Northern Ireland - Social Security and Child Support Commissioners' Decisions

JJB-v-Department for Social Development (IS) [2013] NI Com 44

Decision No:  C9/12-13(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 21 December 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s appeal from the decision of a tribunal sitting at Dungannon on 21 December 2011.

 

2.     I granted leave to appeal on 19 December 2012 and I held an oral hearing of the appeal on 30 January 2013.

 

3.     For the reasons I give below, I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(ii) of the Social Security (NI) Order 1998.  I consider it expedient to make findings and give the decision I consider appropriate in the light of them.  On the merits of the case, I find in favour of the appellant and decide that the Department is not entitled to recover income support from him, amounting to £2,804.39 overpaid for the period from 25 June 2002 to 5 October 2003.

 

         REASONS

 

         Background

 

4.     The appellant had been awarded income support (“IS”) by the Department for Social Development (the Department) from 30 January 2001 in respect of himself and his wife. State pension credit (“PC”) was introduced by the Department from 6 October 2003. The appellant ceased to be entitled to IS from that date (as he no longer satisfied the IS conditions of entitlement relating to age) and he “migrated” on to PC.

 

5.     In the meantime, on 25 June 2002 the appellant’s wife had reached her 60^th birthday. On 19 April 2002 she had claimed retirement pension (RP), leading to an award from 25 June 2002. No adjustment was made to the appellant’s IS, or subsequently PC, to take account of that fact.

 

6.     On 5 November 2008, taking the amount of RP received by the appellant’s wife into account, the Department superseded the appellant’s past award of IS, reducing his entitlement for the period from 25 June 2002 to 5 October 2003. The appellant did not appeal that decision (the entitlement decision). On 18 January 2010 the Department decided that the appellant had been overpaid IS amounting to £2,804.39 during the period from 25 June 2002 to 5 October 2003 and that this was recoverable from the appellant (the overpayment decision). He appealed the overpayment decision.

 

7.     The appeal was heard by a tribunal. The appeal was disallowed and the appellant requested a statement of reasons for the tribunal’s decision. On 2 March 2012 he applied to the legally qualified member (“LQM”) of the tribunal for leave to appeal to the Social Security Commissioner. The application was refused by a notification issued on 21 March 2012. On 17 April 2012 the appellant applied to a Social Security Commissioner for leave to appeal.

 

Submissions

 

8.     The appellant’s grounds are that, whereas the benefit overpaid was IS, the Departmental submission concerned only PC and contained no papers relating to his IS claim. He submits that it was impossible to determine the question of IS overpayment on the papers which the Department had provided to the tribunal and that in consequence he has not had a fair hearing.

 

9.     The Department was invited to make observations on the appeal. Mr Donnan responded for the Department. In a detailed submission he accepted that the tribunal may have erred in law in view of the fact that the tribunal papers did not contain factual evidence to confirm the amounts of benefit received by the appellant, although it contained a schedule of the Department’s calculation of the overpayment. He leaves that question for determination by a Commissioner, and otherwise submits that the tribunal did not err in law.

 

The tribunal decision

 

10.   The tribunal deciding the appeal consisted of an LQM sitting alone. The elderly appellant did not attend, but his daughter and son attended on his behalf. The Department was represented by Ms Henry. The record of proceedings indicates that the appellant’s daughter was the appellant’s representative and that his son was a witness.

 

11.   The submission prepared by the Department for the tribunal contained no original documents from the appellant’s IS file. The submission was prepared on 4 July 2011 in relation to an IS overpayment relating to a period some eight or nine years previously. However, it was not suggested that relevant documents relating to the IS claim no longer existed or could not be produced.

 

12.   At the hearing the record indicates that the appellant’s son took the most active part in the proceedings. In particular, he took issue with the fact that, although the overpayment decision related to IS, no original documents relating to the IS claim appeared in the Department’s submission. This would have relevance for establishing the overpayment and for investigating what disclosure if any had been made to IS concerning the award of RP to the appellant’s wife. Ms Henry indicated to the tribunal that she had a file relating to the IS claim with her at the hearing. However, she submitted that there was no authority from the appellant to disclose those papers to “his representative” or his son.

 

13.   The LQM adjourned briefly to enable the appellant’s “representative” and his son to discuss the contents of the IS file with Ms Henry, but not to review the contents of the file. However, it appears that Ms Henry was uncomfortable with this “due to the manner adopted by the Appellant’s son in the hearing” and ceased discussing the IS claim history after a telephone call with her manager. Therefore the purpose of the brief adjournment was frustrated.

 

14.   When the tribunal reconvened, the appellant’s son sought an adjournment to look at the IS papers “to check if there was any record of contact having been made with Income Support”. The tribunal refused the adjournment application. The LQM instead advised the parties that he would examine the IS file and adjourned the hearing for one hour. The appellant’s daughter and his son then left the building. The tribunal reconvened in the absence of the appellant’s family members and dismissed the appeal.

 

Relevant legislation

 

15.   The legislation governing recoverability of overpaid benefit is to be found at section 69(1) of the Social Security Administration Act (NI) 1992. This reads:

 

69.-(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 this section applies; or

 

(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.

 

The hearing

 

16.   At the hearing before me the appellant was represented by Ms Shevlin, the appellant’s daughter. The Department was represented by Mr Donnan. I am grateful to both for their economical and helpful submissions.

 

17.   The appellant’s case was that there had been an unfair hearing. It was submitted by Ms Shevlin that the IS file papers were fully relevant to the appeal. However, they were not produced or copied to the appellant within the Department’s submission to the tribunal. Ms Shevlin submitted that the LQM had refused to allow her or her brother to look at the IS file on the basis that neither was an authorised representative for their father. She asserted that she had offered to bring her father to the hearing centre in order to establish that they had authority to act for him, but that this offer was declined.

 

18.   Ms Shevlin relied on the accepted fact that the appellant’s wife had notified the Department on the BR1 RP claim form (submitted on 19 April 2002 to the Pensions Service) of the fact that her husband received IS for her. Referring to written submissions made by Mr Donnan for the Department, she submitted that the RP office had made an error or alternatively that the IS office had made an error. She pointed out that Department accepted that, had there been evidence that the IS office had been notified by the RP office, disclosure from a third party would have to be accepted as being made in the case and there could be no recoverable overpayment. It therefore was important to see what relevant information might be obtained from the IS file. She submitted that the IS papers were available at the hearing, and that she should have been permitted to see them on the day of hearing. She advised that the IS papers were subsequently sent to the appellant, but only after the decision had been made by the tribunal.

 

19.   In response, Mr Donnan noted that the hearing commenced at 10.10am. He observed that the appellant lived locally. He surmised that this would have given time to have the appellant brought to the hearing centre when the dispute about access to the IS papers first arose. He thought that it might have been possible to have a short adjournment to overcome the difficulties that arose on the date of hearing. He accepted that it was normal for all relevant papers in from an IS file to be provided to a tribunal dealing with an IS overpayment appeal.

 

20.   In the course of the hearing before me, particular focus turned to the question of whether the IS branch was in fact aware of the appellant’s wife becoming entitled to RP. A copy of form BR1(S) - a claim for retirement pension (RP)- signed and dated 19 April 2002 by the appellant’s wife had been produced to the tribunal. This form contained information given by the appellant’s wife in the course of a telephone claim for RP. This was then recorded in writing and issued by the Pensions Branch to the appellant’s wife for signing. It included a declaration to the Department that the information given on the form was correct and complete. Among the information given to the Department on the form was a notification that the appellant was receiving an increase of IS for her. It further gave the appellant’s national insurance number. Therefore, this was a case of unambiguous disclosure to the Pensions Branch.

 

21.   I was advised by Mr Donnan that, at the relevant time, Pensions Branch administered RP in a central location for all of Northern Ireland. However, IS was administered at the level of the local Social Security Office (SSO). Mr Donnan relates that the administrative system in place provided for notification of the fact that the RP claimant’s partner was receiving IS to the local SSO. Administrative instructions required a form to be issued by the Pensions Branch to the relevant IS office. As the claim for RP was made some months in advance of the award, the appropriate form for use in the particular case was a BR401X.

 

22.   I was further advised that the BR401X is a clerical form which consists of a Part 1 and a tear-off Part 2. Where a claimant for RP notifies the Pensions Branch that an increase of IS is in payment, Parts 1 and 2 are sent to the local SSO. The form notifies those administering IS in the local SSO that RP had been awarded at a particular rate from a particular date. The SSO is asked to note the award and to return Part 2 of the form within 10 days together with another document - the C79. The staff in the local IS office are expected to supersede the award of IS to reflect the increase in income through RP. The staff in the Pensions Branch are expected to wait for the return of the Part 2 slip before initiating payment of RP. If the system is adhered to properly, no RP can be paid without a prior notification to and acknowledgement from IS. However, as we were aware, RP had been paid.

 

23.   At this point, the hearing involved consideration of the computer records relating to the period in an attempt to establish what in fact had taken place at the relevant time. The Pension  Branch computer records before the tribunal consisted of nine entries between 23 April 2002 and 4 April 2007. The page contained the endorsement “Last”, which indicated, on Mr Donnan’s submission, that there was another relevant page which had not been provided. Subsequent to the hearing he produced a complete version of the computer record. This was taken from the computer at a later date and included 20 entries. 

 

24.   The computer record before the tribunal was a screen print dated 4 July 2011 of “Forms and BF’s”. The earliest two records on the computer record were an entry entitled “BFFILE” dated 23 April 2002, followed by an entry entitled “BR2102” dated 23 July 2002. Mr Donnan has explained the “BR2102” entry as being the formal entitlement notice to the appellant’s wife of her award of RP. He explains that advice from the Retirement Pensions Branch indicates that the “BFFILE” entry is a confirmation that the appellant’s wife had decided to award RP on 23 April, but also indicates that it was put “in the BF”. In other words the date of further action in the case was brought forward to await a further occurrence. It was accepted by Mr Donnan that the most likely scenario was that the file was put in the BF to await a response from the IS office before payment would be made. He observed, however, that there was no BR401X recorded by the computer system. He submitted that the BR401X would most likely have been issued before 23 April, but that it had “dropped off” the computer record.

 

25.   Mr Donnan explained that it would have been expected that the Pensions Branch would have awaited the return of the BR401X before any award of RP would have been paid. He suggests that at the appropriate BF date, further contact would have to be made with IS to chase up the BR401X and to ensure that IS had made the appropriate adjustment to entitlement. He therefore accepted that errors had been made by the Department in the case. He suggests that the BR401X was issued by Pensions Branch, but was either not received by the IS office or was mislaid in the IS office.

 

26.   Nevertheless it remained Mr Donnan’s submission that, whereas evidence established that disclosure had been made to the Pensions Branch, this was inadequate. He relied on Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 as authority for the proposition that it was not sufficient for a claimant to make disclosure to one branch of the Department and to assume that the information would reach the relevant branch. Nevertheless, he conceded that, if it could be established that the relevant information had reached the IS branch, disclosure had occurred and there could not be any recoverability.

 

27.   I was concerned by Mr Donnan’s reference to the BR401X form having “dropped off” the computer record. I asked for more information about the Department’s data retention policy in relation to documents and computer records. He explained that the computer system was relatively old. It appeared that it was programmed to hold a certain amount of data, but that when capacity was reached, in order to make a new entry, the entry had to replace an older one. I directed Mr Donnan to provide further information in writing. In order to respond he contacted the Department for Work and Pensions (DWP) as they have responsibility for the Department’s benefit computer systems. 

 

28.   Following this contact, he advised that DWP's Pensions Strategy Computer System (PSCS) holds awards of state pension, incapacity benefit, severe disablement allowance, maternity allowance, widows benefit and bereavement benefit. A periodic (usually quarterly) 'weed' scan is run against PSCS to prevent capacity issues and ensure business continuity.  The parameters of the scan are complex and specific criteria are applied to each type of account to determine if the account is suitable to be weeded.

 

29.   The capacity of the “forms” area of PSCS is restricted to hold a maximum of 20 forms or letters. If an existing entry cannot be automatically deleted by PSCS the user will be prompted to delete an entry before being able to record the issue of another form/letter.  The user will then delete any entries that are no longer relevant.  He submitted that it would appear that, if there was a record made of a form BR401X being issued prior to July 2002, this had been removed to allow further forms/letters to be recorded.

 

30.   The printout taken from the PSCS computer system therefore contains only as much detail as the system can currently hold in relation to the record of what forms have been issued over the years. It is not exhaustive. The printout contains the maximum 20 records that DWP have referred to.  The earliest record is dated 23 July 2002.  Therefore it is not possible to ascertain in this case whether form BR401X was recorded as being issued in respect of the award of RP to the appellant’s wife any time leading up to when it went into payment from 1 July 2002. 

 

31.   Mr Donnan indicated that if such a record existed in this case, it could have been removed to make room for further RP forms issued at a later date.  On examination of the screen print, he suggested that this was likely to have occurred around May 2007 when a number of forms were recorded as being issued by the RP decision-maker.  The PSCS system would automatically have removed the oldest records at that time. 

 

32.   Mr Donnan expressed the view at hearing that the computer system was not absolutely reliable as an indicator of whether particular forms and letters had or had not been issued in relation to dates which were a considerable period in the past. He stressed that the system was reliable in relation to recent events. However, in the present case the events under scrutiny occurred some nine years before the generation of the screen print before the tribunal. The computer printout therefore had to be viewed with caution.

 

Assessment

 

33.   The main issue in the appeal is whether the tribunal has observed the requirements of procedural fairness or natural justice. A basic element of natural justice in appeal tribunal proceedings is for the appellant to have sight of the evidence in the appeal.

 

34.   In the course of the challenged proceedings the LQM looked at, and based his decision upon, evidence which he did not permit the appellant’s son and daughter to see. This was also material which the appellant was unaware that the LQM was going to look at, as it was not flagged up in advance of the hearing. I have to ask whether in the circumstances the tribunal has complied with the requirements of natural justice.

 

 

 

 

35.   Although the record of proceedings indicates that the appellant’s daughter was his representative, this appears to be incorrect. There is nothing in the file to indicate that the appellant’s daughter was nominated by him to act on his behalf any more than his son. The Appeals Service (in response to a telephone communication from my office) confirms that no formal authorisation was given by the appellant for anyone to act as his representative. 

 

36.   It appears to me that there may have been some misapprehension on the part of the LQM as to the respective status of the appellant’s son and daughter at the hearing. He begins the record of proceedings “The Chairman introduced himself to the Appellant’s representative and her brother, the Appellant’s son, and explained the nature of the proceedings”. However, I am satisfied that neither was an authorised representative.

 

37.   If one of them had been a representative, then, by regulation 49(8) and (9) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999, the representative had “all the rights and powers to which the person whom he represents is entitled”. I am satisfied that this would have included the right of the representative to see the material on the appellant’s IS file once the LQM decided to look at it. Had there been a formal authorisation of the appellant’s daughter to act as his representative, I consider that the LQM would have made a procedural error of law by not permitting her to see the IS file.

 

38.   The record of proceedings indicates that the appellant’s son asked for an adjournment. This was to enable the IS file to be looked at in order to check if there was a record of IS branch having been contacted by his father. This was refused and the LQM instead decided to examine the file in the absence of the parties. The appellant’s daughter states that when the issue arose at the original hearing she offered to go to fetch her father and to have him give his formal authorisation to her as a representative.  She says that an adjournment was requested for that purpose. However, I have no way to assess the truth of this, as I was not present at the original hearing and it is not recorded as part of the proceedings.

 

39.   The LQM looked at the IS file, which had only been seen by one of the parties. The IS file contained material relevant to the issues before the tribunal. For one thing, it contained the relevant documentation establishing the appellant’s entitlement to IS, and therefore the primary material on which a calculation of overpayment would have to be founded. The Department’s submission only contained an administrative calculation without primary sources for the figures relied upon. The file would also have been expected to contain review forms and internal documents. These would have indicated what information the appellant had given to the Department and might have contained references to the BR401X.

 

40.   As indicated, the IS file documents had not been included in the submission prepared by the Department which had been sent to the appellant in advance of the appeal hearing. Nevertheless the file had been brought physically to the hearing, which suggested that the Department considered that it might have relevance to the issues in the appeal. The appellant was not at the hearing, and therefore could not anticipate that the LQM was going to look at material that he had not seen. He had asked his son and daughter to attend the hearing for him, albeit without formally signing an authorisation for either to act as a representative. In those circumstances, I consider that he could not reasonably anticipate that his son and daughter would not be permitted to see material which the tribunal would look at in deciding the appeal.

 

41.   It has been held as a fundamental principle, in the context of a decision-maker in a formal dispute, that “elementary fairness in any decision-making process requires that the parties should have seen all the documents in the case that are presented to the decision-maker…” (R (Primary Health Investment Properties Ltd) v Secretary of State for Health [2009] EWHC 519). In the present case, the LQM decided the appeal after considering evidence which the appellant had no opportunity to examine. It is true that he chose not to attend the hearing. However, he was not to know that new evidence would be considered. I accept that the LQM in the particular circumstances of this case committed a procedural irregularity capable of making a difference to the outcome or the fairness of the proceedings. Accordingly, I hold that the tribunal decision was in error of law and I set aside the decision of the appeal tribunal.

 

Disposal

 

42.   The appellant’s representative asks me to determine the appeal myself. Mr Donnan submits that it would be appropriate to remit the appeal to a newly constituted tribunal if I held the tribunal to be in error of law. I considered that I was in as good a position as an LQM sitting alone to make the decision in this appeal. I requested and obtained the appellant’s IS file and I requested written observations on the contents of the file from the Department and appellant. I then proceeded to determine the appeal.

 

43.   This is a case where the Department bears the burden of proof in establishing that an overpayment has occurred and that the appellant has failed to disclose material facts or has misrepresented material facts which have caused the overpayment. It is accepted that there has been an overpayment. No misrepresentation is alleged. The question is whether the appellant or his wife has failed to disclose the material fact that his wife was receiving RP.

 

44.   Clear evidence exists that the appellant’s wife made direct disclosure at the time of her RP claim that the appellant was receiving IS for her, giving his national insurance number. Therefore, unlike in Hinchy v Secretary of State for Work and Pensions, there was an act of disclosure by the claimant, rather than an exclusive reliance on Departmental systems to effect disclosure. As I understand him, Mr Donnan accepts that had the disclosed information made its way to the IS branch, the resulting overpayment would be a consequence of official error by the Department, rather than the appellant’s failure to disclose. This would be consistent with longstanding authority such as R(SB)15/87 - a tribunal of Great Britain Commissioners - where it was said at paragraph 30 that “Having regard to the manner in which information provided to the Department is, or should be, dealt with, and to the general practice of the Department, …, it would follow that there could be circumstances in which the Secretary of State would be in possession of certain knowledge … which would make it impossible for him to say that he thereafter incurred expenditure in consequence of the claimant’s failure to disclose”.

 

45.   The Department operated systems of internal communication and related checks which are relevant to this issue. Where it was known to the RP branch that IS was in payment, procedures required a BR401X form to be sent from Pensions Branch to IS branch. This ought to have occurred in the appellant’s case, as the claim form clearly stated that the appellant was receiving IS. The IS branch would then return part 2 of the BR401X to the RP branch to acknowledge that supersession action was put in place from the relevant date of the RP award. Only when part 2 of the BR401X was received did the RP branch systems permit an award of RP to be made.

 

46.   The relevant office procedures meant that the decision awarding RP should not have been implemented until the BR401X Part 2 was returned to Pensions Branch. There is no indication that this occurred, yet RP was put into payment. By the same token, on Mr Donnan’s submission based on personal experience from working in IS, the BR401X part 2 would not have been returned without the necessary supersession decision being taken. One or other office failed to observe proper Departmental procedure, although it is impossible to be certain which one. There is no sign of the relevant BR401X part 1 on the IS file, which, Mr Donnan submits, suggests that the form did not arrive at IS branch. The BF action in the contemporaneous but unreliable computer records suggests at least that the form was issued.

 

47.   The records, whether in the paper file or the computer records, do not permit a complete understanding of what took place at the relevant time. I find, on the balance of probabilities as indicated by the BF entry on the computer file and the office procedures then in place, that Pensions Branch has issued form BR401X to IS. This much was accepted by Mr Donnan on the basis of the evidence on the computer record that BF action was contemplated.

 

48.   Whether the BR401X was not received by the IS branch, or was received but no action was taken on it within the IS branch, or whether the part 2 of the BF401X was sent back to the RP branch but was not received there, or was received by RP branch in order to enable payment of RP to be made, I cannot say. I am assured that the IS supersession would certainly have been actioned before a BR401X would be returned to RP. However, I am also advised by Mr Donnan that the RP would not have been put into payment without the BR401X being returned. One or other of the outcomes in the case suggests a failure of the Department staff to follow correct procedure.

 

49.   I consider that this is not a case such as Hinchy where the claimant made no disclosure personally, but sought to pass the responsibility for disclosure onto a failure of internal Departmental systems. The House of Lords rightly found that the claimant was not entitled to make any assumptions about the internal administrative arrangements of the Department. In particular he is not entitled to assume the existence of infallible channels of communication between one office and another. Here, the duty on the appellant was to comply with the instructions on the IS Order Book, which included a duty to inform the IS office if his partner started to get a new benefit. Therefore, there has been a failure to disclose.

 

50.   When it comes to the question of causation, however, the circumstances of the present case are very different to Hinchy. There DLA had stopped after the expiry of a fixed term award and the claimant took no steps to notify the Department. Here the appellant’s wife is accepted as having notified the RP office of the fact that her husband was receiving IS for her.

 

51.   In order to be recoverable an overpayment must arise “in consequence of” failure to disclose. The reason that an overpayment occurred is that IS is a means-tested benefit. When RP came into payment in July 2002, the amount of IS payable should have reduced to reflect the income of the appellant’s wife. However, the change of circumstance which led to the need to reduce the IS award was the RP office putting the RP payment into effect. Mr Donnan accepted that payment should not have been put into effect without a check that IS had responded to the BR401X. The entry in the BF file dated 23 April 2002 on the balance of probabilities showed that a response from IS was being awaited. Nevertheless, in the knowledge that IS was in payment to the appellant, the RP office authorised payment of the appellant’s wife’s pension. Without authorisation of that new source of income, the IS award would not have required supersession.

 

52.   I accept that there has been a failure on the part of the appellant to notify the office handing the IS claim of a change in circumstances. However, in order to be a recoverable overpayment, the failure to disclose must be the effective cause of the overpayment. In this case the effective cause of the overpayment was as much the fact that the RP office put a pension into payment in disregard of its own internal procedures, having received full disclosure from the appellant’s wife of the existence of the appellant’s IS claim, yet without first ascertaining that the IS office had taken the appropriate action. Without this action by the RP office, there would have been no need to adjust the amount of IS payable.

 

53.   In the case of Duggan v Chief Adjudication Officer (reported as an appendix to R(SB)13/89) the Court of Appeal in England and Wales considered a case where a tribunal had found that an adjudication officer’s failure to investigate circumstances in a case where there had been no disclosure was the cause of an overpayment. The Court of Appeal held that there could be more than one cause of an overpayment, and that the non-disclosure on the part of the claimant was one of those causes. In that case, there had been no disclosure by the claimant.

 

54.   In the case of Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526, the claimant had made misrepresentations in her claim forms, but a local authority had notified the IS branch of a material fact which had been falsely stated. The claimant sought to argue that the failure of the IS branch to act on the information given by the local authority caused the overpayment. Richards J said that “At most the failure to act on the information would seem to have been an additional cause of the overpayments as from the date of receipt of the information; but that would not preclude recovery of the overpayments”. 

 

55.   Bearing in mind that there can be more than one cause of an overpayment, and that a failure to investigate circumstances by the Department (Duggan) or failure to act on information from a third party (Morrell) does not break the chain of causation, I must ask myself whether the failure to disclose to IS branch was the effective cause of the overpayment in this case.

 

56.   Unlike Duggan or Morrell, in the present case a disclosure was made by the appellant’s wife to the RP branch. If the disclosure had been fully taken into account and the Department had followed the proper procedure, having full knowledge of the circumstances of the appellant and his wife, an overpayment would not have arisen. Although the overpaid benefit was IS, there would not have been an overpayment of IS if the necessary procedure had been observed by the Department before payment of RP was authorised. Therefore, I conclude that the overpayment was the consequence of the actions or inaction of staff in the RP branch, taken following a relevant disclosure. But for those actions or inaction, overpayment would not have arisen, as the payment decision which led to the overpayment of IS could not have been taken.

 

57.   Therefore, I allow the appeal.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

17 June 2013