C10/94(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Appeal to the Social Security Commissioner
on a question of law from the decision of
Belfast Social Security Appeal Tribunal
dated 23 May 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Adjudication Officer against the decision of Belfast Social Security Appeal Tribunal, whereby it was held that an overpayment of income support in respect of the period from 16 May 1990 to 4 February 1992 was recoverable from the claimant; but that only part of an overpayment of mortgage interest, which had gone directly to the claimant's building society, was recoverable by the Department of Health & Social Services.

2.	The appeal is concerned only with the Tribunal's decision not to allow the recovery of the full amount of the excess mortgage interest paid to the Building Society.  The Adjudication Officer had decided that there had been an overpayment of such interest for the period from 19 August 1992 to 3 August 1993; but the Tribunal held that recovery was to be restricted to the amount overpaid from 18 August 1992 until early March 1993.  The provisions relevant to the direct payment to qualified lenders of mortgage interest are to be found in regulation 34ZA and Schedule 8B of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, (the Claims and Payments Regulations).  Paragraph 9 of Schedule 8B concerns the "provision of information" and by sub-paragraph 3(b) a qualified lender is required, once every 12 months, to provide at the request of the Department, information relating to any change in the amount of interest payable by the borrower.  It would seem that in this instance the Department had not made any enquiry to the Building Society concerning changes in the amount of mortgage interest in March 1993.  As I understand it, the Tribunal took the view that the Department's failure to request this information at that time meant that any interest which was subsequently overpaid was no longer recoverable from the Building Society.  The reference by the Tribunal is to paragraph 10(3)(b) of Schedule 8B to the Claims and Payments Regulations, but there is no such paragraph and it has been assumed that this is simply a mistake for paragraph 9(3)(b).  
3.	The Grounds of the Adjudication Officer's appeal to the Commissioner are as follows:-

"I respectfully submit that the tribunal erred in law in holding
that only the period 18 August 1992 until early March 1993 is
recoverable from the lender.

The Tribunal also misdirected themselves in the reasons for their
decision in finding that as the Department failed to issue an
enquiry to the Building Society in March 1993 that any overpayment
from that date was not due to misrepresentation/failure to 
disclose by the claimant.

I submit that recovery under paragraph 10 of Schedule 8B of the
Social Security (Claims and Payments) Regulations (Northern
Ireland) 1987, is not subject to failure to disclose or 
misrepresentation, nor is it conditional on the Department
issuing annual enquiries to the qualifying lenders.

Paragraph 9 of Schedule 8B (quoted as para 10 in Part 4 of the
Record of Proceedings) is only intended to force lenders to 
provide relevant details to the Department on request."

4.	The claimant is not directly affected by this appeal and it is therefore not surprising that she should have failed to respond to the invitation to submit written observations upon it.  Although the Building Society it not a formal party, it was nevertheless given the opportunity to express its views upon the point raised by the Adjudication Officer; but again there has been no response.

5.	I have considered the grounds relied upon by the Adjudication Officer and I am satisfied that the Appeal Tribunal erred in law in the respects which she has identified.  Paragraph 10 of Schedule 8B to the Claims and Payments Regulations provides that where sums have been paid to a qualifying lender which ought not to have been paid because of a reduction in the rate of mortgage interest, the qualifying lender shall, at the request of the Department repay the sum overpaid.  As the Adjudication Officer has pointed out, this right of recovery is not dependent upon proof of misrepresentation or failure to disclose on the part of anyone involved in the claim for benefit.  I further accept that the Department were not under any obligation to make use of the power given to them by paragraph 9 of Schedule 8B to request information from the Building Society.  It has not been disputed that, by reason of a reduction in the mortgage interest rate, there was an overpayment to the Building Society throughout the entirety of the period from 18 August 1992 to 3 August 1993, and the whole of such overpayment was in my opinion recoverable by the Department.  I accordingly allow this appeal and set aside the decision of the Appeal Tribunal.

6.	I am further satisfied that this is a case in which I should exercise my power under section 21(7) of the Social Security Administration (Northern Ireland) Act 1992 to give the decision which the Tribunal should have given, where I can do so without making fresh or further findings of fact.  As I have indicated, no question arises in relation to the repayment of benefit overpaid to the claimant.  I accordingly confirm the Tribunal's decision that the claimant has received an overpayment of income support amounting to £659.51 in respect of the period 16 May 1990 to 4 February 1992 and that this is recoverable by the Department.  My further decision is that an overpayment of £446.07 has occurred in respect of the period 19 August 1992 to 3 August 1993 when mortgage interest was paid direct to the Alliance and Leicester Building Society and that the whole of such sum is recoverable by the Department from the Building Society.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER

	1 May 1995