Northern Ireland - Social Security and Child Support Commissioners' Decisions

YE -v- Department for Communities (IS) [2017] NICom 54

 

Decision No: C1/17-18(IS)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

NAME OF BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

 

2. For the reasons I give below, I grant leave to appeal. I set aside the decision of the tribunal under Article 15(7) of the Social Security (NI) Order 1998 and I refer the appeal to a newly constituted tribunal for determination.

 

REASONS

 

Background

 

3. The applicant claimed income support (IS) on 21 October 2009 on the basis of incapacity for work, indicating that she had savings of £1,091 in a bank account and other investments of £1,626. She was awarded IS by the Department for Social Development (the Department) from 28 October 2009. The award of IS continued in payment until 24 October 2013.

 

4. The Department obtained evidence that the applicant had undisclosed savings. On 28 April 2015 it superseded the decision awarding the applicant IS and determined that she was not entitled to the full amount of IS which she had been paid from 20 August 2010 to 24 October 2013. The applicant did not appeal that decision. On 15 May 2015 the Department decided that an overpayment amounting to £1,858 had been made to the applicant in respect of the period from 20 August 2010 to 24 October 2013. The Department decided that this was recoverable from her on the basis that she had failed to disclose the material fact that her capital had increased. The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone. After a hearing on 4 November 2015, which the applicant did not attend, the tribunal disallowed the appeal. The applicant requested a statement of reasons for the tribunal's decision and this was issued on 12 January 2016. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 12 February 2016. On 8 March 2016 the applicant applied to a Social Security Commissioner for leave to appeal.

 

6. The Department was renamed the Department for Communities from 8 May 2016.

 

Grounds

 

7. The applicant seeks leave to appeal on the grounds that:

 

(i)     the tribunal did not apply the correct law in her case as she was severely ill with mental health problems;

(ii)   the tribunal did not observe the rules of natural justice;

 

(iii) the tribunal had ignored the medical evidence regarding her mental health.

 

8. The Department was invited to make observations on the applicant's grounds. Mr Smith of Decision Making Services (DMS) responded on behalf of the Department. Mr Smith submitted that the tribunal had erred in law, but not sufficiently to vitiate its decision. He indicated that the Department did not support the application.

 

9. Subsequently, the applicant indicated that Mr Hatton of Law Centre NI had agreed to represent her in the proceedings. He ceased to rely on the first two grounds. However, he submitted that the tribunal had not addressed the question of the applicant's own knowledge of her financial circumstances in the light of her mental health.

 

10. The Department was again invited to make observations on the applicant's submissions. The Department indicated that it now supported the appeal, requesting that the decision of the appeal tribunal should be set aside and that the appeal should be referred back to a newly constituted tribunal for determination.

 

The tribunal's decision

 

11. The tribunal provided a statement of reasons for its decision. From this I can see that the applicant had not attended the tribunal, but had asked it to proceed in her absence. The Department was represented by a presenting officer. The tribunal had documentary evidence before it in the form of the Departmental submission. This contained evidence such as the applicant's bank account statements and the INF4 form which notified the applicant of her duty to disclose certain facts to the Department.

 

12. The tribunal found that the applicant had been awarded IS from 15 October 2009, saying in her claim that she had £2,717 in a bank account. The tribunal found that on 28 August 2010 the applicant had over £6,000 in the bank, which remained the position until 24 October 2013. The tribunal referred to and adopted a table prepared by the Department at Tab 9 of the papers, which indicated the amount of tariff income which fell to be attributed to the applicant on the basis of having capital in excess of £6,000.

 

13. In her letter of appeal, the applicant had denied that she knew that she had over £6,000 in the bank. The tribunal found that the applicant knew, or with reasonable diligence ought to have known, that she had capital of over £6,000 at the material time. It found that she had failed to disclose this fact and that overpaid IS totalling £1,858 was recoverable from her as a result.

 

Legislation

 

14. 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.

 

Assessment

 

15. Some background to the case is set out in a letter from a community psychiatric nurse dated 30 July 2015. This reads:

 

"I can confirm that [the applicant] has a diagnosis of severe and enduring mental illness, and while she was unwell her benefits saved up to quite a large amount.

 

This was a time when she neglected herself, lost a large amount of weight, and was very paranoid and took a long time to engage with services. [The applicant] had several admissions to hospital and Home Treatment. This impacted on her ability to deal with daily activities such as contacting DHSS [sic]".

 

16. It is common case that the applicant was hospitalised on a number of occasions due to deterioration in her mental health. During those periods of hospitalisation and at other times of self-neglect, her weekly benefit payments remained unspent and accumulated. At a certain point the accumulation of income exceeded the capital threshold.

 

17. The crux of this case is the issue of failure to disclose. Mr Hatton on behalf of the applicant submits that the applicant's mental health was such that she had no knowledge of the exact amount of capital in her possession. He submits that she could not fail to disclose something which she did not know.

 

18. The Department initially opposed the application. Relying on B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, Mr Smith submitted that there would still be a failure to disclose where the claimant was unaware of the materiality of a matter or did not understand the request for information in a form such as an INF4.

 

19. However, Mr Hatton did not disagree with this position. Rather, he submitted that it was common case that in B v SSWP the claimant knew the material fact in issue, although she may not have grasped its materiality. By contrast, here she was arguing that she simply did not know the fact. He submitted that the tribunal had not made sufficient findings of fact to determine the issue.

 

20. As indicated above, the tribunal made the finding that the applicant knew, or with reasonable diligence ought to have known, that she had capital of over £6,000 at the material time. Mr Hatton submitted that the tribunal made these findings without reference to the specific ground of appeal that, due to her mental health difficulties, she was not aware of the amount of money in her accounts. He pointed out that the tribunal made no reference to the medical evidence provided by the applicant in support of her assertions.

 

21. Mr Hatton further questioned whether the tribunal was entitled to fix the applicant with constructive knowledge of what was in her accounts. He submitted that it was inherently inconsistent to make findings in the alternative that she knew, or ought to have known, the facts in question.

 

22. Mr Smith resiled from the Department's previous position and accepted the points made by Mr Hatton. He accepted that the tribunal had not expressly referred to the evidence from the applicant's community care nurse and senior consultant which had been submitted in support of the appeal, and had not made findings on the impact of her illness on her ability to handle her finances. He asked that the appeal should be allowed and the case be remitted to a newly constituted tribunal for determination.

 

23. I consider that there is merit in the submissions of Mr Hatton and the concession of Mr Smith. I grant leave to appeal. On the basis that each of the parties now submits that the tribunal has erred in law, I set aside the decision of the appeal tribunal and I refer the matter to a newly constituted tribunal for determination.

 

24. I observe that the Department retains the option to argue that the principle in B v SSWP applies, should the new tribunal decide that, in spite of her illness, the applicant had knowledge of the amount of money in her possession at material times. The applicant should therefore be aware that the fact that the matter has been referred to a new tribunal does not indicate one way or the other whether her appeal may ultimately succeed.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

12 September 2017