CC-v-Department for Social Development (IS) [2010] NICom 05

Decision No:  C6/08-09(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 11 February 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 11 February 2008 is in error of law.  The error of law identified will be explained in more detail below.

 

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.     For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made and, further, I do not consider it expedient to make such findings at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

4.     It is imperative that the respondent notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of income support (IS), and whether any overpayment is recoverable from her remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

         Background

 

5.     On 1 July 2007, a decision-maker of the Department decided that there had been an overpayment of IS for the period from 19 January 2006 to 6 September 2006, amounting to £709.95, which was stated to be recoverable from the respondent.  An appeal against the decision dated 1 July 2007 was received in the Department on 20 August 2007. On 11 September 2007 the decision dated 1 July 2007 was revised.

 

6.     The appeal tribunal hearing took place on 11 February 2008.  The respondent was present and was represented by the Law Centre (NI).  A presenting officer from the Department was also present.  The appeal tribunal allowed the appeal and did not confirm the decision dated 11 September 2007.

 

7.     On 11 June 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 20 June 2008, the application for leave to appeal was granted by the legally qualified panel member.  No point of law was identified.

 

         Proceedings before the Social Security Commissioner

 

8.     The appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners on 25 July 2008.  Observations were sought from the claimant on 29 July 2008.  These were received, from Mrs Carty, on 27 August and shared with Decision Making Services (DMS) on 9 September 2008.

 

9.     A further submission was received from DMS on 5 October 2008, and yet further observations in reply were received from Mrs Carty on 29 October 2008.

 

10.   On 23 February 2009, I directed an oral hearing of the appeal.  The oral hearing took place on 15 May 2009.  At the oral hearing, the respondent was represented by Mrs Carty from the Law Centre (Northern Ireland) and the Department was represented by Mr McGrath of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

         Errors of law

 

11.   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.

 

12.   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.”

 

         The error of law in the instant case

 

13.   Part of the reason for the delay in producing a decision in the instant case was that in a number of other appeals before me, I was giving consideration to the legal and evidential basis for the ‘duty to disclose’, and on the relevance of section 69(5A) of the Social Security Administration (Northern Ireland) 1992, as amended, which I thought might impact on the issues arising in this appeal.  In the event, the majority of them do not but, in C6/08-09(IB), I said the following, in general terms, at paragraphs 19 to 28:

 

‘Failure to disclose

 

19.       There is in place a legislative mechanism for the recovery of all social security benefits which have been overpaid.  Section 69(1) Social Security Administration (Northern Ireland) Act 1992, as amended provides that:

 

“(1)      where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –

 

(a)  a payment has been made in respect of a benefit to which the section applies;

 

(b)  any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.”

…

 

21.       In B v Secretary of State for Work & Pensions (reported as R(IS)9/06), the Court of Appeal for England & Wales upheld the decision of the Tribunal of Commissioners in Great Britain in R(IS)9/06.  In that latter decision, the Tribunal of Commissioners had considered, in depth, the nature of the legal test in respect of failure to disclose, by analysing the relationship between section 71 of the Social Security Administration Act 1992 (the Great Britain equivalent to section 69 of the Social Security Administration (Northern Ireland) Act 1992) and regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (which has an equivalence in regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987).

 

22.       In summary, the Tribunal of Commissioners found that:

 

“1.        Section 71 does not purport to impose a duty to disclose, but rather presupposes such a duty, the actual duty in this case being in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, which provides for (a) a duty to furnish information and evidence pursuant to a request from the Secretary of State, and (b) a duty to notify the Secretary of State of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit.

 

2.         In relation to the duty to furnish information and evidence pursuant to a request, whilst there is no duty to disclose that which one does not know, if a claimant was aware of a matter which he was required to disclose, there was a breach of that duty even if, because of mental incapacity, he was unaware of the materiality or relevance of the matter to his entitlement to benefit, and did not understand an unambiguous request for information, and a failure to respond to such a request triggered an entitlement to recovery under section 71 of any resulting overpayment.

 

3.         Insofar as R(SB) 21/82 imported words from regulation 32 into the construction of section 71 in stating that the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected, that decision and subsequent decisions that have relied on it were wrongly decided.

 

4.         The form INF4 supplied to claimants contained an unambiguous request by the Secretary of State to be informed if a claimant’s children went into care and by not disclosing the fact to the Department, the claimant was in breach of her obligation under regulation 32, so that the Secretary of State was entitled under section 71 to recover the overpayment resulting.”

 

…

 

24.       In R(A)2/06, Commissioner Rowland stated, at paragraph 17:

 

‘17.      This once again brings to the fore a point that has frequently been made by Commissioners over the last quarter of a century: in cases where the Secretary of State seeks to recover an overpayment on the ground that there has been a failure to disclose a material fact, it is essential for the Secretary of State to produce evidence showing why the claimant was under a duty to disclose that fact.  That usually involves showing why the claimant should have realised that the fact was relevant.  Evidence of instructions to report the fact is likely to be the best evidence.  It is particularly important that there should be evidence of a duty to report the relevant change in circumstances in cases like the present where the fact in issue may appear obviously relevant to those involved in the administration of benefit but where its possible relevance might reasonably have escaped a member of the public in the absence of any instructions or other information provided to him or her by the Department.  Before a person can be shown to have failed to disclose a material fact, it must be shown that, under regulation 32 (or some other statutory provision or legal principle), there was a duty on that person to make the disclosure.’

 

25.       In my view, these decisions mean that an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of a failure to disclose, will have to consider where the requirement to provide the relevant information came from.  This will necessitate identifying whether the case comes within the first or second duty in regulation 32.

 

26.       In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant.  That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book.  It will not be enough, however, for the information leaflet or order book to be produced.  The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.

 

27.       In CDLA/4384/2003, Commissioner Rowland noted that the instructions in B were clear and unambiguous.  At paragraphs 8 and 9 of his decision, he stated:

 

‘8.        … The more difficult cases, which the Tribunal of Commissioners did not have to consider, are those where instructions to report facts are ambiguous or expressed in such general terms as to require some interpretation by a claimant or where written instructions have been qualified by an officer acting on behalf of the Secretary of State or, indeed, where there have been no relevant instructions at all but the claimant might have had reason to suspect that he was not entitled to all the benefit he was receiving.

 

9.         In any of those circumstances, it seems to me that the question whether there has been a “failure” by the claimant to “disclose” (for the purposes of section 71(1) of the 1992 Act) or to “notify” (for the purposes of regulation 7(2)(c)(ii) of the 1999 Regulations) a fact to the Secretary of State must inevitably be determined by considering whether the Secretary of State could reasonably have expected the claimant to disclose or notify that fact.  Regulation 32(1) of the 1987 Regulations does not provide a simple answer where it is necessary to consider whether the Secretary of State has actually required the claimant to report particular “facts affecting the right to benefit”.  It may be necessary to decide how a reasonable claimant could have construed the instruction and it is, furthermore, expressly provided that a general requirement to keep the Secretary of State informed of changes of circumstances applies only in respect of “any change of circumstances which [the claimant] might reasonably be expected to know might affect the right to benefit”.  In the present case, there is no evidence in the papers before me as to what, if any, instructions were given to the claimant.  Not only is such information required when considering whether an overpayment is recoverable under section 71(1) of the 1992 Act, it is also required for the purpose of determining whether a supersession decision is to be made retrospective under regulation 7(2)(c)(ii) of the 1999 Regulations.’

 

28.       In the case of the second duty, the requirement is that the change of circumstances is which the claimant might reasonably be expected to know would affect his entitlement to benefit.’

 

14.   In the instant case, the statement of reasons for the appeal tribunal’s decision has been prepared with a great deal of care and attention.  The reasons clearly identify the requirement for there to be in place a decision which satisfied the requirements set out in section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended.  Additionally, and as required following the decisions in B-v-Secretary of State for Work & Pensions and R(IS) 7/05 (Hinchy v Secretary of State [2005] UKHL 16), the reasons identify where the requirement to provide the relevant information came from. In the reasons, the source is stated to be regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.

 

15.   Thereafter, the reasons note that the appeal raised two issues, as follows:

 

‘The first issue was whether the INF4 form (a specimen of which was produced at Tab 7) was in fact issued to (the claimant)?  The appellant simply said she had no recollection of receiving such a form in early 2005.  However, Mrs Toner produced a computer print out which contained a summary of notifications to (the claimant).  On the balance of probabilities I accepted that an INF4 form, of the type shown at tab 7, was indeed sent to (the claimant) on 28.1.05.

 

The second issue turned on whether the INF4 form sent to (the claimant) in early 2005 unambiguously set out her reporting obligations. Mrs Carty, representing the appellant, contended that the wording was indeed ambiguous.  Further, the failure to report was only a failure to report the same detail twice, not just to one but to two separate offices of the Department of Social Development.’

 

16.   In the instant case, therefore, the appeal tribunal appeared to be facing one of those cases, described by Commissioner Rowland above, where it was submitted on the part of the respondent that the ‘instructions to report facts are ambiguous or expressed in such general terms as to require some interpretation.’

 

17.   The first issue concerned the issue of form INF4 to the respondent.  I will address the appeal tribunal’s conclusions with respect to this issue below.  In fact, Mrs Carty, for the respondent, in her initial observations on the appeal before me, challenged the appeal tribunal’s findings that, on the balance of probabilities, a form INF4 was sent to the respondent on 28 January 2005.

 

18.   What were the conclusions of the appeal tribunal on the second issue identified by it as arising in the appeal?  The appeal tribunal said the following:

 

‘I allowed the appeal for the following reasons.

 

First, the legislation does not impose upon claimants an obligation to report the same fact twice (or more) to separate offices of the Department of Social Development.  After lengthy examination of the judgement in Hinchy v Secretary of State for Work & Pensions [2005] UKHL, para 1.94 (page 71) of Vol. 3 of Social Security Legislation 2007 states:

 

“Accordingly the existing authorities remain determinative of when and how disclosure must be made, and would suggest the following propositions:

 

A personal disclosure to an officer in the local office administering the award of benefit is complete disclosure and absolves the person from further disclosure even if it is not acted on by the department and the claimant continues to receive benefit or suffers no reduction in benefit: R(SB) 15/87 … The words of the Commissioners in R(SB) 15/87 spell out exactly who the officer should be to whom disclosure is made:

 

“We accept that a claimant cannot be expected to identify the precise person or persons who have the handling of the claim.  His duty is best fulfilled by disclosure to the local office where his claim is being handled … If he does this it is difficult … to visualise any circumstances in which a further duty to disclose the same matter can arise …””

 

(The claimant’s) understanding was that the branch of the Social Security Agency dealing with her claim was Incapacity Benefits Branch at Castle Court Belfast.  I accepted as fact that no one at that office ever suggested to (the claimant) that she should separately report the news of he [sic] appointment to the DPP to her local Jobs and Benefits Office. Even if she had read the INF4 leaflet, what possible reason could (the claimant) have had for believing that she had failed to make full disclosure?

 

The second reason for allowing the appeal concerns interpretation of the instructions on the INF4 form.  These were, in the circumstances of this case, less than unambiguous.  The facts are also distinguishable from Hinchy v Secretary of State for Work and Pensions [2005] UKHL.  In that case the claimant made no report of the loss of DLA which in turn affected her continuing entitlement to Severe Disablement Premium.  Hoffman LJ said that it was that it was [sic] not for claimants to make assumptions about the internal workings of the Social Security Agency.  But that is not what the claimant did in this case.  Patently, by the manner of her reporting of material facts to Incapacity Benefits branch, she intended to fully and promptly to disclose those facts.  Had she read the INF4 form from beginning to end (the claimant) might still well still [sic] have asked herself whether she needed to report the same facts to two separate offices.’

 

19.   The reference to ‘Severe Disablement Premium’ should be to ‘Severe Disability Premium’ but nothing turns on that.

 

20.   My understanding of the reasoning of the appeal tribunal is that:

 

(i)                 it found that the respondent had formed what it regarded as the reasonable view that she was, in respect of her entitlement to all of her social security benefits, dealing with one single office, which was the Incapacity Benefit Office;

 

(ii)               the respondent had disclosed to the Incapacity Benefit Office the material fact that she had been appointed to a public body and was being remunerated for this appointment;

 

(iii)             having made the disclosure to the Incapacity Benefit Office she had formed the reasonable view that that was all which could be expected of her by way of disclosure;

 

(iv)              even if the respondent had read the INF4 leaflet, and even if that had been clear and unambiguous she would, on the basis of (ii) and (iii) above, have believed that she had made full disclosure;

 

(v)                based on the finding that the INF4 leaflet was, in fact, ambiguous any reading of that leaflet by the respondent would have left her asking whether she need to report the same facts to two separate offices;

 

(vi)              the relevant legislative provisions, as interpreted by the appellate authorities, does not impose a requirement to report the same fact twice or more to two separate offices; and

 

(vii)            the facts of the instant case could be distinguished from those in Hinchy.

 

21.   With the utmost respect to the appeal tribunal, which has devoted a great deal of care and attention to the identification and resolution of the issues arising in the appeal, I cannot agree with this reasoning, on a number of grounds.

 

22.   Firstly, to state that ‘the legislation does not impose upon claimants an obligation to report the same fact twice (or more) to separate offices’ is too broad a statement, and does not accurately represent the true legal position.

 

23.   The appeal tribunal was correct to identify that the source of the duty to provide relevant information was regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.  Regulation 32(1), (1A) and (1B) read as follows:

 

‘Information to be given and changes to be notified

 

32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require for determining whether a decision on the award of benefit should be revised under Article 10 of the 1998 Order or superseded under Article 11 of that Order.

 

(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require in connection with payment of the benefit claimed or awarded.

 

(1B) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall notify the Department of any change of circumstances which he might reasonably be expected to know might affect—

 

(a) the continuance of entitlement to benefit; or

 

(b) the payment of the benefit,

 

as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office—

 

(i) in writing or by telephone (unless the Department determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

 

(ii) in writing if in any class of case it requires written notice (unless it determines in any particular case to accept notice given otherwise than in writing).’

 

24.   In R(SB) 15/87, a Tribunal of Commissioners in Great Britain, considered the extent of the obligations imposed by regulation 8 of the Supplementary Benefit (Claims and Payments) Regulations 1981.  The wording of regulation 8 was in similar terms to that of regulation 32(1B) of the current Claims and Payments Regulations. At paragraph 28 of their decision, the Commissioners stated:

 

‘28. We accept that a claimant cannot be expected to identify the precise person or persons who have the handling of his claim.  His duty is best fulfilled by disclosure to the local office where his claim is being handled either in the claim form or otherwise in terms that make sufficient reference to his claim to enable the matter disclosed to be referred to the proper person.  If he does this, it is difficult, having regard to our acceptance of Miss Kearns’ concession, to visualise any circumstances in which a further duty to disclose the same matter can arise.’

 

25.   In Hinchy, the by now well-known facts were that the claimant, who had been in receipt of IS for many years, was awarded middle rate care component of disability living allowance (DLA) for five years.  As a result of that award she was entitled to have a severe disability premium added to her IS.  At the end of the five years she made a renewal claim for DLA, which was refused and her appeal against that refusal was dismissed.  She did not inform the office administering her IS of the change, and the postal notification system between the two offices failed, so that she continued to receive the premium in her IS for two years.  By the time the mistake was discovered a substantial overpayment had arisen.

 

26.   The Secretary of State decided that the overpayment was recoverable under section 71(1) of the Social Security Administration Act 1992 as it had arisen in consequence of the claimant’s failure to disclose that her DLA had expired.  The claimant appealed, arguing inter alia that disclosure could not reasonably be expected of her, because of her ill-health and lack of understanding of the benefit system.  The tribunal found that she was capable of understanding the instructions issued to claimants and dismissed the appeal.

 

27.   The claimant appealed to the Commissioner, who dismissed the appeal.  The Court of Appeal allowed her appeal, holding that it was reasonable to believe that the relevant information, concerning the cessation of DLA, would reach the decision-makers in the IS Office and that the Secretary of State must be deemed to have knowledge of decisions taken in his name.  The Secretary of State appealed to the House of Lords.

 

28.   Lord Hoffman, at paragraph 32, stated the following:

 

‘… 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. … For my part, I would approve the principles stated by the Commissioners in R(SB) 15/87 and CG/4494/1999.  The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decision-maker.  The latter is not deemed to know anything which he did not actually know.

 

29.   Baroness Hale, at paragraph 49, stated:

 

‘… Second, there is nothing intrinsically wrong in relying on the claimant to give to the Secretary of State the information he requires to make his decisions, provided that this is information which the claimant has and that the Secretary of State has made his requirements plain.  Nor is it intrinsically wrong to include in those requirements information which is already known in one part of the system but not in that part that needs to know it to make the decision in question … In an ideal world, administrative systems might be so efficient that any official in one office might at a few clicks of a mouse be able to retrieve all the information about a particular claimant held everywhere else in the system.  But many would find such efficiency sinister.  It is certainly not yet with us.’

 

30.   In CIS/1887/2002, Commissioner Howell considered the implications of the decision in Hinchy, in the circumstances in which a single office was administering two different social security benefits.  He stated, at paragraphs 18 to 24:

 

‘18       … but at all events there is certainly no requirement of any separate notification to individual staff within a single office, or warrant for the idea of a single office of the department having to be notionally subdivided and treated artificially and contrary to the fact as more than one “office”, by virtue of the particular tasks the individuals within it happen from time to time to be engaged on, or otherwise.

 

19.             Nor in my judgment is the position materially altered by the actual instructions shown by the evidence to have been given to the claimant in this case, which were those in the copy extracts from the relevant departmental leaflets and benefit order books in evidence before the tribunal at pages 17 to 22.  The “Income Support and Jobseekers Allowance Information Sheet” leaflet sent out as a matter of course to all such claimants advised him as follows:

 

“Income Support and Jobseeker’s Allowance

Tell your local social security office or Jobcentre about any changes as soon as you can.  You can telephone or tell them when you attend. …

Tell your social security office or Jobcentre if you or anyone you are claiming for …

apply for other benefits …

get money from somewhere else ...

Other money coming in

Tell us if you or anyone you have claimed for

·  claim any benefits, pensions or allowances

·  get any money

·  get more or less money

·  start getting a different amount of benefit

·  stop getting a benefit or other money.  …

Remember to include things like

social security benefits …

How to tell us about changes

Get in touch with your Benefits Agency Office or Jobcentre.  The phone number and address are at the top of any letters they have sent you.  You can phone or write or call into the office to tell us about changes.”

 

On the relevant pages of his income support order book the claimant was told:

 

“10. How to tell us about changes: You must get in touch with the Social Security Office as soon as you can.  The address is on the front cover of this order book.  …

14. Any new benefits: You must send us a letter or Form A9 if you or your partner or your dependants start to get a new benefit.”

 

20.       There is again no whisper in any of that of any subdivision or pluralisation of “the office” to which events have to be notified, beyond that of the single benefits office whose address is given to the claimant on the front of his order book or in any relevant correspondence sent to him.  The required notification is to “us” or “the office” at a particular address as an entity, reflecting that as a matter of obvious common sense accepted by the Tribunal of Commissioners and endorsed by the House of Lords, a claimant cannot be expected to identify the precise person or persons who have the handling of his claim (or, I would add, concerned at any particular moment with some particular aspect or determination relevant to his claim:  it may often be the case as here that more than one or even several officials are involved in the overall claim process).

 

21.             It is also in my judgment a principle established beyond question that for the purposes of section 71 there is no “failure to disclose” where the material fact in question is already known to the person or office to whom, under the principle laid down by the House of Lords in Hinchy, notification would otherwise have to be made.  This too I take to be axiomatic and not called in question by anything said in the recent decision of their Lordships.  It may be the kind of point Lord Hoffmann had in mind when he said “a disclosure which would be thought necessary only by a literal-minded pedant … need not be made”, though perhaps a true pedant would be the least likely to think disclosure necessary in such circumstances, taking the (accurate) view that there can be no question of “disclosure” to a person or entity of something that he or it knows already.

 

22.             In my judgment the question of liability under section 71 is concluded in favour of the claimant, and against the department’s view as accepted by the tribunal, by the facts that all questions affecting both of the interconnected benefits involved in this case were being dealt with by the single local benefits office at the same address; and there was nothing in any of the correspondence, literature or other evidence put before the tribunal to show that the staff from time to time dealing with the relevant incapacity benefit and income support questions were separately identified to the claimant or anyone else as different “offices”; or that the need to track down and notify any separate individual or section of individuals within that same office at the same address was either reasonably to be expected of the claimant or in any way brought to his attention.  On the contrary, all the material before the tribunal pointed to the opposite conclusion, and that has been reinforced by the further submissions and explanations of the system in such an office provided to me for the purposes of this appeal.

 

23.             The reasons for this conclusion cannot in my judgment be better put than they were in a very similar case nearly twenty years ago now by a most experienced Commissioner in decision CSB 0677/86, a case also involving a single office in which the work was divided up between different sections, where in the characteristically lively and robust language in which that Commissioner’s sound learning and formidable intellectual qualities were wont to be presented he said:

 

“2.       … I am indebted to both Miss Wheat [the claimant's representative] and Mrs Saxon [for the Department] for lucid and entertaining submissions which managed to wring a few more drops of juice from a lemon which might have thought to have been already squeezed dry.

3.  The lemon is section 20 of the Supplementary Benefits Act 1976 [the predecessor provision to section 71 in issue before me]. … The claimant … has been almost continuously in receipt of supplementary benefit.  He was unemployed … but he then fell sick and was awarded sickness benefit.  …

4.  But the claimant’s sickness was protracted.  On 31 October 1984 he was notified by the local office of the Department of Health and Social Security that he had progressed to invalidity benefit.  That, of course, reduced the supplementary benefit to which the assessment unit was entitled.  But the person or section in the aforesaid local office of the Department who or which was responsible for calculating the relevant supplementary benefit was not – apparently – aware of the claimant’s progress from sickness benefit to invalidity benefit; and that situation continued down to 25 September 1985.  In consequence, there was an overpayment of supplementary benefit in the sum of £684.17 in respect of the inclusive period 5 November 1984 to 23 September 1985.  The local adjudication officer so found – and determined that that sum was recoverable by the Secretary of State.  The claimant appealed to the appeal tribunal.  His appeal was disallowed.

5.  Put thus baldly, the claimant’s case looks unpromising.  The precedents are well stocked with cases in which claimants have sought to justify their non‑disclosure by arguing that the Department’s files must already have contained the relevant information.  For example, a supplementary benefit claimant who has not disclosed the child benefit received by the relevant assessment unit is wont to contend that the Department – which pays the very child benefit in question – could be taken to know of that child benefit when computing the claimant’s entitlement to supplementary allowance.  And that type of argument is normally doomed to failure.  ... In this case the appeal tribunal dealt with the claimant’s argument thus:

‘The claimant’s appeal was based on the failure of the Supplementary Benefit and Sickness Benefit sections to liaise, preventing an internal adjustment of the supplementary benefit paid to claimant’s wife when claimant went from sickness benefit to invalidity benefit on 1.11.84.  Tribunal rejected such argument.  An obligation to disclose is personal to the claimant and it is he alone who must disclose any change of circumstances to the Department (as the notes in his order book require him to).  It is insufficient to place absolute reliance on some inter-departmental procedure which may or may not exist.  Even if such liaison did exist, this did not absolve a claimant from his obligation to disclose.’

6.  That is all very well – so far as it goes.  But – in the particular circumstances of this case – I do not consider that it goes far enough.  Somewhat surprisingly, the papers do not contain any specimen of the order book note or notes to which the appeal tribunal was referring.  But Miss Wheat told me that, to the best of her recollection, the relevant notes instructed the claimant to make the required disclosure to ‘the issuing office’ – and Mrs Saxon agreed that that was very likely.  And it further appears that the ‘issuing office’ in the context of the claimant’s supplementary benefit was precisely the same office as dealt with his sickness and invalidity benefit.  It is well settled law that the disclosure contemplated by section 20 is such disclosure as can be reasonably expected of the person in question.

7.  So where does that leave the matter?  On 31 October 1984 the ‘issuing office’ wrote to the claimant notifying him that his sickness benefit would – with effect from 1 November 1984 – be replaced by invalidity benefit.  Is it seriously to be urged that the reasonable man would thereupon have written to the manager of the ‘issuing office’ in the following, or similar, terms:

‘Dear Sir,

I thank you for your letter of 31 October last and wish to inform you of its contents.’

I do not think that anyone would expect such a suggestion to be taken seriously.  I need hardly say that Mrs Saxon did not.

8.  I stress that I do not regard this as a case where the point in issue is whether the claimant was or was not reasonable in assuming that there would be internal liaison between different offices of the Department.  Only one office was involved – and that was the office to which the claimant had been instructed to make disclosure.  Those of us who are sophisticated in social security matters know that in one office there may be a number of sections, each relatively self‑contained.  Whether that can be assumed to be within the knowledge of the reasonable man, I do not know – but I do not have to decide that here.  It was not to any particular section that the claimant was instructed to make disclosure.  It was to the ‘issuing office’ – the very office which communicated to him the information which he is alleged not to have disclosed.

9.  As I have indicated in paragraph 5 above, there have been many, many cases of this general type – some more meritorious than others.  I cannot think that it is beyond the wit of those who draft the relevant instructions to claimants to devise a form of words which will make abundantly clear to claimants the precise officer or section to whom disclosure is required.  If the Department should answer that this is too difficult, the obvious riposte will be:  Why should a claimant be expected to appreciate a situation which the Department itself cannot explain clearly?”

 

24.             It seems to me that the principles so clearly explained by the Commissioner in that case are equally applicable to this one and show why the result on such facts as these is different from that in Hinchy where two separate benefit offices were involved, and why the overpaid benefit is not recoverable by the Secretary of State under section 71 on the ground of the only “failure to disclose” alleged and relied on.  I therefore follow it, and for the reasons already indicated give the final decision in the case that the claim to make the benefit legally recoverable from the claimant on that ground does not succeed.  It has not been suggested by the Secretary of State at any stage in his original decision or before the tribunal or in the present appeal before me that he is able to rely in the alternative on any different basis for establishing a “failure to disclose” from a later date than 19 July 1998, on the basis of a “continuing duty” or otherwise, and I do not therefore comment on whether that might have been a possible alternative route to at any rate some recovery in this case apart from the basis alleged.’

 

31.   In my view, these appellate authorities support, in unequivocal terms, the following principles, namely that:

 

(i)                              the duty to disclose is best fulfilled by a personal disclosure to the officer or office administering the benefit at issue;

 

(ii)                            there is no failure to disclose where the material fact in question is already known to the individual or office to whom, under the principle laid down in Hinchy, notification would otherwise have to be made;

 

(iii)                           there is nothing wrong in imposing a requirement on a claimant to provide information which is already known in one part of the system but not in that part of the system which needs to know it;

 

(iv)                          a claimant is not entitled to assume that because one office of the Department has been provided with relevant information, the duty to disclose that information to another office within the system has been fulfilled;

 

(v)                            there is no requirement for any separate notification to individual staff within a single office, or requirement for the idea of a single office of the Department having to be notionally sub-divided and treated artificially and contrary to the fact as more than one office, by virtue of the particular tasks the individuals within it happen from time to time to be engaged on.

 

32.   It seems to me that the principle at (iv) above is sufficient to counter the appeal tribunal’s very general statement that ‘the legislation does not impose upon claimants an obligation to report the same fact twice (or more) to separate offices’. Clearly, the principle at (iv) above would support the requirement, in appropriate circumstances, for the potential notification to Office B, even where there already had been notification to Office A.  The principle states that, in appropriate circumstances, a claimant cannot assume that just because Office B had been notified, either by the claimant or otherwise, that that would lead to notification to Office A, or would lead to the obviation of the requirement on the claimant to notify Office A.

 

33.   Accordingly, I conclude that the appeal tribunal, in concluding that ‘the legislation does not impose upon claimants an obligation to report the same fact twice (or more) to separate offices’ has misinterpreted the relevant legislative provisions.

 

34.   There is a second basis upon which the decision of the appeal tribunal involves a misinterpretation of the legislative provisions relating to the issues arising in the appeal.  At a later stage in the statement of reasons, the appeal tribunal states that:

 

‘The facts are also distinguishable from Hinchy v Secretary of State for Work and Pensions [2005] UKHL.  In that case the claimant made no report of the loss of DLA which in turn affected her continuing entitlement to Severe Disablement Premium.  Hoffman LJ said that it was not for claimants to make assumptions about the internal workings of the Social Security Agency.  But that is not what the claimant did in this case.  Patently, by the manner of her reporting of materials facts to Incapacity Benefits branch, she intended to fully and promptly to disclose those facts.’

 

35.   As was noted above, the appeal tribunal has concluded that once the respondent had formed the reasonable view that she was, in respect of her entitlement to all of her social security benefits, dealing with one single office, which was the Incapacity Benefit Office, the disclosure to the Incapacity Benefit Office the material fact that she had been appointed to a public body and was being remunerated for this appointment was all which could be expected of her by way of disclosure.  In the view of the appeal tribunal the respondent, in her own mind, was dealing with one office, not two.  Accordingly, the question of disclosure to a second office, or the presumption that a second office would otherwise be informed, did not arise.  The distinguishing of Hinchy by the appeal tribunal is in support of those conclusions.

 

36.   It is permissible to distinguish Hinchy. Commissioner Howell did this to proper effect in his decision in CIS/1887/2002.  In that case, however, the distinguishing factor was that in Hinchy two separate benefit offices were, in fact, involved.  In CIS/1887/2002, two separate sections within a single office were involved.  In my view, the step which the appeal tribunal purported to take, that is to conclude that the respondent, in her own mind, was dealing with a single office and that, therefore, the Hinchy principles did not apply, is too broad to take. It remains the case that, in fact, two separate offices were involved in the administration of the social security benefits relating to the respondent.  That means that the case falls squarely within the Hinchy principles.

 

37.   Those principles include, however, the conclusion by Lord Hoffman, at paragraph 23, that:

 

‘… It is not for the claimant to form views about what may go on behind the scenes in the Social Security or other benefit offices.  His duty is to comply with the instructions in the order book …’  

 

38.   That leads to the requirement to analyse the appeal tribunal’s assessment of the evidence with respect to the respondent’s history of claiming benefit and benefit entitlement and, of course, the information provided to her with respect to the requirement to provide information to the Department or to report changes of circumstances.

 

39.   The information on which the appeal tribunal concentrated was a version of ‘Form INF4’, which the Department submitted, and the appeal tribunal accepted, was sent to the respondent.  In respect of the detail of that form, the appeal tribunal concluded:

 

‘Even if she had read the INF4 leaflet, what possible reason could (the claimant) have had for believing that she had failed to make full disclosure?

 

The second reason for allowing the appeal concerns interpretation of the instructions on the INF4 form.  These were, in the circumstances of the case, less than unambiguous … Had she read the INF4 form from beginning to end (the claimant) might still well still [sic] have asked herself whether she needed to report the same facts to two separate offices.’

 

40.   In the written and oral observations on the appeal, DMS has submitted that there was nothing in the form INF4 which could be considered to be ambiguous, and that the appeal tribunal’s conclusions with respect to the ambiguity of the form rendered its decision as being in error of law.

 

41.   At the oral hearing of the appeal, I indicated to both parties to the proceedings that a Social Security Commissioner should be wary of interfering with findings in fact made by an appeal tribunal, based on a rigorous and rational assessment of all of the evidence before it. I put forward the proposition that the appeal tribunal’s conclusions with respect to the ambiguity of the form INF4 fell into this category.

 

42.   At the oral hearing, however, Mr McGrath informed me that the copy of the form INF4 which had been before the appeal tribunal was in a different format to the actual form INF4 which is routinely provided to claimants to social security benefits.  At the oral hearing of the appeal, Mr McGrath provided me with an actual form INF4.  It is in a small booklet format which opens up to a number of different pages.  By contrast, what was before the appeal tribunal was a photocopy of various sections of the form. Mr McGrath submitted that the appeal tribunal, through no fault of its own, may have been misled by the format in which the photocopied form was presented to it, and might have taken a different view of the form, had it seen the original.

 

43.   I am of the view that there is something to Mr McGrath’s submission.  In C1/06-07(IS), at paragraph 26, Commissioner Brown stated:

 

‘The claimant’s solicitors have, in my view, correctly raised an issue that the tribunal failed to address the issue of the Department not having tendered forms IB65 and BF220C.  These were the forms on which the Department allegedly notified the claimant that he had been found capable of work.  The solicitor is correct that the Department did not tender these forms or even pro formas of them (which would in my view have been sufficient to establish their content) to the tribunal.  The tribunal did not seek to see the relevant forms though this matter was raised by the solicitors in their written submission to the solicitors.  Both these are matters of some concern to me.  Without knowing the content of the said forms I fail to see how the tribunal could conclude that they provided the said notification.  In general terms I consider that the Department should supply copies or pro formas of relevant notifications in recoverability cases.  In cases where notification is an issue the tribunal should ask to see at least pro formas of these documents if they have not been furnished.’

 

44.   This paragraph is reflective of other appellate authority opinion that in overpayment or recoverability appeals, it is essential that the appeal tribunal is provided with actual copies, not photocopies of relevant forms, order books declarations etc.  In my view, it will be safest and best practice for the Department to routinely provide actual copies of the relevant forms for consideration by the appeal tribunal.  Having seen the form INF4, in its original format, I agree that it is possible to look at its contents in a different light and to see, for example, where one section ends and another begins. It is clear, for example, on the actual form INF4, that there are separate sections on ‘Income Support’, ‘Earning Money’, ‘Other Money Coming In’ etc which are not so clearly differentiated on the photocopied form, which suggests that the content of the original was set out in columns.

 

45.   The appeal tribunal worked with the photocopied version of the form INF4 with which it had been supplied.  In my view, the interpretation of that form would have been assisted had the appeal tribunal been supplied with an actual copy of the form, such as the one which had been supplied to me as part of these proceedings.

 

46.   Finally, there is one other aspect of the appeal tribunal’s reasoning with which I have a concern, and which was not raised by either the respondent’s representative or DMS.

 

47.   The appeal tribunal found that the respondent had discharged the duty to disclose the relevant fact that she had been appointed to a public body and was being remunerated for this appointment, and having made the disclosure to the Incapacity Benefit Office she had formed the reasonable view that that was all which could be expected of her by way of disclosure.

 

48.   In R(SB) 15/87, the Tribunal of Commissioners stated, at paragraph 28:

 

‘It was in reference to this sort of case that the Commissioner included in paragraph 18 of Decision R(SB) 54183 his statement about a continuing duty.  A claimant who has made such disclosure has not in fact made disclosure to the right person or in the right place, but he has done something which has the effect that, for the time being at least, further disclosure is not reasonably to be expected of him.  We consider that paragraph 18 of R(SB) 54/83 is concerned with the case of a claimant who subsequently becomes aware, or should have become aware, that the information has not been transmitted to the proper person or place and who is then under a duty to make disclosure to that person or place.’

 

49.   In  CIS/14025/1996, at paragraph 6, Commissioner Henty stated:

 

‘Nevertheless, it must, in my view, be reasonable for a claimant who has disclosed a fact, which would change his level of benefit and whose benefit nevertheless remained unchanged, to realise that something had gone wrong, which he should bring to the attention of the appropriate office.  The stronger the claimant held the impression that the information would be brought to the attention of the relevant officer, the longer it will have been reasonable for him not to have made a second disclosure.  But, in any event, it seems to me that a relatively short period would, in most cases, be appropriate.’

 

50.   In R 3/95(IS), Commissioner Brown stated, in paragraph 10:

 

‘… However, as was pointed out by the GB Commissioner in R(SB) 54/83 at paragraph 18, “the obligation to disclose is a continuing obligation and if after disclosure has been made, a claimant continues to receive his benefit at the existing rate, so that he has reason to suspect that his disclosure was ineffective, he cannot sit idly by.  He must take further, and more effective, steps to make the necessary disclosure.”  In the present case the claimant received his benefit fortnightly and I cannot accept that he failed to realise that it had not been reduced.  In my opinion, if the claimant did report to the unemployment benefit section that [his son] had started a YTP scheme then, at least by the time he received the second of his subsequent fortnightly giro cheques, he should have realised that the information had not reached the income support section and he should thereupon have taken further steps to make proper disclosure.'

 

51.   The duties outlined in these cases have been referred to as the ‘continuing duty to disclose’.  In my view, even if I am wrong in respect of the appeal tribunal’s conclusions with respect to the extent of the duty to disclose, to whom the duty is owed, and the contents of the instructions to the respondent with respect to the provision of information and reporting of relevant changes of circumstances and, in turn, the appeal tribunal was correct to find that the duty had been disclosed and, in any event, the wording of the relevant instructions were ambiguous, the appeal tribunal was, in my view, required to determine whether there was a continuing obligation on the respondent.

 

52.   The remaining outstanding issue relates to the appeal tribunal’s finding in fact that the respondent had on 28 January 2005, been forwarded a copy of a form INF4 by the Department.  Mrs Carty, for the respondent, in her initial observations on the appeal before me, challenged the appeal tribunal’s findings that, on the balance of probabilities, a form INF4 was sent to the respondent on 28 January 2005.

 

53.   My conclusion is that there is no basis for an interference with the finding in fact made by the appeal tribunal with respect to the sending of the form INF4, which followed a rational evaluation of the evidence with respect to this factual issue, and the application of the correct standard of proof.

 

54.   Although it also relates to the evidential assessment by the appeal tribunal in that case, in C1/06-07(IS), Commissioner Brown said the following, at paragraph 15:

 

‘The tribunal was also entitled to its conclusion that the said letters had been received by the claimant.  True there was no direct evidence of receipt.  There was however evidence in the form of the screen print at Tab 5 of the tribunal papers indicating that forms IB65 and BF220C had been issued on 27 and 28 August 2002 respectively, evidence that other correspondence had been received and that there was no indication of postal difficulties at the relevant time.’

 

         Disposal

 

55.   The decision of the appeal tribunal dated 11 February 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.

 

56.   For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made and, further, I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

57.   It is imperative that the respondent notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of IS, and whether any overpayment is recoverable from her remains to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

 

(signed)  K Mullan

 

Commissioner

 

 

 

21 January 2010