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[2005] UKSSCSC CIS_1184_2002 (09 June 2005)

PLH Commissioner's File: CIS 1184/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Income Support (Overpayment)

Appeal Tribunal: Cheltenham

Tribunal Case Ref:

Tribunal date: 5 December 2001

Reasons issued: 5 December 2001

This appeal by the claimant is allowed, as in my judgment the decision of the Cheltenham appeal tribunal, consisting of a chairman Mr R P Colledge sitting alone on 5 December 2001, was based on a misdirection as to the proper scope of the appeal and the ability of the tribunal to go into questions of entitlement outside the terms or the period covered by the adjudication officer's determination against which it was brought.

I set the tribunal's decision aside and in exercise of the power in section 14(8)(a) Social Security Act 1998 substitute the decision I am satisfied the tribunal ought to have given on the material before it and the admitted facts. This is that the total sum of £1,860.80 mistakenly overpaid to the claimant as a disability premium on his income support for the period 8 April 1997 to 15 June 1998 inclusive is recoverable from him under section 71 Social Security Administration Act 1992 in accordance with the decision given by the adjudication officer on 14 January 1999, by reason of the claimant not having notified the income support office dealing with his claim over that period of the material fact that another office of the department had withdrawn the disability living allowance formerly payable to his wife. I am obliged by the recent decision of the House of Lords in Hinchy v Secretary of State [2005] UKHL 16 to hold this was a "failure of disclosure" making the overpaid amount recoverable under section 71 notwithstanding that, as I am satisfied was the case here, the claimant acted entirely honestly and understandably in thinking such separate notification unnecessary. The additional sums alleged at various later stages of the proceedings after the adjudication officer's determination had been made to have been overpaid to the claimant for different benefit periods, or for different reasons, are not shown by anything in the material before me to have been the subject of any proper determination revising or removing the claimant's entitlement under the original awards which caused those amounts of benefit to be paid to him in the first place, and accordingly are not recoverable from him under section 71.

These proceedings have a regrettably long procedural history, and it is well to begin by rediscovering what the claimant's appeal of 26 January 1999 which gave rise to them was actually about. He is a man now aged 43, who had been claiming and receiving income support at all material times from 1992 until the autumn of 1998. Over the same period he had been looking after his wife, who is a few years older than him and disabled by chronic venous thrombosis. The claimant never actually asked for anything extra on his income support because of his wife's disability, but from 1993 was awarded and paid a disability premium of something over £25 a week by the department of its own motion, when on a periodic review of his income support he disclosed that his wife was currently getting disability living allowance. See the details he entered on the standard review form he was asked to complete at page 4, and the consequent departmental calculation at page 9 showing the amount due and paid to him in May 1993 for the period back to the start of her DLA award in August 1992.

The claimant continued to receive the disability premium on his income support from then until August 1998. However in June 1998 the answers he gave on a further periodic review form showed that his wife was no longer getting DLA, and the department's enquiries revealed that her award had been stopped some time previously; this meant he had no longer qualified for the disability premium he had still been receiving. The departmental evidence as to when the DLA was actually withdrawn, the date from which such withdrawal took effect, and what determinations were actually made about the effect on the claimant's entitlement to income support disability premium, was (and still is) anything but clear. The contemporary notes made by a departmental officer at the time the review form was received and considered, dated 22 June 1998, record (in apparent self-contradiction) that the DLA for the claimant's wife had ended on 7 January 1998 and also on 7 April 1997. The summary of facts in the original departmental submission to the tribunal written on 15 March 1999 says that in June 1998 it was established from computer records that the DLA ceased from 7 April 1997; the income support had then been reviewed and revised to remove disability premium and on 20 August 1998 the claimant was asked to return his order book.

However there is no other record or evidence of that review and revision of entitlement, and the only decision that appears to have been communicated to the claimant was the later one of 14 January 1999 which gave rise to the appeal. At that time, according to the statement of facts, the adjudication officer had also "reviewed the decisions relating to the period 8/4/97 to 15/6/98" and determined that the resulting overpayment of £1,860.80 representing the disability premium for that period was recoverable from the claimant, the ground being that he had failed to disclose on 8 April 1997 or as soon as possible afterwards the material fact that DLA had ceased for his wife so that he no longer qualified for the premium on his income support (see also the terms in which that decision was recorded and communicated to the claimant at pages 15-19). In fact the premium payments had gone on being made to the claimant for a further period from 16 June 1998 until his order book was recalled in August; but it was conceded those extra payments were not recoverable in any event, as they were the consequence of the department failing to act more promptly on the information the claimant had quite truthfully given in June: see paragraph 5.7 on page 1B.

Whether or not the claimant had already been notified of the decision (which must have been taken in some form in August 1998) that he no longer qualified for the disability premium from 8 April 1997 because his wife's DLA had ceased, he did not at any stage dispute it, either then or when it was reiterated in the opening part of the decision letter sent to him on 14 January 1999. All he did seek to appeal about was the separate decision contained in the later part of that letter, to the effect that the overpaid benefit for the period from 8 April 1997 to 15 June 1998 was legally recoverable from him on the ground of failure to disclose a material fact. His letter of appeal dated 25 January 1999 at pages 20 to 21 places that beyond doubt, saying in terms:

"I received a letter from you and it was to inform me that you had paid me £1,860.80 too much in income support from 08/04/1997 to 15/06/1998 and that I am now to pay the above amount back to the DHSS. I was not aware at the time my wife's DLA was stopped that we had to inform the DHSS. I understood that all departments communicated with one another and that the DHSS already knew.

When my wife's DLA ceased we put it down to the Government cuts as my wife's condition hadn't changed and I assumed that the DHSS had already been informed and that they were still paying us the disability premium because my wife's condition hadn't changed. I wish to appeal against the adjudication officer's decision for me to pay this money back. …

I appeal to you to look at my case again as I do not think it is my job to inform the DHSS that my wife lost her DLA I thought that they already knew."

Thus the only benefit period covered by the decision against which the claimant was appealing was that from 8 April 1997 to 15 June 1998, and the only issue raised on his appeal was whether he was liable to repay the (admittedly) overpaid benefit for that period when, as he agreed to be so, he had not sent a separate notification on 8 April 1997 or as soon as possible afterwards to tell the income support office his wife was no longer getting DLA, believing that to be unnecessary as they would already have the information from within the department itself.

The single issue the claimant thus raised and perfectly clearly formulated was in my judgment the only issue to which the appeal in this case ever gave rise. It is of course the identical issue of principle, of whether there can be a "failure to disclose" to the Secretary of State in terms of section 71 when different parts of the very large government department for which he is responsible are less joined-up than claimants expect them to be, that has recently been fought up through the courts and determined (in favour of the Secretary of State) by the House of Lords in the Hinchy case, which is the reason the final determination of this present case has had to be deferred for so long.

The appeal to the tribunal was thus purely against the adjudication officer's decision of 14 January 1999 that the overpaid benefit for the period 8 April 1997 to 15 June 1998 was legally recoverable from the claimant under section 71 Social Security Administration Act 1992. By section 71(5A), as in force at the date of that decision:

"(5A) …an amount shall not be recoverable under sub-section (1) above unless the determination in pursuance of which it was paid has been … revised on a review".

The appeal in this case was lodged by the claimant on 26 January 1999 and so fell within the transitional provisions affecting appeals under the Social Security Act 1998, passed on 21 May 1998. Even though the provisions transferring appeals to appeal tribunals under section 12 had not been brought into force for income support cases at the time this one was lodged the substance of the appeal was affected from the outset, in that the social security appeal tribunal before which it first came on 20 April 1999 was prohibited by paragraph 3 of schedule 6 to the 1998 Act from taking into account "any circumstances not obtaining at the time when the decision appealed against was made".

Applying the requirements of those provisions which are perfectly plain, I am not for my part able to see how the tribunal on the appeal against the overpayment decision of 14 January 1999 could validly have taken account of any determinations as to the claimant's entitlement to income support, on review or otherwise, which were not already in place and subsisting at the date of that decision under appeal. Still less could it have been proper on that appeal for any tribunal to have embarked on the making of a completely fresh determination as to entitlement for itself so as to support an additional claim for recovery of further allegedly overpaid benefit, not previously made or the subject of any determination by an adjudication officer, and relating to additional benefit periods or grounds outside those of the decision under appeal altogether. Yet regrettably that appears to be what did happen, not only on the first occasion when the case came before the social security appeal tribunal on 20 April 1999 but also when it was reheard on 5 December 2001 by a further tribunal (by this time an appeal tribunal constituted under the new provisions) after the first tribunal's decision had been set aside by a decision of a Commissioner on file CIS 4927/99.

The first tribunal was invited in the adjudication officer's written submission at paragraph 5.6 on page 1B to, as it was put, "substitute the correct decision" for that of 14 January 1999, in terms increasing the amount of income support legally recoverable from the claimant to £3,114.25, on the ground of what were said to be further departmental enquiries made after receipt of the claimant's appeal which had shown his wife ceased to qualify for DLA from a date in 1996 rather than 1997. The tribunal accepted that invitation, and gave a decision holding the increased amount recoverable from the claimant. In my judgment it was quite wrong to do so. Although the claimant did not dispute that his wife's DLA had stopped in 1996 (page 32) there was no evidence before the tribunal of any decision reviewing and revising the original award under which benefit had been paid to the claimant for the period before 8 April 1997. The condition in section 71(5A) was thus not shown to be met as regards that period at the date of the decision under appeal, which was in any event limited to the issue of legal recoverability for the single benefit period it specified. I am quite unable to see how in an appeal that was not to do with the question of entitlement at all an additional question of entitlement for a different period, that had not been the subject of any proper determination by an adjudication officer so as to give rise to a separate right of appeal, could ever validly have been introduced by way of a proposed "correction" of the decision under appeal as suggested, and unfortunately adopted by the tribunal.

That tribunal decision was set aside on other grounds, but when the matter came before the new tribunal on the rehearing the original misconception as to the proper scope of the appeal was unfortunately compounded yet further, not I am afraid helped by the terms in which the tribunal was directed to reconsider the case. As a tribunal constituted under the 1998 Act the appeal tribunal on 5 December 2001 was likewise precluded (by section 12(8)(b) of that Act) from taking account of any circumstances not obtaining at the time when the original decision appealed against was made; that is on 14 January 1999, since what was remitted for the new tribunal to rehear was still the claimant's original appeal against the overpayment decision of that date. It was thus concerned only with the question of legal recoverability of the disability premium for the period 8 April 1997 to 15 June 1998, on the basis of such decisions and determinations as to the entitlement to the benefit as were subsisting and in place at 14 January 1999.

With those limitations in mind it is in my judgment easy to see that the tribunal of 5 December 2001 was also clearly in error in law in having accepted the much larger repayment claims the Secretary of State was by then seeking to have tacked on to the original one. Its decision purported to "confirm" the original decision of 14 January 1999 while at the same time incorporating yet further alterations suggested by the Secretary of State, so as to hold the vastly increased sum of £14,190.20 overpaid and recoverable from the claimant on the completely fresh ground that none of the income support already awarded and paid to him for the period 6 August 1996 to 15 June 1998 ought to have been so awarded and paid at all. Yet there was no evidence before this tribunal, any more than there was before the previous one, of any proper decision altering the claimant's entitlement to income support in this much more drastic way having been made by an adjudication officer by the date of the decision under appeal on 14 January 1999, or for that matter by an adjudication officer or the Secretary of State at all. Again therefore the fresh issues of entitlement thus sought to be added in were right outside the scope of the appeal on whether the overpaid disability premium was repayable for the period from 8 April 1997; and that was so even if the fresh points taken had actually been correct, which the very helpful further submission of Mr G P Cahill on behalf of the Secretary of State dated 27 May 2002 at pages 177 to 182 now agrees they were not.

I must therefore set aside the decision of the second tribunal on the rehearing as well. On the material before me, and the facts never having been in dispute, I can now give the decision which I am satisfied ought to have been given by the tribunal in the first place in April 1999 on the issue raised by the claimant on his overpayment appeal against being held liable to repay, applying the meaning of "failure to disclose" now laid down by the House of Lords in Hinchy which is binding on me and not possible to distinguish from the present case. On that basis the claimant's omission to give a separate notification of the material facts about his wife's DLA to the office dealing with his own income support claim does have to count as a "failure to disclose" within section 71 even though, as I expressly find, his reasons for not doing so were entirely honest and innocent (and so far as I am concerned, understandable).

The precondition for recovery in section 71(5A) is also met, as regards the amount and the benefit period specified in the decision of 14 January 1999, since by that date at the latest the claimant's income support entitlement under the decisions awarding him benefit for that period had been reviewed and revised so that it no longer included the disability premium, as shown in the calculation on page 15. Mr Cahill very properly draws to my attention an apparent error in the decision letter which refers only to a "decision dated 10/06/1998" when the awarding decision or decisions for the period from 8 April 1997 must have been earlier. However there is no real doubt that there were such awarding decisions, pursuant to which the benefit had of course been paid; that the adjudication officer had power to review on the stated grounds whatever such decisions there were; and that such a review, limited to taking away the disability premium for that period, was intended and carried out as stated in the adjudication officer's original submission of 15 March 1999 to the tribunal. In those circumstances the review was in my judgment effective to remove the claimant's entitlement to the disability premium on his income support for that period, as he has never disputed; the incorrect or incomplete reference to the award date(s) in the letter of 14 January 1999 can be disregarded as a mere slip, not affecting the validity of what was actually done.

It has to follow that the £1,860.80 of disability premiums accidentally overpaid to the claimant for the period covered by the decision under appeal of 14 January 1999 (that is 8 April 1997 to 15 June 1998, both dates inclusive) is legally recoverable from him under section 71 Social Security Administration Act 1992, and I so hold. This decision is concerned only with whether the Secretary of State is legally entitled to recover the money; it is a separate matter for him to determine whether, or over what period, to seek actual recovery of any or all of it from the claimant taking into account his particular circumstances. For the reasons already given the additional amounts to make the alleged overpayments up to £3,114.25 or £14,190.20 were outside the proper scope of the claimant's appeal to the tribunal against the overpayment decision of 14 January 1999 and are not recoverable in these proceedings by the Secretary of State.

(Signed)

P L Howell

Commissioner

9 June 2005