MJG/CM/7
				Commissioner’s File:	CIS/12032/1996

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal against the decision of the social security appeal tribunal dated 18 July 1995 as that decision is erroneous in law and I set it aside.  I remit the case for rehearing and redetermination, in accordance with the directions in this decision, to an entirely differently constituted social security appeal tribunal: Social Security Administration Act 1992, section 23.

2.	This is an appeal to the Commissioner by the claimant a man born on 19 December 1948.  The appeal is against the unanimous decision of a social security appeal tribunal dated 18 July 1995 which dismissed the claimant’s appeal from a decision of the adjudication officer issued on 5 March 1993 as follows,

	“On 13.1.92 I reviewed an award of Income Support and on that date decided that the resulting overpayment was recoverable.  I have reviewed that decision where it applies to the determination of the overpayment and its recoverability.  I am satisfied that the decision was based on a mistake as to a material fact.  My revised decision for the period from 1.3.89 to 7.3.89 (both dates included) is that the claimant is entitled to a reduced amount of Income Support from 8.3.89 to 16.4.91 and from 7.6.91 to 15.10.91 (all dates included) the claimant is not entitled to Income Support.  As a result an overpayment of Income Support has been made from 1.3.89 to 15.10.91 (both dates included) amounting to £12,247.71.  On 3.3.89 or as soon as practicable afterwards [the claimant] failed to disclose the material fact that his wife .. was in receipt of earnings ...  On 7.6.91 or as soon as practicable afterwards [the claimant] failed to disclose the material fact that his wife was in remunerative employment with ...  As a consequence Income Support amounting to £12,247.71 from 1.3.89 to 15.10.91 (both dates included) as detailed below was paid which would not have been paid but for the failure to disclose.  Accordingly, that amount is recoverable from [the claimant] .. Social Security Administration Act 1992, sections 25(1)(a) and 71(1), (2), (3) and (5).”

3.	The tribunal’s actual decision was, “The overpaid amount of £12,235.92 is recoverable from [the claimant].”  The discrepancy between that figure and the amount of £12,247.71 required by the adjudication officer’s decision is explained by the claimant’s representative, in paragraph 8 of a written submission dated 26 October 1996, as follows, “The reason for the revised figure was that the claimant’s representative submitted, and the tribunal accepted, that in the week beginning March 29 1990 the claimant would have been entitled to £28.80 income support.”

4.	The appeal has been the subject of three oral hearings before me, on 13 March 1997, 12 August 1997 and on 8 December 1997.  At each of those hearings, the claimant was present and was represented by Mr P Stagg of the Free Representation Unit.  The adjudication officer was represented by Ms D Thomas of the Office of the Solicitor to the Departments of Health and Social Security.  I am indebted to all of those persons for their assistance to me at the hearing.

5.	In fact the claimant’s appeal against the tribunal’s decision is supported in a number of respects by the adjudication officer now concerned in a written submission dated 29 May 1996.  Some of the grounds on which there is support are concurred with by Mr Stagg in his written representations on behalf of the claimant but there are further grounds of appeal by Mr Stagg which are not concurred with by the adjudication officer.

6.	I decided to set the tribunal’s decision aside because I accept the concurring submissions of Ms Thomas on behalf of the adjudication officer and Mr Stagg on behalf of the claimant which are in fact summarised in paragraphs 8, 9 and 11 of the adjudication officer’s written submission of 29 May 1996 as follows,

	“I support the appeal’s first ground that there has been a failure to record the evidence.  I submit for an appeal hearing that lasted over two hours the chairman’s notes of evidence is lacking in detail.  I submit that failure to record a note of evidence is an error of law.”

7.	So far as that is concerned, it is clear to me from the tribunal’s record of decision (on form AT3) that they took trouble with this case and indeed it is said that the hearing lasted about two hours.  However, there were complicated evidential matters adduced to the tribunal in this case.  It would appear from the documents before me that the hand written record of decision on form AT3 contained no entry at all in Box 1 on form AT3 for “Chairman’s note of evidence” but that those notes were typed in at a later date.  There is of course no objection to that being done particularly bearing in mind the pressures upon tribunals at the time of their hearings.  I have also borne in mind that Box 1 merely requires the chairman to record “concise details” of the evidence.  However, in the present case the note of evidence was just a very brief summary of the issues before the tribunal.  Although of course this deficiency is supplemented in some ways by the tribunal’s findings of fact (which are fully recorded in box 2), I have ultimately concluded that the notes of evidence which the claimant is entitled to receive do not necessarily demonstrate to the claimant that all his evidence was being recorded and taken into account by the tribunal.  Therefore I must conclude that that ground of appeal is in fact satisfied.  I would however stress that it cannot be expected of tribunal chairmen that they should make anything by a verbatim record of the evidence that is given to a tribunal.  What is needed is a ‘half-way house’ between a brief summary of what occurred, which is not enough, and a verbatim record.  My experience is that tribunal chairman are accustomed to arriving at that mean.

8.	The second ground on which Ms Thomas on behalf of the adjudication officer and Mr Stagg concur is summarised in paragraph 9 of the written submission dated 29 May 1996 of the adjudication officer now concerned, as follows, “The claimant gave evidence that he believed that he was in receipt of sickness and/or invalidity benefit.  The tribunal have not made any finding of fact as to whether it was reasonable for the claimant to hold such a belief.  I submit that this is an error of law.” 

9.	In my view this ground of appeal is also correct, though how much it would assist the claimant I do not know bearing in mind that, even if the benefits received were sickness and/or invalidity benefit, there would still be a duty to disclose a wife’s earnings if she is claimed for as a dependant.  However, the new tribunal had better look into this matter as the claimant indicated strongly at the last hearing before me that he wishes to adduce detailed factual arguments on this point (see also below as to his medical condition).

10.	A further matter to which I should allude is the fact that the claimant was the subject of a criminal prosecution for obtaining benefit by deception but a Certificate of Acquittal by the Crown Court dated 17 September 1994 indicates that the claimant was acquitted of four charges of obtaining property by deception, was acquitted by a jury, and  was discharged.

11.	The adjudication officer points out in paragraph 11 of his written submission of 29 May 1996 that, “evidence was given that during the course of the claimant’s trial for obtaining property by deception it was admitted by Departmental officials as to the confusing nature of the benefit books and other documents in the case.  The tribunal have not recorded whether this evidence was relevant to the decision they had to make.”  That is true but attempts to resolve this matter before the Commissioner have proved inconclusive.  If the claimant wished to raise this matter again before the new tribunal, he should do so.  I should say, however, that I have considerable doubt how much this line of argument can assist the claimant in view of the different issues before the Criminal Court and before the social security adjudication system on a recovery claim.  The onus of proof, moreover, is different.  The Secretary of State in a recovery claim has only to prove on a balance of probabilities (not beyond reasonable doubt as in a criminal court) that the overpayment was caused by non-disclosure or misrepresentation of a material fact.  Lack of fraudulent intent is not of itself a “defence” to a recovery claim, it having been so held by the Court of Appeal in Page v. Chief Adjudication Officer (Appendix to R(SB)2/92).                                  

12.	The claimant through his representative has raised a number of other grounds of appeal.  In particular, criticism is made of the fact that in their reasons for decision the original tribunal, dealing with the claimant’s mental state, said, .. the tribunal did not accept that [the claimant] was incapable of reading the contents of the benefit book.  The tribunal did not further believe that his illness was so severe as to make him totally incapable of understanding the change of circumstances should be reported to the Department.”  They added, “The tribunal held that [the claimant] in spite of his illness [was] aware of the change of circumstances and [was] aware that the change of circumstances should be reported to the Department which has not happened.  [The claimant] is an educated person and had been involved with setting up a number of charities, dealing with people’s and housing situations for a long time.  It is quite reasonable for the Department to expect from a person of his capability to be aware of the change of circumstances and to bring to the notice of the Department, unfortunately that has not happened in this case and therefore this amount is recoverable from him.”

13.	Mr Stagg makes criticism of this by for example stating that it is inconsistent with the test of objectivity which I stressed in a decision on file CF/026/1990, at paragraphs 11-13.  But that decision dealt with a person who was alleging that being below the normal mental level of the ordinary man excused repayment.  In my view, one cannot deduce from that decision that a tribunal is not entitled to take account of the fact a particular claimant is an educated person.  The ‘other side of the coin’ argument is not, in my view, logical.  Tribunals are in my view entitled to take into account of the educational ability of claimants in deciding whether they ought to have understood that they should disclose a particular matter (see a decision by another Commissioner on file CIS/125/94, with which I agree).  I ought to add that in this case, I do not consider it particularly significant that the claimant had a higher level of education than perhaps some others.  The ordinary man in the street, if I may use that expression, can justifiably be expected to realise that he ought to reveal earnings of a person for whom he is claiming an increase of benefit.

14.	I now deal with the criticism made by Mr Stagg of the statement by the tribunal in its findings of fact, “the Tribunal did not find [the claimant] to be a credible witness”.  It is suggested that the tribunal should have given an indication of why they came to such a view and that, to quote Mr Stagg in his written submission of 26 October 1996, “the bald statement is likely to lead to the claimant believing that the finding against him was based on irrational grounds.”  This ground of appeal is not supported by the adjudication officer now concerned.  In my judgment the ground of appeal is misconceived.  A tribunal in particular in a case of this kind must assess the credibility or otherwise of any witness including the claimant.  If it does not find the evidence given by the claimant credible, it is entitled to say so without more.  It is difficult to understand what reasons it is supposed to give other than simply that it does not believe the claimant.  I do not see how that belief can be corroborated.  Consequently, I reject that particular ground of appeal.  It is of course another matter if a tribunal seems to suggest that a witness’s evidence lacks corroboration and therefore should be rejected on that ground.  That is not permissible but that was not the issue here.  The tribunal simply stated, as they were entitled to, that they did not find the claimant to be a credible witness.  That finding of course is not in any way binding upon the new tribunal that he hears this case, nor for that matter are any of the other findings of fact or reasons of decision given by the original tribunal.

15.	I now deal with what is in some ways the principal issue in the case, namely the claimant’s contention as to his mental state (caused by myalgic encephalomyelitis - ‘ME’) throughout the relevant period.  The detailed medical evidence as to this should be put before the new tribunal.  The claimant contends that, on the case-law, his confused and enfeebled mental state meant that there was no “failure” by him to disclose his wife’s earnings (see section 71 of the Social Security Administration Act 1992) and, misrepresentation not being alleged, he should not be required to repay the £12,000 plus overpayment.

16.	I received detailed oral legal argument from Mr Stagg and Ms Thomas on the extent to which, if at all, a claimant’s mental state could show that there was no “failure” to disclose.  Among Commissioners’ decisions cited to me were R(SB) 21/82, paras 4(2), 13(1) and 19(5), R(SB) 40/84, para 11 (1) and Appendix para 1 and CA/303/92, to be reported as R(A) 1/95.  In so far as the last of those decisions appears to state that mental state is never relevant to “failure”, then I consider that is inconsistent with the earlier reported decisions, one of which (R(SB) 40/84) does not appear to have been cited to the Commissioner.  However, in so far as the earlier reported decisions do admit the relevance of mental state to “failure” to disclose, I conclude, after a close examination of them, that such state is only relevant where it renders the claimant wholly incapable of appreciating the need to disclose the material fact of which he knows (see e.g. R(SB) 21/82, para 13(1) - psychotic chronic schizophrenia and R(SB) 40/84 - possible senility of 80 year old).  Anything less will not suffice.  I leave it to the new tribunal to decide whether the claimant’s own and medical evidence in this case shows such a state of mind.  Clearly, cogent evidence is needed, when the non-disclosure was of a comparatively elementary fact, not an esoteric one.

					(Signed)	M J Goodman
							Commissioner

					(Date)	13 January 1998