UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_2095_2008 (10 September 2008)

CIS 2095 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I replace the tribunal decision with the decision that the tribunal should have made. This is:

Appeal allowed. Any overpayment of income support made to the appellant between 5 09 2006 and 28 05 2007 is not recoverable from the appellant. This is because she did not fail to disclose any relevant income for or during that period.

The claimant and appellant ("R") is appealing with my permission against the decision of the Swansea tribunal on 5 03 2008 under reference 204 08 00161.

REASONS FOR THE DECISION

This is now a supported appeal. I have received a full submission from the Secretary of State's representative supporting the appeal and inviting me to decide that R did not fail to disclose any relevant information to the Department for Work and Pensions. It follows that she is not liable to repay any overpaid benefit. This appeal came to me as a decision both of the Secretary of State and of the tribunal that R had been overpaid over £3,500 in benefit and that most of that sum was repayable. On examination, I find that both the local Jobcentre and the tribunal made a series of mistakes handling the case. I consider I should give a full decision because R is entitled to an explanation of what happened. She is justified in expressing concern that she was told that she had to repay a large sum of money in circumstances in which she had done everything she was told or asked to do.

The facts

R claimed income support from 1998 for herself and two young children after she separated from her partner. On 6 09 2005 R informed the local Jobcentre that she was planning to start a full time two year HND course at a local further education college later that month. She gave details of the grants available, and confirmed that her children were still dependent on her. She asked that her income support claim be checked. She also passed on a support notification form from the Student Loan Company. This confirmed that her course was a two year course running to 1 06 2007. It set out the details of finances available for the first year. She would receive £1,175 support towards her fees, to be paid directly to the college. She was to be given a Higher education grant of £1,000 and a parent's learning allowance of £1,365. She was also offered a basic loan of £3,145, an additional loan due to financial circumstances of £1,050 and an additional loan for extra study of £600. She was also told, and again she told the Jobcentre, that as a Welsh student, she might receive an additional grant from the Welsh Assembly. She also included a letter from her local education authority confirming the £2,365 grant. This information was used to calculate R's continuing income support entitlement, and the revised award was put in place.

In July 2007 the local Jobcentre told R that she had to be available for an interview at her home for a "customer compliance" interview. At the interview she gave a statement that

she had just finished the two year HND course. She had taken out the maximum student loan and she had received the various grants to which she was entitled in both years. She had thrown away the paperwork when her course was completed. She acknowledged that she had received income support throughout the two years, and that it was paid at a higher rate in the second year than in the first year. She stated that she had told the Jobcentre the course was a two year course and she assumed that she was entitled to the sums paid.

Details of the grants and loans paid to R for 2006-07 were obtained. A decision maker acting for the Secretary of State then made a decision reducing R's income support by a substantial sum each week from 5 09 2006 to 28 05 2007. She was notified that as a result she had been overpaid income support of £3,850.84. It was accepted that a small part of that overpayment was not R's responsibility. But a further decision was made that, because of her failure to disclose her second year grants and loans, the rest of the overpayment was recoverable from her. This was because she failed to disclose her "new loan". She appealed.

R went to a firm of solicitors for help with her appeal. The firm of solicitors made a full written submission to the tribunal. It also conducted the first proper look at the award made to R. The solicitors contended that that there had been two official mistakes in R's grant, and that the alleged overpayment left her underpaid. The higher education grant and the parental learning allowance are both to be disregarded fully for income support purposes. At the same time, the weekly £10 disregard had been added into the calculation twice. The solicitors also pointed out that while R had received full details of the calculation of her income support for 2005-06, she had received no similar notification for 2006-07. The core point made in the submission was that R had not failed to disclose anything that she was under a duty to disclose.

The tribunal decision

The tribunal held an oral hearing. The arrangements under which the solicitors were funded to help R prevented them attending the hearing. She attended, as did an officer from the Jobcentre. The tribunal dismissed her appeal. In its statement of reasons, the tribunal rested its decision on a continuing requirement of an income support claimant to disclose any changes of circumstances. The tribunal found that R had been notified of the calculation of the second year's income and that she had failed to disclose the grant for the second year. It paid no attention to the points about errors in the calculation of the award.

I do not need to deal in detail with the tribunal decision as it is now common ground that the tribunal's decision is wrong in law. But, for the reason above, I set out what appears to have happened and what duties arose on R as a result.

My decision

The papers before the tribunal contained no evidence (my emphasis) that R had been given a breakdown of her income support entitlement either for 2005-06 or 2006-07. The computer records produced to the tribunal suggested that there had been a supersession decision applying to R's income support entitlement in September 2006. But there was nothing in the papers to show the reason for that supersession and no evidence of any notification of the decision to R. There is also no evidence of any specific notification to R that she was under any duty to report any changes in her student financing to the Jobcentre. There are poor photocopies of the back pages of benefit books, but no evidence that she was paid her income support by payable orders in such a book. (She was not, and those pages are irrelevant to this case). There is also a photocopy of the Jobcentre "INF 4 income support information sheet". Apart from the hopelessly vague duty to "tell us if you… get any money" or "get more or less money", there is nothing relevant in that leaflet. Against that, there is clear evidence from R that she told the Jobcentre of her two year course in a face to face interview, that she produced independent confirmation of the details, and that she was assured that she did not have to tell the Jobcentre about it again unless circumstances changed. Against that background, the tribunal failed to explain how it was able to find that R had received the relevant notifications. Further, it failed to identify whether the contended duty to disclose by R was a duty to provide specific evidence or a more general duty to disclose under regulation 32 of the Social Security (Claims and Payments) Regulations 1987. See B v Secretary of State for Work and Pensions, Court of Appeal, [2005] EWCA 905, reported as R(IS) 9/06.

It is now accepted for the Secretary of State that R told the Jobcentre of the two year course and the two year grant. It is also accepted that the only notifications given to R were the INF leaflets. The pages from a benefit book were irrelevant as R was paid by credit transfer. And it is accepted that R kept the Department fully informed and did not fail to disclose anything relevant. It is also accepted that if R was overpaid, then that was not because of any failure to disclose by R. There is no recoverable overpayment.

I do not know what income support R should have been paid properly during the second year of her student course. I am unable to work out from the information in the papers how the weekly sums said to be correct for 2006-07 were calculated. Despite the questions raised by the solicitors about R's correct level of entitlement both throughout the two years and separately during the second year, and the large sum of money involved, the tribunal paid no attention to that aspect of the appeal. It made no finding to support its decision about the amount of benefit said to have been overpaid to R. Its statement of reasons contends that there was no issue about the amount of overpayment, but the papers show that there was. It may be that, as the solicitors contended, there were errors in applying the relevant rules in regulations 61 to 69 of, and Schedule 9 to, the Income Support (General) Regulations 1987 to R's claim. However, given the support of the Secretary of State to this appeal, any further error by the Secretary of State or by the tribunal is now irrelevant.

Conclusion

The appeal is allowed in full. I take the decision the tribunal should have taken in order to conclude matters. I remain concerned that had R not taken the sensible step of asking an expert firm of solicitors to help her then the official errors recorded above, compounded by the errors by the tribunal, would have left her faced with a large debt for which I am satisfied she was not in any way responsible.

David Williams

Commissioner

10 09 2008

[Signed on the original on the date shown]