AS-v-Department for Social Development (DLA) [2011] NICom 224

 

Decision No:  C27/11-12(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

                                     DISABILITY LIVING ALLOWANCE

 

 

                             Application by the claimant for leave to appeal

                             and appeal to a Social Security Commissioner

                             on a question of law from a Tribunal’s decision

                                            dated 10 November 2009

 

 

                   DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 10 November 2009 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.

 

2.    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 of fact.  The fresh findings in fact are outlined below.

 

3.    My substituted decision is that an overpayment of disability living allowance (DLA) for the period from 13 June 2007 to 26 February 2008, amounting to £3088.95, has occurred which is recoverable from the appellant.

4.    My decision, therefore, in terms of recoverability of overpaid social security benefits, is the same as that made by the appeal tribunal.  This decision will come as a disappointment to the applicant but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.  That means that there is only one inevitable outcome.

 

Background

 

5.    On 19 December 2002 a decision-maker of the Department decided that the appellant should have an entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from and including 5 April 2003.  On 21 February 2008 another decision-maker of the Department decided that the decision dated 19 December 2002 should be superseded and that the appellant should not be entitled to an award of either the mobility or care components of DLA from and including 8 June 2007.  On 10 June 2008 another decision-maker decided that an overpayment of DLA in the amount of £3088.95 for the period from 13 June 2007 to 26 February 2008 had occurred which was recoverable from the appellant.  On 23 June 2008 an appeal against the decision dated 10 June 2008 was received in the Department.

 

6.    Following an earlier postponement of the appeal tribunal hearing, on 10 November 2009 an oral hearing of the appeal took place, together with an appeal against another decision of the Department.  The appellant was present and was represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 10 June 2008.  On 15 March 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 26 March 2010 the application for leave to appeal was refused by the legally qualified panel member.

 

Proceedings before the Social Security Commissioner

 

7.    On 29 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 5 July 2010 written observations on the application for leave to appeal were sought from Decision making Services (DMS) and these were received on 27 July 2010.  In these written observations, Ms McHugh, for DMS, submitted that the decision of the appeal tribunal was in error of law but invited the Social Security Commissioner to give the decision which the appeal tribunal ought to have made.  Written observations were shared with the appellant and his representative on 20 August 2010.  On 23 November 2010 I directed an oral hearing of the application for leave to appeal and that the oral hearing should be at the same time as the oral hearing in a further but related application for leave to appeal.  The oral hearings were first listed on 26 January 2011.  It became clear, however, that Mrs Hulbert, who appeared on behalf of DMS, was acting in connection with the other application and that another officer was acting in connection with this related application.  The oral hearings were, accordingly, adjourned and re-listed for 21 March 2011.  On this occasion the Department was represented by Mrs Hulbert of the Decision Making Services section, accompanied by Ms McHugh.  The appellant was represented by Ms Kyne from the Citizens Advice Bureau.  Gratitude is extended to all three representatives for their detailed and constructive observations, comments and suggestions.

 

Errors of law

 

8.    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.

 

9.    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 submissions of the parties

 

10.   In the written application for leave to appeal to the Social Security Commissioner, Ms Kyne, for the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

       (i)     the appeal tribunal failed to take into account and/or resolve conflicts of fact or opinion on material matters.  More specifically, in relying on video-tape evidence the appeal tribunal had virtually dismissed medical evidence which had been submitted to the appeal tribunal.  Further the interpretation by the appeal tribunal of the relevant evidence effectively ignored representations made in relation to it, in particular in relation to the nature and extent of the claimant’s illnesses and disabilities.  Furthermore by its nature video evidence is a snapshot of a moment of time and does not capture what happened after, for example, the video was switched off.  The decision of the Outer House of the Court of Session of Scotland in Brown v Yorkhill National Health Service Trust ([2003] Scot CS 244) was cited in support of the last part of this submission;

 

       (ii)    the appeal tribunal erred by permitting the video evidence to be tendered in the absence of the persons who recorded that evidence.  As such the appellant was unable to test the evidence as there was no opportunity for the persons who took the evidence to be questioned or give evidence.

 

11.   It is clear that Ms Kyne’s submissions were directed towards the second parallel application for leave to appeal in connection with the appeal tribunal’s decision that the appellant did not have an entitlement to an award of either the mobility or care components of DLA from and including 8 June 2007.

 

12.   In her initial written observations on the application for leave to appeal Ms McHugh submitted that the appellant’s grounds for appeal did not specify or identify any error in law by the appeal tribunal in respect of its decision with respect to the overpayment.  Nonetheless, Ms McHugh, in keeping with her function as an amicus curiae, examined the statement of reasons to see if the tribunal erred in law in respect of the overpayment.  After a review of relevant authorities, she concluded that the appeal tribunal had failed to refer to the legal and evidential source of the duty on the appellant to disclose a change of circumstances.

 

13.   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.

 

14.   In the present case, a decision-maker of the Department decided that an overpayment of DLA had occurred for the period from 13 June 2007 to 26 February 2008.  Further, the Department decided that the overpayment of DLA was recoverable as the appellant had failed to disclose the material fact that there had been an improvement in his mobility.  The overpayment decision is grounded firmly on the basis of a failure to disclose.

 

15.   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).

 

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

 

       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.

 

       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.

 

       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.

 

       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.

 

17.   In Hinchy v Secretary of State for Work & Pensions ([2005] UKHL 16), Baroness Hale, in discussing the regulation 32 duty to provide information, stated, at paragraph 55:

 

‘I say this because this regulation has to be interpreted and applied in its factual context.  Those administering the system on behalf of the Secretary of State have to understand all its ramifications and interactions.  Claimants cannot be expected to do so.  They cannot be expected to guess all the information which may be relevant to their claims.  They do not know the conditions of entitlement or how their right to one benefit may affect their right to another.  It is incumbent upon the Secretary of State to make it clear what information he requires.  This has to be made particularly clear where any reasonable claimant might not think that it was relevant at all.  It should also be made particularly clear where it might not occur to any reasonable claimant in this day and age that the relevant office did not already have the information in question.  In this context, there is a difference between matters which only the claimant can know and matters which someone in the benefits system knows or ought to know.  The claimant cannot be expected to guess who needs to know the information required.  It is incumbent upon the Secretary of State to make it plain to whom the information is to be given or the change in circumstances notified.’

 

18.   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.’

 

19.   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.

 

20.   In the instant case, I have already set out the terms of the overpayment decision, which the Department included in the appeal submission as Tab No 11.  To repeat what was said above, the overpayment decision is grounded firmly on the basis of a failure to disclose, on the part of the appellant, that there had been an improvement in his mobility.

 

21.   Tab 12 of the appeal submission is a letter from the Department to the appellant, which is undated.  The letter informs the appellant that the Department is writing to him because the appellant has been paid too much DLA.  Details of the overpayment and the relevant periods are set out, together with details of how the overpaid benefit is to be repaid, sources of advice and the right to appeal against the decision.  There is no mention in this letter of a duty to disclose or a failure in that duty.

 

22.   The general appeal submission is drafted in a standard template format which the Department has been utilising for overpayment appeals for some time.  I have stated on a number of occasions that, in my view, that format requires revising to take into account the significant developments which have taken place, at Social Security Commissioner and appellate court level, in connection with the scope of the ‘failure to disclose’ test, as set out in section 69 of the Social Security Administration (Northern Ireland) Act 1992, and the equivalent section 71 of the Social Security Administration Act 1992.  Some of the relevant case-law has been set out above.  Other important cases include Hinchy v Secretary of State for Work & Pensions ([2005] UKHL 16) and Hooper v Secretary of State for Work & Pensions ([2007] EWCA Civ 495).  All of those decisions set out important principles with respect to ‘failure to disclose’, identify relevant issues associated with the legislative test, and impose requirements on adjudicating authorities including decision-makers of the Department and appeal tribunals.  It is essential that appeal submissions reflect the currency of the legal developments with respect to particular issues arising in the appeal.  In this respect, the current standard template utilised for overpayment appeals requires to be amended.

 

23.   In the appeal submission, the issue of a failure to disclose is mentioned at paragraphs 7, and 13.  In a section on page 4, headed ‘Overpayment and Recoverability’ there is a lengthy analysis of the medical and other evidence which was before the decision-maker with a concluding submission that the appellant had failed to disclose that there had been an improvement in his mobility and was more physically capable of attending to his bodily functions than had previously been indicated.  More significantly, however, the appeal submission does not address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances.

 

24.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal deals with the section 69(1) power to recover overpaid social security benefit where the overpayment resulted from a failure to disclose; dealt with the requirement for there to be in place a decision which satisfied the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended; and reviewed the evidence as to whether there had been a relevant change of circumstances in connection with the appellant’s entitlement to benefit.

 

25.   I find that the appeal tribunal’s decision and reasons with respect to the issue of failure to disclose to be problematic, in two respects.

 

26.   Firstly, as was noted above, the practical outcome of the cases referred to above is 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.

 

27.   In the case of the first duty, and as will be noted below, 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.  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.

 

28.   The appeal tribunal failed to address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances.  It may be the case that the appeal tribunal was misled by the appeal submission, which, as already noted, is also deficient in this regard.  As I noted in C4/08/09(IS), at paragraph 42, in deciding whether the identified decision under appeal is correct, an appeal tribunal:

 

‘may be directed by the submissions of the Department on what the decision under appeal is, on the factual, evidential and legal issues arising, on the legislative provisions and case-law applicable to the issues arising, and on the correctness of the decision which has been made.  The Departmental submission, and any addenda, should be as accurate, comprehensive and useful as possible.  The submission is for direction, however, and does not negate the responsibility of the appeal tribunal to make its own examination and analysis.’

 

29.   The failure to address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances by the appeal tribunal renders its decision on that aspect of the appeal erroneous in law and it must, accordingly, be set aside.

 

My revised decision

 

30.   Attached to the original appeal submission, as Tab No 15 is a copy of a document headed ‘Example G - ACT annual uprating advice’.  Also attached to the appeal submission as part of Tab No 15 are copies of ‘screen prints’ requested from the Department’s computer system on 18 September 2008.  I am satisfied from the detail of these screen prints that the appellant was sent, on 5 April 2005, 4 April 2006 and 5 November 2007 a document in the format of ‘Example G - ACT annual uprating advice’.  The screen prints relating to notification on 5 April 2005 and 5 November 2007 make clear reference to the appellant having been sent ‘ACT Annual Advice’.  All three screen prints make reference to a ‘Notification Reference’ of ‘DLA/PYT’.  The document ‘Example G - ACT annual uprating advice’ corresponds to the reference ‘ACT Annual Advice’.  At page three of the document ‘Example G - ACT annual uprating advice’, there is a reference to ‘DLA/PYT’.  Accordingly there is also a clear link between the screen prints and the specimen document which is attached to Tab No 15.

 

31.   The document ‘Example G - ACT annual uprating advice’ sets out details of changes to payments of Disability Living Allowance representing the annual uprating amounts for that benefit.  At the bottom of the first page of this document the following is set out:

 

‘Changes you must tell us about

 

The changes you must tell us about are shown on a separate page’

 

32.   At the top of the second page of the relevant document, the following is set out:

 

‘Changes you must tell us about

 

These are just some of the changes that may happen to you.

 

Please write and tell us straight away if any of these changes happen to you.  They may make a difference to how much money you get or how long you get it for.  Remember if you are writing to us for someone else, we need to know about the changes that happen to them.

 

Your illness or disability

 

We need to know if anything you told us about your illness or disability changes.  Please tell us if things get easier or more difficult for you.  And tell us if you need less help or more help.  If your doctor tells you your illness or disability will last for a longer time or shorter time, please tell us that as well.’

 

33.   I am of the view that the instructions set out in the relevant form, which I am satisfied was sent to the appellant on three separate occasions are clear and unambiguous and amount to an imperative.  They impose a duty under regulation 32(1) and (1A) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987, as amended to ‘…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.’  There is no additional requirement for the disclosure reasonably to be expected of a claimant.  Any failure will trigger the section 69(1) power to recover any benefit overpaid as a result of a failure to disclose.

 

34.   I accept that changes had occurred which the claimant was under a duty to disclose to the Department.  These changes were related to the appellant’s mobility and his ability to function and amounted to an improvement in that mobility and his ability to function.  The changes also amounted to a material fact which the appellant was obliged to disclose.  The failure to disclose that material fact permitted the triggering of section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended.  I am satisfied, therefore, that an overpayment of DLA for the period from 13 June 2007 to 26 February 2008, amounting to £3088.95, has occurred which is recoverable from the appellant.

 

35.   I would add that if I was to be wrong in my conclusion that the appellant was under a regulation 32(1) and (1A) duty to disclose, I would find that the appellant was also under a regulation 32(1B) duty to ‘…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’  The evidential source of that duty would, again, have been the documents forwarded to him, on 5 April 2005, 4 April 2006 and 5 November 2007.  As outlined above, the instructions in those documents are clear and unambiguous.  Additionally, I would conclude that disclosure by the appellant was in all of the circumstances reasonably to be expected.

 

Disposal

 

36.   The decision of the appeal tribunal dated 10 November 2009 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.

 

37.   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 of fact.

 

38.   My substituted decision is that an overpayment of DLA for the period from 13 June 2007 to 26 February 2008, amounting to £3088.95, has occurred which is recoverable from the appellant.

 

Postscript

 

39.   During the course of the proceedings before me, I was informed that the appellant was already paying back benefit to the Department pursuant to the overpayment decision dated 10 June 2008, and that such payments had been sought and were being paid to the Debt Centre (Northern Ireland) since the date of the decision of the appeal tribunal.  Although the appeal tribunal had confirmed the decision of the Department, dated 10 June 2008, and had confirmed that an overpayment of DLA for the period from 13 June 2007 to 26 February 2008, amounting to £3088.95, had occurred which was recoverable from the appellant, the appellant was challenging the validity of that decision before the Social Security Commissioners.  I do not understand why there is not a suspension of overpayment recovery during the period when the validity of a decision giving rise to an overpayment is challenged before the appellate authorities.  I have no reason to doubt the commitment given by Ms McHugh that should proceedings before the Social Security Commissioners in an overpayment case be successful, any sums actually paid back by an appellant would be repaid.  The appellant would, however, have been out of pocket to quite a substantial sum by that period and the question of interest accruing on such payments would also arise.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

1 November 2011