Commissioner's File: CIS/13742/1996
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
"I have reviewed the decision dated 25/01/82 of the adjudication officer awarding Supplementary Benefit /Income Support from 25/01/82 to 27/06/94 (both dates included).
I am satisfied that the decision was given in ignorance of a material fact.
My revised decision for the period from and including 25/01/82 is that Supplementary Benefit and Income Support should have been reduced.
As a result an overpayment of Supplementary Benefit and Income Support has been made as shown on the attached schedule amounting to £4,827.76.
On 25/01/82 or as soon as practical thereafter [the claimant] failed to disclose the material fact that she was living together with a partner.
Accordingly Supplementary Benefit and Income Support amounting to £4,827.76 from 25/01/82 to 27/06/94 (both dates included) is recoverable from [the claimant]."
It will be seen that the review carried out by the adjudication officer related solely to the award of benefit to the claimant. It did not bite on the award to the claimant's partner. Accordingly, any overpayment consequent on this review could only be arrived at by reference to the amount of benefit actually paid to the claimant. It could not take into account any benefit paid to her partner. However, the schedule was arrived at by reference to the benefit paid to both. When in due course the claimant appealed to the tribunal, the latter were astute enough to discern that, so far from the claimant's having been overpaid, the evidence suggested that she might well not have received her full entitlement. They therefore allowed the appeal.
" 13. In calculating the amounts recoverable under section 53(1) of the Act [SSAA, s.71(1)] or regulation 11, where there has been an overpayment of benefit, the adjudicating authority shall deduct -
(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 -
(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination."
During the period up to 21 November 1983 the claimant could not have claimed for the family in any event; the claim could only have been made by her partner. Accordingly, on any footing the benefit which she had received until 21 November 1983 was something to which she was not entitled, and to that extent she had been overpaid. But from 21 November 1983 onwards she could have claimed in respect of herself and her family. But so to could have her partner. Although it was incumbent on the adjudication officer, if the question of recoverability was to be relevant, to show that there had been an overpayment, nevertheless, if the claimant relied on an offset, the onus was clearly on her to show that any overpayment otherwise arising could be reduced or extinguished pursuant to regulation 13(b)(ii). Could, then, the claimant show that had the true position been disclosed to the Department, she would have been the one who successfully claimed in respect of herself, her child and her partner?
(Signed) D G Rice
(Date) 23 February 1998