UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_4218_2001 (13 December 2002)

 


R(IS) 1/04


Mr J. Mesher CIS/4218/2001

13.12.02

Human rights - recovery of overpayments - "fair and public hearing within a reasonable time" - whether proceedings criminal within Article 6 - when dispute starts for purposes of determining whether delay unreasonable

The claimant was in receipt of income support as a lone parent. In September 1994 she began a BA course and in December 1994 received the first instalment of a grant. She did not inform the income support office of the grant income. As the grant fell to be taken into account as income in the calculation of her income support, there was an overpayment of benefit. The Benefits Agency investigated the overpayment in January 1996, by which time she had abandoned the course, but no action was taken on the information obtained until October 2000, when a decision maker superseded the decision awarding benefit prior to September 1994 and decided that there had been a recoverable overpayment from September 1994 to September 1995. On appeal a tribunal confirmed the decision. In her appeal to the Commissioner the claimant argued that, because of the Secretary of State's delay, there had been a breach of her right to a fair trial under Article 6 of the European Convention on Human Rights.

Held, allowing the appeal in part, that:

the imposition of a liability to repay overpaid benefit was not a penalty by way of punishment, and accordingly did not attract the protections afforded by Article 6(3) to persons charged with criminal offences (paragraphs 13-18);

the claimant was entitled under Article 6(1) to a fair hearing within a reasonable time, but the time to be considered started with the supersession decision in October 2000, which was the first legal step in the process of recovery of the overpayment, and there was no unreasonable delay between that date and the hearing of her appeal in May 2001 (paragraphs 19-22);

on the facts the claimant was not significantly disadvantaged in pursuing her case by the lapse of time, and so there was no breach of the principles of natural justice or equality of arms. Even if there had been such a breach, there was no proportionate remedy within the power of a tribunal or Commissioner (paragraphs 23 and 24);

there was no breach of Article 1 of Protocol 1 as no legitimate expectation that repayment would not be required had been created (paragraph 25);

the tribunal had erred in failing to investigate the facts and adjust the period of the recoverable overpayment accordingly (paragraphs 27-35).

The Commissioner substituted his own decision reducing the amount of recoverable overpayment.

Note: See also R(IS) 2/04.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is allowed. The decision of the Portsmouth appeal tribunal dated 14 May 2001 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the appeal against the decision on behalf of the Secretary of State dated 14 October 2000 (Social Security Act 1998, section 14(8)(a)(i)).
2. My decision is that the adjudication officer's decision awarding the claimant income support from and including 17 August 1994 falls to be superseded with effect from 21 September 1994, on the ground of relevant change of circumstance, as a payment of student grant was to be taken into account as income from that date. The superseding decision, for the period from 21 September 1994 to 7 July 1995, is that the claimant is entitled to income support at the revised weekly rates shown against the relevant weeks in the schedule on page 4 of the papers. In relation to the period from 8 July 1995 to 5 September 1996, the superseding decision is that the claimant is entitled to income support at the weekly rate originally awarded. In consequence of that decision an overpayment of income support of £4,705.46 is revealed to have been made for the period from 21 September 1994 to 7 July 1995. The amount of that overpayment attributable to the period from 13 December 1994 to 7 July 1995 is recoverable from the claimant under section 71 of the Social Security Administration Act 1992 as it is the consequence of a failure to disclose a material fact. The amount of the overpayment attributable to the period from 21 September 1994 to 12 December 1994 is not recoverable from the claimant under section 71. The amount of the recoverable overpayment is to be calculated by the Secretary of State. In the event of any disagreement as to the calculation, the case may be returned to me or, if necessary, to another Commissioner for further decision.
3. This is an overpayment case. As appears from the previous paragraph, it depends on the claimant's entitlement to income support in a period from September 1994 into 1995 when she was a student on a BA course in Real Estate Valuation at Southampton Institute for Higher Education. The decision that an overpayment had been made and was recoverable was not made until 14 October 2000. The fundamental information on which that decision was based was in the hands of the relevant office of the Benefits Agency in January 1996. That delay is deplorable and has not been satisfactorily explained (the suggestion by the presenting officer at the appeal tribunal hearing that it was caused by there being so many overpayments to catch up with is, with respect, not believable). A central part of the claimant's case is that the delay should make the overpayment non-recoverable, probably through the operation of the Human Rights Act 1998.
4. The claimant had been in receipt of income support as a lone parent since June 1993. In September 1994 she started the first year of the BA course. The first day of the autumn term was 26 September 1994 and the last day of the following summer term was 7 July 1995. She had applied to Hampshire County Council for a grant, which was awarded. I do not know the dates on which the award was made or notified to the claimant. However, the printout from the Council at page 1E, the obtaining of which prompted the investigation of the claimant's case, shows the cheque date for the first term as 8 December 1994. The printout shows that in the academic year she received £2,317.25 for ordinary maintenance and £3,490 for the maintenance of her dependants, including the increase for her being a lone parent. The cheque date for the second instalment of the grant was 20 December 1994 and for the third instalment was 21 March 1995. The claimant has complained that, since Hampshire County Council have destroyed all grant files prior to 1996 and there are no computer records, she has been unable to check whether payment of that amount of grant was in fact made to her on the dates indicated. However, the amounts seem to be in accord with the figures prescribed in the Education (Mandatory Awards) (No. 2) Regulations 1993. I see no reason to doubt that the payments identified on the printout were made.
5. The claimant did not inform the income support office that she had started the course or been awarded the grant or received any instalment of the grant. She had declared on her grant application that she was receiving income support and did not think that she needed to do anything else about the integration of the two sources of income. I do not think that it is in dispute that, while the claimant was within the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987, her grant income would have fallen to be taken into account in the weekly amounts calculated on page 3, giving rise to the reduced entitlement to income support shown in the schedule on page 4. As she was a lone parent, being a student would not in itself take her out of entitlement to income support, but her grant income would have to be taken into account as laid down in Chapter VIII of the Income Support Regulations. Regulation 62 then required the ordinary maintenance element (after deduction of the set amount for books and travel) to be taken into account equally over the period from the beginning of the autumn term to the end of the summer term and the amount for dependants to be taken into account over the period of 52 weeks starting with 1 September 1994.
6. The claimant was interviewed on 24 January 1996, it appears after the printout had been obtained. In a statement she confirmed that she had been a student at the Southampton Institute of Higher Education. She stated that she understood that she had probably been overpaid some income support, which would need to be repaid. The printout had shown that nothing had been paid by way of grant to the claimant for the academic year 1995/96 and that the Council had not yet been told that she was in attendance. Since she appeared therefore no longer to be a student, no adjustment was needed of her current entitlement to income support. In August 1996 she received a capital sum from her father's estate. She promptly informed the income support office with the result that her entitlement to income support was terminated from 6 September 1996. Part of the evidence before the appeal tribunal was a letter dated 3 January 1997 to the claimant from a student grants assistant at Hampshire County Council, which included the following:

"I have received confirmation from Southampton Institute that you have withdrawn from your BA Hons Real Estate Valuation course with effect from July 1995.

As a result of this information your award has been terminated with effect from this date."

7. On 14 October 2000 a decision was made on behalf of the Secretary of State superseding the decision awarding the claimant income support prior to September 1994 on the ground of a relevant change of circumstances. The superseding decision for the period from 21 September 1994 to 19 September 1995 was that the claimant was entitled to income support at the revised rates shown on a schedule. It was found that an overpayment of £5,414.91 had been made to her for that period, which was recoverable from her under section 71 of the Social Security Administration Act 1992 because on 21 September 1994 or as soon as possible thereafter she had failed to disclose that she was in receipt of a student grant.
8. The claimant's appeal was disallowed by the appeal tribunal of 14 May 2001. The appeal tribunal found that the claimant could reasonably have been expected to disclose the receipt of the grant. On the delay in the making of the decision it said this:

"The information upon which the decision is based was in the hands of the Benefits Agency by January 1996 at the latest, and yet the actual decision as to recoverability of the overpayment was not made until October 2000, nearly five years after the event. This situation, which seems to be occurring with some frequency in this area, is unfair and wrong. It also points in strong contrast, the ability of the Benefits Agency to make valid decisions long after the facts giving rise to them are known, with the ability of Claimants to backdate benefit claims which is strictly limited by legislation.

I asked if the representative [Ms Kendrick of the Welfare Benefits Specialist Unit of Portsmouth Citizens Advice Bureau] wished to address me on the HR aspect of this. She did not, although she indicated that her organisation was looking at this matter generally. I can do nothing at this level because, in my view, the law is clear and cannot be construed properly in any way which would exclude the ability of the Benefits Agency to behave in this way, but higher Courts may be able to look at these matters and consider whether such behaviour offends the HRA in some way."

On the decision notice, the hope had been expressed that the Secretary of State would take the unreasonable delay into account when deciding how the overpayment was to be repaid.

9. The claimant now appeals with the leave of the chairman of the appeal tribunal. The application focused on the delay, in the context of natural justice and the Human Rights Act 1998, and on the difficulty which the claimant, as a lone parent with three children, would have in making repayment. I directed that Ms Kendrick should make a submission identifying the European Convention rights relied on and any supporting cases. Her submission dated 10 January 2002 relied on Article 6 of the Convention (right to a fair and public trial within a reasonable time) and referred to four judgments of the European Court of Human Rights. In reply, the representative of the Secretary of State, in the submission dated 1 February 2002, argued that the cases cited by Ms Kendrick were irrelevant as they related to criminal charges. It was submitted that in relation to civil rights and obligations under Article 6(1) of the Convention there was no dispute about a civil right until the decision of 14 October 2000 was made, so that there was no obligation under Article 6(1) to avoid unreasonable delay in the making of the initial decision that an overpayment was recoverable.
10. Following Ms Kendrick's reply I directed an oral hearing of the appeal, mainly because I thought that the Human Rights Act issue deserved further argument. I referred to some recent English cases on the categorisation of cases as criminal or civil for the purposes of Article 6. I also drew attention to some questions on the proper period of the recoverable overpayment.
11. The oral hearing took place, after a delay for Ms Kendrick to attempt to find specialist representation, on 10 June 2002. The claimant attended and was represented by Ms Kendrick. The Secretary of State was represented by Mr Scoon of the Office of the Solicitor to the Department for Work and Pensions. At the conclusion of the hearing, I gave a direction for a further written submission from the Secretary of State on the treatment of grant income after a claimant ceases to be a student. I also directed that when replying to that submission Ms Kendrick could put forward a further submission on the Human Rights Act and in particular on Article 6, hopefully with the benefit of a specialist legal input. She did not regard herself as having the necessary legal expertise to make a proper submission and was still seeking assistance. The Secretary of State's further submission was made on 11 July 2002. Ms Kendrick's reply was in very general terms, but requested a further oral hearing. I enquired whether that was all that she wished to say about the Human Rights Act and why she requested an oral hearing. On 4 October 2002, Ms Kendrick replied that she was still trying to find suitable representation for the claimant, as she was severely disadvantaged without it and deprived of a fair hearing. However, she requested that the Commissioner use his discretion and expertise in the decision of how to move forward. Nothing further has been received from Ms Kendrick or the claimant.
12. In those circumstances, it would be wrong to delay a decision any longer and there is no point in a further oral hearing. I have some sympathy with the difficulties of claimants and of under-resourced agencies in putting together arguments on the Human Rights Act, even those with the expertise of the whole citizens advice bureaux organisation behind them. However, it is still fundamentally for each party to an appeal to make their own case. I consider that I can properly and fairly take account of the claimant's interests by looking at what seem to me to be the strongest points which she could legitimately make on the Human Rights Act.
13. I deal with the Human Rights Act arguments first. One possible argument is that the claimant should, for the purposes of Article 6 of the Convention, be treated as a person charged with a criminal offence. That would bring in the requirement under Article 6(3)(a) to be informed promptly of the nature and cause of the accusation against her, with the obvious argument that the lapse of time between the interview on 24 January 1996 and the notification of the decision of 14 October 2000 in the letter of 23 October 2000 took the case well outside that requirement. Ms Kendrick stressed that, as a possible fraud prosecution might have been in issue, the interview would have been conducted under the terms of the Police and Criminal Evidence Act 1984 and the claimant would have been cautioned. She said that that would tend to bring the case within the criminal charge category. I am not at all sure that an interview of the kind carried out on 24 January 1996 would involve a caution, and there is no reference to that on the statement signed by the claimant. And in any case, what the claimant is complaining about is the delay in the making of the decision of 14 October 2000. It is the nature of that decision which is crucial, rather than that of the preliminary interview.
14. On that point it can be argued that a decision under section 71 of the Social Security Administration Act 1992 that an overpayment of benefit is recoverable, although it does not rest on proof of any kind of dishonesty, involves a finding of a breach of a duty by the person concerned, in a misrepresentation or failure to disclose a material fact. It can also be argued that such a decision also involves a sanction, in that the liability to have the overpayment recovered is imposed in circumstances where the person concerned will very probably already have spent the benefit wrongly paid and may involve hardship in the making of repayments from a restricted income. That can be said to be most likely in the case of a benefit like income support, designed to meet immediate needs, and where there is a long gap between the time of the payment of the benefit and the time of the overpayment recoverability decision. However, those arguments must be assessed according to the criteria adopted by the European Court of Human Rights and confirmed by English authority.
15. The issue of whether proceedings fall within the concept of a criminal charge under Article 6 has most recently been considered by the House of Lords in R (McCann) v. Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. That case was about the making of an anti-social behaviour order under the Crime and Disorder Act 1998. There, as in the other cases which I mentioned when directing the oral hearing, the criteria established by the European Court of Human Rights in Engel v. The Netherlands (No. 1) (1976) 1 EHRR 647 were applied: (a) the classification of the proceedings in domestic law; (b) the nature of the offence; and (c) the nature and degree of severity of the penalty that the person concerned risked incurring. It is well-recognised that the domestic classification is only a starting point, so that the fact that section 71 of the Social Security Administration Act 1992 constitutes part of English civil law does not necessarily prevent it being classified as involving a criminal charge for the purposes of Article 6.
16. In McCann it was decided that the applications for anti-social behaviour orders were not criminal charges for the purposes of Article 6, mainly because their purpose was preventive, not punitive, and would result in no penalty. It was noted that there was no case in which the European Court of Human Rights had held proceedings to be criminal where an adverse outcome could not result in any penalty by way of punishment. By contrast, in Han v. Customs and Excise Commissioners [2001] EWCA Civ 1040, [2001] 1 WLR 2253, the Court of Appeal held that proceedings for the imposition of civil penalties for dishonest evasion of value added tax gave rise to criminal charges within Article 6. The penalties were imposed in addition to the payment of the tax due. Dishonesty had to be proved and the purpose of the penalty was punitive and deterrent. And in International Transport Roth GmbH v. Secretary of State for the Home Department [2002] EWCA Civ 158 [2003] QB 728 (22 February 2002) the majority of the Court of Appeal held that the penalties imposed on lorry-drivers discovered on arrival in the United Kingdom to be carrying "clandestine entrants" involved criminal charges.
17. In Official Receiver v. Stern [2000] 1 WLR 2230 the Court of Appeal held that proceedings to disqualify persons from acting as company directors were not criminal proceedings. In Goldsmith v. Commissioners of Customs and Excise [2001] EWHC Admin 285 [2001] 1 WLR 1673 the Divisional Court held that proceedings to forfeit tobacco which the applicant could not prove was for personal use were not criminal. The person concerned was not subject to any other penalty apart from the consequences of the forfeiture and loss of the goods.
18. On the basis of that very brief summary of the current case-law, it seems to me that the answer in the present case becomes clear. Regardless of the degree of blameworthiness involved in a decision that an overpayment is recoverable, I am satisfied that the imposition of a legal liability to repay overpaid benefit is not a penalty by way of punishment. The requirement is to repay into public funds money which by definition was wrongly paid and would not have been paid if the full facts had been known by the adjudicating authority at the time. No interest is charged, nor is account taken of the fall in the real value of the sums involved through inflation. The purpose is restitutive, not punitive. Accordingly, the proceedings are not criminal within Article 6 and the protections limited to charges of criminal offences do not apply.
19. There is of course no doubt that the appeal tribunal was determining the claimant's civil rights and obligations so that she was entitled under Article 6(1) of the Convention to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. However, the European Court of Human Rights in Feldbrugge v. The Netherlands (1986) 8 EHRR 425 confirmed that the effect of its existing case-law was that Article 6(1) does not bite until there is a dispute about civil rights and obligations, or, to use the word in the French text of the Convention, a contestation. In that case, where the applicant had appealed against a decision of the Dutch social security authorities taking away her entitlement to sickness allowances, it was held that a dispute existed after the decision was taken. There must be a genuine and serious dispute.
20. The present case is not one, like Feldbrugge and many other cases, where an applicant appeals against the initial determination of a claim. In those cases, the general rule that the time to be considered under Article 6(1) runs from the date on which the appeal proceedings are started plainly holds good (see, for example, Massa v. Italy (1993) 18 EHRR 266, paragraph 28 of the judgment). Here, the claimant had been awarded income support and there was no decision encroaching on her legal entitlement for 1994/1995 until the decision of 14 October 2000 was made. Until that point, there had been an investigation, a suggestion that overpayment recovery action might be taken and long and unexplained delay, but no actual decision. That suggests that there was no genuine and serious dispute until the decision of 14 October 2000 was made, or at the very latest, the claimant appealed against that decision.
21. I have not found any European Court of Human Rights cases which deal with such a situation. The closest, I think, although it is not all that close, is Schouten and Meldrum v. The Netherlands (1994) 19 EHRR 432. There a social security organisation made a demand for payment of contributions by the applicants. They objected and requested formal confirmation of the organisation's decision, which was an essential step before an appeal could be made. The organisation took 20 months in one case and 15 months in the other to give the confirmation with reasons. The applicants then appealed. On their later complaint of a breach of Article 6(1) the Court decided that the period to be considered began when the applicants requested formal confirmation. It was not a case where a plaintiff was able to decide when to start a civil action, so that the period before the start of the appeal proceedings was relevant. I can see an argument that, where a claimant has an existing entitlement to benefit under an award, a dispute arises when the Secretary of State starts proceedings to alter the award to the claimant's detriment, and that the period to be considered in judging a reasonable time starts when action is first taken by the Secretary of State. However, there is a clear distinction from the circumstances in Schouten and Meldrum, where a decision had been made against the applicants (and interest was accruing on the unpaid contributions) and they had taken what was the first necessary legal step in the procedure to challenge the decision. In the present case, the dispute was raised by the Secretary of State, but I conclude that there was not a genuine and serious dispute, such as to attract the protections of Article 6(1), until the supersession decision was made on 14 October 2000. That was the first necessary legal step in the procedure which might lead to recovery of overpaid benefit, and is to be distinguished from the administrative process of investigation. It would have been different if, say, a review decision had been made in January 1996, but a separate overpayment recoverability decision had not been made until October 2000.
22. Accordingly, the time to be considered in relation to the right under Article 6(1) to have a fair hearing of the contestation or dispute within a reasonable time starts on 14 October 2000. What is reasonable must be judged in the context of what has gone before, including the delay, as part of the essential nature of the case. But there has been no real suggestion that there was any unreasonable delay, even in the context of the earlier delay, between 14 October 2000 and the hearing of the claimant's appeal on 14 May 2001 (especially as the actual recovery of overpayments is suspended pending an appeal).
23. Can it though be argued that as a result of the earlier delay the claimant was deprived of a fair opportunity to counter the case against her, so that there was a breach of the notion of "equality of arms" under Article 6(1)? There is some support for that in the case put forward for the applicants in Schouten and Meldrum, but the Court there decided that their position before the tribunals would not have been any different if the delay had not occurred (see paragraphs 70 and 71 of the judgment). The question could equally well be put in terms of natural justice in English law and the right to a fair hearing. In fact, I do not accept that the claimant was significantly disadvantaged in pursuing her appeal by the lapse of time, bearing in mind that the burden of proof lay on the Secretary of State and not on her (see my decision below on the facts). As there was no reason to doubt the available evidence of the amounts of grant paid, I think that the destruction of documents by the Council did not prejudice the claimant. Nor was she significantly disadvantaged by the natural fading of memory about the details of past events, as that could be taken into account by the appeal tribunal (and by me) in evaluating the evidence and this factor could equally disadvantage the Secretary of State, on whom the burden of proof lay. At this point, the focus is on the fairness of a hearing, not on the hardship of having to make repayments after a long lapse of time.
24. Even if I had accepted that there was inequality of arms or a breach of the right to a fair hearing by the appeal tribunal of 14 May 2001, there would be a difficulty in seeing what good it would do the claimant to assert such a breach of Article 6(1) or of the principles of natural justice. She cannot directly challenge the right of the Secretary of State to have made the decision of 14 October 2000 under legislation which imposes no time limit on how far back a superseding decision adverse to the claimant can go in income support cases or on the recoverability of any resulting overpayment. That decision therefore stands, subject to the appeal process. If it were accepted that the claimant could not have a fair hearing before the appeal tribunal because of the earlier delay, how could Article 6(1) or the principles of natural justice be complied with? Nothing that the appeal tribunal of 14 May 2001 or a Commissioner or a new appeal tribunal could do could change the past. The answer that the appeal tribunal ought therefore to have decided the appeal entirely in the claimant's favour cannot in my judgment be admitted. That would be an entirely disproportionate remedy, especially taking into account the interests of taxpayers in the integrity of the public funds devoted to income support. And it would allow a decision (that of 14 October 2000) which cannot be challenged directly under Article 6(1) to be overturned as an indirect side-effect of a defect in the appeal process. That could not be right. I conclude that a breach of Article 6(1) or of the principles of natural justice of the kind in question, which cannot in its nature be remedied by a rehearing, does not amount to an error of law which requires an appeal tribunal's decision to be set aside. Neither appeal tribunals nor Commissioners have the power to award compensation for a breach of the Human Rights Act.
25. I have finally considered the possible application of Article 1 of Protocol No. 1 to the Convention, on the right not to be deprived of possessions except in the public interest and subject to the conditions provided for by law. An overpayment recoverability decision, or at least the enforcement of the right to recover, involves (where the wrongly paid benefit has long been spent) depriving the claimant of money that has already come into her possession. Without going into the authorities, the central principles are of a "fair balance" between the requirements of the protection of individual rights and the general interest of the community and of a reasonable relationship of proportionality between the means employed and the aim pursued. In addition, a wide margin of appreciation for states in judging what the public interest justifies has been recognised. It seems to me that delay in the starting of proceedings by the Secretary of State, especially if coupled with circumstances which could give rise to a legitimate expectation that repayment of benefit would not be required, could be relevant to the questions of the fair balance and of proportionality. However, I do not think that there is any question of legitimate expectations (rather than a mere hope that the threat of repayment might go away or be forgotten) having been created in the present case. Once decisions on supersession and recoverability have been made, there remains a discretion in the Secretary of State whether and how to enforce recovery. In those circumstances, I do not find anything outside the principles of the fair balance and of proportionality in the making of such decisions, requiring repayment of wrongly paid benefit, even several years after the evidence enabling the decisions to be made was in the hands of the Secretary of State.
26. The upshot is that the arguments which can be made for the claimant under the Human Rights Act (which I have considered in the strongest form I can identify) do not bring her any practical benefit, as had been Mr Scoon's submission at the oral hearing.
27. I am nonetheless satisfied that the appeal tribunal of 14 May 2001 did err in law so that its decision must be set aside. The first reason was supported by Mr Scoon. It stems from the fact that the evidence before the appeal tribunal indicated that the first instalment of student grant was not sent to the claimant until 8 December 1994. I shall come back to what the claimant has now said to explain that circumstance. There was no evidence of any earlier notice that an award had been made. Therefore, given that merely becoming a student did not affect the amount of the claimant's entitlement to income support, there was not a material fact in existence which could reasonably be expected to be disclosed to the income support office until the first instalment of grant was received. As 8 December 1994 was a Thursday, in my view the first day on which disclosure could reasonably have been made was Monday 13 December 1994. Thus assuming that there was an overpayment from 21 September 1994 (on which see below), there was no basis for recoverability under section 71 in respect of the portion of the overpayment falling before 13 December 1994. The appeal tribunal should have taken that into account, but did not.
28. The second reason was tentatively supported by Mr Scoon and more firmly supported in the further written submission dated 11 July 2002. This stems from the fact that the claimant withdrew from her course at some date, but according to the evidence before the appeal tribunal, with effect from 7 July 1995. That raised the possibility that the claimant abandoned her course at some date before 19 September 1995. On that happening, she would have ceased to be within the definition of student in regulation 61 of the Income Support Regulations and the special rules in regulation 62 about the attribution of grant income would have ceased to apply. That is confirmed by many cases, including R(IS) 1/96, particularly relied on in the submission of 11 July 2002. The appeal tribunal should have investigated and made further findings of fact, in case on the ordinary rules income was not to be attributed to the claimant for all the weeks from the date on which the withdrawal was notified down to 19 September 1995. Its failure to do so was an error of law.
29. For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law. It is expedient for me to substitute a decision on the claimant's appeal against the decision of 14 October 2000, in which I can take into account the further evidence given by the claimant. Given my conclusions above on the Human Rights Act, I do not have to consider the effect of the Act.
30. The first question is what superseding decision should be made. There is no doubt that there was a relevant change of circumstances justifying supersession, in the payment of the instalments of student grant. The claimant has now explained that she started to attend the degree course on a part-time basis, with the fees initially being paid by her father. She decided to change to full-time attendance and applied to the Council for a grant at that point. That was why the first instalment of grant was not sent out until 8 December 1994. According to the printout on page 1E the first instalment was to cover the period starting with the first day of the autumn term (26 September 1994), and it seems that full-time status was regarded as applying from that date. By 14 October 2000, regulation 26 of and Schedule 7 to the Social Security (Claims and Payments) Regulations 1987 had ceased to define when a change of circumstances took effect in income support cases. Thus under regulation 7(2)(c)(iii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 the superseding decision is to take effect from the date of change. In the present case, in the light of my conclusion on the recoverability of the overpayment, I accept that the date of change can be taken as 26 September 1994 and do not explore any possible complications in an argument that the claimant was only to be treated as a student (i.e. attending a full-time course) from a later date.
31. It is necessary to consider the end of the period for which the superseding decision should revise the claimant's previous entitlement to income support. In addition to the evidence before the appeal tribunal about the claimant's withdrawal from the course, she produced at the oral hearing a copy of a letter dated 20 September 1995 to her from the Acting Dean of the Faculty of the Built Environment at Southampton Institute. The Dean said that he was sorry to hear that the claimant was leaving the course, but wished her well and notified her of the units of study in which she had achieved credits. There is therefore clear evidence that the claimant notified her withdrawal to Southampton Institute before 20 September 1995, and it is already known that the withdrawal was given effect from 7 July 1995, or more probably 8 July as the day after the last day of the summer term. In the written observations produced for the oral hearing, the claimant said that she could not remember when she abandoned the course or if any of the grant was repaid. When the submission of 11 July 2002 on behalf of the Secretary of State was made, no attempt was made to obtain evidence from Southampton Institute of the date on which the claimant's withdrawal from the course was notified. That was no doubt because the author took the view that it did not matter on what date between 7 July 1995 and 19 September 1995 the withdrawal was notified. In those circumstances, and bearing in mind that the burden of proving that any superseding decision should be adverse to the claimant is on the Secretary of State, I make a finding of fact that the withdrawal was notified on 8 July 1995, the day after the last day of term in the year which the claimant successfully completed.
32. The claimant therefore ceased to be within the definition of student as from 8 July 1995, on abandoning her course. The Secretary of State's view in the submission of 11 July 2002 was that the third instalment of the grant (including both dependants' allowance and ordinary maintenance grant), paid on 21 March 1995, was then to be attributed only to the period down to 28 May 1995. Therefore, no grant income was to be taken into account for the period from 8 July 1995, when regulation 62(3) ceased to apply. That was based on applying the effect of paragraphs 29 and 30 of Commissioner's decision R(IS) 1/96 to a case of the abandonment of a course, rather than the ending of a course in its final year. I am prepared to accept that without inquiring too closely into the technical reasoning behind the Commissioners' decisions mentioned or their application in the present case. I note that I am concerned with a period before the coming into operation of paragraph (2B) of regulation 29 of the Income Support Regulations.
33. On the view taken in the decision of 14 October 2000, the dependants' allowance, being attributed to 52 weeks, was taken into account at the rate of £67.11 per week for the whole period from 26 September 1994 to 19 September 1995. For the period down to 7 July 1995 the claimant's income was calculated at £113.58 (£46.47 for the ordinary maintenance grant, plus £67.11). For the period from 8 July 1995 onwards the dependants' allowance constituted the claimant's only income, as the ordinary maintenance grant was attributed to term-time and Christmas and Easter vacations, so that the overpayment for that period was calculated at £67.11 per week. That result cannot now stand for the period from 8 July 1995. But does it follow that, if the third instalment of the grant, totalling £2,091.19, was to be attributed only to the period of 75 days from 15 March 1995 to 28 May 1995, or from 24 April 1995 to 7 July 1995, it should be attributed at a correspondingly higher weekly rate, thus increasing the amount of the overpayment for that period? Although that argument is superficially attractive, the answer is no. The nature of the revised decision for the period down to 7 July 1995 can only be set by the rules which applied in that period. Those were the special rules for students, under which no more than £113.58 could be attributed as income to each week. The fact that those special rules do not apply from 8 July 1995 onwards, so that income ceases to be attributable, cannot require an alteration in the proper result for the earlier weeks.
34. Therefore, the superseding decision, made on the ground of relevant change of circumstances, is that from 21 September 1994 to 7 July 1995 the claimant was entitled to income support at the revised weekly rates set out against the relevant weeks in the schedule on page 4 of the papers. With effect from 8 July 1995 onwards the superseding decision is that the claimant is entitled to income support at the weekly rates previously in effect. In consequence there is revealed to have been an overpayment of income support in the amount of £4,705.46 over that period.
35. On the question of recoverability, I adopt the findings of the appeal tribunal that disclosure of the receipt of the payments of student grant by the claimant was reasonably to be expected and was not made. There was a failure to disclose a material fact. However, in accordance with my finding in paragraph 27 above, the claimant could not reasonably have been expected to disclose any material fact in her knowledge before 13 December 1994. Therefore, the part of the overpayment attributable to the period from 21 September 1994 to 12 December 1994 is not recoverable from the claimant under section 71 of the Social Security Administration Act 1992. The part of the overpayment attributable to the period from 13 December 1994 to 7 July 1995 is recoverable, as the overpayment was made in consequence of the failure to disclose a material fact. The precise amount of the recoverable overpayment is to be calculated by the Secretary of State. If not agreed, the case may be returned to me or, if necessary, to another Commissioner for further decision.
36. I reject the submission on behalf of the claimant that the Limitation Act 1980 prevents a recoverability decision being made so long after the period of the overpayment and the beginning of the investigation. Commissioner's decision R(SB) 5/91 plainly decides that no limitation period under the Act starts to run until there has been a decision on recoverability.
37. Mr Scoon mentioned the possible relevance of section 74 of the Social Security Administration Act 1992 to the period from 26 September 1994 to 12 December 1994. That section, with regulation 7 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988, provides a right of recovery independent of misrepresentation or failure to disclose where additional income support has been paid because a payment of income was made after the first day of the period in respect of which it was made or fairly attributable. It must be left to the Secretary of State to decide whether, in the circumstances of this case, to take any action under section 74.
38. In relation to any action to be taken to enforce recovery, I echo what was said by the chairman of the appeal tribunal on the decision notice (see paragraph 8 above).

Date: 13 December 2002 (Signed) J. Mesher

Commissioner