This should have been set out in full as regulation 6 (2) (a) (i) – on the basis that there has been a relevant change of circumstances.  As well as highlighting the specific regulation, the decision itself should have stated that supersession was based on a relevant change of circumstances – namely that (the claimant) had become a student on 26/09/05.

 

(iii)      the final paragraph of the decision is inadequately worded.  It states the amount of student income that should be taken into account on the IS assessment from 28/09/05 to 27/06/06.  This reads more like a determination rather than a decision – it would have been preferable to set out the outcome that this income has on entitlement – either that the claimant is entitled to a reduced rate of benefit, or as appropriate to this case, that (the claimant) was not entitled to Income Support from 28/09/05 to 27/06/06.

 

(iv)      it is important before I provide comment on the subsequent notification letter, that I highlight the decision of 15/09/06 is in respect of a closed period only – 28/09/05 to 27/06/06.  The subsequent overpayment decision dated 07/02/07 which is based on that decision, does not seek recovery for any time outside that period, so despite the defects I have outlined so far, I am otherwise satisfied that a decision on entitlement is in place that would meet the conditions of section 69(5A) of the Administration Act.

 

(v)      the notification of this decision that the decision maker has relied on is “system” issued, meaning that the outcome recorded on the IS computer system (to disallow IS) would have been released to (the claimant).  There are problems with not issuing proper notification of a decision made entirely off-line and it was not correct for the IS decision maker to rely on the computer system to do so as I will now explain.

 

On checking the Department’s computer records, I can see that adjudication was in fact made on the computer on 17/10/06 – however the disallowance of IS was recorded as being effective only from 06/09/06, meaning the subsequent notification letter (records show this as being issued on 17/10/06) would have notified (the claimant) that she was disallowed Income Support only from that date.

 

(vi)      therefore notification of the decision made on 17/10/06 has nothing to do with the decision on entitlement made on 15/09/06.  This subsequent decision was made independently of that off-line decision and the Department’s presenting officer should have realised that (the claimant) had not been notified of her disallowance in respect of the period for which recovery of overpaid IS was being sought.

 

(The claimant) was entitled to IS for the summer months in 2006, so this would explain why, some time after 15/09/06, a decision maker has only disallowed with effect from 06/09/06.  It was therefore wrong for the IS decision maker to not issue proper off-line notification in this case and rely instead on the computer system to notify (the claimant) she was not entitled for the closed period 28/09/05 to 27/06/06.

 

The Department’s presenting officer was submitting a sample letter to confirm the likely wording of the notification issued to (the claimant).  For the reasons above, this letter should now be disregarded as it is not in relation to the outcome of the decision made on 15/09/06 and I would welcome direction from the Commissioner as to whether I should now instruct the benefit decision maker in this case to issue proper notification to (the claimant) in relation to her disallowance of IS from 28/09/05 to 27/06/06.  This will give her the right to appeal that decision if she so wishes.

 

Note: I have the computer records in my possession should the Commissioner wish to see them; however the jargon and computer codes associated with such records would require interpretation, which I am prepared to do, should the Commissioner grant leave to appeal in this case.

 

I would respectfully submit that there is now a question over what effect the technical errors within the decision of 15/09/06 and the lack of proper notification of that decision now have on this case.  I would submit that, as (the claimant) did not appeal against her IS disallowance at that time, it is possible that she is still of the same mind, however that does not detract from the lack of care taken by the Department in adequately communicating the outcome of the decision made regarding the effect of her student income on her IS entitlement.

 

There are defects within the wording of the decision itself and the problem regarding lack of proper notification; however the overall effect is that (the claimant) was informed by the Department soon after 17/10/06 that she was not entitled to IS.  She did not dispute this at the time, nor ask for further explanation (the notification letter did at least inform her of that right).  I would respectfully submit that, should the Department be now required to rectify these defects, a recently reported GB Tribunal of Commissioners’ decision would be relevant.’

 

30.   I can see no evidence in the statement of reasons for the appeal tribunal’s decision that the appeal tribunal fulfilled its duty to ensure that there was in place, for the purposes of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, a decision which altered previous decision(s) awarding entitlement to benefit.  As was noted above, 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.

 

31.   Had the appeal tribunal considered the section 69(5A) entitlement decision, it may have identified the discrepancies within that decision, outlined in the observations from DMS.  I concede, however, as does DMS, that the appeal tribunal was not alerted to these defects by the Department.  One of the questions for the appeal tribunal would have been, therefore, whether the entitlement or section 69(5A) decision was valid and accurate.

 

32.   In the written observations on the application for leave to appeal, and in oral submissions made as part of the oral hearing of the application, DMS submitted that despite the errors in the entitlement decision, the overall effect and validity of that decision was not affected.  DMS pointed out that the appellant had never challenged the section 69(5A) decision on appeal.  Following discussion at the oral hearing of the application, and with the agreement of the appellant’s representative, I directed that the Department should take remedial action with respect to the notification defects in the entitlement or section 69(5A) decision, and re-issue the decision with appropriate further appeal rights.  This remedial action was undertaken by the Department, on 11 November 2009.

 

       Had there been disclosure prior to 22 May 2006?

 

33.   In the written observations on the application for leave to appeal, DMS submitted that the appeal tribunal failed in its inquisitorial role to determine whether there had been disclosure by the appellant of her status as a student at any time earlier than 22 May 2006.  The submission from DMS on this issue is succinctly and accurately summarised in the case summary prepared for the oral hearing of the appeal, as follows:

 

‘… consideration that must be made as to the supplementary evidence which might support (the claimant’s) statement, on the balance of probabilities, that she did make disclosure to her Lone Parent Advisor at Newtownabbey Jobs and Benefits office in October 2005.  Copies of the Lone Parent Advisor’s computer records (which have been made available to the Commissioner and (the claimant) following the initial hearing held on 09/11/09) show an entry made on 26/10/05 that a Work Focused Interview due for 11/10/05 was deferred.

 

Soon after, the Income Support office issued a letter to (the claimant) dated 28/10/05 informing her of the following:

 

“I am writing to tell you that your recent change in circumstances does not affect the amount of Income Support we pay you”.

 

The Department will ask the Commissioner to consider whether the balance of probabilities should be applied in this case to determine whether (the claimant) would have made sufficient disclosure to Newtownabbey Jobs and Benefits office on 26/10/05 of the fact that she was now a student receiving an income.

 

Further to this the Commissioner may wish to consider whether, following receipt of the Income Support office’s letter dated 28/10/05, it was reasonable for (the claimant) to have formed the opinion that she had done all that was required of her in making the IS office aware of her change in circumstances.

 

The Department will submit that the relevant authority on disclosure of a material fact is Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, which held that a claimant’s duty is imposed by regulation 32 of the Claims and Payments Regulations – the duty being to disclose to the person or office identified to the claimant as the decision maker.

 

I would refer specifically to paragraph 22 of the House of Lords decision in Hinchy where Lord Hoffman held that a claimant must ensure that the necessary information is reported to the proper person in the relevant office.

 

In addition I would highlight the part of this paragraph which states that the claimant must do what a person in his position would reasonably regard as sufficient.  (The claimant) may need to provide oral evidence as to her actions around 26/10/05, due to the limited evidence available as to what transpired at that time.

 

There is no evidence of her making direct contact in October 2005 with the relevant official in this case i.e. the Income Support decision maker.  However there is evidence to support her having made contact with the Lone Parent Advisor at Newtownabbey Jobs and Benefits office.  Following that contact on 26/10/05, her Work Focused Interview was deferred and two days later on 28/10/05, the Income Support decision maker issued a letter informing her of no change to her entitlement following her recent change of circumstances.

 

It will be convenient for the Commissioner to know what processes are applied in Jobs and Benefits offices when Lone Parent Advisors interview benefit claimants.  Therefore I telephoned a Lone Parent Advisor in Newtownabbey office and have been informed that, should a claimant report a change to their circumstances to a Lone Parent Advisor then the normal procedure is that the officer will contact the Income Support decision maker immediately to alert them of the change.

 

On this basis, it may be that any information that was conveyed by (the claimant) to the Lone Parent Advisor on 26/10/05, was subsequently passed to the Income Support decision maker, which then prompted a notification being issued to (the claimant) on 28/10/05, informing her that her entitlement would not be affected.

 

The Department will respectfully ask the Commissioner to consider this sequence of events, in order to determine whether (the claimant) would have done what can reasonably be regarded as sufficient in reporting her change to Newtownabbey Jobs and Benefits Office.  The form INF4 which is issued to Income Support claimants (replacing order book notes which were in circulation at the time of the Hinchy decision) informs them to report changes of circumstance to the Income Support section at their Jobs and Benefits office.

 

I submit that the relevant question in (the claimant’s) case, which the Tribunal failed in its inquisitorial role to consider, is whether she made sufficient disclosure on 26/10/05 or alternatively whether the necessary information regarding her becoming a student had reached the Income Support office in October 2005.  I accept, however, that the Tribunal was not clearly directed in this respect by the Department’s submission.

 

In respect of the latter consideration, I submit that another aspect of the Hinchy decision is the decision made by the Court of Appeal in that case regarding the principle that - once the relevant official knows the material fact, a claimant can not be held as failing to disclose, despite failing in their duty to do so.

 

The Department is satisfied that the House of Lords did not overturn the Court of Appeal’s views on this matter, as expressed at paragraph 18 of the Court’s decision where it was held that the word "disclosure" requires something to be revealed or made apparent.  In other words, the relevant official may still be aware of the material fact, even if a claimant has not reported it.  This can happen in cases where the fact is reported by a third party.

 

The Department accepts on the basis of that principle, that it cannot seek recovery of any benefit which has been overpaid from the date on which the relevant official becomes aware of the material fact in question.

 

I submit that if it should be the case that (the claimant) is found not to have made disclosure to the “proper person” in the appropriate office (by contacting only the Lone Parent Advisor), then consideration should be given as to whether the Income Support decision maker knew the material fact on 26/10/05 or shortly afterwards – if so then (the claimant) could not be held as failing to disclose even if she failed in that duty.

 

If however, the Commissioner should ultimately decide that (the claimant) failed in her duty to disclose and that the information did not reach the Income Support decision maker on 26/10/05, then I respectfully submit that, in accordance with section 69 (1) of the Social Security Administration Act (NI) 1992, the Department is entitled to seek recovery of Income Support overpaid from 28/09/05 up to when disclosure is confirmed on 22/05/06.

 

If however, disclosure is decided as duly made on 26/10/05, or that the necessary information did reach the proper official on that date, then I submit that the Department is entitled to seek recovery only in respect of the period 28/09/05 to 25/10/05.’

 

34.   I am satisfied that there were additional questions concerning the issue as to whether the appellant did disclose her status as a student to the Department, at any time in September or October 2005, and that such questions ought to have been explored by the appeal tribunal.  I accept, in part, the concession from DMS that ‘…tribunal was misled in this regard by lack of submission by the Department’s presenting officer as to this aspect of the case’.  I have noted, however, that the appeal tribunal, in its statement of reasons for its decision, makes no reference to how it assessed the oral evidence of the appellant that she did, in fact, make appropriate disclosure to the Department in and around September or October 2005.

 

       My assessment of the evidence which is before me

 

35.   I have had the benefit of the forensic and careful review of the evidence undertaken by Mr Donnan from DMS.  I have also had the benefit of hearing oral evidence from the appellant.  I am satisfied, that on the balance of probabilities, that following confirmation that she was to commence study as a full-time student at the University of Ulster, in and around the middle of September 2005, the appellant endeavoured to make contact with the Department to ascertain the effect of that status on her entitlement to social security benefits.

 

36.   I am satisfied that, on the balance of probabilities, the likely route which the appellant took to inform the Department of her status as a full-time student was through the housing benefit section.  I am satisfied that she was informed that disclosure of her status would have to be made to the IS section.  I am satisfied on the balance of probabilities that the appellant made contact with her local social security benefit office in Newtownabbey.  I am satisfied that it is highly likely that the contact was made initially, or was transferred soon after to the appellant’s lone parent advisor.  I have been given evidence that the appellant was due to have an interview with the lone parent advisor on 11 October 2005.  I have also been given evidence that there is an entry on the lone parent advisor’s computer records, on 26 October 2005 that the interview, which had been scheduled for 11 October 2005 was to be deferred.  I am satisfied, on the balance of probabilities, that the reason for the deferment of the interview was the notification by the appellant that she had a new status as a full-time student.

 

37.   I am satisfied that it is common practice for a lone parent advisor, on receipt of notification of a change of circumstances in correlation to a claimant, and where that would affect entitlement to IS, to contact the IS section decision maker to alert that decision-maker to the change.  In the instant case, I am satisfied, on the balance of probabilities, that the appellant’s lone parent advisor did contact the IS decision-maker to inform that decision-maker about the appellant’s change of circumstances.  I have been given a copy of a letter, dated 28 October 2005, from Newtownabbey Jobs and Benefits Office to the appellant.  In this letter, the appellant is informed that the purpose of the correspondence is to confirm that ‘… your recent change of circumstances does not affect the amount of Income Support we pay you.’  I am satisfied, on the balance of probabilities, that the ‘change of circumstances’ referred to in this correspondence is the change in the appellant’s status to a full-time student.

 

38.   I accept the submission made by DMS that the effect of the decision in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, is that a claimant’s duty, imposed by regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, is to disclose to the person or office identified to the claimant as the decision-maker, that is the proper person in the relevant office.

 

39.   I am satisfied that by 28 October 2005, at the very latest, the appellant was justified in being content that the IS section was aware of her change of status to a full-time student and was informed, erroneously, that this would not affect her entitlement to IS.  Could she have been satisfied that IS section was aware at any date prior to 28 October 2005?  It seems to me that the process which I have described above – notification to the lone parent adviser and onward notification to IS – would take some time to process.  I am satisfied that the appellant would have been justified in taking the view that notification to the lone parent adviser was notification to the IS section, and that, on the balance of probabilities, that had taken place around early October 2005, and I would set that at 5 October 2005.  I say that because the interview with the lone parent adviser was scheduled to take place on 11 October 2005 but never did.

 

40.   Accordingly, I find that IS section was informed of the change in the appellant’s circumstances by 5 October 2005.  That section ought to have taken action with respect to the appellant’s entitlement to IS but failed to do so until 15 September 2006.  There has been an overpayment of IS, amounting to £2,320.45, overpaid for the period 28 September 2005 to 19 September 2006, of which only the amount for the period 28 September 2005 to 5 October 2005 is recoverable from the appellant.

 

       Disposal

 

41.   The decision of the appeal tribunal dated 3 June 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.

 

42.   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 as I can do so having made further findings in fact.  The fresh findings in fact are outlined below.

 

43.   My substituted decision is that an overpayment of IS, amounting to £2,320.45, overpaid for the period 28 September 2005 to 19 September 2006, had been made, of which only the amount for the period 28 September 2005 to 5 October 2005 is recoverable from the appellant.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

6 October 2010