Northern Ireland - Social Security and Child Support Commissioners' Decisions

DJC-v-Department for Communities (IB) [2017] NICom 20

 

Decision No:  C1/15-16(IB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INCAPACITY BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 26 November 2015

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s appeal from the decision of an appeal tribunal.

 

2.     An oral hearing of the appeal has been requested.  However, I consider that the appeal can properly be determined without a hearing.

 

3.     For the reasons I give below, I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal.

 

         REASONS

 

         Background

 

4.     The appellant claimed incapacity benefit (IB) from the Department for Social Development (the Department) from 15 April 2003.  On 18 October 2013, in the course of an assessment as to whether his existing claim was to be converted into a claim for employment and support allowance (ESA) under the regulations implementing the Welfare Reform Act (Northern Ireland) 2007, the appellant disclosed that he was receiving an occupational pension.  On 28 October 2013, the Department decided that the appellant’s IB should be reduced from and including 23 May 2004.  He did not appeal.  Subsequently, on 9 November 2013, the Department decided that the appellant had been overpaid IB amounting to £36,612.41 between 23 May 2004 and 17 October 2013 and that this was recoverable from him.  He appealed but the appeal was late.  Although the appeal was out of time, the Department admitted late appeals against the entitlement and the overpayment decisions.

 

5.     The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone on 26 November 2015.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 8 February 2016.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was granted by the LQM in a determination issued on 3 March 2016.  The LQM refers to the full text of the application when granting leave.  He does not specify which grounds out of the multiple grounds advanced by the appellant have been accepted by him as demonstrating an arguable case that the tribunal has erred in law.  On 23 March 2016, the appellant submitted his appeal to the Social Security Commissioner.

 

         Grounds

 

6.     The appellant submits that the tribunal has erred in law on the basis that:

 

                  i) it made perverse or irrational findings on matters that were material to the outcome – relying on the proposition that disclosure of his occupational pension to the Legal Services Commission in the course of legal aid applications amounted to disclosure to the Department;

 

                  ii) it failed to give adequate reasons for its findings – challenging the tribunal’s approach to the weight it placed on the annual notification of his obligation to notify the Department of changes in his pension amount and further basing this ground on the tribunal’s treatment of his submission that the NICS Pension Schemes would be scrutinised and audited across Departmental systems;

 

                  iii) it failed to take into account and/or resolve conflicts of fact or opinion on material matters – basing this ground on the expiry of an abatement rule prior to his entry to “the scheme”;

 

                  iv) it gave weight to immaterial matters – referring to the tribunal’s finding that the onus of notifying the Department of an occupational pension falls on the claimant;

 

                  v) it made a misdirection as to a material matter – referring to the tribunal’s finding that there were no references to an occupational pension in any medical forms or documents received by the Department;

 

                  vi) it committed or permitted a procedural irregularity capable of making a material difference to the outcome of the proceedings – namely that the tribunal asked for an audit trail check on access to the appellant’s data and unquestioningly accepted that it could not be done when told this by the Department;

 

                  vii) the LQM had shared information with him about his own similar medical condition and said that it hadn’t prevented him from working; the LQM had not read the papers correctly as he misunderstood that the appellant was no longer receiving benefits;

 

                  viii) he was doubly penalised by overpayment recovery as he had been taxed on the amount of any occupational pension and the loss to the public purse was not £36,000;

 

                  ix) he had received demands for payment when the appeal was ongoing;

 

                  x) his testimony had been found to be honest by the High Court.

 

7.     The Department was invited to make observations on the appellant’s grounds.  Mr McGrath of Decision Making Services (DMS) responded on behalf of the Department.  He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the appeal.

 

         The tribunal’s decision

 

8.      The tribunal held an oral hearing of the appeal, attended by the appellant, and considered documentary evidence.  The appellant told the tribunal that he had notified the Department that he was receiving an occupational pension.  He had also notified the Inland Revenue and Northern Ireland Housing Executive.  The appellant said that he spoke to a female officer of the Department who told him that his occupational pension did not matter due to abatement rules.  He accepted that he received leaflets from the Department advising him to notify changes.  He submitted that the staff of the Department ought to have been aware of his pension as they were potential civil service pensioners themselves. He submitted that there had been no loss to the public due to payments made elsewhere (i.e. through tax, reduction of grants, etc.).

 

9.     The tribunal found that the appellant had an obligation to disclose any weekly pension income over £85.  It found that disclosure had been made on 18 October 2013 for the first time.  It found that an overpayment of IB amounting to £36,612.41 had been made from 23 May 2004 to 17 October 2013.  It did not accept the appellant’s evidence that in and around 2004 he spoke at length to a female member of staff of the Department who told him that his pension would be disregarded due to abatement rules.  The tribunal did not accept that civil servants dealing with the appellant’s claim should have been aware of his occupational pension due to their own entitlement and found that the onus did not shift from him to notify the Department of the occupational pension.  The tribunal found that the appellant acknowledged receipt of information leaflets and that he did not inform the Department of changes to his pension income as a result of these.  The tribunal found that the appellant notified the Department that he had been medically retired, but that this did not amount to notification of his occupational pension entitlement.  Accordingly, it held that the overpaid sum of £36,612.41 was recoverable from him.

 

         Relevant law

 

10.   The legislation governing recoverability of overpaid benefit appears principally at section 69(1) of the Social Security Administration (NI) Act 1992, which provides:

 

      69.—(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—

 

      (a) a payment has been made in respect of a benefit to which this section applies; or

 

      (b) any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

 

         the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

      …

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

 

11.   It is established law that the requirement to give information to the Department arises from regulation 32 of the Social Security Claims and Payments Regulations (NI) 1987, which provides:

 

                  32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner as the Department may determine and within the period applicable under regulation 17(4) of the Decisions and Appeals Regulations such information or evidence as it may require for determining whether a decision on the award of benefit should be revised under Article 10 of the 1998 Order or superseded under Article 11 of that Order.

 

      (1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require in connection with payment of the benefit claimed or awarded.

 

      (1B) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall notify the Department of any change of circumstances which he might reasonably be expected to know might affect—

 

(a) the continuance of entitlement to benefit; or

 

(b) the payment of the benefit, as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office—

 

(i) in writing or by telephone (unless the Department determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

 

(ii) in writing if in any class of case it requires written notice (unless it determines in any particular case to accept notice given otherwise than in writing).

 

         Assessment

 

12.   The appeal was concerned with the distinct issues of entitlement and overpayment.  The grounds raised by the appellant relate entirely to the issue of overpayment recoverability.  However, it appears to me that an important issue of principle arises in the present case in relation to the question of entitlement.

 

13.    The tribunal was concerned with both entitlement and overpayment, and it is a requirement of the relevant legislation at section 69(5A) that the determination in pursuance of which benefit was paid has been reversed or varied on an appeal or has been revised or superseded.  The tribunal was therefore required to address the issue of the appellant’s entitlement to IB before considering the question of overpayment recoverability. Clearly there can be no recoverability where the appellant remains entitled to the benefit in issue.

 

14    In this case, the appellant was awarded IB at the full rate from 15 April 2003.  He continued to be paid IB at that rate until 17 October 2013.  In the course of a telephone call on 18 October 2013 the applicant told the Department that he was in receipt of an occupational pension.  The Department of Finance and Personnel confirmed that the payment of the pension had commenced on 28 May 2004 and gave details of payments made to the applicant in April and May of each year from 2005 to 2013. This information was made available to the tribunal at Tab 6 in the Department’s submission.

 

15.   The tribunal was also given a copy of the Department’s decisions in relation to entitlement and overpayment at Tabs 7 and 7A in the Department’s submission.  These included tables setting out six columns, the first five headed “Weekly pension income”, “Pension income threshold”, “Weekly amount of pension income we take into account”, “Weekly rate of incapacity benefit before adjustment” and “Weekly rate of incapacity benefit after adjustment”.  Each column consisted of a series of monetary figures.  The sixth column was headed “From” and contained a series of dates.

 

16.   Certain aspects of the evidence concerned me, and I directed replies from the Department to a series of questions. Inter alia, I asked:

 

            a) What evidence was relied on by the Department for the decision that the appellant received occupational pension payments for the months of June to March of each calendar year from 2004 to 2013?

 

                  b) What evidence was relied on for determining the rate of such payments for the months of June to March of each calendar year from 2004 to 2013?

 

                  c) Was the evidence of receipt of occupational pension payments and the rate of payment for the months of June to March of each calendar year from 2004 to 2013 placed before the tribunal?

 

17.   Mr McGrath responded on behalf of the Department. He indicated that the applicant received his occupational pension from the Civil Service. He indicated that the Department had requested figures from the Department of Finance and Personnel, which were included in the appeal papers at Tab 6.  He indicated that the applicant had a pension start date of 22 May 2004 and that the first payment was for the period 22 May 2004 to 31 May 2004.  He says that the next pension payment was made on 30 June 2004 and covered the full month June 2004.  He then says that the amount that the appellant received for June 2004 “would have been the monthly level of his occupational pension for the rest of the proceeding months until April 05”.

 

18.   He then explains that the next entry in Tab 6 is for April 2005 and that this monthly payment for April would have included approximately one week at the previous 2004 rate and 3 weeks at the new 2005 rate, “as the occupational pension would have been uprated (increased), as it is every year in the first week of this month”.  He explains that the following entry refers to payment of the occupational pension made in May 2005 and that this would have been the first payment for a complete month that the appellant had received since his pension had been uprated in April 2005.  He then indicates that the following figures in the series are all for April and May of the proceeding years 2006-2013.

 

19.   Mr McGrath says that it would have been more useful and appropriate had entries been made for each month, but it would appear that the decision maker and tribunal accepted that the appellant had received the amount for occupational pension as stated for May in each of the following months until uprating occurred again in the following year.

 

20.   As a matter of formal proof, it is not established by the methodology set out by Mr McGrath that the appellant received the amount of occupational pension assessed by the Department.  All that is established is that he received payments in April and May from 2004 to 2013 at particular rates.  Mr McGrath asserts that the rate evidenced in the month of June of each year was then payable for the rest of the year. However likely this may be, it is not established by evidence, but a certain knowledge of the working of the Civil Service pension scheme is assumed.  There is an irony in this, since the appellant’s case against the recoverability of any overpayment is largely based on the premise that the Department would or should have been aware of his pension arrangements.

 

21.   The issue in the appeal is an important one, involving the potential liability of the appellant to repay a five figure sum to the Department.  The tribunal is an independent body, and to whatever extent the Department as first instance decision maker is prepared to base decisions on factors which are not covered by evidence but rather assumption, the tribunal cannot be relied upon to do the same. 

 

22.   It does not appear to me that the evidence at Tab 6 can be relied upon as a formal proof that the appellant received occupational payments in the months of June-March of each year from 2004 to 2013.  No presenting officer attended in order to make the submission now advanced by Mr McGrath.  To the extent that the tribunal has accepted Tab 6 as evidence relating to the whole period of the overpayment, I must conclude that it has made an irrational decision.

 

23.   I further asked Mr McGrath what evidence of calculation of the overpayment of £36,612.41 and of the method employed by the Department in calculating the overall figure of £36,612.41 was placed before the tribunal.  I asked whether there was sufficient evidence before the tribunal to have permitted it to independently assess the correctness of the Department’s calculation.

 

24.   Mr McGrath submitted that a schedule detailing how the overpayment was calculated was available, but was not placed before the tribunal.  He submitted that the appellant was similarly not provided with a schedule when the notification of overpayment was issued to him, although he was informed that he could contact the branch for further information if he wished.  He pointed to the columns of figures provided as part of the decisions at Tabs 7 and 7A.  He submitted that the tribunal could have calculated the number of weeks when the appellant was paid particular rates of IB from the dates given and that it was possible for the tribunal to calculate the overpayment.

 

25.   While saying “So although it would have been a laborious task as well as unacceptable to have the tribunal calculate the duration of each period involved, in the extreme it would have been possible for the tribunal to confirm the Department’s overpayment calculation”.  He accepts that the information regarding the calculation of the amount overpaid should have been placed before the tribunal and a similar schedule issued to the appellant with his overpayment notification, and accepts that this was not done.

 

26.   It is clearly incumbent on the Department to set out the necessary evidence and to present a clear and comprehensible submission of how a figure for any alleged overpayment was arrived at.  The Department accepts that it did not happen in the present case. I accept Mr McGrath’s submission that the raw data arguably appeared in the Department’s submission to the tribunal and that this might have enabled it to independently assess the amount of any alleged overpayment, however laborious an exercise.

 

27.   The appellant has focussed his submissions in the appeal on the question of whether or not he failed to disclose the material fact that he was receiving an occupational pension.  He does not formally dispute the amount of the overpayment on the face of the record of proceedings. However, I consider that that does not exonerate a tribunal from independently assessing that the amount alleged to be overpaid is accurate.  Where the Department’s submission sets out the evidence obtained and the calculation conducted in the case, it is a straightforward matter to briefly check the Department’s calculations.  Otherwise the tribunal is doing nothing more than rubber stamping the Department’s determination. 

 

28.   In the present case, the tribunal finds that the appellant has been overpaid the sum of £36,612.41.  However, it lacked the formal evidence of payments of occupational pension for June-March in each of the years from 2004 to 2013.  It further lacked a submission by the Department explaining its own calculation of that figure.  If a tribunal lacks such an explanation by the Department, in order to enable it verify the figure arrived at for the overpayment it would have to work out the figure independently.  The reasons for the decision by the tribunal give no indication that it considered there to be a problem in calculating the figure of £36,612.41, or that it verified the figure by its own calculation.  As indicated by Mr McGrath, the exercise of calculating the overpayment independently would have been quite laborious and I would have expected the tribunal to have referred to this process or, more simply, to have directed the Department to provide it with a submission presenting its own working out of the calculation, when it observed that it was not provided by the existing submission.

 

29.   The tribunal neither indicated that it had calculated the overpayment figure independently nor that it had considered directing the Department to explain its calculation of the figure. In the absence of an explanation of the figure by the Department, albeit that the raw data was available to the tribunal, the conclusion I must reach in those circumstances is that the tribunal uncritically accepted the Department’s figure without independent calculation or checking.  It seems to me that an appellant is entitled to expect the tribunal to arrive at its own decision on such a key question and that uncritically accepting the Department’s overpayment figure would amount to an error of law.

 

30.   I do not proceed to consider the appellant’s submissions on the recoverability question.  Rather I set aside the tribunal’s decision and I direct that the appeal shall be determined by a newly constituted tribunal. The appellant shall have the opportunity to present his arguments and evidence to a new tribunal.  I direct that the Department shall furnish the new tribunal with evidence which establishes the case it seeks to present in terms of the payment of an occupational pension to the appellant.  I direct that the Department shall furnish the new tribunal with a schedule setting out the basis of its calculation of the overpayment in order that the new tribunal can independently verify the figure to its own satisfaction.

 

 

(signed)

 

O Stockman

 

Commissioner

 

 

 

25 April 2017