R(F) 2/99

Mr. J. Mesher	CF/3532/1997
21.10.98

Council Regulation (EEC) 1408/71 and the Anglo-German Convention - whether person ordinarily resident in Germany and employed by the NAAFI in Germany is subject to United Kingdom legislation
Recovery of overpayment - benefit awarded on a mistaken basis continuing in payment due to failure to disclose a change of circumstances - whether failure to disclose a “material” fact
The claimant lived in Germany and was awarded British child benefit on the Department of Social Security’s understanding that he was entitled to it for as long as he worked for the NAAFI and paid United Kingdom Class 1 contributions.  He ceased to be employed by the NAAFI and to pay United Kingdom Class 1 contributions in March 1994 but child benefit continued in payment until May 1995.  The adjudication officer and, on appeal, a tribunal decided that benefit overpaid between March 1994 and April 1995 was recoverable from the claimant under s. 71 of the Social Security Administration Act 1992 on the ground that he had failed to disclose the material fact that he had ceased to be employed in employment subject to United Kingdom Class 1 contributions.  The claimant appealed to the Commissioner, contending that he had informed the Department of Social Security that he was to be made redundant by the NAAFI.
Held, dismissing the appeal, that:
1.	there was no error of law in the tribunal not dealing with the claimant’s point on disclosure as he had not put evidence to that effect before the tribunal (paragraph 5);
2.	because the claimant had become ordinarily resident in Germany before the birth of his children, he was subject to German legislation and should not have been awarded British child benefit (paragraphs 8 to 21);
3.	nevertheless, his ceasing to be employed by the NAAFI was a material fact because it was material to the decision that was operative and it was not turned into a non-material fact because the decision was wrong for another, more fundamental, reason (paragraph 29);
4.	applying Duggan v. CAO (reported as an appendix to R(SB) 13/89), it was not within the powers of adjudication officers, appeal tribunals or Commissioners to apportion responsibility for an overpayment (paragraph 31).
The Commissioner subsequently refused the claimant leave to appeal as did the Court of Appeal (upon the claimant’s non-attendance at the hearing).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant’s appeal fails. The decision of the Sunderland social security appeal tribunal dated 1 March 1996 is not erroneous in point of law, and therefore stands.
2.	This is a case which must have appeared to the appeal tribunal to be a relatively routine one about the recoverability of an overpayment of child benefit, but which turns out to involve a number of very difficult legal issues. What the appeal tribunal was told in the adjudication officer’s written submission on form AT2 was as follows. The claimant was resident in Germany, where he was an employee of the Navy, Army and Air Force Institutes (the NAAFI). Because of that employment, he was subject to United Kingdom legislation and required to pay Class 1 national insurance contributions. By virtue of Article 73 of Council Regulation (EEC) 1408/71, he was then entitled to child benefit for his three children, as they were resident in a different Member State of the European Community from the state to whose legislation he was subject. The claimant ceased employment with the NAAFI on 6 March 1994, but did not inform the child benefit authorities until a letter from him was received on 16 May 1995. Official instructions had been issued to him in the past that he had to inform the child benefit authorities if he ceased employment subject to United Kingdom Class 1 contributions. Child benefit had continued to be paid until 10 September 1995. The adjudication officer reviewed and revised entitlement to child benefit from 7 March 1994 and found an overpayment of £2071.05 for the period from 7 March 1994 to 21 May 1995 recoverable from the claimant on the ground of failure to disclose a material fact.
3.	The claimant appealed. The main point made in the letter of dated 22 September 1995 was he had not been told that child benefit would stop if he became unemployed and that, in view of his national insurance contributions and income tax paid over 25 years, his entitlement to child benefit should continue until the same date that his medical cover was to stop, 6 January 1996. In the written submission to the appeal tribunal, the adjudication officer submitted that the period of the recoverable overpayment should end on 23 April 1995 (presumably because on 16 May 1995 there was time to stop the payment in arrears that was due to be made on 21 May 1995), so that the amount recoverable was £1936.65.
4.	The claimant, who was still living in Germany, was unable to attend the hearing before the appeal tribunal on 1 March 1996. The decision was that £1936.65 was recoverable, on the basis that as soon as his employment with the NAAFI ceased, the claimant could no longer be entitled to child benefit and that he did not disclose that he was no longer paying Class 1 contributions until 16 May 1995. In response to that decision, the claimant raised for the first time the contention that he had informed the Overseas Branch of the Department of Social Security by telephone of his impending redundancy from the NAAFI when he got his redundancy notice. Another appeal tribunal declined to set aside the decision of 1 March 1996. The claimant now appeals against that decision with my leave.
5.	I can say at the outset that the appeal tribunal did not err in law in failing to consider whether or not the claimant had disclosed the fact of his loss of employment with the NAAFI prior to 16 May 1995, as there was no evidence or contention at the date of the hearing that the claimant had done so. That contention has only emerged after 1 March 1996. An appeal tribunal cannot be faulted for failing to deal with evidence or a contention about the facts which was not before it. As will emerge below, the appeal tribunal did not explore the legal basis of the claimant’s purported entitlement to child benefit. In normal circumstances, appeal tribunals would not be expected to investigate an unchallenged award of benefit to a claimant, but in the present case the legal basis of that award is relevant to the question of whether the statutory test for the recoverability of an overpayment is met. However, after long thought, I have concluded that any defects in the appeal tribunal’s legal analysis do not affect its fundamental conclusion on the recoverability of the overpayment. It reached the only legally proper decision on the evidence before it, and therefore its decision is not to be set aside as erroneous in point of law.
6.	An oral hearing of the appeal to the Commissioner was held. The claimant was unable to attend or to be represented, as he would have wished. However, I am satisfied that all legal points which could fairly be made in his favour were raised at the hearing. The adjudication officer was represented by Mr. Jeremy Heath of the Office of the Solicitor to the Department of Social Security. He submitted a detailed written skeleton argument, giving full references to nearly all the relevant legal provisions. I am arranging that a copy of that document be sent to the claimant with this decision, for him to have available for reference. There was a slight delay after the oral hearing, as I gave Mr. Heath time to find out whether the Secretary of State wished to make a submission on a particular point about the jurisdiction of the Commissioner and of appeal tribunals. Mr. Heath was informed that the Secretary of State did not wish to make a submission. There has been a further delay while Mr. Heath obtained copies of some documents which I had asked for.
7.	I am particularly grateful to Mr. Heath for his detailed researches, which have clarified much of what had been left unclear in earlier submissions, although I reject several of his submissions. Much of the argument has been about the question of whether child benefit was properly awarded to the claimant, from the outset or from some date well before March 1994. As I have formed a clear view about that, I shall deal with that question before going on to deal with the central questions of overpayment and recoverability, even though my conclusions are not strictly necessary to my decision.
The Award of Child Benefit
8.	The documentary evidence before me does not disclose when child benefit was first awarded to the claimant. It appears from the document at page 2 of the papers (declaring that the claimant had been compulsorily insurable under United Kingdom legislation from 25 January 1977 to 14 July 1985 and granting an indefinite extension of United Kingdom liability) that he was receiving child benefit in July 1985, before his third child was born. The document uses his child benefit number. He was certainly receiving child benefit in September 1989, as appears from the documents at pages 4 and 5. The rate of child benefit seems to have been altered to include the increase for a one parent family following a claim for one parent benefit in June 1992. It appears that the claimant had been resident in Germany as an employee of the NAAFI since 25 January 1977, when he was aged 23. He was married on 28 July 1978. Children were born on 19 May 1979, 8 May 1982 and 7 November 1986. The claimant and his wife separated permanently in April 1989 and were divorced on 14 January 1992. It seems that on separation, the elder two children stayed with the claimant and the youngest with his wife, although the claimant contributed at least the amount of child benefit to that child’s maintenance.
(a) United Kingdom legislation
9.	If one looks at the purely United Kingdom legislation, the claimant would not have been entitled to child benefit at all. I shall refer to the legislation as re‑enacted in the Social Security Contributions and Benefits Act 1992 (there is no difference in substance from the previous position under the Child Benefit Act 1975). Under section 146(2) and (3) of the 1992 Act, child benefit is not payable for any week in respect of a child who is not in Great Britain for that week and a person is not entitled to child benefit for any week for a child if that person is not in Great Britain for that week. There are also conditions about past presence. Regulations can modify those rules. The relevant regulations are the Child Benefit (Residence and Persons Abroad) Regulations 1976. There are special provisions for civil servants and serving members of the forces, and their children, who are abroad to be treated as present in Great Britain, but the claimant did not fall into either category. There is also a special provision in regulations 6(1)(c) and 7 for a person who is temporarily absent from Great Britain by reason only of being employed outside Great Britain to be treated as present, if at least half of the person’s earnings are liable to United Kingdom income tax. It has never been expressly suggested that the claimant’s award was based on this provision and Mr. Heath did not mention it, although from what the claimant has said he might well have paid United Kingdom income tax on more than half of his earnings. I think that the answer must be (applying the meaning of temporary absence approved by the Court of Appeal in Chief Adjudication Officer v Ahmed, 16 March 1994) that after some period of absence, probably before the birth of his first child, his absence from Great Britain had ceased to be temporary, so that that provision could not help him. Nor did any of the other parts of those Regulations help the claimant.
(b) European Community legislation
10.	As the claimant was not entitled to child benefit under the 1992 Act alone, was he entitled under European Community law, and in particular Regulation 1408/71? The ordinary operation of that Regulation would produce the answer no. That is because the general rule in Article 13 (2)(a) is that a person employed in the territory of a Member State is subject to the legislation of that state. The claimant was employed in the territory of the Federal Republic of Germany (the FRG) and so under that general rule would be subject to German legislation. Then nothing in chapter 7 of Regulation 1408/71 on family benefits (which covers child benefit) would require payment of United Kingdom child benefit. Article 73 provides:
“An employed or self‑employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.”
If the claimant were subject to German legislation, Article 73 could not apply, because his children would not be residing in a different Member State.
11.	Did the claimant come within some exception to the general rule in Article 13 (2)(a)? Under Article 17 of Regulation 1408/71 two or more Member States or their competent social security authorities may agree exceptions in the interest of certain persons or categories of persons. I shall refer below to an exchange of correspondence in 1990 between the competent social security authorities of the United Kingdom and the FRG about the application of the Anglo‑German Convention on Social Security of 20 April 1960 to employees of organisations including the NAAFI. Mr. Heath did at one point argue that that exchange of correspondence amounted to an agreement under Article 17 that NAAFI employees in Germany were to remain subject to United Kingdom legislation. However, after discussion I think that he accepted that the argument did not work. I agree. The exchange of correspondence made no reference at all to having effect under Article 17 or to any derogation from the ordinary application of the rules of Regulation 1408/71.

(c) European Community law and the Anglo‑German Convention
12.	The crucial exception to the general rule in the present case 	is provided by Article 7(2)(c) of Regulation 1408/71:
“The provisions of Article 6 notwithstanding, the following shall continue to apply:
…
(c)	the provisions of the social security conventions listed in Annex III.”
Article 6 provides that, subject to Article 7 and some other provisions, Regulation 1408/71 replaces previous social security conventions binding two or more Member States. Annex III includes in its list (at what is now point 39 of Section A) Articles 3(1) and (6) and 7(2) to (6) of the Anglo‑German Convention on Social Security of 20 April 1960. Thus, if those parts of the Convention make a different provision about the legislation to which British NAAFI employees are subject, that rule will apply for the purposes of Regulation 1408/71 instead of the general rule in Article 13 (2)(a).
13.	The only parts of Article 7(2) to (6) of the Convention which I need to set out here are paragraphs (2)(b), (5) and (6). The English text is as follows:
“(2) Subject to the provisions of paragraphs (3) and (5) of this Article—
…
(b)	where a person is employed in the territory of the Federal Republic in the Government service of the United Kingdom or of Northern Ireland or in the service of a public corporation of the United Kingdom, the legislation of the United Kingdom shall apply to him as if he were employed in its territory.
(5)	If a person is employed in the territory of one Party by the forces of the other Party in a civilian capacity or by an organisation serving those forces and is not ordinarily resident in that territory, then the legislation of the latter Party shall apply to him as if he were employed in its territory.
(6)	The competent authorities of the Contracting Parties shall agree a list of the organisations to which the provisions of paragraph (5) of this Article shall apply.”
14.	The claimant was not employed in the Government service of the United Kingdom, so did not come within paragraph (2)(b) on that ground. Nor was he in the service of a public corporation of the UK, as I understand that term (referring to governmental and quasigovernmental organisations and agencies). But even if the NAAFI were a public corporation, paragraph (2) is subject to paragraph (5) and the terms of paragraph (5) fit the claimant’s circumstances precisely.
15.	Article 9(1) of the Agreement on the Implementation of the Convention on Social Security between the United Kingdom and the FRG, in force from 1 March 1967, listed the NAAFI as one of “the organisations whose employees shall, by virtue of paragraph (5) of Article 7 of the Convention, be subject to the legislation of the United Kingdom whilst they are in the Federal Republic”. That position was confirmed from 1 April 1983 onwards by the exchange of letters in 1990 set out in Mr. Heath’s skeleton argument. Thus at all relevant dates in the present case the NAAFI was an organisation to which Article 7(5) of the Convention applied. Therefore, the claimant, although employed in the territory of the FRG, would be subject to United Kingdom legislation, but only if he were not ordinarily resident in the territory of the FRG. The wording of Article 9(1) of the Implementation Agreement, which could be read as assuming that all British NAAFI employees in Germany will be subject to United Kingdom legislation, cannot take away the effect of the specific condition about ordinary residence in Article 7(5) of the Convention.
16.	The general rule in the interpretation of treaties (see Article 31(1) of the Vienna Convention on the Law of Treaties) is that their terms should be interpreted in accordance with their ordinary meaning in their context and in the light of the treaty’s object and purpose. I have looked at the German text of Article 7(5) of the Convention, which is of equal authority to the English text. My understanding is that that text also indicates that Article 7(5) would not apply to the claimant if he were ordinarily residing in the FRG. I have no evidence that the concept of ordinary residence has any special meaning in German law, so that I propose to apply the ordinary meaning of the concept as understood in English law.
17.	There, the leading authority on the natural and ordinary meaning of the phrase “ordinarily resident” is the well‑known decision of the House of Lords in Shah v Barnet London Borough Council [1983] 2 AC 309. In his speech in that case, Lord Scarman used a number of different formulations, but I think that the essence is in the statement at [1983] 2 AC 3436 that ordinary residence refers to a person’s:
“abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.”
On “settled purpose”, Lord Scarman also said, at [1983] 2 AC 344C:
“The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the [person] intends to stay where he is indefinitely, indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”
A further important point is that it is quite possible for a person to be ordinarily resident in more than one place or country at the same time (see at [1983] 2 AC 342F).
18.	I have limited evidence before me about the claimant’s circumstances from January 1977 onwards and virtually no evidence about the terms of his employment with the NAAFI or his intentions about his residence. Mr. Heath submitted that I should not make any decision which turned on the claimant’s ordinary residence without there being the opportunity for further investigations of the claimant’s past circumstances and intentions. I reject that submission. I do not think that any new evidence of any value can be obtained about the claimant’s intentions many years in the past. And in any case, one of the advantages of the ordinary residence test is that it depends much more on the objective nature and quality of a person’s residence than on the person’s subjective intentions about the future.
19.	In my view, although taking into account what Mr. Heath said about the connections which NAAFI employees in Germany would commonly have with the British armed forces and with British institutions, the claimant had become ordinarily resident in the FRG by the date of the birth of his first child in May 1979. By that time, he had been in the FRG for more than two years, he had got married and started a family, and had apparently stable employment. In Lord Scarman’s terms, the claimant’s abode in the FRG had been adopted for settled purposes as part of the regular order of his life for the time being. I have also taken into account what Mr. Heath said about the Contributions Agency normally regarding British NAAFI employees in Germany as retaining their ordinary residence in the United Kingdom unless they indicated an intention to settle permanently in the Germany. But that is to ask the wrong question. A person might be regarded as still ordinarily resident in the United Kingdom while working in Germany, but at the same time be ordinarily resident in the FRG. If I am wrong in adopting May 1979 as the date on which the claimant became ordinarily resident in the FRG, there can in my view be absolutely no doubt that he was so ordinarily resident by the dates on which the claimant and his wife separated permanently and the rate of child benefit was adjusted to include one parent benefit.
20.	Mr. Heath submitted that I did not have jurisdiction to decide the question of ordinary residence. He said that the Secretary of State must have decided that the claimant was not ordinarily resident in the FRG in deciding that he was subject to UK legislation and liable to pay United Kingdom Class 1 social security contributions. The decision about liability to pay contributions is, under section 17 (1)(b) of the Social Security Administration Act 1992 and its predecessors, for the Secretary of State, and is, under section 60(1) of the Act, final. I must therefore accept the decision made about the claimant’s liability to pay contributions, as must adjudication officers and appeal tribunals. However, section 60(2) provides that section 60(1) is not to make “any determination embodied in or necessary to a decision, or on which it is based, conclusive for the purpose of any further decision”. Thus, for the purpose of deciding the claimant’s entitlement or otherwise to child benefit, the determination by the Secretary of State that the claimant was not ordinarily resident in the FRG is not conclusive. I must therefore make my own independent decision. Mr. Heath also submitted that the question of ordinary residence was so closely linked to that of liability to pay contributions that I should not differ from the view taken by the Secretary of State. I accept that difficulties and confusions may result from different views being taken by different adjudicating authorities. However, it is my duty to apply the law as I determine it to be, and I have no doubts about the legal situation.
21.	The result is that, as the claimant was ordinarily resident in the FRG, he did not meet the conditions of Article 7(5) of the Anglo‑German Convention and did not fall within any exception to the general rule in Article 13(2)(a) of Regulation 1408/71 that he was subject to the legislation of the Member State in whose territory he was employed, i.e. the FRG. Therefore, he could not take advantage of Article 73 of Regulation 1408/71 and was not entitled to child benefit. on the view that I have taken of the date on which he became ordinarily resident in the FRG, he should never have been awarded child benefit from the outset. At the very least, he ceased to be entitled before the date at which one parent benefit was awarded in the changed circumstances following his separation from his wife. That was not the basis on which the appeal tribunal approached the case.
The Overpayment and Recoverability Issue
22.	What effect does the conclusion which I have just reached have on the question of whether any overpayment of child benefit is recoverable from the claimant under section 71 of the Social Security Administration Act 1992? There is of course no power under section 71 to require the claimant to repay the benefit awarded to him over many years on what I have decided was a legally mistaken basis, as there was no misrepresentation or failure to disclose a material fact by the claimant. The question is whether the child benefit paid following the termination of the claimant’s employment with the NAAFI is recoverable.
23.	The first requirement is that the decision or decisions on the authority of which benefit has been paid should be reviewed. I do not think that the ground of review relied on by the adjudication officer in the decision issued on 14 September 1995 ‑ relevant change of circumstances under section 25(1)(b) of the Social Security Administration Act 1992 ‑ can be supported. The change of circumstances relied on by the adjudication officer was that the claimant had ceased employment with the NAAFI. But that was not a relevant change of circumstances, because the claimant was not properly entitled to child benefit and one parent benefit while he was still employed by NAAFI. The ending of the employment was irrelevant to his entitlement. What seems to be contemplated in the ground of relevant change of circumstances is a decision which was correct in the circumstances as they actually were at the date of the decision and which has subsequently become incorrect (or arguably incorrect) in the light of a change of circumstances since the decision was made. That is not so in the present case.
24.	However, the initial and subsequent decisions awarding the claimant child benefit and one parent benefit fall to be reviewed on another ground. As the essential facts relating to the claimant’s residence in Germany were known to the adjudication officers when the decisions were made, the appropriate ground of review is that the decisions were erroneous in point of law (Social Security Administration Act 1992, section 25(2)). That is because they must have been based on a wrong interpretation of ordinary residence or of the effect of the Anglo‑German Social Security Convention. The revised decision on the review, in the light of my conclusion on the date on which the claimant became ordinarily resident in the FRG, would then be that the claimant was not entitled to child benefit and one parent benefit from the outset.
25.	The appeal tribunal did not deal expressly with the appropriate ground of review, but decided that the claimant was not entitled to child benefit from and including 7 March 1994. It was implicit that the ground of review of relevant change of circumstances was adopted. That was not the proper ground, and often a failure to deal properly with the question of review in an overpayment case will be an error of law. However, in the circumstances of the present case, that is not so. The failure to identify the proper ground of review was not material to the essence of the decision. Identification of the proper ground would have led to the conclusion that the claimant had been paid child benefit to which he was not entitled prior to 7 March 1994 as well as from that date onwards, but since the only practical question to be determined was whether the overpayment from 7 March 1994 onwards was recoverable, that does not undermine the basis of the appeal tribunal’s decision.
26.	An overpayment of benefit is recoverable from a person under section 71 of the Social Security Administration Act 1992 in so far as it is the consequence of a misrepresentation of or a failure to disclose a material fact by that person. There is no suggestion in the present case of any such misrepresentation or failure to disclose before the claimant’s employment with the NAAFI ended on 6 March 1994. Nor is there any suggestion of any failure to use due care and diligence to avoid overpayment prior to 6 April 1987 (at which time section 119 of the Social Security Act 1975 was applicable in child benefit cases).
27.	The appeal tribunal found as a fact (as it was bound to do on the evidence which it had before it) that the claimant did not tell the Child Benefit Centre that he was no longer employed by the NAAFI until 16 May 1995. Was that a failure to disclose a material fact? Mr. Heath submitted that it was, because in relation to the decisions on the authority of which benefit was being paid immediately before and after 6 March 1994, the disclosure of the loss of employment would have made a difference to the decisions. On the mistaken view which had been taken of the claimant’s current entitlement to child benefit, immediate disclosure of the loss of employment would have led to a decision reviewing and revising entitlement to child benefit and would have prevented the continuing payment of benefit to the claimant. Mr. Heath submitted that that showed that there was a failure to disclose a material fact and that the overpayment for the period from 7 March 1994 to 23 April 1995 was in consequence of that failure to disclose. The overpayment may also have been in consequence of a mistake of law in awarding benefit in the first place, but if disclosure had been made immediately, the payment of benefit for that period would have been avoided.
28.	The argument to the contrary which could be made for the claimant is this. What the claimant failed to disclose, on the finding of fact made by the appeal tribunal, was not a material fact. It was not material because the claimant was not actually entitled to child benefit on 6 March 1994 and indeed had never actually been entitled to child benefit from the outset of the award. As it could not make any difference to the lack of entitlement whether or not the claimant’s employment with the NAAFI continued, the loss of that employment was not a material fact. Therefore, one of the essential conditions in section 71 of the Social Security Administration Act 1992 for the recoverability of an overpayment was not met and it is irrelevant that if the claimant had disclosed the loss of employment immediately, the payment of benefit should have stopped.
29.	There is force in that argument. I find the question of whether, on the findings made by the appeal tribunal, what the claimant failed to disclose was a material fact exceptionally difficult. It is perhaps surprising that there are no previous decisions of Commissioners or the courts which deal with comparable circumstances. I have not gained any specific assistance on this question from any of the decisions which I have looked at. However, I have concluded that the argument for the claimant in paragraph 28 above must be rejected. That is because the test of what is material for the purposes of section 71 is whether the fact in question would affect the decision which is operative before the revision on review and on the authority of which payment was made to the claimant. The focus of section 71 is on payments which would not have been made by the Secretary of State but for a misrepresentation of or a failure to disclose a material fact. Therefore, what is material should be judged by reference to the decision under which payment was made, rather than by reference to “underlying” entitlement or non‑entitlement. In the present case, the loss of employment with the NAAFI was material to the decision which was operative until the adjudication officer carried out the review on 14 September 1995 and under which child benefit was paid to the claimant for the period from 7 March 1994 onwards. The loss of employment is not turned into a non‑material fact because that decision was wrong for another, even a more fundamental, reason.
30.	Nor do I think that it matters that the proper ground of the review which is a prerequisite of a decision under section 71 that an overpayment is recoverable is not related to the material fact whose misrepresentation or failure to disclose is a cause of the overpayment. It is enough that there has been a revision on review which covers at least the period of the overpayment alleged to be recoverable and that from some date the overpayment was a result of a misrepresentation or failure to disclose.
31.	It is not within the powers of adjudication officers, appeal tribunals and Commissioners when determining questions under section 71 to apportion responsibility for an overpayment in some way between errors by officials or in the awarding of benefit and action or inaction by claimants. That seems to me to follow from the decision of the Court of Appeal in Duggan v CAO, appendix to R(SB) 13/89. There, an adjudication officer assumed when reviewing a claimant’s supplementary benefit that the claimant’s wife would not be in receipt of unemployment benefit. The claimant did not disclose that his wife had been awarded unemployment benefit. Recovery of the resulting overpayment of supplementary benefit was sought. May LJ said that the wrong assumption:
“may well have been a cause of the overpayment as well as the failure to disclose. The wrong assumption by the Adjudication Officer may in certain circumstances have been a cause of the overpayment, but it does not follow that it was the sole cause. As a matter of common‑sense, which questions of causation always are, if one poses the question: did the failure of the claimant to disclose the fact that his wife was in receipt of unemployment benefit have as at least one of its consequences the overpayment of the supplementary benefit?, the only reasonable answer that one can give is ‘yes’.”
The overpayment was therefore recoverable from the claimant. Any question of apportioning responsibility among multiple causes, if a misrepresentation of or failure to disclose a material fact has as a consequence an overpayment of benefit, arises only at the stage where the Secretary of State is considering whether and how to enforce all or part of his right to recover the overpayment from the person concerned.
32.	Having given full weight to the strongest arguments of law which I consider could be put forward for the claimant, I conclude that the appeal tribunal did not err in law, on the findings of fact which it made, in deciding that what the claimant had failed to disclose was a material fact and that the conditions of section 71 of the Social Security Administration Act 1992 were met, so that the overpayment of £1,936.65 was recoverable.  Accordingly, the claimant’s appeal to the Commissioner must be disallowed.
33.	I come back briefly to the main point made by the claimant in his appeal to the Commissioner ‑ that he did inform the Department of Social Security, by telephone and letter, that he was being made redundant by the NAAFI. An investigation of the official records was made after the claimant applied for the appeal tribunal’s decision to be set aside, which revealed no trace of such a communication. That does not necessarily mean that the claimant is wrong, because 
the investigation revealed that some records had been destroyed in the ordinary course of administration. However, even if the claimant is right in what he says as a matter of fact, that does not mean that the appeal tribunal’s decision was wrong in law. As explained in paragraph 5 above, that point was not made by the claimant in his appeal letter to the appeal tribunal, and an appeal tribunal does not err in law in failing to deal with evidence or contentions which were not put to it.

Date: 21 October 1998	          (signed) Mr. J. Mesher
Commissioner