Northern Ireland - Social Security and Child Support Commissioners' Decisions

TC-v-Department for Social Development (IS) [2011] NICom 168

Decision Nos:  C14/10-11(IS) C15/10-11(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCOME SUPPORT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 6 January 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    There are two separate, though related, appeals before me.  C15/10-11(IS) is an appeal against a decision of a tribunal issued on 7 January 2009, arising out of a hearing on 6 January 2009, affirming the decision of a decision-maker to the effect that the claimant is not entitled to income support (IS) as a lone parent from 5 February 2002 to 4 October 2005 as she and a (Mr M…) had been living together as husband and wife during this period and her partner was in full-time employment.  C14/10-11(IS) is an appeal against a decision of a tribunal, also issued on 7 January 2009, arising out of the same hearing of 6 January 2009, affirming the decision of the decision-maker to the effect that an overpayment of IS for the period 5 February 2002 to 4 October 2005 amounting to £27,713.20 had arisen because of the claimant’s failure to disclose the material fact that she had a partner who was in full-time employment; and that the overpayment of £27,713.20 was recoverable from the claimant.  (I am referring to the appellant in these proceedings as “the claimant” throughout even though, strictly speaking, she is not properly the claimant in the overpayment proceedings).

 

2.    The claimant was a single woman living at .. L…, Downpatrick and was in receipt of IS as she satisfied the conditions of entitlement from 13 June 1990, initially for herself and then as a lone parent in respect of herself and two children.  On 6 March 2002 she completed a review form A2 confirming her address as ..L… and stating that her circumstances had not changed.  On 8 January 2003 she completed a A2 review form on which she claimed IS for an additional child born on 4 January 2003.  On 19 March 2004 she completed review form A2 confirming there were no further changes to her circumstances and then on 22 July 2005 she completed an A2 review form advising of a change of address to ..S…, Downpatrick.

 

3.    On 11 August 2005 (and 7 September 2005) the claimant was interviewed by officers from the Benefit Investigation Services (BIS) regarding an allegation that she was living as husband and wife with a partner, Mr M….  The BIS officers showed the claimant evidence obtained under the Fraud Act, such as PSNI records, DVL(NI) records and credit applications which indicated that Mr M… was living at her address at various times between 5 February 2002 and 12 August 2004.  She was also shown her youngest child’s birth certificate and information obtained from Mr M’s employer naming her as his next of kin.  At the interview she admitted that Mr M… was the father of her child but denied that they lived together.  He had asked her if he could use her address to collect his post, as his mother ripped up his post sent to his mother’s address.  The claimant also stated that she did not know where Mr M… was living as he stayed with various friends.

 

4.    On 7 October 2005 an officer of the Department determined that the claimant was living with Mr M… as husband and wife and, as a consequence, she could no longer be considered as a prescribed category of person for IS purposes.  (Section 123(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 sets out the decision of entitlement to IS.  Regulation 4ZA of the Income Support (General) Regulations (Northern Ireland) 1987 states that a person can be entitled to IS if he or she falls within a prescribed category of person.  Schedule 1B of the Regulations sets out the prescribed categories of persons who may be entitled to IS for the purposes of section 123(1)(e) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 paragraph 1 of Schedule 1B of the 1987 Regulations sets out that a lone parent with responsibility for a child is a prescribed category of person.).  On the same day the Department decided the claimant was not entitled to IS from and including 5 February 2002.  She was notified of the decision on 13 October 2005.

 

5.    On 13 October 2005 the claimant appealed the decision that she was not entitled to IS, contending that she was not living with anyone and was a single parent.

 

6.    On 20 November 2005 the Department made a recoverable overpayment decision as a consequence of the entitlement decision dated 7 October 2005.  The Department decided that the claimant had been overpaid IS for the period 5 February 2002 to 4 October 2005 amounting to £27,713.20.  On 6 December 2005 the Department looked again at the recoverable overpayment decision but did not change it.  On 20 May 2008 and again on 22 May 2008 the Department revised its entitlement decision due to official error.  The claimant’s appeal continued against the decision of 7 October 2005, as revised on 22 May 2008.

 

7.    On 29 May 2008, as a result of the entitlement decision dated 7 October 2005 as revised on 22 May 2008, the Department made a further recoverable overpayment decision.  The period of recovery and the amount of the overpayment remained unchanged from the recoverable overpayment decision dated 20 November 2005.  The claimant was notified of the new decision on 20 June 2008.

 

8.    On 10 July 2008 a letter of appeal from McEvoy Sheridan Solicitors, on behalf of the claimant, against the recoverable overpayment decision was received in the Department.

 

9.    A number of hearings regarding the entitlement appeal and the overpayment appeal were adjourned before both appeals were finally heard on 6 January 2009.

 

10.   The tribunal heard oral evidence from the claimant, her solicitor Mr Johnston and the Departmental presenting officer.  The tribunal also considered the various relevant documents (including the letters of appeal and the written appeals submission relating to the entitlement decision), the letters of appeal and submission DP/11688/08/61/L (appeal submission pertaining to the overpayment appeal).

 

11.   In the record of proceedings the tribunal stated that it believed that on the balance of probabilities the claimant was living together with Mr M… as husband and wife.  There was evidence of a long term relationship which resulted in the birth of a child on 4 January 2003.  The tribunal found that there was evidence that Mr M… provided financial support in the form of buying nappies and clothes for the child; he attended the house on a daily basis and continually used the claimant’s address on official documents vis à vis car tax registration and when applying for credit.  Mr M… also named the clamant as his next of kin.

 

12.   The tribunal held, on the balance of probabilities, that all the evidence was suggestive of a cohabiting relationship.

 

13.   The tribunal went on to find that Mr M… had been in employment for as long as the claimant had known him and held that it was satisfied that the decision awarding IS to the claimant could be superseded on the basis that there was a relevant change of circumstances, namely, the claimant and Mr M… were an unmarried couple living together as husband and wife.

 

14.   Having accepted that the claimant and Mr M… were living together, the tribunal went on to find that the claimant knew of her duty to disclose any such changes in her circumstances in accordance with the instructions on her order book and also the instructions in the INF4 form which she received each year when payments were made into her bank account.  The tribunal found that the claimant failed to disclose the change in her circumstances and as a result the overpayment was recoverable from her.

 

15.   An application for leave to appeal against the decision of the tribunal that the overpayment was recoverable from the claimant, reference number DP/11688/08/61/L, was received in the Appeals Service on 12 June 2009.  On 6 July 2009 the legally qualified member (LQM) refused to grant leave to appeal on the grounds that the claimant had not established that the decision was erroneous on a point of law.

 

16.   On 10 August 2009 the claimant’s representative, on behalf of the claimant, applied directly to the Commissioner for leave to appeal against the decision of the tribunal dated 6 January 2009 (the entitlement case) using reference number DP/16/06/61/L.  This application was in error in that the original application to the LQM was in relation to DP/11688/08/61/L (the overpayment case).

 

17.   On 10 February 2010 a late application for leave to appeal to the Commissioner on behalf of the claimant against the decision, reference number DP/16/06/61/L, that the claimant and Mr M… were living together as husband and wife was received in the Appeals Service.  On 12 February 2010 the LQM refused to grant leave to appeal because the application was received outside the time limit for such an application under regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.

 

18.   On 22 February 2010 the claimant’s representative applied to the Commissioner for leave to appeal against the decision of the tribunal dated 6 January 2009, reference number DP/16/06/61/L.

 

19.   Treating the application of 10 August 2009 as if it had been an application for leave in the overpayment case.  Leave to appeal in the case that has become C15/10-11(IS) was granted by a Commissioner on 7 December 2010 on the following grounds:

 

“The decision might be wrong in law, because it is arguable that the tribunal failed to consider (either properly or at all) the evidence that is suggestive that the claimant did not live with a particular identified man as husband and wife during the period 5 February 2002 to 4 October 2005.”

 

20.   Dealing with the application of 22 February 2010.  Leave to appeal in the case that has become C14/10-11(IS) was also granted by a Commissioner on 7 December 2010 on the following grounds:

 

“This is an overpayment case which might be directly affected by the outcome in the related entitlement case (A2/10-11(IS) concerning the same claimant and leave to appeal to a Commissioner has also been granted in A2/10-11(IS).

 

It is arguable that the decision was wrong in law, because –

 

(i)              if the claimant is successful in A2/10-11(IS), the overpayment recoverability decision (A9/09-10(IS)), based on the entitlement decision would no longer be able to stand; and

 

(ii)             the tribunal failed to identify the legal source which imposed a duty on the claimant to disclose a relevant change of circumstances.”

 

21.   Regrettably the confusion on the part of the claimant’s solicitors as to which case was being appealed has resulted in this case not being expedited in the normal way.

 

22.   A hearing of these appeals was arranged for 15 March 2011.  At the hearing the Department was represented by Mr Brian Smith of Decision Making Services.  Neither the claimant nor her representative appeared at the hearing.  As the failure of an advocate to turn up to represent a claimant is a most unusual feature in this jurisdiction, enquiries were made by telephone to find out if the claimant’s solicitors intended to appear.  Apparently the solicitors had no intention of appearing but, regrettably, had failed to inform the Office accordingly.  Also, apparently the solicitors were under the impression that the claimant would be appearing at the hearing to represent herself.  However, she did not turn up.  Therefore, in the circumstances, I proceeded to deal with the matter, especially as I already had the benefit of the solicitor’s case summary, as well as the written and oral submissions of Mr Smith which were largely in support of the claimant.

 

23.   It is appropriate at this stage to set out the reasons for the tribunal’s decision in full, as follows:

 

“It is believed that on the balance of probabilities that (the claimant) was living together as husband and wife.  There is evidence suggestive of a long term relationship.  (The claimant) confirms that she has been in a relationship with Mr M… since March 2000.  There is evidence that the relationship had a sexual role to it – namely the birth of the child (…) in January 2003.  There is evidence of financial support in that Mr M… buys clothes and bought nappies and other things for the child.  There is evidence that Mr M… was in the house on a daily basis – at morning and in the evening.  More importantly there is evidence that Mr M… has continually been using the same address on official documents viz a viz his car tax registration and he has been using the same address as (the claimant) when he has been applying for credit.  All the evidence on the balance of probabilities is suggestive of a co-habiting based relationship including the fact that Mr M… has indicated (the claimant) as being his next of kin with his employers.

 

Ms M… [sic] confirms today that for as long as she has known Mr M… he has been employed.  I am satisfied that the decision of 30.01.2002 awarding (the claimant) Income Support as a lone parent can be superseded on the basis that there was a relevant change of circumstances in that (the claimant) and Mr M… are an unmarried couple who are living together as husband and wife.”

 

24.   The claimant’s contention is that the tribunal erred in law in its decision in relation to the entitlement issue because it failed to consider, either properly or at all, the evidence that suggested that the claimant and Mr M… were not living together as husband and wife.  The evidence that Mr M…’s address on the child’s birth certificate and the addresses held by his employer, which differed from the claimant’s addresses during the relevant period, was not taken into account.  This evidence supported the contention that the claimant and Mr M… were not co-habiting at all.  The tribunal failed to explain why it disregarded this evidence and, instead, preferred other evidence which was suggestive of them living together as husband and wife.

 

25.   Mr Smith supported these contentions and pointed out that the tribunal appears to have ‘cherry picked’ the evidence suggesting that the relevant parties were living together as husband and wife and has taken no steps to deal with the evidence to the contrary.

 

26.   In particular Mr Smith submitted as follows:

 

(1)    The tribunal accepted the birth certificate dated 8 January 2003 as evidence of a sexual relationship but did not acknowledge the fact that (the claimant’s) address was shown on the birth certificate as .. L…, Downpatrick and Mr M…’s address was shown as .. K…, Downpatrick.  This is suggestive that they were not living together at the time of the child’s birth.

 

(2)    The tribunal accepted there was evidence of financial support because Mr M… supplied nappies and clothing for his son.  There is no evidence that Mr M… helped with household bills or provided financial support for the claimant’s other children.

 

(3)    The tribunal accepted the claimant’s oral evidence that she had been in a relationship with Mr M… since March 2000 and that he had been employed for as long as she had known him.  However, the tribunal failed to state whether it accepted or rejected the claimant’s oral evidence that Mr M… used her address to collect his post while he was living with friends after he fell out with his mother and had moved out of her house.

 

(4)    The tribunal accepted the letter from Mr M…’s employer which named the claimant as his next of kin as further evidence of their relationship.  The letter which was dated 13 May 2005 showed Mr M…’s address at that time as .. D…, Flying Horse, Downpatrick and a previous address as .. K…, Downpatrick.  The claimant lived at .. S…, Downpatrick then and there is no evidence to suggest she ever lived at either address held by Mr M…’s employer.  The letter indicated that Mr M… lived at these addresses during the period in question.  It is therefore clear the tribunal failed in its inquisitorial role to investigate and resolve the discrepancy in the Department’s assertion that the claimant and Mr M… were living together during the entire period from 5 February 2002 to 4 October 2005 and the claimant’s contention that she did not.

 

27.   Mr Smith accordingly submitted that the tribunal had erred in law and, in the circumstances, the tribunal decision in relation to entitlement should be set aside and the case referred back to a differently constituted tribunal for re-adjudication.

 

28.   In my view the claimant’s case, as very properly amplified by Mr Smith, is correct.  Mr Smith has very helpfully set out the evidence in favour of the claimant’s contentions (summarized by me at paragraph 26) but which apparently had been ignored by the tribunal.  Unfortunately the tribunal has erred by accepting all the evidence which supports the finding that the relevant parties were living together as husband and wife but has apparently ignored, without comment, all the evidence that might tend to support a contrary conclusion.  While the tribunal might (and I emphasise the word “might”) be entitled to come to the conclusion to which it came, it ought to have given, at the very least, on the one hand, some reasons why it accepted or put great weight on certain of the evidence which supported its conclusion that the relevant parties were cohabiting and, on the other hand, some reasons why it rejected or put little weight on other evidence.  Therefore I conclude the tribunal erred in law by failing to investigate and resolve the discrepancies that clearly emerged from the evidence relating to the period extending from 5 February 2002 to 4 October 2005, some of which supported the Department’s case and some of which clearly did not.  I therefore allow the appeal in respect of C15/10-11(IS), set aside the entitlement decision in respect of DP/16/06/61/L and refer the case back to a new tribunal for a rehearing.

 

29.   It is common case that the appeal in C14/10-11(IS) is dependent on the outcome of the appeal in C15/10-11(IS).  As I have set the latter aside it must follow that the decision of the former must be set aside also, as the decision in relation to the recoverability of an overpayment of IS depends on a finding that the claimant and Mr M… had been living together as husband and wife, during the relevant period.  I therefore allow the appeal in respect of C14/10-11(IS).  Accordingly I set aside the overpayment decision in respect of DP/11688/08/61/L and refer the case back to a tribunal for it to re-decide the matter, in so far as it remains relevant in light of its decision on the entitlement issue.

 

30.   During the conduct of this case Mr Smith drew my attention to the decision of B v Secretary of State for Work and Pensions (R(IS)9/06), where the Court of Appeal in England and Wales upheld a decision of a Great Britain Tribunal of Commissioners, which had considered, in depth, the nature of the legal test in respect of failure to disclose.  The Tribunal of Commissioners held that the actual duty to disclose is found in regulation 32 of the equivalent Great Britain Regulations to the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.  Mr Commissioner Mullan in  C6/08-09(IB) endorsed this principle and held that an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of failure to disclose, has to consider where the requirement to provide the relevant information comes from.  Accordingly it is necessary for the tribunal to identify whether the case comes from what has been called the first or second duty set out in regulation 32.

 

31.   The Tribunal of Commissioners in R(IS) 9/06 at paragraph 46 made clear that there is a duty in regulations 32(1) and (1A) of the direct equivalent to the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 to notify the Secretary of State (in Northern Ireland, the Department) of any matter where the Secretary of State has given unambiguous directions for the disclosure of the matter.  There is no question of deciding in such cases whether a claimant might reasonably be expected to know that the relevant information might affect the right to benefit.  Any failure to disclose such information will render any overpayment of benefit resulting from the failure to disclose recoverable.  By contrast the duty in regulation 32(1B) is to notify changes of circumstances which a benefit recipient might reasonably be expected to know which might affect the continuance of entitlement to benefit or the payment of benefit.  It is only in these cases that it is necessary to consider whether disclosure by the claimant was in all the circumstances reasonably to be expected.

 

32.   In relation to the second duty Mr Commissioner Mullan in C4/10-11(IS), at paragraph 25, specifically endorsed the principle set out in B v Secretary of State for Work and Pensions (R(IS)9/06) and held that a tribunal decision which fails to address the legal and evidential source of a duty on a claimant to disclose a change of circumstances is erroneous in law and must be set aside.

 

33.   Therefore, if the overpayment issue becomes relevant, I direct the new tribunal to deal with any overpayment issue bearing in mind the decisions of R(IS)9/06, C6/08-09(IB) and C4/10-11(IS).

 

34.   As I have already set out in paragraphs 28 and 29 I allow the appeals, set aside both decisions and refer the appeals to a new tribunal for a fresh adjudication in light of the principles that I have set out herein.

 

 

(signed):  J A H Martin QC

 

 

 

Chief Commissioner

 

12 May 2011