UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CIB_1146_2005 (24 May 2007)

R(IB) 4/07

(Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495)

CA (Ward, Dyson and Thomas LJJ)

24 May 2007 

CIB/1146/2005 



Supersession – date of effect of supersession decision – transitional award of incapacity benefit – whether decision being superseded "incapacity benefit decision"

Recovery of overpayment – failure to disclose – requirement to notify Secretary of State of change of circumstances – statement by Secretary of State that claimant "should" disclose – whether amounted to requirement

The claimant had been in receipt of invalidity benefit, which took effect as an award of incapacity benefit under the Social Security (Incapacity for Work) (Transitional) Regulations 1995. In March 2002 he received a factsheet explaining the new rules for exempt work that a claimant would be permitted to do without loss of entitlement to incapacity benefit, following amendments to regulation 17 of the Incapacity for Work (General) Regulations 1995. The factsheet stated that he "should" tell the office dealing with his benefit before starting work. In September 2002 he started work that would comply with the new rules apart from the specific notice requirement in regulation 17(1)(a) that he inform the Secretary of State within 42 days of starting work. He continued working until April 2004 without informing the Secretary of State. In August 2004 the Secretary of State made a supersession decision to the effect that the claimant was not entitled to incapacity benefit for the period he was working, He appealed and the tribunal upheld both decisions. On the claimant's further appeal, the Commissioner held that the statement in the factsheet that the claimant should disclose his having started work amounted to a requirement to disclose a change of circumstances within the meaning of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, and that there had therefore been a failure to disclose in breach of section 71(1) of the Social Security Administration Act 1992. The Commissioner followed B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, reported at R(IS) 9/06, in disregarding the claimant's mental state and memory difficulties.

The claimant appealed to the Court of Appeal. Before the Court of Appeal it was argued that the tribunal had erred in failing to consider as a matter "raised by the appeal" whether the decision superseded by the Secretary of State was an "incapacity decision" as defined in regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, and so could be superseded only from the date that the claimant knew or could reasonably have been expected to know that the change of circumstances should have been notified, Mongan v Department of Social Development [2005] NICA 16, reported as R 3/05 (DLA), being cited as authority that an issue need not be explicitly raised by a party to be raised "by the appeal" under section 12(8) of the Social Security Act 1998, provided it is clearly apparent from the evidence.

Held, dismissing the supersession appeal, but allowing the overpayment appeal, that:

1. regulation 7(2)(c) did not apply, since CSIB/501/2003 and CSIB/695/2004 were correct in holding that transitional awards of incapacity benefit were not "incapacity decision" as defined in regulation 7(2)(c) of the 1999 Regulations and hence the issue was not "raised by the appeal" (Mongan approved as to the meaning of "raised by the appeal") (paragraphs 24 to 43);
2. the words in the factsheet were not the language of clear and unambiguous mandatory requirement, such as to makes it absolutely clear that the Secretary of State was imposing a requirement in accordance with regulation 32(1) and therefore the appellant had not failed to disclose in breach of section 71(1) of the Social Security Administration Act (CIB/3925/2003 and R(IB) 4/05 approved) (paragraphs 48 to 58).

Note: the notice requirement in regulation 17 of the Incapacity for Work (General) Regulations 1995 was abolished with effect from 10 April 2006 by SI 2006/757.


 


DECISION OF THE COURT OF APPEAL

Mr Simon Cox (instructed by Messrs Will Rolt) appeared for the appellant.

Mr Martin Chamberlain (instructed by Solicitor, Department for Work and Pensions) appeared for the respondent.

Judgment (reserved)

LORD JUSTICE DYSON:

Introduction

3. This appeal raises two issues of law arising from the incapacity benefit legislation. They arise from decisions by the Secretary of State for Work and Pensions (SSWP) (i) to supersede an award of incapacity benefit to the appellant for the period 9 September 2002 to 20 April 2004 and replace it with a decision that there was no entitlement to incapacity benefit for that period, and (ii) that an overpayment of incapacity benefit in the sum of £6,989.77 is recoverable from the appellant. These decisions were upheld by an appeal tribunal whose decision was in turn upheld by Mr Commissioner Jacobs. The appellant appeals with the permission of Sir Henry Brooke. Before I come to the statutory framework and the issues in more detail, I need to summarise the facts.

The facts

4. The appellant is 49 years of age. At the age of eight, he was injured in a road traffic accident, as a result of which he suffered significant brain damage. He was unemployed, and on 4 June 1987, a decision was taken under the then applicable legislation to award him invalidity benefit. In 1995, the invalidity benefit regime was replaced by a new regime by the Social Security (Incapacity for Work) Act 1994 (the 1994 Act). This introduced a new Part XIIA into the Social Security Contributions and Benefits Act 1992 and replaced invalidity benefit with incapacity benefit. Under the Social Security (Incapacity for Work) (Transitional) Regulations 1995 (SI 1995/310) (the Transitional Regulations), an award of invalidity benefit took effect as an award of incapacity benefit. Central to the new regime was the "personal capability assessment". On 22 August 1997, a personal capability assessment was carried out of the appellant. It was determined that he was incapable of work.
5. Until 2002, there were only limited circumstances in which claimants could continue to receive benefit while working. In April 2002, new rules for working while receiving benefit came into force. Work which did not disentitle a claimant from receiving benefit was "exempt work": see regulation 17(1) of the Social Security (Incapacity for Work) Regulations 1995 (SI 1995/311) (the 1995 Regulations). These rules required the claimant to notify the SSWP within 42 days of starting work.
6. In March 2002, the SSWP sent to all recipients of incapacity benefit a "factsheet" in which they explained the effect of the "new permitted work rules to be introduced from 8 April 2002", ie exempt work that a claimant would be permitted to do without loss of entitlement to incapacity benefit. After describing what work would be permitted, the document contains a section headed "how does permitted work affect my benefit?" It states that "permitted work will not affect your incapacity benefit" and then:

"You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work."

7. The appellant received a copy of this factsheet. He read it and put it away. He was unemployed at the time. On 9 September 2002, however, he started employment as a school cleaner. He worked in that capacity for 13 hours per week until 20 April 2004. He was paid more than £20 per week. He did not complete the application form that had been referred to in the factsheet before he started his employment or at any time. He did not notify the SSWP either orally or in writing that he was working.
8. He stopped working on 20 April 2004. On 26 May 2004, his incapacity benefit was suspended. On 7 August 2004, the SSWP made a decision superseding the award that had been made on 4 June 1987 on the grounds that between 9 September 2002 and 20 April 2004, he had been doing work which was not exempt within the meaning of regulation 17 of the 1995 Regulations. The supersession decision was that the appellant was not entitled to incapacity benefit for that period. On 13 August 2004, the SSWP made a decision that the appellant had been overpaid £6,989.77 and that this sum was recoverable from him because, in breach of regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) (the 1987 Regulations), he had failed to notify the SSWP of the fact that he had started working within 42 days of the day on which his work began.
9. On 14 September, the appellant gave notice of appeal against both the supersession and the overpayment decisions. On 18 October 2004, following a reconsideration, the SSWP maintained both decisions. In the reasons for this decision, the SSWP said that it was reasonable to expect the appellant to have disclosed the fact that he was working so that the overpayment "remains recoverable". The supersession decision was not dealt with.
10. As I have said, the decisions of 7 and 13 August 2004 were upheld by the tribunal and the appeal from the tribunal's decision was dismissed by the Commissioner.

The statutory framework

11. The substantive rules in relation to incapacity benefit which are material to this appeal are to be found in regulation 17 of the 1995 Regulations which defines "exempt work". It is unnecessary to set these out. It is sufficient to note that, as I have said, one of these rules is that the claimant notify the SSWP within 42 days of starting work that he has started work.
12. Decision-making and appeals are governed by the Social Security Act 1998 (the 1998 Act) and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (the 1999 Regulations). An indefinite award of incapacity benefit is not automatically terminated from the date that conditions of entitlement are no longer met. The ways in which an award can be altered are prescribed by detailed statutory provisions.
13. Where a change of circumstances has occurred, section 10 of the 1998 Act gives the SSWP the power to "supersede" the award. Section 10 also provides:

"(5) Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

(6) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed."

14. Thus the general rule is that a supersession takes effect from the date on which the decision to supersede is made. The prescribed exceptions are set out in regulation 7 of the 1999 Regulations. So far as relevant, regulation 7 at the material time provided:

"7. – (1) This regulation –

…

(b) contains exceptions to the provisions of section 10(5) as to the date from which a decision under section 10 which supersedes an earlier decision is to take effect.

(2) Where a decision under section 10 is made on the ground that there has been … a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under section 10 shall take effect –

…

(c) where the decision is not advantageous to the claimant –

…

(ii) in the case of a disability benefit decision, or an incapacity benefit decision where there has been an incapacity determination (whether before of after the decision), where the Secretary of State is satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision, or the incapacity determination, the claimant or payee failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify, and the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified,

(aa) from the date on which the claimant or payee, as the case may be, ought to have notified the change of circumstances, or

(bb) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, or

(iii) in any other case, except in the case of a decision which supersedes a disability benefit decision, or an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision), from the date of the change."

15. Regulation 7A(1) provides so far as material:

"7A. – (1) For the purposes of regulations … 7(2)(c) and (5) –

…

'incapacity benefit decision' means a decision to award a relevant benefit or relevant credit embodied in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA of the Contributions and Benefits Act,

'incapacity determination' means a determination whether a person is incapable of work by applying the personal capability assessment in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995 or whether a person is to be treated as incapable of work in accordance with regulation 10 (certain persons with a severe condition to be treated as incapable of work) or 27 (exceptional circumstances) of those Regulations,

…"

16. Where an award of benefit is the subject of a supersession decision that the claimant did not have entitlement during a period for which benefit was paid, an overpayment results. Section 71 of the Social Security Administration Act 1992 (the 1992 Act) deals with the circumstances in which such an overpayment can be recovered. It provides:

"(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –

(a) a payment has been made in respect of a benefit to which this section applies; or

(b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose."

17. In B v Secretary of State for Work and Pensions [2005] EWCA Civ 929, reported at R(IS) 9/06, this court held that a person "fails to disclose" for the purposes of section 71(1) if he or she breaches the requirement of regulation 32(1) of the 1987 Regulations. This is so, even if (as in B) the claimant lacks the mental ability to recognise the breach.
18. At the time when the appellant started work, regulation 32(1) of the 1987 Regulations provided so far as material:

"(1) … every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State … may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State … may require (either as a condition on which any sum or sums shall be receivable or otherwise), and in particular shall notify the Secretary of State … of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing (unless the Secretary of State … determine in any particular case to accept notice given otherwise than in writing) of any such change to the appropriate office."

The decisions below

19. The decisions of the SSWP were brief. The supersession decision was made because there had been a relevant change of circumstances in that the appellant had worked for the period from 9 September 2002 until 20 April 2004 and the work did not fall into the category of "exempt work". Accordingly, with immaterial exceptions, he was treated as capable of work between 9 September 2002 and 20 April 2004 and was not entitled to incapacity benefit for that period. This meant that the decision was to take effect from 9 September 2002. The decision to recover the overpayment was made because, in breach of regulation 32(1) of the 1987 Regulations, the appellant had failed to notify the SSWP of a change of circumstances which he might reasonably have been expected to know might affect his right to benefit, viz that he had started to work.
20. The appellant appealed against both decisions. The appeal tribunal agreed with the SSWP (i) that the work was not "exempt work" because the appellant had not notified the SSWP that he was working as required by regulation 17 of the 1995 Regulations; and (ii) that he had been in breach of regulation 32(1) of the 1987 Regulations, so that the SSWP was entitled to recover the overpayment that had been made in consequence of the appellant's failure to disclose the change of circumstances. It said that, if the appellant had notified the SSWP within 42 days of his commencing work, there would have been no overpayment. It also said that the appellant has a mental disability and that he had acted as he did "owing to a misunderstanding and not through dishonesty". It strongly recommended the SSWP not to recover the overpayment in respect of any period in which the appellant's earnings did not exceed the prescribed limit "as recovery would appear to be unduly punitive in the circumstances".
21. The supersession decision was not "advantageous" to the appellant so that, on the face of it, regulation 7(2)(c) was potentially relevant. The tribunal did not, however, address the question whether (a) regulation 7(2)(c)(ii) required the supersession decision to take effect from the date when the appellant "knew or could reasonably have been expected to know that the change of circumstances should have been notified", or (b) regulation 7(2)(c)(iii) applied, so that the decision took effect from the date of the change of circumstances. I shall refer to these questions as "the regulation 7(2)(c) issue". If neither regulation 7(2)(c)(ii) nor (iii) applied, then on the facts of this case the decision would take effect as from the date on which the decision was made: see section 10(5) of the 1998 Act.
22. The SSWP did not accept the tribunal's recommendation and the appellant appealed to the Commissioner. Mr Commissioner Jacobs recorded that the only issue before him concerned the correctness of the decision that the SSWP was entitled to recover the overpayment (the overpayment issue). That issue crystallised into the question whether the appellant had notified the SSWP of the change of circumstances "as soon as reasonably practicable" in the light of the fact that he had received the factsheet. There was no argument before him about the regulation 7(2)(c) issue.
23. The Commissioner referred to the decision of this court in B's case and said that, in the light of that decision, he had to "disregard the claimant's mental state and his memory difficulties, and any impact that they may have had on his ability to understand and comply with the duties on him to report relevant matters to the Secretary of State". He then referred to the passage in the factsheet to which I have referred at paragraph 4 above, and said at paragraph 7:

"I read that passage as containing an instruction to the claimant to report that he was going to start work. The word "should" in both places is not the most mandatory term that could have been used, but it is commonly used as a polite way of wording an instruction and that is how I read it. The Secretary of State was authorised to give instructions to claimants to provide information under regulation 32 of the Social Security (Claims and Payments) Regulations 1987. Accordingly, the claimant was under a duty to report the fact that he was going to start work".

24. He declined to follow the decision of Mr Commissioner Mesher in CIB/3925/2003 on this issue. He said that Mr Commissioner Mesher was applying the law as it was before B's case. He considered that B's case undermined Mr Commissioner Mesher's reasoning. The appeal tribunal had not erred in law on the overpayment issue and the appeal was dismissed.

The issues

25. The first issue is whether this court has jurisdiction to decide the regulation 7(2)(c) issue and if it has, whether it should exercise its discretion to deal with it. This includes the question whether the regulation 7(2)(c) issue was raised by the appeal to the tribunal. The second issue is whether, if the tribunal was in error in not dealing with the regulation 7(2)(c) issue, it should have held that the decision to supersede took effect from the date on which the decision was made (as contended by Mr Cox on behalf of the appellant) or from the date when the appellant started work (as contended by Mr Chamberlain on behalf of the SSWP). The third issue is whether the decisions below disclose an error of law in relation to the overpayment issue.

The first issue: should this court deal with the regulation 7(2)(c) issue?

26. The first question that arises is whether the tribunal erred in law in failing to deal with the regulation 7(2)(c) issue. Section 12(8)(a) of the 1998 Act provides that an appeal tribunal "need not consider any issue that is not raised by the appeal". It is clear that the effect of section 12(8)(a) is that the appeal tribunal may inquire into any issue not raised by the appeal, but is not obliged to do so.
27. What is meant by "an issue raised by the appeal"? In addressing this question, it is necessary to keep in mind that, as is common ground, the process before the tribunal is inquisitorial and not adversarial: see the comments at paragraphs 14, 56 and 61 in Kerr v Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372 (also reported as R 1/04 (SF)) in an analogous context. It seems that this question has not been the subject of decision by this court, but it was considered by the Northern Ireland Court of Appeal in Mongan v Department of Social Development [2005] NICA 16 reported as R 3/05 (DLA). That decision was concerned with the meaning of article 13(8)(a) of the Social Security (Northern Ireland) Order 1998 which is identical to section 12(8)(a) of the 1998 Act. The court gave valuable guidance as to what is meant by "an issue raised by the appeal". It is desirable that I should set it out in full:

"[14] The terms of article 13(8)(a) of the 1998 Order make it clear that issues not raised by an appeal need not be considered by an appeal tribunal. The use of the phrase "raised by the appeal" should be noted. The use of these words would tend to suggest that the tribunal would not be absolved of the duty to consider relevant issues simply because they have been neglected by the appellant or her legal representatives and that it has a role to identify what issues are at stake on the appeal even if they have not been clearly or expressly articulated by the appellant. Such an approach would chime well with the inquisitorial nature of the proceedings before the tribunal.

[15] It is now well established that appeal tribunal proceedings are inquisitorial in nature – see, for example the recent Decision of a Tribunal of Social Security Commissioners CIB/4751/2002, CDLA 4753/2002, CDLA 4939/2002 and CDLA 514/2002 [reported as R(IB) 2/04]. Mr McAlister relied on this decision, however, to support his contention that the tribunal was not required to consider matters that had not been raised by the parties to the proceedings. In that case it was held that 'raised by the appeal' should be interpreted to mean 'actually raised at or before the hearing by one of the parties'. In so far as the decision suggests that an appeal tribunal would not be competent to inquire into a matter that arose on an appeal simply because it was not expressly argued by one of the parties to the appeal, we could not agree with it. It appears to us that the plain meaning of the words of the statute, taken together with the inquisitorial nature of the appeal hearing, demand a more proactive approach. If, for instance, it appeared to the tribunal from the evidence presented to it that an appellant might be entitled to a lower level of benefit than that claimed, its inquisitorial role would require a proper investigation of that possible entitlement.

[16] Mr McAlister suggested that even if the tribunal had a duty to consider issues not explicitly raised, this was a limited responsibility and he referred to an unreported decision C5/03-04(IB) in which Commissioner Brown held that the tribunal was not required "to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it". We accept that there must be limits to the tribunal's responsibility to identify and examine issues that have not been expressly raised and we agree with the observation of Commissioner Brown. But as she said in a later passage in the same case, issues "clearly apparent from the evidence" must be considered.

[17] Whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend on the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it. An extensive inquiry into the issue will not invariably be required. Indeed, a perfunctory examination of the issue may often suffice. It appears to us, however, that where a higher rate of benefit is claimed and the facts presented to the tribunal suggest that an appellant might well be entitled to a lower rate, it will normally be necessary to examine that issue, whether or not it has been raised by the appellant or her legal representatives.

[18] In carrying out their inquisitorial function, the tribunal should have regard to whether the party has the benefit of legal representation. It need hardly be said that close attention should be paid to the possibility that relevant issues might be overlooked where the appellant does not have legal representation. Where an appellant is legally represented the tribunal is entitled to look to the legal representatives for elucidation of the issues that arise. But this does not relieve it of the obligation to enquire into potentially relevant matters. A poorly represented party should not be placed at any greater disadvantage than an unrepresented party."

28. Mr Cox submits that we should adopt this guidance without qualification. Mr Chamberlain accepts the guidance with one qualification. He submits that "not raised by the appeal" means "not raised by the appellant". He says that an injunction to the tribunal that it need not consider issues not raised by the appeal would be otiose, since issues not raised by the appeal are irrelevant and should not be considered in any event. But Mr Chamberlain concedes that the tribunal should adopt a broad, generous and non-legalistic approach to deciding whether an issue has been raised by the appellant. Thus, it may be sufficient for the appellant to appeal against a decision without stating the grounds relied on, provided that he or she places before the tribunal sufficient facts for the issue to be clear.
29. Section 12(8)(a) refers to an issue raised by the appeal. I see no reason not to give the statute its plain and natural meaning. But in view of the way in which Mr Chamberlain suggests "raised by the appellant" should be interpreted, it seems to me that there is no real difference between "raised by the appeal" and "raised by the appellant" as interpreted by him. The starting point will always be the decision of the SSWP that the appellant is seeking to challenge. But it is clear that the fact that an issue is not identified by the appellant in his appeal notice or even during the oral argument does not mean that it is not "raised by the appeal".
30. I would endorse the valuable guidance given in Mongan. The essential question is whether an issue is "clearly apparent from the evidence" (paragraph 15 in Mongan). Whether an issue is sufficiently apparent will depend on the particular circumstances of the case. This means that the tribunal must apply its knowledge of the law to the facts established by it, and it is not limited in its consideration of the facts by the arguments advanced by the appellant. I adopt the observations of this court in R v Secretary of State for the Home Department ex parte Robinson [1998] 1 QB 929 at page 945 E–F in the context of appeals in asylum cases. But the tribunal is not required to investigate an issue that has not been the subject of argument by the appellant if, regardless of what facts are found, the issue would have no prospects of success.
31. I now turn to consider whether the regulation 7(2)(c) issue was raised by the appeal to the tribunal in the present case. The appellant appealed against the supersession decision of 7 August 2004. Mr Cox submits that the tribunal ought to have recognised that the SSWP had not identified any legal basis for altering the incapacity benefit award with retrospective effect. The tribunal found that the appellant had a mental disability and that he acted as he did "owing to a misunderstanding and not through dishonesty". Had it sought to do so, the tribunal would have recognised that, on their findings of fact, the requirement in regulation 7(2)(c)(ii), that the appellant could reasonably have been expected to know that the change of circumstances (the fact that he had started to work) should have been notified, was not made out. It should then have decided that the case was excluded from regulation 7(2)(c)(iii) because it concerned an incapacity benefit decision where there had been an incapacity determination. Accordingly, the tribunal should have allowed the appeal against the supersession decision and held that, in accordance with section 10(5) of the 1998 Act, the decision took effect from the date on which it was made.
32. Mr Chamberlain meets this argument by submitting that the regulation 7(2)(c) issue was not raised by the appeal because the decision superseded was not an "incapacity benefit decision" within the meaning of section 7A(1) of the 1999 Regulations. It is convenient to repeat the relevant parts of the definition:

"a decision to award a relevant benefit … embodied in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA of the Contributions and Benefits Act."

33. "Relevant benefit" was defined at the material time in section 8(3) of the 1998 Act to include incapacity benefit, but not invalidity benefit. Mr Chamberlain submits that the decision being superseded in the present case was not an "incapacity benefit decision" within the definition of regulation 7A(1) because (i) it was not a decision to award a "relevant benefit" as defined and (ii) in any event, it did not embody a determination that the appellant was or was to be treated as incapable of work under Part XIIA of the 1992 Act; nor was such a determination necessary to the decision.
34. The response of Mr Cox is based on regulation 17 of the Transitional Regulations. So far as material, it provides:

"17. – (1) Where a person is entitled to invalidity benefit immediately before the appointed day, that award of invalidity benefit shall have effect on or after the appointed day as if it were an award of long-term incapacity benefit; and such an award shall be referred to in these Regulations as a transitional award of long-term incapacity benefit.

(2) Subject to the provisions in Part VI, a person's entitlement to a transitional award of long-term incapacity benefit shall be subject to him being incapable of work as determined in accordance with Part XIIA of the 1992 Act (Incapacity for Work)."

35. This question has been considered by Commissioners in two cases. In CSIB/501/2003 (a decision of 21 January 2004), Sir Crispin Agnew of Lochnaw Bt QC said:

"8. I agree that 'shall have effect' in Regulation 17(1) of the Transitional Regulations means that the award falls to be treated "as if it were an award of long-term incapacity benefit". However, it is only to 'have effect' as, but it is not to 'become', incapacity benefit. I also consider that the provision in Regulation 17(2) is important in that it provides that 'a person's entitlement to a transitional award … shall be subject to him being incapable of work'. If the award is subject to the claimant continuing to be incapable of work, then the decision must be capable of being changed (to use a neutral word) if the claimant becomes capable of work under Part XIIA of the 1992 Act. The question is whether this change can be effected under Regulation 6(2)(g).

9. The Transitional Regulations calls the award "a transitional award of long-term incapacity benefit" and provides that it shall be referred to as such in those Regulations. It does not specify how they are to be referred to in other Regulations. Regulation 6 of the 1999 Regulations refers to an 'incapacity benefit decision', a term which is defined in Regulation 7A.

10. The critical point in this case is the definition of 'incapacity benefit decision', because Regulation 6(2)(g) relates only to such a decision. The definition relates to 'a decision to award a relevant benefit' and one which is 'embodied in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA'. I agree with the submission of the claimant, that the decision to award, what is now called 'a transitional award of long-term incapacity benefit' to the claimant in 1990 cannot be 'a decision to award a relevant benefit … which is a determination … under Part XIIA'. Any determination in 1990 could not have been a determination under Part XIIA which came into effect in April 1995. I also consider that the 'take effect' does not convert the 1990 decision into an incapacity decision, because it relates only to the continuing effect and not to a change into the new benefit."

36. In the later decision in CSIB/695/2004 (published in March 2005), Mrs LT Parker adopted the reasoning of Sir Crispin Agnew. She also said:

"20. If conversion under regulation 17 of the transitional regulations makes an invalidity benefit decision count as an incapacity benefit decision for all purposes, then regulation 17(2) is otiose in so far as it provides that:

'… a person's entitlement to a transitional award of long-term incapacity benefit shall be subject to him being incapable of work as determined in accordance with Part XIIA of the 1992 Act (Incapacity for Work)'

If it is so converted by operation of law, from one benefit to another benefit, then the tests applying to the latter automatically apply to the former invalidity benefit award. Moreover, calling it 'a transitional award of long-term incapacity benefit' underscores that it is not identical to a regular award of the same. Regulation 29 of the same regulations is also rendered redundant to a degree.

…

22. The award is treated as one of long-term incapacity benefit but the decision leading to that award, which decision when made was a decision to award invalidity benefit, was in no sense a decision critical to which was a determination of incapacity under the new scheme: ex hypothesi at the relevant date the test underpinning the basis of the award was the one germane to sickness or invalidity benefit under section 57(1) of the Social Security Contributions and Benefits Act 1992. On their present wording, nothing in regulation 17 of the transitional regulations, nor in the definition of 'incapacity benefit decision' under regulation 7A(1)(c) of the decisions regulations, turns an invalidity benefit decision into one which used anything other that the then invalidity benefit test when it was made; that the effect of an award resulting from such decision is changed for some purposes by legislative fiat from 13 April 1995 is a different matter entirely."

37. Mr Cox submits that the decisions of these two Commissioners are clearly wrong so that the regulation 7(2)(c) issue was an issue that was raised by the appeal.
38. He relies on regulation 17 of the Transitional Regulations and adopts the arguments that were rejected by Sir Crispin Agnew and Mrs Commissioner Parker. In short, he submits that regulation 17 means that an award of invalidity benefit is to be treated as if it were an award of incapacity benefit for all purposes. The clear aim of regulation 17 was to ensure a continuity of benefit based on incapacity for work despite the changes effected by the replacement of invalidity benefit with incapacity benefit. The regulation ensured that a decision on invalidity benefit was deemed to be a decision on incapacity benefit and that it attracted the same treatment as a decision on incapacity benefit made under the new regime.
39. At first sight, there seems to be force in these submissions. There is the added point that no rationale has been suggested by the SSWP to justify treating decisions on invalidity benefit as if they were decisions on incapacity benefit for some purposes, but not for the purpose of regulation 7 of the 1999 Regulations.
40. At paragraph 8 of his decision, Sir Crispin Agnew refers to the words 'shall have effect' (in regulation 17(1) of the Transitional Regulations) and accepts that they mean that the award falls to be treated 'as if it were an award of long-term incapacity benefit'. But he says that 'it is only to 'have effect' as, but it is not to "become", incapacity benefit". I am not persuaded by this argument. If a regulation says that A is to take effect as B, then it is to be treated as if it is B. It does not have to say that A shall 'become' B.
41. But I find the other reasoning of Sir Crispin Agnew and the reasoning in paragraphs 20 and 22 of Mrs Commissioner Parker's decision convincing. In my view, Mr Cox was unable to provide any satisfactory answer to it. It is not sufficient simply to say that, on a purposive interpretation, it is clear that the intention of regulation 17 of the Transitional Provisions was that awards of invalidity benefit should be treated for all purposes and in all circumstances as awards of incapacity benefit. If that had been the intention, it would have been simple enough to say so. I acknowledge that the interpretation adopted by the two Commissioners is unsatisfactory in the sense that it produces a result for which no rationale has been suggested and which is contrary to that for which the Secretary of State argued in the two cases. But it seems to me that, for the reasons given by the two Commissioners, regulation 17 does not have the effect for which Mr Cox contends.
42. In reaching this conclusion, I also bear in mind what Hale LJ said in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279 (also reported as R(DLA) 6/01). What she said at paragraphs 15–17 was in relation to whether or not permission to appeal should be granted by the Court of Appeal against decisions of the Social Security Commissioner. But her observations have some relevance in the present context as well. At paragraph 16, she said that the ordinary courts should approach appeals from Commissioners "with an appropriate degree of caution". She continued:

"… It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success."

43. These observations fortify me in the view I have expressed that the two Commissioners reached the right conclusion on the meaning of regulation 7 of the Transitional Provisions. The decision of Sir Crispin Agnew (which pre-dated the decision of the tribunal in the present case) was in any event binding on the tribunal.
44. It follows that, although the tribunal did not consider the regulation 7(2)(c) issue, if it had done so, it would have been bound to decide that regulation 7(2)(c)(ii) did not apply because the decision being superseded was not an "incapacity benefit decision" within the meaning of regulation 7A(1) of the 1999 Regulations; and that for the same reason, regulation 7(2)(c)(iii) did apply. It would, therefore, have been bound to dismiss the appeal against the supersession decision.
45. I conclude, therefore, that the tribunal was not in error in failing to consider the regulation 7(2)(c) issue, because it was not an issue raised by the appeal. The issue was not the subject of argument by the appellant. The tribunal was not required to investigate the facts which would or might be relevant to the issue, since the decision superseded was not an "incapacity benefit decision" and the appeal against the supersession decision was bound to fail.
46. There was debate before us as to the extent to which the Commissioner is required to decide a point of law which has not been articulated by a party before him or her. It was common ground between counsel that the correct approach is that propounded at page 846B–D in Robinson in relation to applications for leave to appeal. In that passage, the court identified the circumstances in which it might be appropriate for the Immigration Appeal Tribunal to grant leave to appeal on the basis of a point not argued before the special adjudicator. Because the rules place an onus on the asylum-seeker to state his grounds of appeal, the court considered that mere arguability of the point was insufficient. It said that, in deciding whether to grant leave to appeal, an appellate authority should focus primarily on the arguments adduced before them (whether to be found in the oral argument before the special adjudicator or in the written grounds of appeal to the IAT). It is not required to engage in a search for new points. But if there is "readily discernible an obvious point" which favours the applicant, although he has not taken it, the appellate authority should apply it in his favour. There is no obligation to ask for submissions on points which have not been taken, but which are merely "arguable" as opposed to "obvious". By an "obvious point", the court meant "a point which has a strong prospect of success if it is argued".
47. It can be seen that the guidance given was coloured by the context of an application for leave to appeal. I am not convinced that this is necessarily the correct approach in relation to substantive appeals to the Commissioner. An appeal can only be "on the ground that the decision of the tribunal was erroneous in point of law": section 14(1) of the 1998 Act. This suggests that there must be a question of law as formulated by the appellant or at least in the way that he puts his case before the Commissioner. The jurisdiction of the Commissioner is circumscribed in a way in which the jurisdiction of the tribunal is not. But it is not necessary to reach a concluded view about this, since, for the reasons I have given, if the regulation 7(2)(c) issue had been considered and decided correctly by the Commissioner in the present case, he would have dismissed the appeal against the supersession decision.
48. It follows that the appeal to this court against the supersession decision must be dismissed.

The second issue:

49. In the light of my conclusion on the first issue, the second issue does not arise.

The third issue: was there an error of law in relation to the overpayment issue?

50. The question that arises here is whether the appellant had "failed to disclose a material fact" in breach of section 71(1) of the 1992 Act. It is common ground that, in the light of the decision of this court in B's case at paragraph 37, a person "fails to disclose" for the purposes of section 71(1) if he or she breaches the requirement of regulation 32(1) of the 1987 Regulations. This is so even if the claimant lacks the mental ability to recognise that he or she is in breach of that requirement (paragraph 40 of B).
51. Regulation 32(1) requires the appellant to "… furnish in such manner and at such times as the Secretary of State may determine … such information or facts affecting the right to benefit or to its receipt as the Secretary of State may require …".
52. The question that arises for decision is whether the terms of the factsheet were sufficient to amount to a "requirement" that the appellant should notify the Secretary of State that he was starting work before he started work. The tribunal noted that the appellant was paid by order book and that the order book unambiguously instructed him to notify any change of circumstances, including the doing of any work. Of the factsheet, it said (paragraph 9) that it "contained an instruction to fill in an application form before doing any permitted work". It concluded that the appellant's failure to notify the Secretary of State of the change of circumstances was a breach of regulation 32(1) of the 1987 Regulations.
53. As I have already said, Mr Commissioner Jacobs interpreted the relevant passage in the factsheet as containing an instruction to the appellant to report that he was going to start work.
54. Mr Chamberlain supports the Commissioner's reasoning. He submits that the factsheet contained an instruction which would have been clearly understood by a layman as meaning that he was obliged to notify the SSWP before starting work and that if he did not do so there would be adverse consequences. Mr Chamberlain does not rely on the instruction contained in the order book as being the relevant instruction.
55. The meaning of the material part of this factsheet has been considered by two Commissioners. In CIB/3925/2003, Mr Commissioner Mesher said at paragraph 23:

"Telling the incapacity benefit office before starting work was not set out in the factsheet as one of the conditions on which work was permitted. The conditions stated were merely in terms of hours and earnings, and the length of time for which the permission would continue. The very use of the term 'permitted work', in the context of rules which were said to be making it easier for people to try paid work without affecting benefit, created an impression that work would be permitted, and not affect benefit, on those conditions alone. Then the instruction about telling the office was put at the end of the section on how benefit was affected, as the second part of a sentence beginning with the issue of doctors' advice about working, in terms of what 'should' be done. The sentence about filling in an application form before doing permitted work did not say that work would not be permitted work if an application form or information was not submitted at the right time. In those circumstances, I conclude that a person reading the factsheet with the degree of care to be expected of ordinary people, rather than lawyers or benefit experts, could think, without going outside the boundaries of reasonableness, that it was not necessary to inform the incapacity benefit authorities of work within the hours and earnings limits for permitted work. It could reasonably have been thought that giving such information was desirable, but no more, as it could have been thought that the giving of the information was irrelevant to the question of whether or not the work would affect entitlement to benefit. It could also reasonably have been thought that the new information superseded whatever was printed in the order book."

56. In R(IB) 4/05, having agreed with paragraph 23 of Mr Commissioner Mesher's decision, Mr Commissioner Howell QC said:

"14. In fact the leaflet, which started by explaining that from 8 April 2002 there were new more flexible rules for people who wanted to try paid work while getting incapacity benefit, and that it would now be much easier to do this without it affecting benefit entitlement, made no mention of any notification condition when setting out the requirements for the 'permitted work' claimants were told they were now allowed to do. In the section of the leaflet describing what qualified as 'permitted work' it referred to the various conditions as to hours of work, earnings and so forth, but at no point there or elsewhere in the leaflet did it set out anything that reflected the actual condition as to notification or the 42-day time limit for it under regulation 17. Instead all the leaflet contained was a passage in a separate section, after the one that described what work was 'permitted' and after the express assurance that 'Permitted work will not affect your incapacity benefit', saying:

'You will no longer need to get a doctor to agree that the work will help your medical condition, but you should tell the office that deals with your benefit before you start work. You should fill in an application form before you do any permitted work.'

15. I agree with the decision already cited and with Mr Newton's argument that this language is not apt on a fair construction to convey a mandatory requirement or condition of reporting in order for the work to count as permitted work at all. It follows that on the basis of what the claimant was told in the letter, which was the only evidence relied on by the Department, the chairman was not justified in his conclusion that there had been a failure on the claimant's part to make the disclosure reasonably to be expected of him in all the circumstances, applying the established test in R(SB) 21/82. I further accept Mr Newton's submission that if any more stringent test omitting the element of reasonableness is the one to apply in this context as suggested in a recent Tribunal of Commissioners' decision in CIS/4348/2003 [the decision upheld by the Court of Appeal in B, now reported as R(IS) 9/06], the evidence was still insufficient to establish a 'failure' on the claimant's part in view of the lack of clarity in the leaflet about whether notification was actually required, as distinct from being advisable. Paragraphs 33 and 34 of that decision make clear that what is there said about failure to provide information required by the Secretary of State applies only if the form of the requirement or request is 'unambiguous', and the leaflet here was very far from that. In addition, the chairman's reference to the claimant's parents being able to make enquiries introduces what as it stands is an irrelevant consideration since the question is what the claimant himself ought or ought not to have done, there being no suggestion that he was unable to manage his own affairs or that anyone else was appointed to act for him."

57. There is no hint in the reasoning of Mr Commissioner Mesher that, in reaching his decision, he was influenced by a consideration of how the factsheet would be understood by a person suffering from a mental disability (an approach which B's case shows would have been wrong). The decision of Mr Commissioner Howell post-dated the decision of the Commissioner in B's case, which was upheld by this court on the mental disability point. He agreed with the reasoning of Mr Commissioner Mesher and held that the factsheet did not contain a clear requirement to notify the SSWP office that deals with the benefit before a claimant starts work.
58. I agree with the reasoning of both of these Commissioners. Read in the context of the factsheet as a whole, I do not consider that the words "you should tell the office … before you start work" and "you should fill in an application form before you do any permitted work" are the language of clear and unambiguous mandatory requirement. The consequences for a claimant of not complying with a requirement in accordance with regulation 32(1) can be very serious. That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not.
59. Mr Commissioner Jacobs said that the word "should" in the factsheet was a "polite way of wording an instruction". There may be contexts where the dictates of politeness are such that "should" means "must". Even in a social context, "should" may not mean "must". As Thomas LJ pointed out in argument, "you should go to the doctor" does not mean the same as "you must go to the doctor". The former is more the language of "you would be well advised to go to the doctor". The latter is an instruction. But there is no reason why the Secretary of State should have felt inhibited from using the clear and unambiguous word "must" in the present context. The context is not one which demanded politeness at the expense of clarity.
60. For these reasons, which are essentially the same as those given by Mr Commissioner Mesher and Mr Commissioner Howell QC, I would allow the appeal on the third issue.

LORD JUSTICE THOMAS:

61. I agree with the judgment of Dyson LJ. I also agree that it is not necessary to express a concluded view on the issues set out in paragraphs 44 and 45 of that judgment, but in so agreeing, I would prefer to leave the issue entirely open without expressing even a provisional view. It is important, in my opinion, to bear in mind that members of the public seeking to appeal in relation to this legislative scheme of great complexity and technicality, do not have the benefit of legal aid. Although a member of the public will generally have highly skilled assistance from workers in the voluntary sector, the fact that a member of the public is not entitled to legal aid may be a factor to be taken into account in determining not only the extent of the inquisitorial duty that the tribunal and the Commissioner have, but also the duty the tribunal and Commissioner have to be sure that the decision made is one which correctly applies the law to the facts, even where points on these very complex regulations are not raised by the member of the public. The extent of the duties is an issue which requires very careful consideration in a case where the issue arises directly. It may be necessary when considering the legislation to consider how Parliament intended an independent tribunal should, where legal aid was is not available, in fact administer justice to members of the public, and in particular those with disabilities such as the appellant, in respect of this highly technical and complex legislative scheme.

LORD JUSTICE WARD:

62. I agree with the judgment of Dyson LJ.
63. Exactly when and how a Commissioner may fall into error for not dealing with a point of law which had not been taken before him is a difficult question to answer. Having carefully considered paragraphs 44 and 45 of Dyson LJ's judgment and the judgment of Thomas LJ, I think it better to say no more than that the point should be left open for decision when it properly arises.

Order: appeal allowed. Decision of Commissioner set aside. Decision of appeal tribunal set aside and decision substituted confirming decision of Secretary of State issued 7 August 2004 and setting aside decision of Secretary of State issued 13 August 2004. Respondent to pay appellant's costs subject to assessment.

(Order does not form part of the approved judgment)