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Cite as: [1991] UKSSCSC CIS_49_1990

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[1991] UKSSCSC CIS_49_1990 (05 November 1991)

R(IS) 5/92

Mr. J. G. Mitchell CSIS/49/1990

5.11.91

Recovery of overpayment – calculation of the amount recoverable – whether deduction for an underpayment limited to the period of the overpayment – whether "the claim as presented" includes facts that could have been established by reasonable enquiry prompted by the terms of the claim

The claimant was in receipt of supplementary benefit, and subsequently income support, from 3 July 1985 calculated on the basis that she had no income. Her entitlement to supplementary benefit included an amount in respect of an additional requirement for heating at the lower rate on accommodation grounds. In February 1989 it was established that she had commenced part-time working in July 1987. The adjudication officer subsequently determined that she had been overpaid £433.60 over the period 24 July 1987 to 10 February 1989 and that this sum was recoverable from her because she had failed to disclose her earnings from this employment. On appeal it was argued that the amount recoverable should be reduced by a claimed underpayment of an additional requirement for heating at the higher rate in the claimant's supplementary benefit assessment. The tribunal concluded that the lower rate heating addition already in payment was appropriate from 24 July 1987 and confirmed the adjudication officer's decision. The claimant appealed to the Commissioner.

Held that:

the deduction permissible from an overpayment on account of an underpayment of supplementary benefit is subject to the provisions of regulation 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 (para. 5);

the scope of the deduction is not limited to the period of the overpayment (para. 6);

the expression "the claim as presented" is not to be too narrowly construed. It embraces those factors which could have been established by reasonable enquiry prompted by the terms of the claim. It is a question of degree in each case (para. 8).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal dated 9 January 1990 is not erroneous in law.

This is an appeal by the claimant with leave on a question of law against the above mentioned tribunal decision. That decision upheld the decision of an adjudication officer reviewing and revising the claimant's awards of supplementary benefit and income support in the period from 24 July 1987 to 10 February 1989 and finding an overpayment of benefit amounting to £433.60 to have occurred which was recoverable by the Secretary of State under section 53 of the Social Security Act 1986. The issue in the appeal arose from an attempt on behalf of the claimant to establish before the tribunal that there should be a deduction from the amount of the overpayment in respect of a claimed underpayment of an additional requirement for heating in the claimant's supplementary benefit assessment. The appeal was dealt with at an oral hearing held before me at which the claimant, who did not attend, was represented by Mr. C. Orr, Welfare Rights Officer with Strathclyde Social Work Department and the adjudication officer was represented by Mr. D. Cassidy acting as the Solicitor in Scotland to the Department of Social Security. I am obliged to both representatives for their helpful submissions.

Between 3 July 1985 and 11 April 1988 the claimant was in receipt of supplementary benefit. She was thereafter in receipt of income support. She had ceased work in January 1985 when aged 50 and after receiving unemployment benefit for a period claimed and received supplementary allowance from 3 July 1985. She subsequently obtained a waiver of the requirement of availability for employment as a condition of her entitlement to supplementary benefit upon the basis that she had no realistic further prospects of employment. However it was later ascertained that the claimant had been employed in part-time work in the period from 24 July 1987 to 10 February 1989. As the claimant had not disclosed that employment and her earnings therefrom an adjudication officer reviewed and revised the awards of supplementary benefit and income support and decided that an overpayment of £433.60 had been made and was recoverable from the claimant. The claimant appealed to a social security appeal tribunal.

At the tribunal hearing there was no challenge on behalf of the claimant to the occurrence, or amount, or recoverability, of the overpayment. The point taken on behalf of the claimant for the first time at the tribunal hearing was that there should be a deduction from the amount of the overpayment by reason of a claimed underpayment of supplementary benefit by way of an additional requirement for heating at the higher rate. The claimant had been in receipt of an additional requirement for heating at the lower rate under paragraph 2(a) of Part I to Schedule 4 of the Supplementary Benefit (Requirements) Regulations 1983 from the outset of her award upon the basis that her home was difficult to heat adequately. The tribunal dealt with the claimant's appeal in some detail and with obvious care but came to the conclusion that the claimant could not establish a qualification for a higher rate heating addition and that the lower rate which had been in payment was appropriate.

As the question of a deduction from the overpayment had not been raised prior to the tribunal hearing the tribunal were not referred to the provisions of regulation 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988. It was agreed before me that having regard to regulation 31(3) of those regulations, regulation 13 applied to govern any permissible deductions from the overpayment in the present case in respect of any claimed underpayment of supplementary benefit as though the reference to "income support" in it was a reference to "supplementary benefit". I agree. Regulation 13 contains the following material provisions:

"13. In calculating the amounts recoverable under section 53(1) of the Act . . . where there has been an overpayment of benefit, the adjudicating authority shall deduct -

(a) . . .

(b) any additional amount of income support which was not payable under the original, or any other, determination, but which should have been determined to be payable –

(i) on the basis of the claim as presented to the adjudicating authority, or

(ii) . . .

but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist."

At the hearing before me Mr. Orr on behalf of the claimant pointed out that the tribunal had directed their attention to the question of the claimant's possible entitlement to a higher rate heating addition in the period in which supplementary benefit was overpaid. He submitted, and I accept, that the scope of a possible deduction under regulation 13(b)(i) of the Payments on Account Regulations is not thus limited. Mr. Orr argued that if the reference in the regulation to an amount which should have been determined to be payable "on the basis of the claim as presented" was to be taken in this case as referring back to the claimant's claim for supplementary benefit in July 1985 the claimant had stated on the relative form B1 that she had left her employment in January 1985 for "health reasons". That might, he argued, be sufficient to have prompted enquiry leading to a favourable conclusion on her entitlement to a heating addition on health grounds under paragraph 1 of Schedule 4 to the Requirements Regulations. However he conceded that the same form showed that the claimant had received unemployment benefit after ceasing work, which inferred fitness for employment. In addition it is apparent that on the same form B1 the claimant ticked the "No" box in answer to a question asking if she had any illness or disability that meant extra expense and which instanced a need for extra heating. She also answered "No" to a general question regarding illness or disability. In my judgment therefore there was accordingly no material upon which, even if regulation 13 had been argued before them (which it was not), the tribunal could have held that an amount should have been held payable in this respect on the basis of the claim as presented to the adjudicating authority.

So far as the tribunal's own enquiry went, the tribunal chairman's notes show that the claimant, when asked, said that she was in good general health apart from arthritis in the hands. In addition the tribunal made a finding in fact that the claimant was in good general health. The tribunal had of course before them the admitted fact that the claimant had been able to work in the period of the overpayment. There was reference by the presenting officer to the claimant having sought a higher rate heating addition in January 1986. The Department's notes at that time were said to indicate that the claimant was in good health. That was not challenged as inaccurate at the tribunal hearing. In my judgment therefore the tribunal cannot be held to have erred in discarding any possible qualification for an additional requirement for heating on health grounds (as they have done in the reasons for their decision) and in concentrating their attention upon the claimant's possible qualification for a higher rate heating addition on accommodation grounds.

Mr. Cassidy submitted that since the claimant had only mentioned "dampness" in her claim form in connection with her heating requirements the tribunal had gone beyond the scope of the claim in considering the additional questions of draughts and exposure. Although the question is one of degree in each case I consider that Mr. Cassidy's approach is in this instance unduly narrow. I think it would have been open to the claimant to attempt to show for the purposes of regulation 13 that any reasonable enquiry into the question of the difficulty of heating her home prompted by the claim form reference to dampness would have revealed that the difficulty was in fact exceptional due to other factors acting in combination with dampness. If she could succeed in that, her case could, at least arguably, have been brought within the scope of regulation 13(b)(i). I do not therefore consider that the tribunal were necessarily in error in considering these possible additional factors. But having done so, they were in my view clearly entitled for the reasons fully stated by them, to conclude that the claimant's home was not thereby rendered "exceptionally difficult to heat adequately" for the purposes of paragraph 2(b) of Schedule 4 to the Requirements Regulations.

As already mentioned the tribunal considered the question of entitlement to an additional requirement for heating during the period of overpayment of benefit. It emerged at the tribunal that the claimant had moved house within the same tenement since the date of her original claim. It also emerged that her "new" home had been double glazed shortly before the period of overpayment began but, as the tribunal found, some draughts and dampness had persisted. Although it would have been open to the tribunal to consider the question of the additional requirement for heating prior to the overpayment period, that was not argued to them on behalf of the claimant and there is in any event insufficient evidence of any radical difference in the position during the earlier period.

Upon the whole matter my conclusion is that the decision of the tribunal is not shown to be erroneous in law and that the claimant's appeal accordingly falls to be refused.

Date: 5 November 1991 (signed) Mr. J. G. Mitchell

Commissioner