Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CIS/2105/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The appeal is dismissed. 

The decision of the First-tier Tribunal heard on 27 April 2011 under reference SC068/10/09162 did not involve the making of an material error of law. 

REASONS FOR DECISION

1 The appellant brings this appeal with my permission.  Both she and the Secretary of State agree that the decision should be set aside.  I decline to do so.  I do not consider that the decision of the First-tier Tribunal (‘the tribunal’) discloses any material error of law.  Had I done so, I would have in any event substituted my own decision to the same effect as that of the tribunal, as I was minded to do when giving permission to appeal. 

2 The appeal relates to an overpayment of Income Support which is said to have arisen because the appellant failed to inform the Income Support office that her son, who was probably aged 15 – 16 at the time, had left her household and claimed Income Support in his own right from 1 March 2010.  This is said to have caused an overpayment of £426.62 for the period of 25 February 2010 to 8 June 2010 inclusive, of which £378.88 was recoverable from her.

3 The appellant and the Secretary of State submit that the tribunal fell into error by materially misinterpreting an important piece of evidence.  This was a statement written by an officer of the Department of Work and Pensions which the appellant signed as correctly representing the facts.  The significant part of the statement is

‘My son Benn has claimed benefit in his own right.  He no longer lives with me.  I am aware I have been overpaid as I am still in receipt of Child Benefit for him.  I am willing to repay any overpayment which may have occurred…’ 

4 Both parties consider that the tribunal took this to mean that she knew her son was not living with her from the outset of the overpayment period, knew he had claimed Income Support in his own right, knew she should have reported this to the Department, and knew at all material time s that she was being overpaid.  They both say that this cannot be correct:  the document was written by the officer and there is nothing to indicate that it meant anything other than that she was now aware, having been called in for an interview.

5 I cannot agree with their analysis.  The tribunal’s analysis of this document and the appellant’s oral evidence covers nearly two closely analysed pages.  The tribunal finds that the officer and the appellant were of one mind as to the meaning of the statement:  Her son had stopped living with her (from March 2010), she knew he had left home permanently at that time, knew he was claiming benefit in his own right and knew that this would have an effect on her benefit.  Indeed, it makes an express finding to this effect at paragraph 21.  The tribunal explains carefully why its conclusion is borne out by the rest of the appellant’s evidence.  As the tribunal indicates in the Statement of Reasons, the appellant says so more or less in terms in the Record of Proceedings (p16, lines 7-9).  Although the appellant goes on to state that ‘he had not said to me ‘I am leaving home’, it is plain from paragraphs [14] and [15] that the tribunal did not believe her.

6 The tribunal’s finding on this means that the son was not simply temporarily away.  He was no longer a member of the appellant’s household.  There was no need to ask further questions about the son’s intentions.  The tribunal had established what the situation was. 

7 Another point raised by the Secretary of State is that, for the son to have been awarded Income Support in his own right at his age (which is not entirely clear from the papers) he would have had to show he was living away from his from his parents of necessity in certain extreme circumstances, but nevertheless still in undertaking full time, non-advanced education.  The Secretary of State queries whether the son may have misrepresented his circumstances.  This was not a matter for the tribunal but is one which the Secretary of State may wish to raise with the son directly. 

8 Did the tribunal get the law right on the question of the appellant’s duty to notify the Secretary of State of change of circumstances? 

9 This is the point on which I expressed concern in granting permission to appeal.  I have come to the conclusion that the tribunal got the answer right in substance, despite the decision maker’s citation of the wrong regulation to the tribunal. 

10 The decision maker submitted that the appellant had failed to disclose a relevant change of circumstances under regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987. This provides:

32.— [Information to be given and changes to be notified]

(1) Except in the case of a jobseeker's allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require for determining whether a decision on the award of benefit should be revised under section 9 of the Social Security Act 1998 or superseded under section 10 of that Act.

The Secretary of State agrees that this sub-paragraph, which relates to situations where the Secretary of State wishes to revise or supersede an award, was not relevant and that regulations 32(1A) or (1B) should have been cited. 

32.— [Information to be given and changes to be notified]

(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded.

(1B) Except in the case of a jobseeker's allowance, every beneficiary and every person by whom or on whose behalf sums by way of benefit are receivable shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect—

(a) the continuance of entitlement to benefit; or

(b) the payment of the benefit,

as soon as reasonably practicable after the change occurs by giving notice [of the change to the appropriate office–]

(i) in writing or by telephone (unless the Secretary of State determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

(ii) in writing if in any class of case he requires written notice (unless he determines in any particular case to accept notice given otherwise than in writing).

11 The tribunal had, in essence, come to the conclusion that, at the very least, (1B) must have applied on the basis of the appellant’s evidence.  There is a specific rejection of the appellant’s evidence that she did not consider that the son had left home.  She therefore knew the relevant fact.  There are also specific findings that the appellant received and read all INF4 forms sent to her, understood her duty to report change of circumstances such as a child leaving home and knew it would have an impact on her benefit.  Nevertheless, she did not do so.  That was more than enough to establish a relevant breach of her duty which comprised a failure to disclose the relevant change of circumstance.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 15 March 2012