Northern Ireland - Social Security and Child Support Commissioners' Decisions

EMcG-v-Department for Social Development (IS) [2016] NICom 41

 

Decision No:  C1/15-16(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 16 October 2013

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 16 October 2013 is in error of law.  The error of law will be explained in greater detail below.

 

2.     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.  I set aside the decision with a great deal of reluctance.  This is because the Legally Qualified Panel Member (LQPM) has been diligent and assiduous in applying a complex area of social security law to a highly unusual set of circumstances.  She should note that during the course of the proceedings before me I have been provided with additional information concerning practices and procedures within the Department which the Department has conceded would have been beneficial for the appeal tribunal to have seen.  In addition, I have had the benefit of full argument on a range of relevant jurisprudence.

 

3.     I have given serious consideration to exercising 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 but have concluded that I am unable to do so.  This is because there may be further fact-finding which requires to be made and which may involve a further assessment of the evidence of the appellant and her father.  Although the appellant’s appeal to the Social Security Commissioner has been successful she may be disappointed that what have already been prolonged proceedings will be lengthened further by remittal of this appeal to a differently-constituted appeal tribunal.  It is to be hoped, however, that there has been, by now, clarification of the issues which remain in the appeal.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

4.     During the course of the proceedings before me the appellant has been represented by her father, and the Department by Mr Smith of Decision Making Services (DMS).  The appellant’s father is also an officer of the Department and, ordinarily, I would provide his name in a written decision.  The practice of the Office of the Social Security Commissioners is to anonymise decisions so that the name of the appellant will not be identified.  I am concerned that the release of the name of the appellant’s father might lead, somewhat easily, to the identification of the appellant.  For that reason he is referred to, in the remainder of the decision, as the ‘appellant’s father.’

 

         The decision under appeal to the appeal tribunal

 

5.     In his initial written observations on the application for leave to appeal, Mr Smith set out the following background to the decision under appeal to the appeal tribunal:

 

‘(The appellant) received Income Support from 28.09.07 as she satisfied the conditions of entitlement as a Carer.  She was also in receipt of Carer’s Allowance.

 

On 07.10.10 (the appellant) telephoned the Benefit Investigation Officer with regards to an interview she was due to attend on 13.10.10 in connection with periods of work she had undertaken.  During the conversation (the appellant) informed the Investigations Officer that she had sent a letter in March (2010) to advise the Benefits office that she had commenced work.  The letter was sent by her father, who is a civil servant, through the Department’s own internal courier postal service.  The Investigating Officer advised (the appellant) that she would need to end her entitlement to benefit.

 

The Benefit Investigations Officer notified Lurgan JBO that (the appellant) had started work and payment of her Income Support was suspended on 08.10.10.  A letter from (the appellant) was received in the JBO on 11.10.10 asking that her award of Income Support be closed as she had commenced work and that Carer’s Allowance (CA) was no longer in payment either.  The letter also advised that this was the second time she had written to the office regarding this matter.

 

Despite a thorough search of Lurgan JBO (the appellant’s) initial letter could not be found.

 

Following an investigation into (the appellant’s) award of Income Support evidence gathered by the Benefit Investigations Service (BIS) under the Fraud Act was forwarded to the JBO.  This included a copy of an interview under caution.

 

On 01.05.12 a Decision Maker decided that (the appellant) was not entitled to Income Support for the periods 26.05.08 to 01.06.08 and from 04.04.10 to 30.09.10 as she had worked in excess of 16 hours per week.  The Decision Maker also decided that (the appellant) was entitled to a reduced rate of Income Support for the period 22.12.09 to 28.12.09 because her hours and earnings in that week were below the prescribed limits.

 

(The appellant) was notified of this decision on the same day and she chose not to appeal against it.

 

On 13.08.12 an Overpayment Decision Maker decided that Income Support amounting to £1,067.76 in respect of the period 04.04.10 to 30.09.10 had been overpaid and that this amount was recoverable from (the appellant) as she had failed to disclose the material fact that she had commenced remunerative work.

 

Notification of this decision was issued to (the appellant) on 13.08.12 and her letter of appeal was received in the Department on 06.09.12.

 

On 04.10.12, in response to an enquiry from an officer of the Department, details of (the appellant’s) employment with the BBC from 28.03.10 were received in the JBO.

 

On 08.10.12 the Decision Maker looked again at the decision dated 01.05.12 and revised it because it contained an official error i.e. the decision superseded the incorrect awarding decision.  The decision as revised disallowed (the appellant’s) entitlement to Income Support from 03.06.08 to 09.06.08 and 22.12.09 to 28.12.09 as her income for these periods exceeded the applicable amount and disallowed her entitlement to Income Support from 18.03.10 to 30.09.10 as she was engaged in remunerative work.

 

Notification of this decision was issued to (the appellant) on 08.10.12 and again (the appellant) chose not to appeal the entitlement decision.

 

On the same day the Overpayment Decision Maker reconsidered the recoverability decision as it also contained an official error.  This is that the amount overpaid was calculated incorrectly.  The new decision stated that as a result of the decision dated 01.05.12 as revised on 08.10.12 an overpayment of Income Support had occurred for the period 18.03.10 to 30.09.10 amounting to £1166.60.  This amount was recoverable from (the appellant) because, on or as soon as practical after 18.03.10, she failed to disclose the material fact that she had commenced remunerative work.

 

Notification of this decision was issued to (the appellant) on 08.10.12.  The notification also informed (the appellant) that her appeal would continue against the new decision.’

 

         Proceedings before the appeal tribunal

 

6.     Following an earlier postponement, the first substantive oral hearing of the appeal took place on 11 March 2013.  The appellant was present and was represented by her father.  There was a Departmental Presenting Officer present together with a Benefit Investigation Services Officer.  The appeal was adjourned and the following directions were made by the LQPM:

 

‘A        Presenting Officer to please address the following points:-

 

1.         Relationship between James House and Lurgan Jobs and Benefits Office, for example, is one an agent of the other, how far apart are they, the precise arrangements in place between the offices for transfer or post to various offices from James House?

 

2.         Once post is received via courier from James House what specific steps/process are carried out from entering the Jobs and Benefits Office unit attached to a Claimant’s file?

 

3.         What specific arrangements are in place in relation to the weeding of untraced post which may have reached Lurgan Jobs and Benefits Office?

 

4.         What minimum information is needed to enable a letter to be traced to a Claimant’s case file?

 

5.         The submission refers to a continuing obligation yet overpayment is for the entire period.  Department to please consider when it thinks the continuing obligation to disclose should take effect time wise.  Please also comment on initial period of alleged non disclosure, 18.03.2010, until alleged disclosure by Appellant on 31.03.2010 in the context of a continuing obligation and with calculation.

 

6.         On what date was payment of Income Support made relevant to the period commencing 18.03.2010?  What was the final date Income Support was paid, ie, which covered the period up to and including 30.09.2010?

 

7.         Is there any arrangement in place with BIS for BIS to notify Jobs and Benefits Office if a Claimant is working and claiming Income Support and if so what?

 

8.         Is BIS an agent of Jobs and Benefits Office?

 

9.         C 1 below – please comment on any arrangement between Carer’s Allowance Branch and Income Support Branch in this regard.

 

B         Please advise:-

 

1.            On what date was BIS notified or did BIS learn that the Appellant was working with the BBC and claiming benefit?

 

C         Appellant/Representative to please address the following points:-

 

1.            Oral evidence indicated that computer interface was not being relied on but there appeared to be an implication that it may be relevant.  Please submit written argument if there is a computer interface between Carer’s Allowance and Income Support and how it works in practice.  Please also comment on any relevant case law and how same, ie, computer interface case law assists Appellant’s case.’

 

7.     In response to these directions, further submissions were received from the Department and from the appellant.

 

8.     The substantive oral hearing took place on 16 October 2013.  The appellant was present and was represented by her father.  The Department was represented by a Presenting Officer accompanied by an officer from Benefit Investigating Services.  The appeal tribunal disallowed the appeal and issued a decision notice to the following effect:

 

‘Confirm overpayment of Income Support in the sum of £1166.60 in respect of the period 18.03.10 – 30.09.10.  This is not in dispute.

 

Overpayment of Income Support in respect of the following periods is recoverable from appellant:-

 

(a)          18.03.10 – 28.03.10 (both inclusive); and

(b)          01.05.10 – 30.09.10 (both inclusive).

 

D.M. to please recalculate overpayment in respect of above and in the event of dispute to be re-referred back to Tribunal in respect of calculation only.

 

Overpayment in respect of remaining period is not recoverable.’

 

9.     On 5 February 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 10 February 2014 the application for leave to appeal was refused by the LQPM.

 

         Proceedings before the Social Security Commissioner

 

10.   On 4 March 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 21 May 2014 observations on the application for leave to appeal were requested from DMS.  In written observations received on 4 July 2014, Mr Smith, for DMS, supported the application for leave to appeal.

 

11.   Written observations were shared with the appellant and her father on 8 July 2014.  Written observations in response were received from the appellant on 7 August 2014 and were shared with Mr Smith on 11 August 2014.

 

12.   The file was then not forwarded to me until late March 2015.  On 1 April 2015 I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that the issues raised in the application for leave to appeal were arguable.  I also directed an oral hearing of the appeal.

 

13.   The oral hearing took place on 28 May 2015.  The appellant was represented by her father, and the Department was represented by Mr Smith.  There then followed a lengthy delay in the promulgation of this decision for which apologies are extended to the parties.

 

         Errors of law

 

14.   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?

 

15.   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.”

 

         The reasoning of the appeal tribunal

 

16.   As was noted above, the LQPM has been diligent and attentive at each stage of the proceedings before the appeal tribunal and has produced a statement of reasons which is reflective of a careful consideration to the complex issues arising in the appeal.

 

17.   One of the first substantive issues addressed by the appeal tribunal concerned an argument put forward on behalf of the appellant in connection with the ‘modification’ of the Department’s instructions.  In support of this argument, reference was made to what was then paragraph 9245 of the ‘Decision Maker’s Guide.’  As it read at that time, paragraph 9245 was as follows:

 

‘An officer acting on behalf of the Department may modify the written instructions given to a claimant about how disclosure should be made.  This does not have to be in writing, but it must be specifically in respect of the benefit in question.  The officer may say that the information the claimant has disclosed will be passed on to the relevant office where disclosure should ordinarily be made.  This would be a modification to the original instruction and the claimant would have fulfilled their duty to disclose as per DMG 9236.’

 

18.   There was also a reference to the decision of the Commissioner in Great Britain in R(A) 2/06.

 

19.   In response to this initial submission, the appeal tribunal arrived at the following conclusions:

 

‘Nevertheless, the paragraph relied on, paragraph 9245, does seem reasonable.  It assumes that the officer is acting on behalf of the Department.  Just because employed by the Department it does not mean that one acts on behalf of the Department when one acts outside one’s normal course of employment/employment remit.  James House is not in the same building as Lurgan Jobs and Benefits Office nor is it an agent of Lurgan Jobs and Benefits Office.  Nevertheless it would be reasonable for members of the public to accept that what one Department employee says irrespective of where based without concern for legal niceties.  However, it is not thought necessary to analyse the guide in depth because the Tribunal in any event does not accept the contention that there was any discussion about no further disclosure being required because we do not find that part of the evidence reliable.  Further, there was no mention of any such discussion in the interview under caution, in previous correspondence or at the previous hearing.’

 

20.   It is instructive, at this stage, to consider the evidence which was given about whether further disclosure was required.  In the record of proceedings for the substantive oral hearing of the appeal, the following is recorded:

 

‘(The appellant’s father): …

 

When she was given information by the BBC that they were keeping her on (the appellant) phoned me as to what to do.  I advised her to write 2 letters and there was no need to do anything else.  So I modified the instructions as an officer of the Department.  (The appellant) therefore fulfilled her duty to disclose.’

 

21.   I set out below my findings on the appeal tribunal’s conclusions that it did not accept the ‘… contention that there was any discussion about no further disclosure being required.’  One of the reasons for not accepting that contention was that there had not been any mention of that discussion at the ‘previous’ hearing.  The ‘previous’ hearing was the adjourned hearing which had taken place on 11 March 2013.  For the moment, I would note that in the record of proceedings for that hearing, the following is recorded:

 

‘Appellant: (Did you see that Income support was continuing in payment …?)  I did not think of speaking to Dad about it.  I went to the ATM took money out and that was good enough for me.  Not looking out for it because I sent the letters in and thought they would be actioned and stop the Income support and stop the Carer’s Allowance.  Interview under caution – I kept saying I sent the letter in.  I did not notice it going into my account.  It did not cross my mind to look for it because as far as I was concerned it was dealt with.’

 

22.   The appeal tribunal accepted, on the balance of probabilities, that the appellant’s father had put a letter from the appellant in his ‘out tray’ in James House on 29 March 2010.  The appeal tribunal concluded that such a finding was supported by the fact that a second letter sent to ‘Carer’s Allowance’(CA) branch on the same date and by the same method had been received by CA.  The appeal tribunal also accepted that the letter was addressed to Lurgan Jobs and Benefits Office and advised that the appellant had started work on 18 March 2010.  Having accepted all of that the appeal tribunal determined that the issue raised was ‘… whether this constituted disclosure such that the Appellant need do nothing further.’

 

23.   The appeal tribunal accepted that Form INF4 was issued to the appellant on 29 January 2008, 2 February 2008, 26 January 2009 and 1 February 2010 and that the appellant had received the form on each occasion.  The appeal tribunal found that the instructions in Form INF4 were clear and unambiguous.  Turning to the authorities which had been cited, the appeal tribunal found that none of them was ‘on all fours’ with the circumstances arising in the case before it.  Nonetheless it concluded:

 

‘Case law is clear that if disclosure is made to the benefits branch actually dealing with the benefit in question that is the end of the matter and a customer can sit back and continue to receive benefits without repercussion.’

 

24.   The appeal tribunal did not accept as reliable the appellant’s evidence that she did not receive two letters which had been sent to her on 2 August 2010 and 31 August 2010 by Lurgan Jobs and Benefits Office, advising her of a change in her income support (IS) pay days, and rejected her evidence to that effect.  The appeal tribunal noted that the appellant:

 

‘… still did nothing about her Income Support continuing to be paid into her bank account until following a request from BIS to attend interview under caution in relation to other work.  Appellant was advised during this telephone call on 07.10.2010 that she should end her claim to Income Support.  Income Support was in fact suspended on 08.10.2010.  It was not until 11.10.2010 that Lurgan Jobs and Benefits Office received a letter dated 07.10.2010 from Appellant asking to close her claim.’

 

25.   The appeal tribunal concluded that the placing of a letter in an ‘out try’ in an office in James House, at a geographical distance from the office to which it was addressed, did ‘… not constitute full and final disclosure such that no further disclosure needs to be made if benefit continues in payment.’  The appeal tribunal stated that it ‘appreciated’ that the appellant may well have thought that the handing of a letter to her father was disclosure and that it was not unreasonable not to have done anything further for a short period of time.  Nonetheless:

 

‘… after a reasonable period it would have been reasonable to have expected the Appellant to have checked that the disclosure had been effective … The Tribunal has considered what might be thought to be a reasonable period until the Appellant should have made further enquiry and realised that her disclosure had not been effective.  As a consequence on 01.05.2010 the Appellant has failed to disclose the material fact of her having commenced work on 18.03.2010 and as a consequence there has been an overpayment for the further period noted in the summary decision at (b) in respect of the period 01.05.2010 – 30.09.2010 and which overpayment is recoverable from the Appellant.’

 

26.   The appeal tribunal also noted that the appellant had conceded that there had been a recoverable overpayment in respect of the period prior to her writing the letter which she gave to her father and noted that this period of recoverable overpayment had been dealt with at part (a) of the decision notice.

 

27.   Finally the appeal tribunal was satisfied that the Department had correctly applied the legislative provisions relevant to the raising and recovery of overpaid social security benefits.

 

         The submissions of the parties

 

28.   In the application for leave to appeal, which was received in the Office of the Social Security Commissioners, the appellant began by submitting that she had never argued that the ‘mere placing’ of the letter in the ‘out tray’ for onward transmission by the courier service to another office within the same Department constituted full and proper disclosure.  Rather she had presented two arguments.  The first was that the letter had been received by Lurgan Jobs and Benefits Office but had not been acted upon.  The second was that she had been informed by an officer in the Department (her father) that he would forward her letter to the relevant office and, accordingly, her instructions to disclose had been modified.

 

29.   Reference was made to the fact that an overpayment of CA had also initially been raised against the appellant but that it was subsequently deemed not to be recoverable on the basis that it had been accepted that correspondence had been forwarded by the appellant to CA branch disclosing the fact that she had commenced employment.  The correspondence to CA branch had been forwarded by the same method as that asserted for the correspondence to Lurgan Jobs and Benefits Office i.e. by being placed in the internal courier by the appellant’s father.  On the basis of this, the appellant had formed the view that her letter to Lurgan Jobs and Benefits Office had been received but had not been actioned.

 

30.   The appellant also made submissions concerning the arrangements in Lurgan Jobs and Benefits Office for the tracing of post and submissions made at the appeal tribunal hearing by the Presenting Officers on this issue.  The appellant asserted that the appeal tribunal had been asked to determine, on the balance of probabilities, and bearing in mind previous errors made by the Department, whether or not her correspondence had been received in Lurgan Jobs and Benefits Office but had not been actioned.  While the appeal tribunal had accepted that this was not the case, the appellant submitted that the appeal tribunal had erred in law in this regard.

 

31.   The appellant stated that her principal ground for submitting that the reasoning of the appeal tribunal was in error of law related to its conclusions in respect of a continuing obligation to disclose.  The appellant made reference to page 83 of what was then Volume III of Social Security Legislation 2012/2013 where it was stated:

 

‘In R(A) 2/06 the Commissioner considered the extent to which oral representations by an officer of the Department can have an impact on the statutory duty to disclose.  The case concerned a claimant with an appointee who was in a care home.  When the local authority took over the payment of the care home fees, no disclosure was made and attendance allowance continued to be paid resulting in an overpayment of that benefit.  In the run-up to the change of legislation which resulted in the local authority payment of the care home fees the daughter (who was the appointee) was visited by a Customer Liaison Manager.  In evidence the appointee said that the Customer Liaison Manager “told me that the visit … would initiate any action required with regard to my mother’s benefit changes when council funding started and there was no need for me to take any further action.” (para 6 of the Decision)

 

The Commissioner concludes that R(IS)5/03 has survived the Court of Appeal’s decision in B v Secretary of State.  He also accepted that a particular duty to provide information is capable of being modified by an oral representation made by an officer of the Department though it will be vital that careful findings of fact are made about such representations and their context.’

 

32.   The appellant also made reference to paragraph 9245 of the Department’s ‘Decision Makers’ Guide’ (DMG) which, she submitted, addressed the decision in R(A)2/06.  She repeated that when she was informed that she would be offered work by the BBC which she would be paid for she contacted her father at his place of work.  She submitted that her father had informed her that she would have to write two letters, one to CA and one to the IS section of Lurgan Jobs and Benefits Office informing them of the commencement of the employment.  She asserted that her father had informed her that he would send these letters through the Departmental internal courier service as he felt that this method of service would be more secure than Royal Mail.

 

33.   Accordingly, an officer of the Department had modified the instructions which she had received.  The appellant submitted that the principles in the caselaw and guidance in the DMG meant that she ‘… was not required to make a further disclosure following the guidance which I had received.’  The appellant made reference to the appeal tribunal’s conclusion that ‘modification’ of Departmental instruction was a ‘concept’ which emanated from the DMG.  She submitted that the ‘concept’ did not emanate from the DMG but from case law such as R(A)2/06.  Although the latter was a decision of a Social Security Commissioner in Great Britain and was, accordingly, only of persuasive authority in Northern Ireland, it should be applied in the same interpretive fashion, particularly as there was no Northern Ireland case on the same issue.

 

34.   In connection with the appeal tribunal’s statement that ‘Just because employed by the Department it does not mean that one acts on behalf of the Department when one acts outside one’s normal course of employment/employment remit’, the appellant submitted that she did not consider that her father was acting outside his employment remit when providing advice to her concerning the steps which she needed to take to disclose relevant information.  In this regard she queried whether he would have been acting outside of his remit if he had given the same advice to a member of the public in a similar position.

 

35.   The appellant made reference to the appeal tribunal’s conclusion that there had been no referral to the issue of modification of instruction at various stages of the proceedings, including at the adjourned oral hearing on 11 March 2013.  The appellant pointed to correspondence dated 8 October 2013 which was noted in the record of proceedings for the substantive oral hearing on 16 October 2013.  She submitted that in this correspondence she had ‘… clearly argued modification of instruction so the tribunal is incorrect in stating that this was first raised on 16-10-13.’

 

36.   The appellant repeated that it was her belief that Lurgan Jobs and Benefits Office had received but not actioned her letter of disclosure.  She submitted that in correspondence dated 9 August 2011 which she had sent to Benefit Investigating Services, primarily concerned with the parallel letter which was sent to CA, she had also indicated that she had forwarded correspondence to Lurgan Jobs and Benefits Office and presumed that this had been received.  At the interview under caution her father had not been present and, accordingly, she was unable to refer to modification of instructions as her father had not specified that he was modifying instructions when he had advised her what actions she was required to take.  He had also not stated that he was modifying instructions when she had contacted him for advice after being informed that she would continue to be offered work.  His advice had been that she would need to prepare two letters, one for each branch, and that he would forward these to the branches concerned utilising the Departmental internal courier as he felt that this was a more reliable mode of communication.

 

37.   The appellant noted that the appeal tribunal had accepted that her father had sent the two letters via the internal courier service.  She submitted that given her father’s experience and her own lack of knowledge it would have been ‘inconceivable’ for her not to ask him for advice and not to inform him of the purpose of the letters.  Had she wished to manage it all by herself, and without her father’s knowledge, then she would have utilised Royal Mail.  She accepted that her father did not specifically identify that what he was doing involved the modification of instructions but he had informed her of what she needed to do and informed her that though the Departmental internal courier he would pass ‘… this information to Lurgan Jobs and Benefits Office.’ Accordingly, she considered that the appeal tribunal had erred in law:

 

‘… if not solely in finding that no such discussion took place then by not adequately explaining why all the evidence contrary to its determination was rejected.’

 

38.   Finally the appellant noted the terms of the oral hearing which was adjourned on 11 March 2016 included an instruction to the Department to provide information on how the Departmental internal courier system operated but also the nature of the relationship between James House and Lurgan Jobs and Benefits Office and, in particular, whether one was an agent for the other.  The appellant submitted that the addendum provided by the Department consequent on the terms of the adjournment was not discussed at the substantive oral hearing and that she was unaware of any determination which the appeal tribunal had made on the matter.  She submitted that her own individual response to the appeal tribunal’s terms of adjournment had raised the issue of whether the courier service was an agent of the Department.  In turn, if it was accepted that the courier service was an agent of the Department, the appellant queried whether her letter to Lurgan Jobs and Benefits Office had, effectively, been ‘lost’ by the Department.  If it had been ‘lost’ then she also questioned the effect of this on the issue of disclosure.  The appellant submitted that as there had been no discussion of this issue at the substantive oral hearing the appeal tribunal had erred in law.

 

39.   In his written observations on the application for leave to appeal, Mr Smith made reference to paragraph 32 of the decision of the House of Lords (as it then was) in Hinchy v Secretary of State for Work and Pensions ([2005] UKHL 16, reported as R(IS) 7/05).

 

40.   Mr Smith submitted that INF4(IS) leaflet, which was issued to the appellant because her benefit was paid into her bank account, instructed her to inform the Income Support section if, inter alia, she did any work or started a job.  He asserted that the appellant did not comply with these instructions when she was offered casual employment by the BBC.  Instead she turned to her father, and Mr Smith noted the appellant’s contention that the instructions had been modified by the advice which she had been given by her father.  Mr Smith noted that the original paragraph 9245 of the DMG, on which the appellant had partly relied, had been updated, as follows:

 

‘9245 Notwithstanding the claimant’s instructions regarding their duty to disclose as discussed in DMG 9236 to DMG 9238, it is possible for those instructions to be modified by an officer acting on behalf of the Department.  The effect of this modification is that the claimant no longer has to do all or part of what they were originally required to do¹.  A modification can be done orally or in writing and where a duty to disclose has been modified, the decision maker should consider what the modified duty was.  This should be based on what was said to the claimant.  For example

 

1.    if the claimant was, in effect, told that further disclosure was unnecessary, there will be no duty to disclose from that point onwards.  It follows that there will be no failure to disclose from then on or

 

2.    if the claimant was not, in effect, told that further disclosure was unnecessary, the decision maker should consider what the claimant was, in effect, still required to do.  The decision maker should consider which parts of the previous instructions were changed and which were not changed.  The decision maker should then determine what the claimant still had to disclose, and when, how and to whom it had to be disclosed.  This will form the claimant’s new duty to disclose from the date of modification onwards.  There will be a failure to disclose only if the claimant does not comply with the new duty.

1 R(A) 2/06’

 

41.   Mr Smith noted that the present version of paragraph 9245 of the DMG was not before the appeal tribunal.  He submitted:

 

‘It is accepted that (the appellant’s) father is an officer of the Department and as such the instructions given to her by her father must be looked at carefully in accordance with the guidance contained within paragraph 9245 of the DMG and within the context of the reported GB case law upon which this guidance is based.’

 

42.   Mr Smith noted that the issue of whether the appellant’s father put the letter to Lurgan Jobs and Benefits Office into his out tray was not in dispute.  The appeal tribunal, on the balance of probabilities, accepted that he had done so.  On the question of modification of instructions, he submitted:

 

‘… that an officer of the Department is not obliged to explicitly explain that he or she is modifying a claimant’s instructions.  It is the act of that officer telling the claimant that he or she will do something such as passing information or forwarding correspondence onto the relevant office on their behalf which deviates from the instructions in the information leaflets that is the actual modifying of the instructions.’

 

43.   Mr Smith noted that the appeal tribunal had rejected the appellant’s and her father’s evidence concerning further disclosure but had erred:

 

‘…in stating that there was no discussion regarding no further disclosure in previous correspondence.  This argument was adduced by (the appellant) in her letter of 08.10.13 which was received in the Appeal Service on 14.10.13 and was before the Tribunal prior to the Tribunal giving its determination.  Therefore, the argument was raised in previous correspondence.  In saying that, the Tribunal did consider the evidence, albeit that it rejected the evidence, and therefore I would submit that the error is not sufficient to vitiate the decision.’

 

44.   Turning to the decision of the Commissioner in Great Britain in R(A)2/06, Mr Smith noted that the Commissioner had considered the extent to which oral representations by an officer of the Department could have on the statutory duty to disclose.  He referred to paragraphs 13 and 14 of the decision and paragraph 28 of R(SB) 15/87.  He submitted that these paragraphs set out the principles behind a ‘continuing duty to disclose.’  I shall return to these principles below.  Mr Smith also noted the decision of Upper Tribunal Judge Ward in WW v HM Revenue and Customs (CHB) ([2011] UKUT 11 (AAC)).  In paragraphs 29 and 30, he had stated:

 

‘29 However, in my judgment the claimant came under a continuing obligation to disclose.  The position is summarised in Social Security Legislation 2010/11, vol III, page 81 in a passage which was approved in CIS/14025/1996. (In the present case, references to the Department must be read as though they were to the Board (of HMRC), because of the particular allocation of responsibility for decision-making in relation to child benefit)

 

“(2) A continuing obligation to disclose will exist where a claimant (or someone acting on the claimant’s behalf) has disclosed to an officer of the Department either not in local office or not in the section of that office administering the benefits.  Such disclosure will initially be good disclosure provided that the claimant acted reasonably in thinking that the information would be brought to the attention of the relevant officer.  But if subsequent events suggest that the information has not reached that officer, then it might well be considered reasonable to expect a claimant to disclose again in a way more certain to ensure that the information is known to the relevant benefit section.  How long it will be before a subsequent disclosure is required will vary depending on the particular facts of the case.”

 

30 If this principle applies to disclosure to officers of the same body but who are not in the relevant office or section of the office, it should apply equally to attempted disclosure via a person who is not an officer of the relevant body but who, as I have held, has ostensible authority to receive the information and transmit it, as there may be at least as much scope in the latter circumstances for the information not to reach its intended destination.’

 

45.   Mr Smith also made reference to my decision in CC-v-Department for Social Development (IS) ([2010] NICom 05, C6/08-09(IS)).  In paragraphs 47 to 50 of that decision I had reviewed some of the jurisprudence, also noted above, and relevant to the issue of a ‘continuing’ duty to disclose.  Mr Smith submitted that:

 

‘In light of the above case law it is accepted that an officer of the Department who is not the officer who deals with the administration of the benefit concerned may modify the instructions given to a claimant if that officer says that he or she will forward information on to the relevant office.  In the event that the information to be passed on does not reach the proper office case law indicates that if the claimant realises or ought to have realised after a reasonable period of time has elapsed that the information has not reached the proper office then he or she must take further steps to ensure that the information does reach the proper office.’

 

46.   Mr Smith submitted that it would have been reasonable for the appellant, having been informed by her father that she did not have to make any further disclosure, to believe that she had done all that was required of her and that no further disclosure was necessary.  He asserted, however, that the appeal tribunal had rejected a contention that the question of whether further disclosure was required had been discussed by the appellant and her father.  Having done that, there was then a further duty on the appeal tribunal to determine whether the appellant was freshly obliged to ensure that the information which she had shared with her father had been received in the proper office.  In this regard Mr Smith noted that the appeal tribunal found that:

 

‘…the evidence clearly indicated the possibility of post going astray between one office and another and in its view the placing of a letter in a Royal Mail post box or an out tray in an office in James House more than 20 miles away from Lurgan JBO does not constitute full and final disclosure such that further disclosure was not necessary.’

 

47.   Mr Smith asserted that while the appeal tribunal accepted that the appellant believed that the handing of a letter to her father constituted disclosure, there was a new or fresh duty on the appellant as it found that:

 

‘…after a reasonable period it would have been reasonable to have expected the Appellant to have checked that the disclosure was effective ...  Appellant clearly failed to disclose that she had commenced work and the instructions were clear that this should have been disclosed whether she was receiving payment or not.’

 

48.   The appeal tribunal had then gone on to consider what a ‘reasonable’ period would be.  Thus far the reasoning of the appeal tribunal was sound.

 

49.   Turning to the appellant’s grounds of appeal, Mr Smith opposed the majority of these grounds, maintaining that the decision of the appeal tribunal was not in error of law.  He conceded that the appeal tribunal did err in holding that the source of the concept of ‘modification’ was the DMG rather than the jurisprudence of the Social Security Commissioners and the Upper Tribunal.  Nonetheless, the appeal tribunal did go on to properly consider the issue.  Mr Smith submitted that the evidence which had been adduced by the appellant:

 

‘… did in fact indicate that it was possible for an officer of the Department who was not responsible for the administration of the particular benefit to modify the written instructions previously supplied to the claimant.  I would agree with that analysis but submit that the case law referred to did not just accept that modification can occur, it also concluded that, once the claimant has become aware or should have become aware that the information had not reached the relevant office, then he or she is under a new duty to ensure the information does reach the relevant office.  The Tribunal was correct to follow the principles contained within those decisions.’

 

50.   Mr Smith noted that it appeared that the appeal tribunal had accepted that the advice which the appellant’s father had given to her should be treated as analogous to parallel advice which he would have given to a member of the public in his role as an officer of the Department.  Mr Smith submitted that the appeal tribunal was entitled to come to the conclusions which it did on the assessment of the evidence concerning any discussion between the appellant and her father on the requirement for further disclosure and whether such was necessary.

 

51.   Mr Smith considered the reasons offered by the appellant for her failure to refer to the modification of instructions in the interview under caution and in previous correspondence and her consequent submission that the appeal tribunal had erred in law in both finding that no such discussion had taken place and by failing adequately to explain why all of the evidence contrary to such a finding had been rejected.  Mr Smith submitted that the appeal tribunal had dealt adequately with this issue.

 

52.   Finally, Mr Smith made the following submission:

 

‘A previous hearing had been adjourned to allow the Department the opportunity to prepare an addendum on the workings of the internal courier service which operated between James House and Lurgan JBO.  (The appellant) argues that the addendum was never discussed at the final hearing.  Furthermore her letter of April 2013 raised the issue whether, employed as it is, the courier service is an agent of the Department and by extension was her letter ‘lost’ by the Department.  (The appellant) asserts that as no discussion took place at the final hearing regarding this issue the Tribunal has erred in law by not considering this aspect of her case.

 

In her letter dated 26.04.13 in response to the Tribunal’s directions (the appellant) asserted that as the courier company is under contract to the Department it is thereby acting as an agent of the Department and posed the question that if the DX courier is an agent of the Department should the ultimate responsibility for the loss of her letter not rest with the Department?

 

Having examined the Record of Proceedings I agree with (the appellant’s) argument that the matter was not discussed at the hearing.  It is recorded in the Reasons for Decision “The Tribunal hearing, 11.03.13, was adjourned for, inter alia, clarification as to procedure in relation to post/correspondence in both James House and Lurgan Jobs and Benefits Office.  Mrs Courtney has prepared a helpful addendum, 22.07.13, in response.  There was no dispute in relation to procedure in the various offices and Tribunal adopts this part of the addendum dealing with the procedure in both offices as fact”.  In recording this there is an inference that the Tribunal accepts the procedures for transferring post from one office to another but it has not clarified the position on whether the courier company is an agent of the Department or its implications.  I submit that the issues as to whether the courier company is an agent of the Department and therefore should the ultimate responsibility for the loss of (the appellant’s) letter lie with the Department were not discussed and as such these issues remain unresolved.

 

…

 

I indicated in my response to her grounds of appeal that I agreed with (the appellant’s) argument.  I went on to say that the issues as to whether the courier company is an agent of the Department and therefore should the ultimate responsibility for the loss of her letter lie with the Department were not discussed and as such these issues remain unresolved.

 

I submit that the Tribunal’s failure to resolve the issues as to whether the courier service was an agent of the Department and by definition was (the appellant’s) letter lost by the Department falls within point (iii) of the GB reported Commissioner’s decision R(I)2/06 and as a consequence the decision of the Tribunal dated 16.10.13 is in error of law.’

 

53.   Mr Smith added that he was satisfied that the appeal tribunal had properly applied the principles in the case of C6/08-09 (IB) on the requirement to identify the source of a duty to disclose and the requirement to identify an entitlement decision.

 

54.   In written observations in reply to those from Mr Smith, the appellant challenged aspects of the submissions which had been made by him on grounds similar to those which had been contained within the original application for leave to appeal.

 

55.   I granted leave to appeal on 1 April 2015.  In granting leave to appeal I gave, as a reason, that the issues raised in the application for leave to appeal were arguable.  I directed an oral hearing of the appeal.  At the oral hearing the appellant was not present but was represented by her father.  The Department was represented by Mr Smith.

 

56.   In Case Summaries prepared for the oral hearing of the appeal and during the course of the oral hearing itself, the appellant’s father and Mr Smith augmented the written submissions which had been made.  Mr Smith provided a copy of an e-mail ‘trail’ which related to enquiries which he had made concerning the relationship between the Department and the courier service.  I am grateful to both representatives for their very effective contributions on what are difficult and problematic issues.

 

57.   There has been a lengthy delay in the promulgation of this decision for which apologies are extended to the parties to the proceedings.

 

         Analysis

 

58.   It is axiomatic that the appellant was not entitled to IS for the periods from 3 June 2008 to 17 March 2010 and from 18 March 2010.  The Department made a decision to that effect – an ‘entitlement’ decision – and the appellant did not seek to challenge the validity of that decision.

 

59.   It is equally self-evident that there has been an overpayment of IS for the relevant periods.  The Department, for whatever reasons, only seeks to recover the overpayment of IS for the periods from 18 March 2010 to 30 September 2010.

 

60.   There can be no argument that there has been an overpayment of IS for the period from 18 March 2010 to 28 March 2010 which is recoverable from the appellant.  The appellant does not challenge recovery of the overpayment of IS for that period.  The appellant does challenge recovery of the overpayment of IS for the period from 28 March 2010 to 30 September 2010.

 

61.   The legal basis for the Department’s decision to seek recovery of the overpayment of IS for the complete period from 18 March 2010 to 30 September 2010 is that the appellant had failed to disclose the material fact that she was in remunerative work.

 

62.   In overpayment cases based on the test for failure to disclose a material fact one of the issues is usually the source, in evidential terms, of the duty to disclose.  No such issue arises in this appeal.  In paragraph 17 of the statement of reasons for its decision, the appeal tribunal had found that:

 

‘The appellant had received clear and unambiguous instructions in the INF4(s) as to what to do if she commenced work.  A clear obligation arises to notify changes as instructed by the Department.’

 

63.   Those conclusions reflect earlier findings made by the appeal tribunal in paragraph 12 of the statement of reasons.  The appellant has not sought to challenge any finding by the appeal tribunal on the evidential source of the duty to disclose.

 

64.   During the course of the proceedings before me, the issues had narrowed to questions about:

 

(i)       the legal basis for a ‘continuing’ duty to disclose;

 

(ii)      modification of Departmental instructions to a claimant such as the appellant; and

 

(iii)    the effect of such a modification on the duty to disclose.

 

65.   Within the context of the instant appeal, those discrete questions raise additional issues, primarily evidential issues, about how the relevant principles were or ought to have been applied.  The application of the relevant principles is addressed below.

 

66.   I start with the principle of a ‘continuing’ duty to disclose.  In R(A)2/06, Commissioner Rowland, review stated the following, at paragraph 9 of his decision:

 

‘In the light of the decision of the Court of Appeal in B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, [2005] 1 WLR 3796 (now also reported as R(IS) 9/06), it is now clear that there is a failure to disclose a material fact where there is a breach of any of the duties to give information or notify changes imposed by regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).’

 

67.   That reasoning is irrefutable.  I applied the reasoning of the Court of Appeal in England and Wales in the Northern Ireland context in paragraphs 40 to 42 of my decision in C6/08-09(IB).

 

68.   Commissioner Rowland went on to discuss the “manner” in which information is provided.  He stated the following, in paragraph 12:

 

‘Before then, it is necessary to note that regulation 32(1) and (1A) enables the Secretary of State to specify the “manner” in which information is provided, which will include specification of the person or place to which the information should be sent, and that regulation 32(1B) requires disclosure to be made to the “appropriate office” but that, so far as is relevant in this case, regulation 2(1) simply defines “appropriate office” as “an office of the Department for Work and Pensions” so that the paragraph itself gives no indication as to which of the Department’s offices any disclosure must be made.  However, it is apparent from Secretary of State for Work and Pensions v Hinchy [2005] UKHL 16, [2005] 1 WLR 967 (also reported as R(IS) 7/05), that disclosure must ordinarily be made to the office administering the benefit concerned.  The claimant’s daughter does not dispute that as a general proposition and accepts that, ordinarily, disclosure in relation to payment of attendance allowance should be made to the Disability Benefits Unit which is, of course, what the tribunal said should have been done in the present case.’

 

69.   Once again that reasoning is unassailable.  The phrase to be extracted is that ‘…disclosure must ordinarily be made to the office administering the benefit concerned.’

 

70.   In Secretary of State for Work and Pensions v Hinchy ([2005] UKHL 16, [2005] 1 WLR 967 (also reported as R(IS) 7/05)), Lord Hoffman had stated the following, at paragraph 32:

 

‘The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the Department.  In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another.  Her duty is to comply with what the Tribunal called the “simple instruction” in the order book …  For my part, I would approve the principles stated by the Commissioners in R(SB) 15/87 and CG/4494/1999.  The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decision-maker.  The latter is not deemed to know anything which he did not actually know.’

 

71.   In paragraph 49, Baroness Hale stated the following:

 

‘… there is nothing intrinsically wrong in relying on the claimant to give the Secretary of State the information he requires to make his decisions, provided that this is information which the claimant has and that the Secretary of State has made his requirements plain.’

 

72.   R(SB)15/87 was a decision of a Tribunal of Commissioners in Great Britain.  At paragraphs 26 to 28, the Tribunal stated the following, in connection with the general duty to disclose:

 

‘To whom is there this obligation to disclose? We are concerned here with breaches of the obligation which have the consequence that expenditure is incurred by the Secretary of State; and, in our view, the obligation is to disclose to a member or members of the staff of an office of the Department handling the transaction giving rise to the expenditure.  We consider hereafter the way in which this obligation can be fulfilled.  Miss Kearns conceded, rightly in our view, that once disclosure had been made to a particular person there can be no question of his being under any obligation to repeat that disclosure to the same person; and for reasons to which we shall come we consider that there is nothing in paragraph 18 of Decision R(SB) 54/83 relied on by the appeal tribunal in this case, inconsistent with Miss Kearns’ concession.

 

How is this obligation fulfilled?  Mr. Powell, by way of qualification of his wider submission already described, submitted that disclosure by any person to any member of the staff of the Department would suffice if either the disclosure contained some reference (however oblique) to the fact that the claimant was claiming supplementary benefit or was made in any part of the “integrated office” in which the claimant was claiming supplementary benefit.  We are not able to accept even this narrower formulation.  In truth the problem is twofold, there being a question to whom and a question by whom the necessary disclosure needs to be made.  We will take these two matters separately.

 

We accept that a claimant cannot be expected to identify the precise person or persons who have the handling of his claim.  His duty is best fulfilled by disclosure to the local office where his claim is being handled either in the claim form or otherwise in terms that make sufficient reference to his claim to enable the matter disclosed to be referred to the proper person.  If he does this, it is difficult, having regard to our acceptance of Miss Kearns’ concession, to visualise any circumstances in which a further duty to disclose the same matter can arise.’

 

73.   In addition to their comments on the general duty to disclose, the Tribunal went on to say, in paragraph 28:

 

‘But, as was pointed out in R(SB)54/83, there can be other occasions when the duty can be fulfilled by disclosure elsewhere.  This can happen, for instance, if an officer in another office of the Department of Health and Social Security or local unemployment benefit office accepts information in circumstances which make it reasonable for the claimant to think the matters disclosed will be passed onto the local office in question.  It was in reference to this sort of case that the Commissioner included in paragraph 18 of Decision R(SB)54/83 his statement about a continuing duty.  A claimant who has made such disclosure has not in fact made disclosure to the right person or in the right place, but he has done something which has the effect that, for the time being at least, further disclosure is not reasonably to be expected of him.  We consider that paragraph 18 of R(SB)54/83 is concerned with the case of a claimant who subsequently becomes aware, or should have become aware, that the information has not been transmitted to the proper person or place and who is then under a duty to make disclosure to that person or place.’

 

74.   What is being referenced here is the principle of a ‘continuing’ duty to disclose.  It is vital, however, to place that principle in the proper context of its development.  What the Tribunal of Commissioners was saying in R(SB)15/87 was that if disclosure of information is accepted by an officer of the Department, not being the officer or the office to which such disclosure should primarily be made, but in circumstances which makes it reasonable for the claimant to believe that the disclosed information will be passed on to the office to which it ought to have been disclosed, then disclosure is, initially, effective.  Further the claimant is entitled to believe, for an initial period of time (described in R(SB)15/87 as ‘the time being at least’) that further disclosure is not reasonably to be expected.

 

75.   That is not the end of the matter, however, for such a claimant.  Where such a claimant becomes aware, or ought to have become aware, that the information which he reasonably believed would have been passed on, was not passed on to the proper person or office, then at the moment of that awareness, or deemed awareness, that claimant is under a duty to make disclosure to the correct person or office.  That is the context of the continuing duty to disclose.  

 

76.   In CIS/3529/2008 ([2009] UKUT 52 (AAC)), the facts were that an overpayment had been raised against the appellant on the basis that she had failed to disclose the material fact that she had ceased to be entitled to child benefit.  On appeal, the appeal tribunal accepted the appellant’s evidence that she had telephoned the Department to inform the Department that ‘… her benefit would need to be changed because her son was no longer with her.’  Nonetheless, the appeal tribunal concluded that the overpayment was still recoverable because the appellant:

 

‘… did not discharge her continuing duty to notify a material change in circumstances, but that there was initial disclosure.’

 

77.   Upper Tribunal Judge Wikeley stated the following, at paragraphs 18 and 19 of his decision:

 

‘However, as I indicated when granting permission to appeal, the appellant’s case is in fact much stronger than that.  The continuing duty to disclose only applies where disclosure is made by a claimant to a different office other than the one dealing with her benefit and in circumstances where it is reasonable to expect that the information disclosed will be passed on to the correct person in the right office: see the Tribunal of Commissioners’ decision R(SB) 15/87 at paragraphs 26-29.

 

It follows that the continuing duty to disclose does not apply where the disclosure was to the correct office in the first place.  The tribunal’s acceptance of the presenting officer’s assertion that there was a continuing duty to disclose represents an error of law which means its decision must be set aside.’

 

         The emphasis in these paragraphs is my own.

 

78.   I turn to the question of modification.  Returning to R(A)2/06, the facts in that case were that the claimant entered a care home and initially paid her own fees.  Following a change in legislation the local authority started paying part of the fees with the effect that attendance allowance was no longer payable to the claimant.  Before that change in circumstances the claimant’s appointee was visited by an officer of the Pensions Service who advised her that alterations to the claimant’s benefits would take place when the local authority started paying the fees, without the need for any further action from her.  The appointee did not inform the Disability Benefits Unit of the change of circumstances and an overpayment of attendance allowance resulted.

 

79.   The Commissioner was faced with an argument that the ordinary duty to disclose had been modified by something said to the claimant’s appointee by an officer of the Department.  This is what has been referred to since as the principle of ‘modification’.  He set out the legal basis for the principle in paragraph 13, as follows:

 

‘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.’

 

80.   Once again, the principle to be extracted from this reasoning is that ‘… there is no reason why an officer acting on behalf of the Secretary of State may not modify written instructions.’

 

81.   What is the effect, however, of a modification by an officer of the Department, of written instructions, on the general duty to disclose?  In R(A)2/06 Commissioner Rowland stated the following in paragraph 13:

 

‘… 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.’

 

82.   On the facts of the case before him, the Commissioner found that there had been no such modification. 

 

83.   Thus the continuing duty to disclose can arise in two different ways.  The first is where the claimant has made initial disclosure to a different office other than the one dealing with his or her benefit and in circumstances where it is reasonable to expect that the information disclosed will be passed on to the correct person in the right office but who subsequently becomes aware, or should have become aware, that the information has not been transmitted to the proper person or place.  The claimant is then under a duty to make disclosure to the proper person or place.  The second is where the duty to disclose information or a change of circumstances to the office administering the benefit concerned is modified by an oral representation by an officer of the Department.  The extent to which a further or continuing duty to disclose will arise will depend on the nature of the modification.  A further duty to disclose will arise, however, if the claimant understood that information disclosed to the officer making the representation would be passed on to the relevant office and it subsequently becomes apparent, because an anticipated reduction in his or her entitlement to benefit has not occurred, that the information has not been passed on.

 

84.   In WW v HMRC (CHB) ([2011] UKUT 11 (AAC), Upper Tribunal Judge Ward found that the appellant’s duty to disclose had been modified by an officer of the Department for Work and Pensions (DWP), rather than by an officer of HMRC, but that the DWP officer had ostensible authority to make such a representation.  The representation was that information which should have been disclosed to HMRC, and which would have affected the claimant’s entitlement to benefit, would be passed to HMRC.  Nonetheless, the claimant was under a continuing duty to disclose when it became clear, some three months later, that the initial disclosure had not been effective.

 

85.   Returning to CIS/3529/2008, an argument had been made that the Department’s standard written instructions to claimants on Form INF4, which are to report changes by telephone, in writing or in person, had been modified by an oral instruction to report changes in writing when the computer system was down.  Upper Tribunal Judge Wikeley concluded that this argument was bound to fail because:

 

‘… any instruction to confirm the instruction in writing could not alter the fact that there had already been an effective disclosure by telephone.’

 

86.   How do these principles apply in the instant case?

 

87.   I return to the statement of reasons for the appeal tribunal’s decision.  As was noted above, the appeal tribunal accepted, on the balance of probabilities, that the appellant’s father had put a letter from the appellant in his ‘out tray’ in James House on 29 March 2010.  The appeal tribunal concluded that such a finding was supported by the fact that a second letter sent to CA branch on the same date and by the same method had been received by CA.  The appeal tribunal also accepted that the letter was addressed to Lurgan Jobs and Benefits Office and advised that the appellant had started work on 18 March 2010.

 

88.   The appeal tribunal noted that following the initial adjournment of the appeal, the appellant had introduced a ‘new’ argument concerning modification.  The appeal tribunal made reference to what was then paragraph 9245 of the DMG, concluding that the paragraph was ‘reasonable’.  The appeal tribunal went on to interpret the relevant paragraph in the context of an officer acting on behalf of the Department.  It then concluded that it was not necessary to analyse the principles in depth because it did not accept the appellant’s contention that there was any discussion about whether further disclosure was required, rejecting the evidence in that regard as being unreliable.  Without being wholly specific, what the appeal tribunal appears to have concluded was that there was no requirement to analyse the applicability of the principle of modification of instruction because it did not accept as reliable the evidence that the appellant had been told that no further disclosure was required following the forwarding of the two letters.

 

89.   The appeal tribunal, having accepted that the appellant’s father did put the letter into the out tray in his office, then asked the question whether this constituted disclosure such that appellant did not have to do anything further.  Although once again not specifically stated, this was likely to have been on the basis that it did not accept that she had been told by her father that she need not do anything else and that no further disclosure was required.  It concluded that the placing of a letter in either a Royal Mail post box or in an out tray in a Departmental office, not being the office to which disclosure should primarily have been made, was not full and final disclosure such that no further disclosure was required.  It was in this context that it raised the question of whether the appellant was under a duty to check whether the initial disclosure had been effective, concluding that after a reasonable period – set by the appeal tribunal at just over one month – she should have realised that the initial disclosure had not been effective.  In short, and although nowhere specifically stated, the appeal tribunal was applying the principles relating to a ‘continuing’ duty to disclose.

 

90.   As was noted above, the continuing duty to disclose can arise in two different ways.  The first of these is when a claimant discloses information to a different office other than the one dealing with her benefit and in circumstances where it is reasonable to expect that the information disclosed will be passed on to the correct person in the right office.  That cannot be the case in the instant case.  It is not the appellant’s case that she did not disclose to a different office to the one which was dealing with her benefit.  It is her case that the letter which she wrote was addressed to the office which was dealing with her benefit that is Lurgan Jobs and Benefits Office.

 

91.   What is missing from the appeal tribunal’s analysis is an assessment of the evidence and fact-finding on the specific issue of whether the letter which had been sent to Lurgan Jobs and Benefits office was received in that office.  If it had been received and was not actioned then relevant jurisprudence, as set out above, would confirm that disclosure has been made to the office administering the benefit concerned and no further disclosure is required.  As was noted in R(SB)15/87, and confirmed in CIS/3529/2008, ‘… it is difficult … to visualise any circumstances in which a further duty to disclose the same matter can arise.’

 

92.   In paragraph 8 of the statement of reasons, the appeal tribunal noted:

 

‘The tribunal hearing, 11.03.2013, was adjourned for, inter alia, clarification as to procedure in relation to post/correspondence in both James House and Lurgan Jobs and Benefits Office.  Mrs Courtney prepared a helpful addendum, 22.07.13, in response.  There is no dispute in relation to procedure in the various offices and tribunal adopts this part of the addendum dealing with the procedure in both offices as fact.’

 

93.   In paragraph 15, the appeal tribunal noted:

 

‘The oral evidence and addendum clearly indicate the possibility of post going astray between James House and Lurgan Jobs and Benefits Office.  The Tribunal accepts that Mrs Courtney made a thorough search and there was no record of Appellant’s letter having been received at Lurgan Jobs and Benefits Office.  There was nothing more that Mrs Courtney could have done other than what she did by searching and checking thoroughly the procedure in place at Lurgan Jobs and Benefits Office.  She could find no trace of Appellant’s letter dated 29.03.2010.’

 

94.   The appeal tribunal is correct to note that the addendum which was received following the initial adjourned hearing was helpful.  Following receipt of the addendum, the appellant, through correspondence dated 26 April 2013, and most likely based on her father’s experience, made detailed additional submissions on the issues raised as a result of the adjourned hearing.  More specifically, the appellant made submissions on the possibility of the relevant correspondence having been received in the Lurgan office but not having been actioned.  Further the appellant made submissions on the relationship between the Department and the Courier Service, whether the latter is an agent of the former and, if so, whether the Department effectively misplaced the letter if it went missing in the Courier Service.

 

95.   While the appeal tribunal has noted the contents of the addendum, it has not, at any stage, addressed the specific submissions which were made by the appellant, through the correspondence dated 26 April 2013.  Those submissions were not fanciful but were, most likely, based on the exhaustive experience of the appellant’s father of the internal workings of the Department and its various offices.  As was noted above, Mr Smith, in his oral and written submissions, has accepted that the appeal tribunal was in error of law, in not addressing the issue of whether the Courier Service was an agent of the Department.  At the oral hearing of the appeal before me, he adduced additional evidence on this issue which, he conceded, would have been useful for the appeal tribunal, had it considered the matter.

 

96.   It is arguable that the question of whether the Courier Service was an agent of the Department, while relevant, goes more to causation than the issue of a failure to disclose.  Nonetheless, I am not satisfied that the appeal tribunal has made a specific finding on whether the relevant correspondence was ever received in the Lurgan office.  In paragraph 15 of its statement of reasons, noted above, the appeal tribunal has made findings about the actions of the Departmental Officer in conducting a search of the office and checking procedure but those are not discrete findings on receipt.  In paragraph 17 of the statement of reasons there is a hint at specific fact-finding on this important question with statements that disclosure by way of correspondence was foreseeable but that the obligation specified in form INF4 to ‘tell us’ could not be satisfied if correspondence was not received.  More specifically, I am also not satisfied that the appeal tribunal has addressed questions raised by the appellant and which were relevant to the issues arising in the appeal, namely, whether the role of the Courier Service and its relationship with the Department.

 

97.   For these reasons, I am of the view that the decision of the appeal tribunal was in error of law and, accordingly, I set the decision aside.

 

98.   The second manner in which the continuing duty to disclose had the potential to apply was an acceptance that there had been a modification of the instruction to disclose by the appellant’s father, acting as an officer of the Department, the extent of that modification and whether a further duty to disclose has arisen.  It was the appellant’s case that there had been such a modification and the extent of it was that following the forwarding of the correspondence the appellant need do nothing more i.e. no further disclosure was required.

 

99.   The appeal tribunal discussed this principle in the context of a paragraph in the DMG.  The DMG is an important publication and gives useful guidance to decision-makers and other adjudicating authorities on the substantive and procedural rules relating to social security law and the interpretation of those rules by the appellate authorities.  Nonetheless, it is no more than what its title describes, a guide.  The law on social security is to be found in the legislative provisions setting out the substantive rules of entitlement and other specific subjects, such as in the instant case, the rules on the raising of overpayments of social security benefits and their recovery.  The law is also to be found in the meaning given to those legislative provisions by the appellate authorities including the Social Security Commissioners, the Upper Tribunal and the appellate courts.  The jurisprudence on the principles of the duty to disclose, the continuing duty to disclose, the modification of the disclosure obligation, and the effects of such a modification, are summarised above.  With respect to the helpfulness of the DMG, the legislative provisions and the interpretative jurisprudence are the sources to be utilised by decision-makers and appeal tribunals.

 

100. In the statement of reasons for its decision, the appeal tribunal has noted that despite ‘… all of the case law presented to the tribunal none is on all fours with the current case.’  There is no doubt that the factual circumstances of this case are idiosyncratic.  Nonetheless, the review of the jurisprudence set out above demonstrates that there is guidance to be derived from the relevant cases.  The lesson to be derived from paragraph 13 of R(A)2/06 is that it is essential that there is a rigorous assessment of the available evidence and that careful findings of fact are made about the representations which are made and, just as significantly, the extent of the modification which results.  The extent of the modification may be that the claimant need do nothing further or that information provided would be passed on to the relevant office.

 

101. In the instant case, the appeal tribunal, without being specific as such, appears to be accepting that the appellant’s father had the capacity, at least, to act as an officer of the Department in giving advice to his daughter and, accordingly, was also capable of modifying the disclosure instructions which she had been given.  The appeal tribunal has made specific findings that there had been no discussion that further disclosure was not required but fell short of undertaking, as exhorted in R(A)2/06, a full factual analysis of the representations made by the appellant’s father and the extent of any resultant modification of instruction.  Although this conclusion is not central to my own decision it is set out to provide an example of the requirement for rigorous evidential assessment and careful fact-finding.

 

         Disposal

 

102. The decision of the appeal tribunal dated 16 October 2013 is in error of law.  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.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

103. The Department is to prepare a further submission for the further appeal tribunal hearing.  That submission should draw on the analysis set out above.  A Departmental Presenting Officer should attend the further hearing of the appeal.  The appellant and her father will then have an opportunity to respond by making written and/or oral submissions of their own.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

29 June 2016