Northern Ireland - Social Security and Child Support Commissioners' Decisions

Application No: A2/14-15(CA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

CARERS ALLOWANCE

 

 

Application by the above-named claimant for

leave to appeal to a Social Security Commissioner

on a question of law from a tribunal's decision

dated 12 September 2014

 

 

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

 

 

This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Coleraine.

 

An oral hearing of the application has been requested.  However, I consider that the proceedings can properly be determined without an oral hearing.

 

For the reasons I give below, I refuse leave to appeal.

 

REASONS

 

Background

 

The applicant claimed carer’s allowance (CA) from the Department for Social Development (the Department), resulting in an unrestricted award from 28 June 1996.  From time to time the applicant completed benefit review letters.  He notified the Department on 14 August 1999 that he was self-employed, working 18 hours per week as a farmer, but stated that he was making a loss.  He completed further reviews in August 2005 and August 2007 in which he stated that there were no changes in his circumstances.  In January 2011 the applicant declared that he was employed as a part-time civil servant.  On 8 September 2011 the decision awarding CA was superseded.  It was decided that the applicant was not entitled to CA with effect from 1 May 2006 because he was gainfully employed and earning in excess of the prescribed earnings limit.  The applicant appealed to a tribunal sitting on 6 December 2011, which upheld the Department’s decision on entitlement.

 

On 17 January 2012 the Department decided that CA amounting to £13,964.85 had been overpaid to the applicant from 1 May 2006 to 31 July 2011 due to his failure to disclose his earnings, and that this sum was recoverable from him.  He appealed.  In the meantime, based on additional information, on 14 August 2013 the Department reconsidered its decision of 8 September 2011, purporting to reinstate CA for periods between 1 May 2006 and 6 March 2011.  This led to a reconsideration of the recoverability decision of 29 August 2013, which held that a lower sum of £9,841.45 was recoverable.  The applicant appealed.

 

A tribunal decided the appeal on 6 November 2013 and allowed the appeal in part.  However, the decision of the tribunal was later set aside.  The appeal was heard again by a tribunal consisting of a legally qualified member (LQM) sitting alone.  Prior to the appeal hearing the Department conceded that disclosure had been made on 31 January 2011, reducing the recoverable overpayment to £8,683.15.  The LQM disallowed the appeal and found that the sum of £8,683.15 was recoverable from the applicant.

 

The applicant requested a statement of reasons for the tribunal’s decision and this was issued on 19 December 2014.  The applicant applied for leave to appeal to the Social Security Commissioner from the decision of the tribunal but leave was refused by a determination issued on 3 February 2015.  On 18 February 2015 the applicant applied to a Social Security Commissioner for leave to appeal.

 

Grounds

 

The applicant submits that the tribunal has erred in law.  He criticises the complexity of the question of CA entitlement, highlighting that he had been unaware of the rule that losses from self-employment could not be taken into account and offset against his earnings from employment.  He encloses the decision of the earlier tribunal which was set aside.  He criticises the form used by the Department.  He then highlights four matters in which he says the tribunal has made erroneous findings of fact.  These are:

 

         (a)     calling him Mr Rodgers in the decision, when Ms Rodgers was his representative;

 

         (b)     taking 15 minutes to reach its decision;

 

         (c)     stating that he had 150 cows, when he had 150 chickens;

 

         (d)     being unaware that he had informed the Department of his self-employment.

 

The Department was invited to make observations on the applicant’s grounds.  Mr Smith replied on behalf of the Department.  He accepted that the tribunal had erred in law, and asked for the appeal to be remitted to a newly constituted tribunal.  The basis for Mr Smith’s observation that the tribunal had erred in law is as follows.

 

Mr Smith submits that the tribunal erred in its approach to the duty placed on a claimant by regulation 32 of the Social Security (Claims and Payments) Regulations (NI) 1987.  Specifically, he observes that regulations 32(1) and 32(1A) place a duty on a claimant to furnish information and evidence as instructed by the Department.  On the other hand, regulation 32(1B) places a freestanding duty on a claimant to report any circumstances which he might reasonably be expected to know might affect his entitlement to benefit.  In its conclusions the tribunal has referred to the second duty.  Mr Smith submits that this is an error of law.

 

However, I observe that Mr Smith also acknowledges that the tribunal accepted that the applicant had received Departmental information leaflet DS849DP and that the language in it was plain and simple.  Having found that the duty to disclose was clearly stated, it decided that “the Appellant was well aware of his duty to disclose and chose to ignore it.”  It seems to me that the tribunal made findings which it did not need to make under regulation 32(1B), but that its findings on regulation 32(1) were sufficient to determine the appeal as it did.  This does not appear to me to be a material error of law.

 

Mr Smith has made further submissions relating to the application of section 69(5A) of the Social Security Administration (NI) Act 1992 (the 1992 Act) to the circumstances.  The key issue is that under section 69(5A) an amount shall not be recoverable 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 (NI) Order 1998.  In this case - which concerned a decision made on 8 September 2011 - a tribunal had made a decision with respect to entitlement on 6 December 2011.  The Department had made a reconsideration decision on 14 August 2013, purporting to revise the Department’s original decision of 8 September 2011.  However, as observed by Mr Smith, the decision of the tribunal of 6 December 2011 was the current decision on entitlement.  The Department has no jurisdiction to revise the decision of a tribunal, and the tribunal’s decision remains in force with regard to entitlement to CA.  He submits that the tribunal had not ascertained that the requirements of section 69(5A) of the 1992 Act had been met and thereby erred in law.

 

Again, I acknowledge that there is force in Mr Smith’s submission.  Nevertheless, the point of section 69(5A) is to ascertain that the decision awarding entitlement has been reversed before any benefit can be recovered.  The more recent decision of the Department purports to restore entitlement for a variety of dates between 1 May 2006 and 31 July 2011.  This decision, which appears at page 13 of Tab 35 in the tribunal papers, is complex and I will not set it out here.  To the extent that the Department’s decision seeks to restore entitlement in respect of particular periods, Mr Smith submits that it is not a valid decision and I agree.

 

However, the implication of this is that the decision of the tribunal of 6 December 2011 remains the effective decision.  If that is the case, then there is no issue here, as the original determination awarding entitlement to CA has been reversed by the Department by the supersession decision of 8 September 2011 which was upheld on appeal.  Therefore, the requirement of section 69(5A) of the 1992 Act – namely, that there can be no recoverability unless the decision awarding entitlement has been reversed or varied – is met.  The later decision of the Department which purports to vary the decision of 8 September 2011 to restore entitlement for some of the period in issue is irrelevant.  The tribunal would have been entitled to proceed on the basis that a section 69(5A) decision had been made by the first tribunal which applied to the entire period before it.  Again, I see no material error arising in the tribunal’s decision.

 

It follows that I do not accept the submissions of Mr Smith as demonstrating that the tribunal has materially erred in law.  I therefore turn back to the applicant’s own submissions.

 

The applicant addresses his initial grounds to some matters which have nothing to do with the decision of the tribunal in his case.  The complexity of the rules governing CA entitlement is a matter for the NI Assembly – not an error of law by the tribunal.  The decision of the earlier tribunal – having been set aside on the Department’s application – has no legal standing or relevance to the decision of the tribunal which these proceedings seek to challenge.  The nature of the forms used by the Department is not a matter for which the tribunal can be held responsible.  I do not consider that any of these grounds demonstrate an arguable case.

 

The applicant then advances four grounds which address the tribunal’s decision.  The issue of referring to him as Mr Rodgers is clearly an accidental slip.  I do not consider that it amounts to an error of law.  The applicant submits that the tribunal taking 15 minutes to reach a decision reveals an error of law.  I observe that a tribunal consisting of single legally qualified member does not have to engage in discussion as a panel and can therefore decide a matter speedily.  I consider that the speed of decision making in such circumstances is not indicative of any error of law.

 

On the third ground, I consider that the tribunal may well have made an error of fact when it came to the size of the applicant’s farm and the nature of his livestock.  However, the issue before it was not the scale of the applicant’s business but rather the question of what disclosures he had made about the business.  It was accepted that he had disclosed self-employment but not his employment.  The tribunal was entitled to find that he had an obligation to declare his part-time employment.  The specific nature of the applicant’s self-employment had no bearing on the outcome of the appeal.

 

Finally, it was submitted that the tribunal was unaware that he notified the Department about his self-employment.  Here, I accept that the tribunal’s record is slightly ambiguous on this issue.  It states:

 

“I am satisfied that it was reasonable for [the applicant] to disclose his self-employed and part-time work.  As a result of his failure to do so, an overpayment arises in the sum of £8,683.15”.

 

However, the arguments in the case were all addressed to the commencement of employment by the applicant and the failure to notify the Department of that fact.

 

The issue of whether or not the applicant disclosed his self-employment might have been relevant to credibility had his case been that he had notified the Department of his employment.  However, he did not make the case that he had complied with the duty of disclosure.  Rather he submitted that the earnings from employment should be offset against losses from his self-employment.  The overpayment of £8,638.15 relates exclusively to the period of employment, not to the whole period of self-employment.  The meaning of the tribunal’s decision is clear even if the wording admits to some ambiguity.  I do not accept that an arguable error of law had been identified on this basis.

 

I do not consider that the applicant has established an arguable case that the tribunal has materially erred in law, and I refuse leave to appeal.

 

The Department has made certain submissions in the course of these proceedings concerning defects in its own decision making.  I consider that it should take the steps necessary to rectify any errors it considers to have been made in Departmental decisions relating to the applicant through its own decision making powers.

 

I further observe that the Department retains discretion over the steps it takes to enforce recovery of any benefit found to have been overpaid.  It appears to me that the Department should address the implications of any errors it has made for the recoverability of any benefit overpaid to the applicant, and that it should exercise its own discretion as to whether such errors as it has made should result in a reduction of any recovery it seeks to make in respect of the overpayment of CA.

 

 

(Signed):  O Stockman

 

Commissioner

 

 

 

12 October 2015