Northern Ireland - Social Security and Child Support Commissioners' Decisions

LT -v- Department for Social Development (CA) (Overpayment : Carer's Allowance) [2016] NICom 001 (13 September 2016)
Application No:  A1/12-13(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 20 September 2012

 

 

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

 

 

         I am not giving permission to appeal.  In law this means that I am refusing leave to appeal.

 

         This determination will come as a disappointment to the applicant. Primarily this is because the refusal of leave to appeal means that the decision of the appeal tribunal is confirmed.  The decision of the appeal tribunal was that there has been an overpayment amount to £2670.80 in respect of the periods from 6 September 2010 to 1 May 2011 and 7 June 2011 to 18 September 2011 which is recoverable from the applicant.

 

         The applicant should note that 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.  An application to the Social Security Commissioner for leave to appeal requires the applicant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law. Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.

 

         In addition, the applicant has been patient in waiting for the determination as the outcome of what have been lengthy proceedings before the Social Security Commissioner.  This has been occasioned by the fact that there are two applications in the Office of the Social Security Commissioners relating to the applicant which have been considered together.  Certain of the issues which had arisen in the other case were also being addressed by me in another decision.  It was felt to be appropriate to await the outcome of that other decision before considering the other application. This has led to an inevitable delay for which apologies are extended to the applicant. 

 

         Background

 

         In his carefully-prepared written observations on the application for leave to appeal, Mr Donnan, for Decision Making Services (DMS) has set out the following background:

 

‘(The applicant) claimed Carer’s Allowance (CA) from 22/10/07 and an award was made by the Department from that date.

 

This award continued until 17/09/11 when the Department’s CA office received notification that (the applicant) was employed.  After further information was gathered, a decision maker made a supersession decision on 19/10/11, disallowing the award of CA from 06/09/10 on the basis that she was gainfully employed.

 

As a consequence of that decision the Department decided on 14/02/12 that (the applicant) had been overpaid CA totalling £1,837.55 for the period 06/09/10 to 01/05/11.  The Department’s decision was that this overpayment was recoverable from the applicant on the basis of her failing to disclose on 31/08/10 or as soon as practicable after, that her earnings exceeded the permitted limit.

 

(The applicant’s) appeal against this overpayment decision was received by the Department on 01/05/12 and her reasons for appealing late were accepted.  By the time of the appeal hearing the Department had reconsidered the overpayment decision and had revised it on 31/07/12 - that on the basis of the entitlement decision dated 19/10/11, (the applicant) had actually been overpaid a larger amount of £2,662.86 for the periods 06/09/10 to 01/05/11 and from 07/06/11 to 18/09/11.

 

However, the Department’s appeals officer highlighted to the tribunal that the amount decided as recoverable was incorrect - it should have been that £2,670.80 was recoverable for the periods 06/09/10 to 01/05/11 and from 06/06/11 to 18/09/11.  (The appeals officer however was mistaken in his reference to “06/06/11” as 07/06/11 was in fact correct - paragraph 15 of his appeal submission confirmed that CA had been paid from 06/09/10 to 01/05/11 and from 07/06/11 to 18/09/11). 

 

In any case, on 20/09/12 an appeal tribunal disallowed (the applicant’s) appeal finding that £2,670.80 was recoverable for the periods 06/09/10 to 01/05/11 and from 07/06/11 to 18/09/11. (The applicant) now seeks leave to appeal this decision to a Commissioner, following her application being refused by the tribunal on 25/02/13.’

 

         Proceedings before the Social Security Commissioner

 

         On 27 March 2013 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 4 June 2013 observations on the application for leave to appeal were requested from DMS.  In written observations dated 26 June 2013, Mr Donnan opposed the application. Written observations were shared with the applicant on 8 July 2013.  Observations in reply were received from the applicant on 25 July 2013.

 

         On 24 October 2013 correspondence was forwarded to Mr Donnan in which he was asked to clarify certain issues arising.  Mr Donnan provided a further submission in response on 20 November 2013 which was shared with the applicant on 27 November 2013.  Further correspondence was received from the applicant on 10 December 2013. This was shared with Mr Donnan on 17 January 2014 and he replied to it on 28 January 2014.  Further correspondence from the applicant was received on 20 February 2014. 

 

On 1 August 2014 I directed an oral hearing of the application. The oral hearing was listed for 28 October 2014.  On 24 October 2014 correspondence was received from the applicant in which she indicated that she would be unable to attend the scheduled oral hearing due to a hospital appointment.  The oral hearing was postponed and the applicant was requested, on 27 October 2014, to provide dates when she might be in a position to attend an oral hearing.  Reminder correspondence to this effect was forwarded to the applicant on 21 November 2014.

 

         Further correspondence was received from the applicant on 1 December 2014 to which she added a copy of a medical report.  On 11 December 2014 the Legal Officer to the Social Security Commissioners wrote to the applicant explaining the nature of proceedings before the Social Security Commissioners and the relevance of oral hearings.  On 16 January 2015 further correspondence was forwarded to the applicant in connection with suitable dates for an oral hearing.  In correspondence received on 2 February 2015 the applicant indicated that she would like the matter to be dealt with on the papers alone as she was unable to travel to an oral hearing.  The applicant added further submissions in connection with her application for leave to appeal.

 

         The correspondence was shared with Mr Donnan on 4 February 2015. On 5 February 2015 a further submission was received from Mr Donnan. On 15 May 2015 I determined that having considered the papers I was satisfied that the application could be determined without an oral hearing. The applicant was invited to make a final submission.  On 9 June 2015 further correspondence was received from the applicant which was shared with Mr Donnan on 15 June 2015.

 

         What I have taken into account 

 

         In arriving at this decision, I have taken into account all of the case papers which include all of the documentation relating to the application, and all supporting statements and materials.

 

         The nature of an application for leave to appeal to a Social Security Commissioner

 

         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.  What is an error of law?

 

         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.”

 

         Analysis

        

         In her application for leave to appeal, and in subsequent correspondence received in the Office of the Social Security Commissioners, the applicant has made a number of submissions, which can be summarised as follows:

 

                  (i) She had thought that she was permitted to work for sixteen hours per week.

 

                  (ii) During the course of a visit from an officer of the Department in 2009 the officer had spoken to her about her entitlement to CA and asked the applicant for her paylsips from her employment. Accordingly the Department was aware of the fact that she was in employment.

 

                  (iii) She has queried the amount of the overpayment.

 

                  (iv) She had not received payments of CA for a particular period for which it was submitted she had been overpaid.

 

                  (v) She questioned whether she could submit a further claim to CA to be backdated to the date on which her prior entitlement ended.

 

                  (vi) She had limited sources of income and could have made claims to other social security benefits while she was working but chose to work instead.

 

         In his comprehensive and analytical written observations and further submissions, Mr Donnan has addressed all of the points raised by the applicant. I begin with his response to the applicant’s submission that she thought that she was permitted to work for sixteen hours per week.  He stated:

 

‘(The applicant) states that her impression was she was permitted to work up to 16 hours per week without this affecting her CA entitlement.  This raises the question as to whether the Department had properly instructed her on how earnings can affect her CA entitlement and how much work she was allowed to do.  I will focus on this now.

 

When (the applicant) first claimed CA in October 2007, she was not working.  However a change to her circumstances occurred shortly afterwards, on 10/12/07, when she commenced work for Age Concern, as confirmed by her employer’s letter found at Tab 6 of the appeal papers.  This letter also contains list of (the applicant’s) earnings since they first commenced on 31/12/07.

 

I should highlight that her earnings did not affect her entitlement to CA immediately.  This only occurred when they increased to exceed the permitted limit - which first occurred when she received £567.30 on 30/06/10.  For this reason, the Department’s appeals officer focused on (the applicant’s) duty to disclose this particular fact at this stage in 2010 - rather than focus on the fact that she commenced work in 2007. 

 

The Department’s submission to the tribunal was that the CA office only became aware of the fact (the applicant) was working on 17/09/11.  It is therefore the case that initially there was no evidence held in the CA office to show that (the applicant) disclosed the fact that she commenced employment in 2007.  It is clear that this change itself did not cause a disallowance (and overpayment) of CA. 

 

However I would observe that if (the applicant) was properly instructed to report if she started work and as a consequence she had disclosed this initial change to her circumstances - that she started work on 10/12/07, this may also have prevented an overpayment as the Department at least would then have had opportunity to set regular reviews of her earnings. 

 

I will address this issue now and focus on what information she was supplied with at the outset of her CA claim.

 

The Department issues advice notes to accompany all Carer’s Allowance claim forms and these notes advise claimants of circumstances that can affect entitlement and also of certain information they need to notify to the CA office.  I have obtained a copy of these notes and attach them as Tab 1 to these observations for the Commissioner to consider.  I would highlight that page 5 of these notes advises that:

 

If you have a part-time job, you must not earn more than £100 a week.

 

                  Also page 5 advises:

 

If you earn more than £100 a week

 

If you earn more than £100 a week, after we have taken money off for expenses, we will not be able to pay your Carer’s Allowance.  How long your Carer's Allowance stops for depends on how often you are paid.  For example, if you are paid monthly you will not be entitled to Carer’s Allowance for the month after you are paid.  If you are paid weekly, you will not be entitled to it for the week after you are paid.

 

Please note this is the current notification given to CA claimants - the permitted earnings limit has been £100.00 per week since April 2010.  When (the applicant) claimed in 2007 however, it was £95.00 per week and she would have been so instructed at the time.

 

Also, I have obtained a sample notification from CA office which they use to notify claimants that their claim to CA has been successful.  I have included this at Tab 2 to these observations.  A CA claimant will be informed in this letter of the following:

 

In particular, you must tell us about any of these changes:

 

● You start work as an employed or self-employed person, either full-time or part-time, temporary or casual, whatever your earnings.

 

At the outset of her claim to CA therefore, these notifications would have been sufficient to alert (the applicant) as to how much she was allowed to earn before her CA award would be affected.  Furthermore these instructions put her under a duty to disclose if she started work, whatever her earnings.  There is no evidence in this case that she ever made such disclosure when she commenced work on 10/12/07.

 

Subsequently, when her earnings increased on 30/06/10 to exceed the prescribed limits, (the applicant) would also have been required to report this further change to her circumstances.  In so doing an overpayment would have been avoided.  This is therefore a case where two disclosures would have been expected - the first being the commencement of work and the second, when earnings increased to affect the weekly permitted limit. 

 

It is only the latter that affects this case i.e. a failure to disclose the earnings increase in 2010.  The initial disclosure some years before, whilst expected of (the applicant), would have no causal link to the overpayment.

 

In any case, the appeals officer did properly focus on the subsequent duty to disclose.  He informed the tribunal that the Department had issued certain information leaflets to (the applicant) informing her of the particular changes to her circumstances that she was required to report to the CA office. 

 

The first such leaflet is found at Tab 16 and is a copy of a letter issued every year (usually prior to April when Social Security benefits receive their annual increase - known as the “annual uprating”).

 

It was highlighted to the tribunal that this letter specifically informed (the applicant):

 

In particular you must tell us about any of these changes:

 

·         You start work as an employed or self employed person, either full time or part time, temporary or casual, whatever your earnings

·          

·         If you have already told us that you are working, you must tell us if your earnings go up or any expenses already claimed change

 

The second leaflet produced for the tribunal is at Tab 17 of the appeal papers and it provided the same instructions as above.

 

I would further highlight that the annual uprating instructions at Tab 16 also contained the following instruction:

 

From 1^st October 2007 the Carer’s Allowance earnings limit was increased to £95.00.  This is the amount you can earn each week after certain expenses have been deducted before your Carer’s Allowance is affected.

 

(Subsequent uprating instructions from April 2010 would have been amended to inform CA claimants that the earnings limit was now £100.00 per week).

 

The tribunal accepted these instructions as being sufficient to put (the applicant) under a duty to disclose the fact that she was working and furthermore if she had already informed the Department of her work, she also needed to report increases to her earnings or changes to any expenses. 

 

In light of all the instructions issued to (the applicant) I respectfully submit that she could not conclude she was entitled to work 16 hours per week as a CA claimant with no potential effect on her entitlement.  As such I submit the tribunal was correct to make the decision that it did considering the relevant evidence.

 

(The applicant) may have been confused about other benefit rules such as being able to work under 16 hours per week while receiving Income Support (although even in these cases, a claimant is required to report their earnings).  However, I would submit that the initial instructions given to her with her CA claim form (at Tab 1 of these observations) would have been sufficient to alert her to the rules pertaining to entitlement to CA.

 

Furthermore, the instructions issued periodically to her upon her award of CA, upon which the tribunal relied, would also have alerted her to the earnings rules relating to CA.’

 

         I accept this carefully reasoned analysis in its entirety and, for the reasons which Mr Donnan has outlined, agree that the decision of the appeal tribunal is not in error of law.

 

         I turn to the applicant’s second submission which was that during the course of a visit from an officer of the Department in 2009 the officer had spoken to her about her entitlement to CA and asked the applicant for her paylsips from her employment.  Accordingly the Department was aware of the fact that she was in employment. In connection with this submission, Mr Donnan has submitted the following:

 

‘(The applicant) submits that she had a visit from an officer of the Department in 2009, during which her Carer’s Allowance award was discussed and the officer took details such as her wage slips.  From this point (the applicant) says she assumed the relevant office knew that she was working for 14 hours per week for Age Concern.  She can recall the officer’s name as (RC).

 

I felt I should check this position with the relevant offices potentially involved.  I firstly telephoned Coleraine Jobs and Benefits office (which would be the office dealing with Income Support (IS) in (the applicant’s locality) to determine whether this visit may have been in connection with IS.  However the officer there informed me that there is no record on their computer system of (the applicant) having been in receipt of IS.

 

I then contacted the Standards Assurance Unit, which is the office where (RC) works.  I managed to speak to (Ms C) herself.

 

Understandably, she cannot recall particular details of visits she carried out in 2009 and cannot recall a visit to (the applicant) around that time.  She also stated their office records of visits made in 2009 would not exist from that time.  However she did confirm that her office does conduct review visits on behalf of Carer’s Allowance office.

 

She told me that when such a visit is made, the claimant’s details will be confirmed to establish whether there is continued entitlement to the relevant benefit concerned.  If there have been changes noted by the visiting officer, an up to date statement will be taken and signed by the claimant.  This is then passed on to the relevant office.

 

I then contacted Carer’s Allowance office to establish whether any statement regarding earnings was received for (the applicant) as a result of a visit carried out in 2009.  They said that there was no evidence of such a statement being received.

 

I note the Department’s appeals officer informed the tribunal of this at the end of his submission:

 

(The applicant) stated in her letter of appeal that she had informed the carers department of her change in circumstances and that an officer from the department had visited her, there is no record of this.

 

In its statement of reasons, the tribunal has recorded that it has accepted the presenting officer’s evidence in this matter.  I will now provide observations on this aspect of the case.

 

(The applicant) may have been visited in 2009 but unfortunately this cannot be confirmed.  Trying to gather any supporting evidence now is made more difficult due to the passage of time.  However I would refer to a reported GB Commissioner’s decision R(A) 2/06, which was concerned with whether the instructions given to a claimant as to the changes they must report can be modified by an officer (from a different office), if disclosure is made to them and not the relevant office.

 

The Commissioner in that case held (at paragraph 13) that:

 

A representation by an officer that there is no need to make further disclosure may have an impact on the duty to disclose imposed by regulation 32(1),(1A) and (1B) in a number of ways.  Where regulation 32(1) or (1A) is concerned, the claimant might understand the representation as a modification of written instructions to furnish information because, perhaps, he or she might understand that the information would not be relevant to entitlement to benefit in the particular circumstances of the claimant’s case.

 

There is no reason why an officer acting on behalf of the Secretary of State may not modify written instructions because there is nothing in regulation 32(1) or (1A) to suggest that the requirement to furnish information or evidence need itself be in writing.

 

 

Where regulation 32(1B) is concerned, the claimant might again understand the representation as meaning that the change of circumstances that he or she would otherwise have disclosed would not in fact have any effect on his or her entitlement to benefit so that, after the representation has been made, the change would no longer be one the claimant “might reasonably be expected to know might affect” entitlement to, or payment of, benefit.

 

Alternatively, the claimant might understand that information disclosed to the officer making the representation would be passed on to the relevant office where disclosure should ordinarily be made.  That is a modification of the general rule as to where disclosure is to be made.  Such a modification was accepted in paragraph 28 of R(SB) 15/87 and was not excepted from the general approval of that decision by the House of Lords in Hinchy. In such a case, it was held in R(SB) 15/87, a further duty to disclose would arise if it became apparent to the claimant that the information had not been passed on because an anticipated reduction in his or her entitlement to benefit had not occurred. If the claimant did not know whether or not the information would result in a reduction in benefit, that further duty might not arise.

 

The GB Commissioner went on to decide in that particular case that there was no modification of the relevant instructions in any case.  This was because of the absence of any evidence to support there had been a discussion between the claimant’s daughter and the benefit officer regarding the relevant benefit concerned.

 

In the present case, (the applicant) is submitting that her duty to disclose to the CA office that she was working for Age Concern was modified by her discussion with the visiting officer (RC) in 2009.  Unfortunately there is no record of that visit having been made and there is no statement held by CA office in their papers from around that time (i.e. a statement received from (Ms C’s) office).

 

The Commissioner’s findings in R(A) 2/06 would allow for instructions being modified by assurances given by a different benefit office that any disclosure made to them of the relevant material fact will be passed on to the relevant office affected.

 

However, in my conversation with (Ms C), she informed me that it is not her practice when conducting visits for other benefit offices to undertake disclosure on behalf of claimants.  If she notes there has been a change of circumstances since the last case check, she takes a statement and ensures it is passed on to the relevant office.

 

In consideration of (Ms C’s) oral evidence together with the evidence that was available to the tribunal I can only observe that - in the absence of any statement to report earnings being received at the Carer’s Allowance office in 2009, it seems that such a statement was not taken.

 

It is understandable due to the amount of time that has since elapsed, the fact that records of 2009 visits no longer exist and the considerable number of benefit claimants that (Ms C) visits that she has no recollection of whether she did visit (the applicant). 

 

However (the applicant’s) clear recollection of her name would indicate that such a visit did occur. 

 

I can only observe that (the applicant) may have formed the opinion during that visit that she had reported working for Age Concern.  However, unfortunately this was not sufficient to satisfy her duty to disclose to the relevant benefit office. 

 

Consideration could be given as to whether modification of that duty occurred but this would have to have been in strongly worded terms from (Ms C’s) perspective.

 

For the duty to have been modified, (Ms C) would have needed to have given assurance to (the applicant) that the fact she was working would be reported to Carer’s Allowance on her behalf.  However, the evidence now supplied to me by (Ms C) would not support that, as it is not her practice to make such undertakings during her visits - she only ensures that an appropriate statement is taken and sent to the office concerned.

 

On the balance of probabilities therefore, I would conclude that there was a visit some time in 2009 made by (Ms C) for the purposes of a review of (the applicant’s) CA award.  However, whatever transpired during that visit did not amount to adequate disclosure of the relevant material fact.  I would conclude that following the visit, (the applicant) remained under a duty to disclose to the CA office that she was working. 

 

However there is unfortunately no evidence in this case to support that she ever reported starting work initially on 10/12/07 or any date subsequent to this. 

 

In any case I wish to make one final observation which I feel is more critical to this case.

 

Returning to my earlier observations (at paragraphs 28 to 33 above), I would submit that even if (the applicant) had formed the view that she had reported working for Age Concern during a visit in 2009, it should be remembered that at that particular time, her earnings would have been within the allowed limits i.e. under £95.00 per week.

 

However that position changed on 30/06/10 when her earnings first exceeded the weekly limit (now £100.00 as from April 2010).  I submit therefore that whatever considerations are given to the potential for disclosure in 2009, (the applicant) was subsequently under a different duty to disclose when her earnings increased above the permitted limit.  There is no evidence she ever made disclosure of this particular material fact on 30/06/10, or as soon as practicable after.

 

The tribunal had before it at Tabs 16 and 17, copies of information leaflets issued to (the applicant) that would have made this particular duty clear.  This evidence confirmed that (the applicant) was informed:

 

If you have already told us that you are working, you must tell us if your earnings go up or any expenses already claimed change

 

With this in mind, then even if (the applicant) was of the view that she had already reported working to Carer’s Allowance office in 2009, these instructions clearly notified her of the additional requirement to report increases to her earnings.  The increase to her earnings from £316.20 paid to her on 31/05/10 up to £567.30 paid on 30/06/10 was a significant increase that she was required to report to the CA office.

 

I would submit therefore the tribunal was correct in its decision in consideration of the available evidence, … and its decision is not erroneous in law.’

 

         The evidence of Ms C was of course, not available to the appeal tribunal. Nonetheless the most significant aspects of Mr Donnan’s submissions are the final five paragraphs. In essence it does not matter what the position was in 2009.  The significant date was 30 June 2010 when the applicant’s earnings increased to a level above the permitted level for entitlement to CA.  Accordingly, I agree that the decision of the appeal tribunal was not in error of law on the basis of this submitted ground.

 

         I turn to the applicant’s third ground in which she has queried the amount of the overpayment. In relation to this ground, Mr Donnan has submitted:

 

‘The tribunal’s decision states that (the applicant) has to repay the overpayment of £2,670.80 in respect of the periods from 6.9.10 to 1.5.11 and 7.6.11 to 18.9.11.  In reaching this decision, the tribunal had evidence that CA had been paid over these relevant periods and there was no evidence which supported a different conclusion.  I feel therefore that the tribunal has not erred on this particular issue.’   

 

         I agree with and accept this submission.

 

         In her fourth ground, the applicant has submitted that she had not received payments of CA for a particular period for which it was submitted she had been overpaid.  In relation to this ground, Mr Donnan has made the following submission:

 

‘I will now address your second direction as to (the applicant’s) submissions that she received no Carer’s Allowance (CA) payments for August and September 2011 and whether the tribunal failed to address this issue.  I will also refer to the July payments as (the applicant) raises a further issue of payment for July in her latest letter to your office dated 14/07/13.

 

I would refer to Tab 15 of the appeal papers as this contains printouts taken from the Department’s CA computer system.  This is a summary of payments made to (the applicant) and I would highlight the extracts which show payments issued as follows:

 

 

 

Payment    Pay Period   Pay Period     Net Amount   Issue Date

number     Start              End    

 

049             27/06/11        24/07/11          £222.20           08/07/11

050             25/07/11        21/08/11          £222.20           09/08/11

051             22/08/11        18/09/11          £222.20           06/09/11

 

This record shows no further payments made beyond 18/09/11 and I note that the overpayment in this case concludes on that same date.  I would submit therefore the evidence before the tribunal in this case supported that (the applicant) had been paid CA for the months of July and August 2011 and continuously through to 18/09/11.

 

I assume that (the applicant’s) statement to your office, that she did not receive payments totalling £444.90, is in reference to the August/September payments highlighted above.  She stated in her application to the tribunal for leave to appeal that the last payment of CA she received was in July 2011.

 

The tribunal’s record of proceedings contains only a record of the Department’s presenting officer’s statements as (the applicant) did not attend.  So the tribunal only had her letter of appeal (at Tab 11 of the papers) plus further letters (the applicant) submitted prior to the hearing in which she provided certain further information.

 

The tribunal therefore commenced its reasons for the decision by setting out that it did not have the benefit of her oral testimony and had to decide the appeal in light of the evidence furnished in the papers.

 

I have therefore studied (the applicant’s) original grounds of appeal to see if this particular issue was highlighted to the tribunal prior to the hearing on 20/09/12. 

 

In her original letter of appeal received on 01/05/12, (the applicant) did refer to the months of August and September 2011.  However, it seems at first that she was merely stating she had worked for these months but not been paid by her employer.  She merely stated:

 

“The money I did not receive as payment for Aug + September 2011 even though I worked for that period”.

 

However in further correspondence submitted by (the applicant) (dated 22/05/12), in relation to her late appeal submission, she did clarify this further by stating:

 

“I worked August and September 2011 and did not receive Carer’s allowances for this work”.

 

Clearly this latter statement did sufficiently raise this particular issue to the tribunal’s attention.  I note from the tribunal’s statement of reasons, the Legally Qualified Member has not made specific reference to the issue of whether CA was paid to (the applicant) up to 18/09/11.  This raises the question of whether the tribunal erred in doing so.

 

Having considered this, I do not feel the tribunal erred in reaching the decision that it did because the evidence presented to it included confirmation of the amounts of CA paid to (the applicant) and the relevant periods covered.

 

I appreciate from (the applicant’s) submissions that she has again stated she did not receive such payments.  In response I would respectfully submit that the Department’s computer record of CA payments, found at Tab 15 of the appeal papers, support that (the applicant) was paid CA up to 18/09/11. 

 

This printout, together with the subsequent two printouts provided at Tab 15, show a detailed list of payments which were paid into her bank account and these extend to dates much earlier than August and September 2011 (as early as 22/09/08). 

 

On the basis of such evidence, I would submit that if she had experienced no prior difficulties with receiving such payments, then the balance of probabilities lies with the Department having evidence of such payments being issued.  As there is no evidence of any problems arising at the time of issue such as the payments being rejected by the bank or not being received by (the applicant); then this suggests that she did continue to be paid CA to 18/09/11.’

 

         Once again I agree with this submission and, for the reasons which have been outlined by Mr Donnan, agree that the decision of the appeal tribunal is not in error of law on the basis of this submitted ground.   

 

         The applicant’s fifth ground related to whether she could submit a further claim to CA to be backdated to the date on which her prior entitlement ended. Her sixth ground was that she had limited sources of income and could have made claims to other social security benefits while she was working but chose to work instead. In connection with these issues, Mr Donnan has submitted:

 

‘… she does conclude with questions concerning whether she would be able to reclaim CA now and if it could be backdated to the time when her award came to an end.  I would answer this as follows:

 

If (the applicant) would presently satisfy the conditions of entitlement to CA, I would encourage her to submit a claim as soon as possible.  However, the maximum time allowed for extending her claim date is three months.  This is in accordance with sub-paragraphs (2) and (3)(d) to regulation 19 of the Social Security (Claims and Payments) Regulations (NI) 1987:

 

…

 

I have considered (the applicant’s) comments and whilst I would empathise with her situation, I submit that she raises considerations that are unfortunately outside the scope of the decision that was appealed before the tribunal in this instance.

 

This is because the issue of whether the overpayment of Carers Allowance (CA) is recoverable from her depends on whether or not she disclosed, to the CA office, the material fact that her earnings increased above the allowed limit.  There is no evidence of her having done so at the appropriate time.  She had previously been issued with information leaflets by the Department, which informed her that she needed to report such a change to her circumstances.

 

The relevant date for disclosing this material fact, as I have highlighted in my observations, was 30/06/10, or as soon as practicable afterwards.  Also, if the CA office had become aware of this fact through other means and failed to act upon this information; the overpayment would not have been recoverable despite any failure to disclose on her part - however this did not happen in this case.  Payment of CA continued to be made until 18/09/11 with the CA office being unaware of this change.

 

(The applicant) raises a valid point that, without CA in payment, she should have received Tax Credits.  I agree that if the CA office had been aware of the fact she was working over 16 hours per week (and her earnings exceeded her CA entitlement) she ought to have been informed that she should claim Tax Credits instead - as entitlement to that benefit is satisfied (depending on the level of earnings) if the claimant works in excess of 16 hours per week.

 

However, as stated, there is no record of disclosure being made to the CA office or any evidence in existence of that office being made aware through other channels of (the applicant’s) earnings.  In any case, whilst there may be an entitlement to a particular benefit, legislation and case law requires that a claim to that benefit must first be made …

 

I therefore respectfully submit that the relevant legislation and case law, as considered by the tribunal, and which entitles the Department to seek recovery of an overpayment; applies to (the applicant’s) case.  The overpayment caused by her failure to disclose is recoverable.

 

I cannot comment on (the applicant’s) comparisons to other benefit claimants as the law relevant to her own particular case has been considered and applied by the tribunal.  I respectfully submit that it did so correctly (despite a minor error in identifying the expected date of disclosure) and there is no error in law.’

 

         I agree with these submissions and accept them.

 

         Finally, I am setting out Mr Donnan’s submissions on a possible error in the appeal tribunal’s decision, as follows:

 

‘This only leaves one remaining error - within the overpayment decision.  This is that the Department has identified an incorrect date where disclosure of (the applicant’s) earnings should reasonably have been expected.  Instead of 31/08/10, I have submitted that the date should have been identified as 30/06/10, or as soon as practicable afterwards, because this was the actual date of the relevant change to (the applicant’s) circumstances.  Namely, that her earnings first exceeded the allowed limits on that date (although as it transpired, the resulting earnings calculation disallowed her from 06/09/10).

 

With these issues in mind I would also renew my submission that the error in the overpayment decision is so minor that it makes no difference to the outcome of this case.  Therefore I respectfully submit that the principles of R(I) 2/06, to which I referred at paragraph 14 of my observations, would apply. 

 

In light of the evidence in this case, I submit that the tribunal had correctly applied the legislation and case law relevant to whether the overpayment was recoverable from (the applicant).  This would be my continued submission despite the error found in the overpayment decision that the Legally Qualified Member had not addressed.  I should add that the Department was at fault for failing to notice this error and not alerting the tribunal accordingly, so the Department contributed to this oversight.

 

I would respectfully submit that it would only be within the Commissioner’s power to make such a correction, unless he is to set the decision of the tribunal aside on these narrow grounds and remit the case to a new tribunal.  If he prefers to make this correction himself, he would need to grant leave in order to do so. 

 

My own submission would be that, if this is to be the only error found in the tribunal’s decision, the case would not warrant reconsideration by a new tribunal.  If the Commissioner agrees, he may be satisfied that it is immaterial to the outcome in this case and decide that correction is not required for completeness.  If so, he may feel he would not need to grant leave to appeal purely on this narrow issue.’

 

         Once again, I agree with this submission. Mr Donnan has identified an error in the decision of the appeal tribunal. I agree with him, however, that the error is immaterial to the outcome of the case. I am not granting leave to appeal on that ground and no correction to the decision of the appeal tribunal is required.

 

         I do not, therefore, consider that it is arguable that the decision of the appeal tribunal is in error of law and I refuse leave (or permission) to appeal.

 

 

(Signed):  K MULLAN

 

CHIEF COMMISSIONER

 

 

 

(Dated):    17 August 2016