AK-v-Department for Social Development (DLA) [2012] NICom 260

Decision No:  C56/11-12(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 25 January 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  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 25 January 2010 is in error of law.  The error of law identified will be explained in more detail below.  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.    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 is detailed evidence relevant to the issues arising in the appeal to which I have not had access.  Further, there may be further findings of fact which require to be made and 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.

 

3.    In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

4.    It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether there has been an overpayment of disability living allowance (DLA), the amount of such an overpayment, the period over which it was paid and whether it is recoverable from her, remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

       Background

 

5.    This appeal has a detailed and complicated background.  The appeal is also linked to another appeal which is before the Social Security Commissioners and which has the reference C57/11-12(DLA).

 

       Original decision-making in the Department

 

6.    On 14 January 2004 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from 25 March 2004 until 24 March 2006.  Following investigations and observations conducted by officers from Benefit and Investigation Services and the conducting of interviews under caution with the appellant, another decision-maker, on 15 February 2005 decided that there were grounds to supersede the decision dated 14 January 2004 and which removed entitlement from and including 12 July 2004.  I shall refer to the decision dated 15 February 2005 as the ‘entitlement’ decision.  A letter of appeal against the decision dated 15 February 2005 was received in the Department on 11 March 2005.  That decision is the subject of the proceedings which are before the Social Security Commissioners in the appeal with the reference C57/11-12(DLA).  The relevance and context of that decision to the present appeal will be noted below.

 

7.    On 23 February 2005, another decision-maker of the Department decided that an overpayment of DLA, amounting to £2492.40, for the period from 14 July 2004 to 15 February 2005, had been made and which was recoverable from the appellant.  I shall refer to the decision dated 23 February 2005 as the ‘overpayment’ decision.

 

       An appeal against the ‘overpayment’ decision dated 23 February 2005?

 

8.    On 11 March 2005 faxed copies of a letter from the appellant’s Member of Parliament and her appeal against the entitlement decision dated 15 February 2005 were received in the Department.

 

9.    On 14 March 2005 the appellant’s general practitioner (GP) wrote to the Department in support of the appeal.  In his letter the GP stated that the appellant was at her wits end; was suffering extreme hardship; may have to sell her house as she would not be able to keep up repayments and would be unable to repay the money demanded by the Department.

 

10.   On 16 March 2005 a letter was received in the Department from Councillor Johnny McLaughlin on behalf of the appellant advising that the decision to recover the overpayment of DLA had been appealed against.

 

11.   I would note, at this stage, that Mr Smith, for Decision Making Services (DMS), in his written observations on the application for leave to appeal, had submitted that:

 

‘Having examined the overpayment appeal submission I cannot find a copy of any correspondence from the Appellant or her representative giving details of her grounds for appeal against the overpayment decision.  There is a copy of the appeal letter dated 19/02/05 against the entitlement decision; a letter from her doctor stating “(the claimant) will be unable to pay the money you are demanding” which infers that (the claimant) intended to appeal against the overpayment decision; and a letter dated 16/03/05 from her councillor acting on her behalf that advised “This is to inform you that the overpayment of £2492.40 has been appealed by the said lady on the 19/02/05”.  It would appear that the Department and subsequently The Appeal Service have accepted the letter dated 16/03/05 as a valid appeal against the overpayment decision and allowed the appeal to proceed.’

 

       A further claim to DLA

 

12.   I would also note that on 25 May 2005 another decision-maker of the Department decided that the appellant should satisfy the conditions of entitlement to the middle rate of the care component of DLA from 2 March 2005 to 2 March 2007 on the basis of a further claim to that benefit.

 

       The first appeal tribunal hearing in connection with the ‘entitlement’ decision dated 15 February 2005

 

13.   An appeal tribunal hearing took place on 6 November 2007.  The delay in hearing and finally determining the appeal was caused by a series of adjournments, primarily to permit criminal proceedings to be taken.  For the purposes of the oral hearing of the appeal, the Department had prepared an additional submission which alluded to the decision dated 25 May 2005 which had made a further award for a fixed period from 2 March 2005 to 2 March 2007.  Further the additional submission contended that as a result of the decision dated 25 May 2005 the appeal tribunal was confined to considering the period from 12 July 2004 to 2 March 2005.

 

14.   The appeal tribunal disallowed the appeal but substituted its own decision for that of the Department.

 

       The appeal in connection with the ‘overpayment’ decision

 

15.   On 3 March 2008, and following an earlier postponement, an appeal against the decision dated 23 February 2005, the ‘overpayment’ decision, was listed for oral hearing.  The appeal was adjourned as it was noted that an application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal’s decision in connection with the ‘entitlement’ decision had been lodged with the Commissioner.  The legally qualified panel member (LQPM), in the terms of the adjournment noted that should the Social Security Commissioner grant leave, allow the appeal and remit the ‘entitlement’ decision for re-hearing, the re-hearing should be listed together with the hearing of the appeal in connection with the ‘overpayment’ decision.

 

       The first proceedings before the Social Security Commissioner in connection with the ‘entitlement’ decision

 

16.   An application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal dated 6 November 2007 was successful.  My decision (C16/08-09 (DLA)) was to remit the case back to a fresh tribunal for re-determination.

 

       The appeal tribunal hearing in connection with the ‘overpayment’ decision

 

17.   The oral hearing of the appeal in connection with the, as yet, undetermined ‘overpayment’ decision took place on 25 January 2010.  In line with the terms of adjournment of the oral hearing which took place on 3 March 2008, the oral hearing in connection with the ‘overpayment’ decision was listed together with the oral hearing of the remitted appeal against the ‘entitlement’ decision.

 

18.   In connection with the ‘overpayment’ decision, the appeal tribunal disallowed the appeal and issued a decision notice as follows:

 

‘Appeal disallowed

 

       An overpayment of Disability Living Allowance amounting to £2492.40 received by the appellant in respect of the period 14.7.04 to 15.2.05 is recoverable from her.

 

19.   On 20 April 2010 a letter of appeal against the decision of the appeal tribunal dated 25 January 2010 was received in the Appeals Service (TAS).  On 7 May 2010 the application for leave to appeal was rejected by the LQPM as he considered that leave to make an application for leave to appeal out of time under regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, should be refused.

 

       Proceedings before the Social Security Commissioner

 

20.   On 17 June 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 13 December 2010, and following a requirement to seek further clarification from TAS and the LQPM concerning the LQPM’s decisions in connection with the applications for leave to appeal, I accepted the late application for special reasons.  Also on 13 December 2010 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 12 January 2011.  In these written observations, Mr Smith, for DMS, opposed the application on the grounds cited by the appellant but supported the application on another submitted ground.  The written observations were shared with the appellant on 27 January 2011.  On 28 February 2011, written observations in reply were received from the appellant’s representative which were shared with Mr Smith on 10 March 2011.  On 30 March 2011 a further reply was received from Mr Smith which was shared with the appellant and her representative on 11 April 2011.

 

       Errors of law

 

21.   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.

 

22.   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.”

 

       Why was the decision of the appeal tribunal in the instant case in error of law?

 

       The submissions of the parties

 

23.   The appellant’s representative made a single composite application for leave to appeal against the appeal tribunal’s decisions in respect of both the ‘entitlement’ and ‘overpayment’ decisions.  In summary, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on the basis that the Department’s presenting officer indicated to the appellant, her niece and her legal representative at the oral hearing of the appeal, on 9 December 2009, that the Department would not be seeking recovery of the overpaid DLA.  At the subsequent hearing on 25 January 2010, however, the appeal tribunal members had no record of this concession and decided to continue with the hearing.  This had three separate consequences, as follows:

 

(i)          Firstly, the indication by the Department to the applicant, her niece and legal representative that it would not be seeking recovery of the DLA overpaid was enough to create within the appellant, a legitimate expectation that the Department would no longer be seeking any repayment.

 

(ii)         The second issue was whether it necessarily followed that if the decision to supersede was valid then the Department would be entitled to recovery for overpayment.  Given that the decision to supersede was correct, the appeal tribunal could still have increased the appellant’s entitlement to DLA to include the highest rate of the care component for the period then it ‘… clearly does not follow.’

 

(iii)       The final issue was whether or not the tribunal had adequately investigated the appellant’s assertion that the Department had indicated that it would not be seeking recovery for the overpayment.  The appellant’s representative submitted that it was worth noting that the record of proceedings for appeal tribunal hearing held on 9 December 2009 was not consulted.  In addition no evidence was adduced from the applicant, her niece or her representative.  Finally the Department’s representative was not contacted.  Consequently, it was highly arguable that the tribunal had not adequately investigated the applicant’s assertion and in failing to do so, the tribunal was in breach of Article 6 of European Convention on Human Rights and/or the decision to proceed with the hearing amounted to an abuse of process.

 

24.   The appellant’s representative also submitted that she had proceeded with her appeals despite suffering from a number of stress related conditions and felt it was not in her best interests to delay the appeal any longer.  The representative also contended that in light of the decisions that were taken it was now arguable that both appeals should have been dealt with separately by two different tribunals.

 

25.   Finally, the appellant’s representative submitted that it was arguable that the appeal tribunal had failed to explain its conclusions that the Department, on 15 February 2005 had grounds to supersede the decision dated 14 January 2004 and remove entitlement from and including 12 July 2004.  Additionally, the appeal tribunal had failed to address all of the medical evidence which was before it.

 

26.   As was noted above, in his written observations on the application for leave to appeal, Mr Smith, for DMS, opposed the application on the grounds cited by the appellant’s representative but supported the application on another submitted ground.  The further ground was that the Department, in the written submission prepared for the oral hearing of the appeal, had failed to identify the appellant’s grounds of appeal.  Additionally, the appeal tribunal had failed to exercise its inquisitorial role to ascertain whether the appellant had misrepresented or failed to disclose a relevant change of circumstances.

 

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

 

27.   Section 69(5A) of the Act provides that:

 

(5A)  Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.

 

28.   In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded.  Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

 

29.   The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS).  At paragraph 4 he stated:

 

‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision.  In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable.  Put like that, the sequence of decisions is logical.  The two decisions can be contained in a single document provided that the sequence is apparent.  Section 69(5A) is an important safeguard.  Tribunals, rightly, are alert to see that it has been complied with.  Nothing I am going to say casts doubt on their vigilance.  A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner.  Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken.’

 

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

 

‘It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”.  The latter being based on the former.  I use the word “distinct” deliberately.  Since the recoverability decision is based on the entitlement decision it must be proceeded by it.  Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first.’

 

31.   Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a section 69(5A) decision, to a claimant, and set out the consequences where no such proper notification had been made.

 

32.   In the present case, the Department has submitted that the decision dated 15 February 2005 is the decision which could be classified as a section 69(5A) entitlement decision.  In my decision in the parallel appeal C57/11-12(DLA) I have set out my reasons as to why I have concluded that the appeal tribunal did not err in law in its decision in connection with the appeal against the decision dated 15 February 2005.  Accordingly, I am satisfied that the appeal tribunal has concluded, and provided sufficient and adequate reasons for that conclusion, that the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended, were satisfied.

 

       Failure to disclose

 

33.   I have indicated in a number of decisions that there is in place a legislative mechanism for the recovery of all social security benefits which have been overpaid.  Section 69(1) of the 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.’

 

34.   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).

 

35.   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.’

 

36.   In C6/08-09(IB), I said the following, at paragraphs 40 to 42:

 

‘40.     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.

 

41.     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.

 

42.     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.’

 

37.   In the instant case, the appeal submission sets out in commendable detail, at paragraphs 27 to 49, the legal and evidential basis upon which the Department, on 23 February 2005, decided that an overpayment of DLA, amounting to £2492.40, for the period from 14 July 2004 to 15 February 2005, had been made and which was recoverable from the appellant.

 

38.   In the decision notice for the appeal tribunal’s decision, the LQPM has recorded that:

 

‘Appeal disallowed

 

An overpayment of Disability Living Allowance amounting to £2492.40 received by the appellant in respect of the period 14.7.04 to 15.2.05 is recoverable from her.’

 

39.   The LQPM produced a single composite statement of reasons setting out the appeal tribunal’s reasons for its decisions in connection with the appeals against both the ‘entitlement’ and ‘overpayment’ decision.  The vast majority of the content of that composite statement of reasons is taken up with the appeal tribunal’s conclusions with respect to the ‘entitlement’ appeal.  As I have noted in my decision in C57/11-12(DLA) I find no fault with the appeal tribunal’s conclusions with respect to the ‘entitlement’ decision.  The composite statement of reasons, at the conclusion of the large section dealing with the ‘entitlement’ decision, concludes with the following:

 

‘The Tribunal having decided as above, it follows that an overpayment of benefit received by the Appellant during the period under consideration by the Tribunal is recoverable from her.  That amount is £2,492.40.’

 

40.   The appeal tribunal’s reasoning appears to be that because there was no entitlement to the benefit during the period under consideration, and that the Department had grounds to supersede the ‘entitlement’ decision, it automatically followed that the overpaid benefit was recoverable from the appellant.  That is not reflective of the legislative provision with respect to the recovery of overpaid social security benefits.  As was noted above, section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended, permits overpaid social security benefits to be recovered from the claimants to whom they were overpaid, but only where it has been determined that, whether fraudulently or otherwise, the claimant has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure, there has been an overpayment of the relevant benefit.

 

41.   In the instant case, the Department’s case was that the appellant had failed to disclose a material fact and that it was as a consequence of this failure that the overpayment of DLA, for the relevant period, had occurred.  The duties of an appeal tribunal when faced with an appeal against an ‘overpayment’ or ‘recoverability’ decision have been set out above.  The statement of reasons for the appeal tribunal’s decision makes no reference to the legal and evidential source of the duty on the appellant to disclose a change of circumstances and failed to address the legal and evidential source of the duty on the appellant to disclose a material fact.  It is my view that the appellant was entitled to know, through the statement of reasons for the appeal tribunal’s decision, the legal and evidential basis on which it was confirmed that there had been an overpayment of DLA which was recoverable from her.

 

42.   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.

 

       The appellant’s grounds for appealing

 

43.   Having found that the decision of the appeal tribunal is in error of law for the reasons set out above, I do not have to consider the appellant’s grounds for appealing in detail.  I would note, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of the grounds cited by the appellant.  In this regard, I would add the following specific comments.

 

44.   The appellant’s representative, in the application for leave to appeal, has alluded to an ‘agreement’ or ‘concession’ made at an earlier adjourned oral hearing of the appeal against the ‘overpayment’ decision, held on 9 December 2009.  The concession was made by a Departmental presenting officer to the appellant, her niece, and her legal representative and was to the effect that the Department would not be pursuing the recovery of the overpaid DLA which was the subject of the ‘overpayment’ decision.  The appellant’s representative has submitted that this matter was raised at the substantive oral hearing of the appeal on 25 January 2010.  As was noted above, the appellant’s representative has submitted that the agreed ‘concession’ had a number of consequences for the appellant, including the creation of a legitimate expectation and the denial of a fair trial.

 

45.   I deal, firstly, with the appeal tribunal’s handling of this issue.  It is difficult to know how the appeal tribunal could have managed this issue any better or dealt with it in any more effective way.  The record of proceedings for the substantive oral hearing records the concern raised by the appellant’s representative in connection with whether the overpayment was to be pursued.  The appeal tribunal clarified the matter with the presenting officer from the Department who was present at the oral hearing of the appeal and who confirmed that overpayment would, in fact, be pursued.  Further, the LQPM made reference to the record of proceedings for the adjourned oral hearing held on 9 December 2009 and could find no reference to any concession.  The appellant was represented by an experienced legal representative, who could easily have sought an adjournment of the appeal should further clarification have been required.  In any event, the appeal tribunal’s duty was to ascertain whether the decision under appeal to the appeal tribunal was correct.  Whether there is actual pursuit of recovery of any social security benefit, found in law to have been overpaid, is not a matter for the appeal tribunal.  Such enforcement is a matter for the Department.  Any remedy which the appellant seeks should be against the Department rather than the appeal tribunal.  I conclude, therefore, that any argument concerning the absence of a right to a fair trial should not succeed.  The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.

 

46.   In respect of the appellant’s submission on the issue of legitimate expectation, I refer to the written observations on the application for leave to appeal where Mr Smith for DMS, responded, as follows:

 

‘Mr Colhoun submitted that following the ‘concession’ made by the Presenting Officer, (the claimant) had a ‘legitimate expectation’ that the overpayment would not be pursued.  However, as stated above the tribunal was satisfied that no such concession was made.  In any event, at paragraph 11 of a GB Upper Tribunal decision, Judge Gamble held “Like Commissioner Rice, I hold that I am “not bound by any concession made by either party” adding whether made before the Upper Tribunal or, as here, before the Appeal Tribunal (the statutory predecessor of the First Tier Tribunal).  The concessions made by the presenting officer at the appeal tribunal hearing do not therefore preclude the Secretary of State from submitting before me that the tribunal decision should be set aside as affected by a mistake of law”.

 

At paragraph 12 Judge Gamble continued “In regard to the issue of legitimate expectation…I hold that, in this case, no question of legitimate expectation arises which prevents the Secretary of State from resiling before me from the concessions made before the tribunal below.  I accept Miss Haldane’s submission to that effect.  I do not consider that the making of the concessions by the presenting officer amounted to an undertaking that the Secretary of State would not exercise his statutory right to seek permission to appeal against the tribunal’s decision, or in the event that such permission was granted that he would not seek to argue before the Upper Tribunal that the tribunal’s decision was incorrect in law.  At the very least the concessions were not clear and unambiguous representations to that effect.”

 

It is arguable that no concession was made but in the event that the previous presenting officer did make such a concession, I submit that there is nothing in legislation to prevent the Department from continuing to pursue recovery at a later date, namely during the appeal hearing on 25/01/10.’

 

47.   I agree with the observations of Mr Smith, and for the reasons set out therein, conclude that any argument based on the principles of legitimate expectation should not succeed.

 

48.   Finally I have considered the submissions put forward by the appellant’s representative concerning the appeal tribunal’s management of the supersession question and its assessment of the evidence which was before it.  These are matters which are more relevant to my decision in connection with the appeal tribunal’s consideration of the ‘entitlement’ decision and are set out in more detail in that decision.

 

       Was there an appeal against the ‘overpayment’ decision?

 

49.   As was noted above, Mr Smith, for DMS, in his written observations on the application for leave to appeal, had submitted that:

 

‘Having examined the overpayment appeal submission I cannot find a copy of any correspondence from the Appellant or her representative giving details of her grounds for appeal against the overpayment decision.  There is a copy of the appeal letter dated 19/02/05 against the entitlement decision; a letter from her doctor stating “(the claimant) will be unable to pay the money you are demanding” which infers that (the claimant) intended to appeal against the overpayment decision; and a letter dated 16/03/05 from her councillor acting on her behalf that advised “This is to inform you that the overpayment of £2492.40 has been appealed by the said lady on the 19/02/05”.  It would appear that the Department and subsequently The Appeal Service have accepted the letter dated 16/03/05 as a valid appeal against the overpayment decision and allowed the appeal to proceed.’

 

50.   I would agree that everyone has accepted that the letter dated 16 March 2005 should be accepted as an appeal against the ‘overpayment’ decision dated 23 February 2005.

 

       Disposal

 

51.   The decision of the appeal tribunal dated 25 January 2010 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.

 

52.   I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)          The decision under appeal is a decision of the Department dated 23 February 2005, another decision-maker of the Department decided that an overpayment of DLA, amounting to £2492.40, for the period from 14 July 2004 to 15 February 2005, had been made and which was recoverable from the appellant.

 

(ii)         The Department is directed to produce a further submission for the appeal tribunal hearing which addresses the legal and evidential basis upon which the Department submits that there has been a failure to disclose on the part of the appellant giving rise to a decision which satisfies section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended.

 

(iii)    It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.  The appeal tribunal should note, however, that there is in place a decision which satisfies section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended.  It is the decision dated 15 February 2005 in which a decision-maker decided that there were grounds to supersede the decision dated 14 January 2004 and which removed entitlement from and including 12 July 2004.  As my decision in C57/11-12(DLA) makes clear, the validity of that decision is not in dispute.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

1 March 2012