UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CIS_5206_1995 (02 October 1997)

MR Commissioner's File: CIS/5206/1995

SOCIAL SECURITY CONTRIBUTIONS .AND BENEFITS ACT 1992

SOCIAL SECURITY ADMINISTRATION .-ACT 1992

APPEAL TO A SOCIAL SECURITY COMMISSIONER FROM .A DECISION OF .A SOCIAL SECURITY APPEAL TRIBUNAL

ON A QUESTION OF LAW

Claimant:

4

Tribunal: -

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, brought by the adjudication officer with the leave of the tribunal chairman, against a decision of the Birkenhead social security appeal tribunal dated 16 December 1994. I held an oral hearing of the appeal on 17 March 1997 at which the adjudication officer was represented by Ms Daphne Thomas of the Office of the Solicitor to the Departments of Social Security and Health. The claimant neither appeared nor was represented. At the conclusion of the hearing, I issued a direction to which the adjudication officer responded on 16 June 1997. The claimant has made no comment on the adjudication officer's additional submission. Indeed, the claimant has not taken any part at all in the proceedings on this appeal.

2. In 1993, the claimant was in receipt of income support. He had a mortgage on his home and had fallen into arrears with the payments due to his building society. Deductions were being made by the Benefits Agency from his income support and paid direct to his building society. The building society had obtained a possession order in respect of the home which had been suspended. I have not seen a copy of the order and I have not seen the terms upon which it was suspended. In September 1993, the Benefits Agency were informed by the building society that the mortgage interest rate had been reduced. The direct payments to the building society were suspended and, in consequence, the building society applied for a warrant of possession. The claimant complained that neither he nor the building society had been warned that payments would stop and that neither of them had been given any explanation. That complaint was repeated by the claimant's solicitors in a letter dated 9 February 1994. On 10 March 1994, the solicitors wrote a "notice of appeal against recouping the overpayment". The local adjudication officer prepared a submission for a tribunal and wrote:

"The element of [the claimant's] income support in respect of mortgage interest has been paid directly to the lender [...] since 11.12.9[2]. On ?1.9.93 a review form M112 was received at the local office of the Benefits Agency from the lender. It was ascertained that the interest rates applicable to [the claimant's) mortgage had fallen. [The claimant's] income support was reviewed and revised and it was determined that there was a recoverable overpayment of £2096.28 from 11.12.92 to ?3.9.93."

He then set out relevant parts of the legislation and continued:


 


"The letter of appeal is clearly aimed at the payment of mortgage interest under Claims and Payments Regulations 34A and the recovery of sums overpaid under Section 15[A] of the Administration Act and paragraph 11 of Schedule 9A to the Claims and Payments Regulations.

"These matters are for the Secretary of State and no decision on these points has been made by an Adjudication Officer.

"I therefore submit that the Social Security Appeal Tribunal does not have any jurisdiction in the matter of this appeal."

On 24 June 1994, a full-time chairman issued a direction in the following terms:

"3. On 13 May I asked the clerk to tell the Adjudication Officer to treat this appeal

as being against the recoverability of the overpayment. The Adjudication

Officer has replied to say that he does not intend to make a further submission.

"4. The Secretary of State's power to request payment of overpaid mortgage

interest from the mortgagee arises if:

(1) the rate at which the borrower pays mortgage interest has been reduced

or the amount outstanding on the loan has reduced; and

(2) as a result of this reduction the applicable amount of the relevant

beneficiary has also been reduced; and

(3) no corresponding reduction has been made in the amount of interest

paid to the mortgagee.

"5. The overpayment mechanism thus involves two distinct stages. First the

question of whether the Secretary of State's power arises must be decided.

Then the Secretary of State requests reimbursement.

"6. I DIRECT a further submission from the Adjudication Officer which shall

either:

(a) explain by reference to the statute and regulations why the questions

which arise in the first part of this process do not fall to be decided by

an Adjudication Officer; or

(b) provide the usual submission justifying an Adjudication Officer's

decision on these points."

In response. an adjudication officer wrote:

"The recovery of an overpayment of mortgage interest direct is a matter for the Secretary of State under paragraph 11 of schedule 9A to the (Claims and Pavments) Regulations. The tribunal chairman considers that the overpayment mechanism

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involves two stages; first the question of whether the Secretary of States power arises must be decided, and then the Secretary of State requests repayment. The chairman asks why the questions which fall in the first part of the process do not fall to be decided by an adjudication officer.

I would submit that the adjudication officer is involved in the first part of the process. When evidence is received notifying a reduction in the interest rate/capital outstanding the Adjudication Officer reviews the amount of housing costs to which the claimant is entitled, and against which there is the right of appeal. However, if it is apparent that there has been an overpayment to the lender, then paragraph 11 comes into play and the lender is then requested by the Secretary of State, to repay- the amount overpaid.

"Commissioner's decision CIS/90/93 which deals with this point (copy attached). in paragraph 11, the Commissioner states that his jurisdiction is limited to the issue of the deduction which is to be paid to the lender. The matter of recovery of an overpayment he states is 'outwith my jurisdiction, as it is outwith the jurisdiction of the adjudication officer of the appeal tribunal and the Commissioner. That is a question for the Secretary of State and for him alone.'

"This confirms my view that the matter is not one which should be for consideration by a tribunal."

1. The tribunal's record of decision, after amendment following a request by the

adjudication officer for clarification, is in the following terms:

'`2. Findings of tribunal on questions of fact material to decision

The arrangement made between the Department and the Building Society is a private one, between the Secretary of State and the lender. The claimant's not a party to this arrangement.

The tribunal has no jurisdiction over this arrangement.

The AO's decision to reduce the amount allowed for housing costs payable to the claimant is however within the tribunal's jurisdiction.

The AO reviewed the case correctly because of the reduction in interest rates.

"3. Full text of unanimous decision on the Appeal

The appeal succeeds.

"-t. Reasons for decision

The overpayment made is recoverable from the Building Society because of the private arranizement made between the Building Society and the Department. The tribunal has no jurisdiction over this arrangement. but it

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does have jurisdiction over the claimant's appeal in respect of the amount allowed to him for housing costs. The Department must show good grounds why this amount has been reduced. It is directed that this amount should be reassessed. There has been no action by the appellant to justify any reduction, and certainly no failure to disclose any matters by him. He was not aware of any change until he received the notice from his Building Society.

The intention of the Decision is that the overpayment should be recovered directly from the lender. [The claimant] has been penalised by the lack of communication between the Building Society and his bank. His payments should not therefore have been reduced in the way that they were."

The adjudication officer applied for leave to appeal on the following ground:

"The tribunal have found as fact that 'The AO reviewed the case correctly because of the reduction in interest rates'. They have then directed that the amount of housing costs in respect of interest rates be reassessed. That reduction in the amount paid over to the lender was made by the Secretary of State in order to recover from the lender the amount which had been overpaid. The recovery was made by the Secretary of State under paragraph 11 of Schedule 9A of the Social Security (Claims and Payments) Regulations 1987, and the direction given by the tribunal is on a matter outside their jurisdiction."

The chairman granted leave to appeal. In the first submission on this appeal, the adjudication officer submitted:

"14. I submit that the rate of housing costs in respect of mortgage interest which was awarded as part of the claimant's income support, and that rate which should have been awarded, are not in dispute. I submit that the recovery of the amount overpaid is, under the above-mentioned regulations, at the discretion of the Secretary of State and is outside the jurisdiction of the adjudicating authorities.

"1 5. My submission is founded on the unreported Commissioner's Decision CIS/090/93. In that decision the relevant statutory provisions were also regulation 34A and schedule 9A of the Claims and Payments Regulations. The Commissioner said 'My jurisdiction is limited to the issue of deduction for mortgage interest which is to be paid over to the claimant's building society. This was not in dispute. Recovery of the amount is a matter outwith my jurisdiction as it is outwith the jurisdiction of the adjudication officer. of the appeal tribunal and the Commissioner.

"16. Should the Commissioner accept my submission. I respectfully suggest that he declare the tribunal's decision to be a nullity, and that recovery of the amount overpaid is a matter for the Secretary of State to decide. with no right of appeal against the decision being available to the claimant."

CIS15206195


 


4. It seems to me that there has been a failure by adjudication officers and the tribunal clearly to identify all the different issues potentially raised by the claimant's solicitors' notice of appeal and to consider the tribunal's jurisdiction in respect of each issue separately. The failure of the claimant's solicitors to identify a ground of appeal may have contributed to the problem but that may well have been due to a lack of clear explanation, or even notification, of decisions made by adjudication officers

5. By section 20 of the Social Security Administration Act 1992, all questions arising on claims or awards of benefit are determined by adjudication officers unless reserved to the Secretary of State (or other bodies). Decisions of adjudication officers relating to income support are subject to a right of appeal under section 22. Decisions of the Secretary of State are not subject to such a right of appeal. Decisions made by adjudication officers in respect of income support may be reviewed by adjudication officers under section 25, decisions on review being subject, by virtue of section 26, to the same rights of appeal as other decisions. Where in consequence of such a review it is apparent that there has been an overpayment of benefit, there arises a question whether that overpayment is recoverable. Section 71(1) and (3) of the Social Security Administration Act 1992 provides:

"Where it is determined that, whether fraudulently or otherwise. any person is 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 Secretary of State in connection with any such payment has not been recovered,

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

"(3) An amount recoverable under subsection (1) above is in all cases recoverable

from the person who misrepresented the fact or failed to disclose it."

It is well established that the question whether, in any particular case, the Secretary of State is entitled to recover an overpayment is a question for determination by an adjudication officer or a tribunal. It is then a matter for the Secretary of State. in his discretion. to decide whether to enforce the right of recovery that the adjudication officer has found him or her to have.

2. Regulation 34A of the Social Security (Claims and Payments) Regulations 1987,

provides:

"(1) In relation to cases to which [section 1 15A(1) of the Social Security Administration Act 1992] (payment out of benefit of sums in respect of mortgage interest. ere.) applies and in the circumstances specified in Schedule

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9A, such part of any relevant benefits to which a relevant beneficiary is entitled as may be specified in that schedule shall be paid by the Secretary of State direct to the qualifying lender and shall be applied by that lender towards the discharge of the liability in respect of that mortgage interest.

(2) The provisions of schedule 9A shall have effect in relation to mortgage interest

payments."

It is important to note that regulation 34A makes it clear that the payments made by the Secretary of State direct to a building society are payments of part of the claimant's benefit. It is unnecessary for me to set out here the provisions of Schedule 9A other than paragraph 11 which provides for the recovery of sums wrongly paid to a building society. However. I observe that, by virtue of paragraph 3(1), while it is the Secretary of State who actually makes payments to a lender (just as it is the Secretary of State who actually makes payments to a claimant), it is for an adjudication officer to determine whether the Secretary of State should, in any particular case, make the deductions from a claimant's benefit and pay the sums to the tender. Paragraph 11 provides:

'*(1) Where sums have been paid to a qualifying lender under regulation 34A which ought not to have been paid for one or both of the reasons mentioned in subparagraph (2) of this paragraph, the qualifying lender shall, at the request of the Secretary of State, repay the sum overpaid.

"(2) The reasons referred to in sub-paragraph (1) of this paragraph are -

(a) that -

(i) the rate at which the borrower pays mortgage interest has

been reduced or the amount outstanding on the loan has been

reduced, and

(ii) as a result of this reduction the applicable amount of the

relevant beneficiary has also been reduced, but

(iii) no corresponding reduction was made to the specified part;

or

(b) subject to paragraph (3), the relevant beneficiary has ceased to be

entitled to any relevant benefits."

It is unnecessary to set out sub-paragraph (3). It is clear that paragraph 11 makes provision for the recovery of overpayments of benefit that is alternative to the provision made in section 71 of the 1992 Act. In other words. overpayments may be recovered under paragraph 1 I even though they would not be recoverable under section 71.

7. The adjudication officer submits that the decision whether to recover payments under paragraph 11 is a decision that is entirely one for the Secretary of State to make. I do not accept that submission. In my view, the full-time chairman who issued the direction on 24

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June 1994 was correct in the approach that he took. The question whether the Secretary of State is entitled to recover a payment under paragraph 11 (which requires consideration of the question whether the conditions of paragraph 11(2) are satisfied and also requires the calculation of the amount of the overpayment) is not reserved, by paragraph 11 itself or any other provision, to the Secretary of State. Therefore, by virtue of section 20 of the 1992 Act, it falls to be determined by an adjudication officer. Once it has been determined that an overpayment is recoverable, there is no doubt a discretion in the Secretary of State as to whether he requests the building society to repay the sum to him. Thus, the process of adjudication is the same as that under section 71 of the 1992 Act even though the circumstances in which recovery may be sought are different.

8. In any event, assuming that the payments originally made to a lender were consistent with an adjudication officer's award of benefit to the claimant, if any question of recovery of a payment arises under paragraph 11, there must also arise a question whether the award of benefit to the claimant must be reviewed and revised by an adjudication officer under section 25 of the 1992 Act, a point acknowledged in the decision of the Court of Appeal in Regina v. Adjudication Officer, ex parte Golding (unreported. July 1. 1996) and also implicitly accepted by the adjudication officers in these proceedings. This must be so because, if the Secretary of State recovers payments under paragraph 11 where the payments made to the building society were deductions from benefit awarded by an adjudication officer and that adjudication officer's award has not been reviewed, the Secretary of State will be bound to pay the amount recovered from the building society to the claimant for the simple reason that it represents benefit due to the claimant under the adjudication officer's award. If the adjudication officer's award has been revised so that part only of the payments recovered by the Secretary of State is in respect of an overpayment of benefit, the Secretary of State is entitled to retain that part of the sum recovered but is obliged to pay the balance to the claimant.

9. It follows from that analysis that an "appeal against recouping the overpayment" may be an appeal falling within the jurisdiction of a tribunal. Firstly, it may be asserted that the Secretary of State is not entitled to recover all or part of the relevant sum from a lender. Secondly, it may be asserted that the claimant is entitled to the payment recovered by the Secretary of State and the challenge may, in reality, be to a decision of an adjudication officer reviewing the claimant's entitlement to benefit. Either of those matters falls within the jurisdiction of a tribunal. If, however, the challenge is merely to the Secretary of State's exercise of discretion in enforcing his right of recovery, then no appeal lies to the tribunal. Of course, if there has been a proper review and the adjudication officer's calculations are correct, an appeal to a tribunal will not succeed, but that is not the same as saving that the tribunal has no jurisdiction to entertain the appeal. The implication of the .adjudication officer's submission is that a claimant cannot challenge on appeal part of the calculation lying behind a Secretary of State's request for repayment. That cannot be right.

10. It is unclear quite what point was at issue in CIS/90/93. to which the adjudication officer has referred. I am not persuaded that my approach is inconsistent with the approach taken by the Commissioner in that case. However. I regret that I do differ from the approach taken by the Commissioner in CSIS/98/94. At paragraphs 5 and 6. he said:

"5. Although it was originally submitted that the calculation of the overpayment

was within the jurisdiction of the adjudication officer although the issue of

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recoverability was purely for the Secretary of State, the adjudication officer in answer to a direction in connection with this appeal has now submitted as follows:

`I would submit that the adjudication officer does not have any authority to calculate the sum due by the qualifying lender to the Secretary of State in terms of paragraph 11 of Schedule 9A of the Social Security (Claims and Payments) Regulations 1987 .... I would submit that the adjudication officer does not have any direct involvement in that provision.'

In my judgment not only is it plainly for the Secretary of State to request repayment of any overpayment of interest paid direct to a lender but, as is now conceded by the adjudication officer, the adjudication officer in this case had no authority to calculate the sum due by the lender to the Secretary of State and no jurisdiction to issue the decision appealed to the tribunal.

6. It is clear from the Mortgage Interest Payments provisions (the MIP provisions) that such direct payments and any question of repayment of any overpayments are wholly within the province of the Secretary of State. The adjudication officer's submission that the adjudicating authorities have no jurisdiction in the calculation of the overpayment in such cases must not only reflect the absence of any reference to such adjudication in the MIP provisions themselves, but seems also necessarily to imply that the MIP provisions take those payments outwith the scope of section 71 of the Social Security Administration Act 1992 governing overpayments arising from misrepresentations or failures to disclose material fact. If this were not so there would be a potential conflict of jurisdiction between the Secretary of State and the adjudication officer . .... It would appear that even if a claimant whose mortgage interest liability is being met under the MIP provisions is not entirely relieved from the responsibility of notifying relevant changes under his general responsibility to do so, there is no sanction of repayment operable against him, at the instance of the Department of Social Security."

The Commissioner does not appear to have had the benefit of legal argument on either side. I agree that it is plainly for the Secretary of State to request payment from the lender. However, the absence of any reference to an adjudication officer in paragraph 11 of Schedule 9A to the 1987 Regulations does not seem to me to imply that either the calculation of the amount of the overpayment or the question whether the Secretary of State is entitled to request repayment must be matters falling within the jurisdiction of the Secretary of State. The Commissioner does not appear to have been referred to either section 20 of the 1992 Act or to the relationship between the recoverability of an overpayment and the review of an award of benefit which was considered in Golding. Furthermore, I do not agree that the fact that a certain class of overpayments may be recovered from a lender under paragraph 11 of Schedule 9A to the 1987 Regulations necessarily implies that overpayments of the same class may not be recovered from the claimant (or even the lender) under section 71 of the 1992 Act. Obviously, the Secretary of State may only recover an overpayment once, but the remedies seem to me to be alternatives. Paragraph 11 was presumably introduced so that overpayments in respect of mortgage interest could be recovered from a lender rather than a claimant without the necessity of showing that there had been. on the part of the lender. a

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misrepresentation or a failure (in the sense required by R(SB) 21/82) to disclose a material fact.

11. In the present case, there does appear to have been a decision of an adjudication officer considering the claimant's entitlement to income support and the recoverability of the overpayment. That is the decision referred to by the local adjudication officer in his submission to the tribunal whereby "the claimant's income support was reviewed and revised and it was determined that there was a recoverable overpayment of £2,096.28 from 11/12;92 to 23/9/93." In his original submission on this appeal, the adjudication officer said that the "rate of housing costs in respect of mortgage interest which was awarded as part of the claimant's income support, and the rate which should have been awarded, are not in dispute". It is true that there is nothing in the papers before me which amounts to an express challenge by the claimant to that decision of the adjudication officer. However, there is also nothing in the papers to suggest that the claimant has ever expressly conceded that the decision is correct. The letter of appeal to the tribunal did not really include grounds for appeal but, if it was to be treated as a notice of appeal at all, it should have been treated as a notice of appeal against the decision of the adjudication officer to which reference was made in the submission and the tribunal should have been considering whether that decision was correct.

12. In fact, the tribunal came close to doing so, finding that they had "jurisdiction over the claimant's appeal in respect of the amount allowed to him for housing costs". However, instead of determining the issue, or, more realistically, adjourning the proceedings to give the adjudication officer the opportunity to make a submission on the issue, they decided that "the appeal succeeds" and directed that "this amount should be reassessed". There was no evidence justifying a finding that the adjudication officer's decision was wrong - any more than there was any evidence to justify a finding that it was correct - and, in any event. the amended version of their decision states that "the adjudication officer reviewed the case correctly because of the reduction in interest rates". In my view, the tribunal's decision was erroneous in point of law on the simple ground that it purported to determine the appeal in the claimant's favour without actually reaching a final conclusion that was favourable to the claimant on any specific issue of fact or law. It was not a decision capable of being implemented.

3. Having reached the conclusion that the tribunal's decision had to be set aside, I issued

the following direction at the conclusion of the oral hearing before me:

"At the conclusion of the hearing this afternoon, it seemed fairly clear that the tribunal's decision would have to be set aside and there arose the question whether I should give a decision in its place or merely refer the matter to another tribunal. Ms Thomas, representing the adjudication officer, requested that I should take the latter course but accepted that it would first be necessary to obtain some further information and she said that information and a further submission could be submitted within 28 days.

"Accordingly, I direct that there be obtained from the local office by the adjudication officer a copy of the decision referred to at the bottom of doc T 1 21, reviewing the claimant's entitlement to income support (and any further decision reviewing that decision), a statement of the amount of any overpayment recovered from the lender

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under paragraph 11 of Schedule 9A to the Social Security (Claims and Payments) Regulations 1987 and a statement of the amount of any overpayment recovered from the claimant himself. Those documents should be submitted, with a further written submission on behalf of the adjudication officer, within 28 days.

"When those documents and the submissions are received, the claimant will be given the opportunity of commenting on them."

Ms Thomas and I were optimistic. It was three months before a submission was received from the adjudication officer and, when it arrived, there was not attached to it any formal decision of an adjudication officer or any statements of amounts of overpayments actually recovered from the lender or the claimant. However, there were some very helpful new calculations.

14. Rather than a copy of a formal decision of an adjudication officer, there is a "mortgage review proforma", showing the workings behind the review decision of the adjudication officer to which the local adjudication officer referred in the submission of the tribunal. I need not set out the calculation here but I observe that the review was completed on 24 February 1994. If that was when the formal decision was issued, the solicitor's letter of 10 March 1994 was well within the time for appealing against the decision. On the other hand, if the failure to produce a formal decision to me is an indication that no formal decision was ever issued, that might explain why the solicitor's letter was treated as an appeal against the decision of the Secretary of State rather than as an appeal against the adjudication officer's decision. The failure of the adjudication officer's submission to the local tribunal to mention the date of the adjudication officer's decision tends to reinforce my view that the adjudication officer's decision may never have been issued at all. If that is so, that was a serious failure on the part of the local office because regulation 20 of the Social Security (Adjudication) Regulations 1986 (now regulation 18 of the Social Security (Adjudication) Regulations 1995) required that notice of the decision be issued together with information about the claimant's rights of appeal.

15. No explanation has been offered to me for the failure to produce the statements of the sums recovered. However, the correspondence suggests that the Benefits Agency suspended direct payment to the lender from 24 September 1993 as soon as they discovered that the interest rates had been changed and that, by the time the adjudication officer made his decision on 24 February 1994, the amount underpaid since September 1993 exceeded the overpayment (as determined by the adjudication officer) by some £500. That fact was glossed over by the adjudication officer in the submission to the tribunal. There is nothing in the papers which counters the claimant's solicitors' suggestion that, for some months, neither the building society nor the claimant was given a proper explanation of what was being done and why it was being done. In cases such as the present, where a claimant is at risk of losing his home, it is essential that the Benefits Agency should explain any decision to suspend direct payments to a building society to both the claimant and the building society.

16. As a result of looking at the case again in the light of my direction. the adjudication officer now submits that the review decision made on 24 February 1994 was, in fact, wrong in two respects. Firstly, the reviewing adjudication officer, and the adjudication officer whose decision was being reviewed, calculated the claimant's housing costs on the basis that

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the original loan was £58,316.75 whereas, in truth, that was the amount outstanding on the mortgage and, I am told and accept, the original loan was £45,000. Secondly, the reviewing adjudication officer calculated the claimant's housing costs as though MIRAS applied to the whole amount. The first error was favourable to the claimant but the second was not. It is now submitted that the true overpayment was £2,501.52 between 11 December 1992 and 23 September 1993. Of that sum, it is submitted that £1,321.64 was attributable to the use of the incorrect capital figure and only £1,179.88 was attributable to the alteration in the interest rates. It is also suggested that further overpayments totalling £330.65 were made direct to the claimant but recovery of those is not sought.

17. The adjudication officer does not suggest what decision I should give in the light of the new evidence. The claimant has taken no part whatsoever in the proceedings before me and I am loath to refer this case to another tribunal. Although there are gaps in the evidence before me, I consider it to be expedient for me to make findings of fact and give a final decision. If the claimant takes the view that I have made a mistake of fact, he can apply to an adjudication officer for a review of my decision. Similarly, if the adjudication officer considers that I have made a mistake of fact, he or she can review my decision of his or her own motion. The nature of the case is such that the time limits on reviews will not operate to prevent reviews being effective.

18. The claimant has not challenged the new calculation by the local adjudication officer and I accept both the calculation and the attribution of the causes of the overpayment which is the attribution most favourable to the claimant. It follows that the conditions of paragraph 11(2) of Schedule 9A of the 1987 Regulations were satisfied in respect of only £1,179.88 and that only that sum was recoverable under that provision. It seems probable that the net amount recovered by the Secretary of State in 1993 or 1994 was £2,096.28 (i.e., the sum found by the reviewing adjudication officer to have been recoverable) because the correspondence suggests that the extra amount recovered by suspending the direct payment was repaid either to the claimant or to the building society. £2,096.28 is more than the £1,179.88 which the adjudication officer's submission implies was the amount properly recovered by the Secretary of State under paragraph 11 of schedule 9A to the 1987 Regulations but it is less than the total overpayment. That raises the question whether the balance of the overpayment is recoverable from the claimant or the building society under section 71 of the 1992 Act.

19. If I felt that the Benefits Agency were particularly anxious to recover the £405.24 of the total overpayment that has not already been recovered, I would not consider it appropriate to decide, on the material now available to me, whether the Secretary of State was entitled to recover that sum. However, I have the impression that they are not. It is therefore expedient that I should consider that question, accepting that the adjudication officer can always review my decision on the ground that it is given in ignorance of material facts, if he or she considers it appropriate to do so.

20. Although the local adjudication officer's submission to the tribunal stated that an adjudication officer found £2,096.28 to be a"recoverable- overpayment, the document I have been given in response to my request for a copy of that decision suggests that the adjudication officer did not address his or her mind to the question whether the sum could be recovered under section 71 of 1992 Act because it was decided that it could all be recovered under

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paragraph 11 of Schedule 9A to the 1987 Regulations. There is no evidence before me that the overpayment was due to the claimant's or lender's failure to disclose any material facts he or they could reasonably have been expected to disclose or that it was due to any misrepresentation by the claimant or lender. The burden of proof lies upon the adjudication officer. Consequently, I find that no part of the £2,501.52 overpayment is recoverable from the claimant or the building society under section 71 of the 1992 Act. For the avoidance of doubt, I also find that the additional sum of £330.65 which was overpaid in respect of the period from 18 September 1992 to 10 December 1992 and for the single day of 19 August 1993 is also not recoverable from the claimant.

21. That decision does not, of course, alter the fact that the ;C1,179.88 was recoverable by the Secretary of State under paragraph 11 of schedule 9A to the 1987 Regulations. The interesting question whether the claimant is now entitled to recover from the Secretary of State the sum of £916.40, which represents an overpayment that has been recovered by the Secretary of State from the building society in excess of his powers under paragraph 11 of Schedule 9A to the 1987 Regulations, is not a question which falls within my jurisdiction. Neither is the equally interesting question whether the building society could recover that sum from the Secretary of State.

22. However, for the above reasons, I allow the adjudication officer's appeal against the decision of the Birkenhead social security appeal tribunal dated 16 December 1994. 1 set aside the decision of the tribunal and I substitute my own decision on the basis that the claimant had appealed to the tribunal against the decision of the adjudication officer given on 24 February 1994. The original award of income support to the claimant is reviewed, on the grounds that there were mistakes as to the amount of the original loan and the applicability of MIRAS and that there were changes to the mortgage interest rate, and is revised to the extent of altering the amount allowed in respect of housing costs to the figures calculated by the local office and submitted with the adjudication officer's submission to me dated 16 June 1997. In consequence of this decision, it is apparent that there have been overpayments. They were not recoverable by the Secretary of State from the claimant or the lender under section 71 of the Social Security Administration Act 1992 but £1,179.88 was recoverable by the Secretary of State from the lender under paragraph 11 of Schedule 9A to the Social Security (Claims and Payments) Regulations 1987.

M. ROWLAND

Commissioner

2 October 1997

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