DGR/SH/ZA/CW/ZA/14

				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

[ORAL HEARING]
				
1.	My decision is that the decision of the social security appeal tribunal given on 24 November 1995 is erroneous in point of law, and accordingly I set it aside.  I direct that the appeal be reheard by a differently constituted tribunal, who will have regard to the matters mentioned below.

2.	This is an appeal by the adjudication officer, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 24 November 1995.  I wished to hear oral argument on certain aspects of this case, and accordingly directed an oral hearing.  At that hearing the claimant was neither present nor represented, but the adjudication officer appeared by Mr D Jones of Counsel instructed by the Solicitor’s Office of the Department of Social Security.

3.	On 7 December 1994 the adjudication officer made the following decision:-

“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.

4.	The facts of the case appear not to be in dispute.  Throughout the relevant period the claimant and her partner were living together as husband and wife.  Neither disclosed the true situation to the local office, and seemingly both were guilty of a positive misrepresentation as to their relationship.  Nevertheless, they each claimed income support as an independent person, and in the case of the claimant from 27 May 1982, as a single mother.  As a result the Secretary of State made an overpayment of benefit, and it is not in dispute that that amounted in all to £4,827.76.  The adjudication officer made a recoverability order against the claimant in respect of the total sum on the basis that, through her misrepresentation/failure to disclose, the Secretary of State had been induced to make payments of benefit to the claimant and her partner on a scale not allowable in view of the fact that they were living together as husband and wife.  Of course, the partner was equally culpable, but the adjudication officer did not make a recoverability order against him.

5.	On no footing could the decision of the adjudication officer have been correct.  There had been no review of the benefit received by the claimant’s partner, and accordingly none of that benefit was recoverable pursuant to section 71 of the Social Security Administration Act 1992.  In the absence of a review decision, the claimant’s partner continued to be entitled to the award made to him.  There is, however, a complication in this case, in that the period in issue goes back to 1982, and section 71, and the corresponding section of the Social Security Act 1986, namely section 53, which was in the same terms, only operated from 6 April 1987.  Prior to that date, the applicable provision was section 20 of the Supplementary Benefits Act 1976.  Under that section it was possible to recover overpayments for misrepresentation or failure to disclose, without the need for a prior review.  And in the present case for the period from 17 May 1982 to 6 April 1987 the position was governed by section 20 of the Supplementary Benefits Act 1976.  Although it might be contended that the terms of this provision were wide enough to embrace any person whose misrepresentation or failure to disclose resulted in an overpayment, irrespective of whether or not he or she derived any advantage from the overpayment, or was even a party to the proceedings, in the present instance it cannot adversely affect the position of the claimant.  For the overpayment to the partner arose, not out of any action or failure to act on the part of the claimant, but simply from the fact that the claimant’s partner had claimed benefit holding himself out as a single person.  No payment would ever have been made had he not acted in this way, and although it could be said that if the claimant had made proper disclosure, the effect of the partner’s misrepresentation/failure to disclose would have been neutralised, that is not the same thing as saying that the claimant was the cause of the overpayment to her partner.  Accordingly, on no footing could it be contended that the claimant was responsible in any way for any overpayment made to her former partner, and as a result there can be no question of a recoverability order against her in respect of such overpayment.  Moreover, as the claimant and her partner are now separated, and have been so from before the date of the adjudication officer’s decision, there can be no recovery by deduction pursuant to regulation 17 of the Social Security (Payments on Account etc) Regulations 1988 [S.I.1988 No 664].

6.	But had the claimant herself been overpaid benefit?  Manifestly, she had claimed as a single person/parent, and had received benefit in that capacity.  However, she did not in fact have that status; she was living with a partner.  Accordingly, in that capacity she had received benefit to which she was not entitled, and it is not in dispute that she acquired it by reason of her misrepresentation/failure to disclose.  However, the tribunal, although they did not make specific reference thereto, clearly applied regulation 13(b)(ii) of the Social Security (Payments on Account Etc) Regulations 1988, and offset against any overpayment the benefit which she would have received, had she made disclosure and been in receipt of benefit in respect both of herself, her child and her partner.  On that basis, they considered that the claimant, so far from being liable to have to pay back benefit, might well have received less than she was, strictly speaking, entitled to.

7.	Regulation 13(b)(ii) reads as follows:-

	“	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 -

			(a)	....

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

					............ 

					(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?

8.	The tribunal found in her favour on this point, but, in my judgment, they have not explained with sufficient particularity why they took the view they did.  It is not immediately obvious to me that the claimant would necessarily have been able to establish that she would have been the recipient of benefit in respect of the family.  On that ground, then, I must set aside the tribunal’s decision as being erroneous in point of law for breach of regulation 23(2) of the Social Security (Adjudication) Regulations 1995.

9.	Accordingly, I direct that the appeal be reheard by a differently constituted tribunal, who will consider the crucial question of whether or not the claimant is able to establish that she was entitled to an offset pursuant to regulation 13(b)(ii).  The matter will have to be determined on the balance of probability.  If the claimant can show that she would have received the benefit in respect of the family, then it would seem to me that, so far from the claimant’s being liable to a recoverability order, she will have received less than that to which she was entitled.  However, if, on the balance of probability, the tribunal take the view that she would have received nothing, and the entire benefit applicable to the family would have been paid to the partner, then she will be liable to a recoverability order in respect of all the benefit that she received for the relevant period, and this will be a very considerable figure indeed, far greater than that sought by the original adjudication officer.  This will be a difficult matter for the tribunal to determine, with important consequences for the claimant.  However, if the tribunal decide the issue adversely to the claimant, although it is not a matter for me, it would seem to me inequitable in the extreme that the claimant should be required to repay a sum in excess of the actual loss to the Secretary of State on the assumption that the true position had been known throughout and an award made on the basis that the claimant and partner were living together as husband and wife with one child, that is, the £4,827.76 originally sought.  

9.	Before leaving this matter I should mention one feature of the case which I found disturbing.  I made certain directions on which I required oral argument.  I asked Mr Jones for his submissions on the points raised.  His reply was that he was under specific instructions to make no submissions, nor even to discuss the matter.  Apparently, those instructing him had taken refuge in what they chose to identify as “policy”.  This would seem to me a wholly unacceptable attitude.  It is the duty of counsel to assist the court, or in the present case the Commissioner, in the interpretation of the law.  Mr Jones was clearly embarrassed and in effect found himself in an impossible position.   This is a situation which should not be allowed to arise in the future.

10.	For the reasons set out above, I allow this appeal.

					(Signed)	D G Rice
							Commissioner

					(Date)	23 February 1998