Decision No: C6/99(IS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	INCOME SUPPORT

	Appeal to the Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 16 October 1998

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner, against a decision dated 16th October 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal had disallowed the claimant's appeal against a decision of an Adjudication Officer to the effect that the claimant had been over-paid Income Support in the sum of £2856.43.  The Adjudication Officer, and on appeal the Tribunal, decided that this sum was paid in consequence of the claimant's failure to disclose a material fact and accordingly was recoverable from the claimant.  

2.	The claimant was represented in the appeal by Mr Allamby of the Law Centre (NI) and the Adjudication Officer (now the decision maker) was represented by Mrs McRory of the DMA Unit.  I am obliged to both for their considerable assistance in this matter.  I held a hearing of the appeal and I was assisted in respect of same by written submissions prepared in advance of the hearing by Mrs McRory and Mr Allamby respectively.  Both were dated 19th January 2000.  In addition I had a further letter in response to an inquiry of my own from Mr Allamby.  This letter was dated 9th March 2000.

3.	Mrs McRory conceded that there was an error in the amount stated to be recoverable.  In her view the sum which should have been determined to be recoverable was £2847.55.  I agree with Mrs McRory that this was the amount over-paid.  I will deal with the question of recoverability later in this decision.

4.	I also had the assistance of the claimant's application for leave to appeal on the OSSC1 form dated 15th February 1999, Mrs McRory's observations thereon dated 8th June 1999 and Mr Allamby's further comments on those observations dated 25th November 1999.

5.	This case involved an overpayment of Income Support which the Adjudication Officer (and later the Tribunal) found to be recoverable as having been paid due to a failure to disclose.  The claimant's appeal to the Tribunal did not dispute the overpayment but disputed the recoverability.  The background was that the claimant had been in receipt of Income Support on the basis that he was sick and had a claim to Incapacity Benefit.  His claim to that benefit ceased on 16.6.97 (when he was found to have failed the All Work Test and thus to be no longer incapable for work).  It was agreed that the claimant had not informed his local office that he had been found fit for work nor that he had lodged an appeal against the decision on capacity for work nor that he had sent in sick lines in support of that appeal.  The claimant stated, in his appeal letter that he had appealed to Castle Court and that this "cancels out the fact of non-disclosure".  He also stated "I thought that the days of computerisation meant that all relevant bodies would have been informed of my Incapacity Benefit appeal."

6.	Neither the Adjudication Officer nor the Tribunal accepted that the claimant had either lodged an appeal or sent in sick lines following the determination that he was unfit for work.  Both found that he continued to receive Income Support [presumably because he had insufficient credits for Incapacity Benefit] and that he had failed to disclose the material fact that he had no longer a claim to Incapacity Benefit.  Both considered that the overpayment of Income Support was made as a result of this failure to disclose and was therefore recoverable.  The claimant appealed to me from the Tribunal's decision.

7.	Essentially Mr Allamby put forward three grounds of appeal.  The first was that the Tribunal had made inadequate findings of fact in reaching its decision.

8.	Essentially Mr Allamby had two submissions to make on this ground.  Firstly he stated that the Tribunal had accepted and adopted the summary of facts set out by the Adjudication Officer in paragraph 5 of the submission to the Tribunal.  He stated that there was a clear dispute and a conflict as to the fact situation in this case and that it was not sufficient in those circumstances to simply adopt the Adjudication Officer's statement of what had happened.  He stated that the claimant had alleged that he had pursued an appeal against the decision that he had failed the All Work Test.  The Adjudication Officer had set out in the summary of facts section of his submission that the claimant had not pursued such an appeal.  Mr Allamby stated that it was incumbent on the Tribunal to record this dispute and reach a conclusion on the basis of the evidence (documentary and otherwise) as to whether an appeal had been lodged.

9.	Mr Allamby did acknowledge that the Tribunal had recorded that it did not believe that the claimant had lodged an appeal and acknowledged that the Tribunal was entitled to take into account the fact there was no corroborative evidence of the appeal having been lodged or of the claimant having forwarded further medical certificates.

10.	Having accepted this Mr Allamby proceeded to contend that the Tribunal was in error in treating the Presenting Officer's submission as evidence.

11.	Mr Allamby's second ground of appeal was as follows:-

		"The Tribunal had failed in its inquisitorial role in not 
		having adjourned to ascertain if the claimant had had medical 
		certificates issued to him after the date of notification of 
		failure of the All Work Test, which appeared to be on 17th 
		June 1997."

	In this connection he referred to decision C9/97(IS) and specifically to paragraph 11 thereof.    

12.	Mrs McRory while accepting that the document headed "tab A" which formed part of the Tribunal papers was not altogether clear submitted that nonetheless tab A was evidence and that the Tribunal had had regard to it and to Mr T...'s statement that he had lodged an appeal against the Incapacity Benefit decision.

13.	With regard to Mr Allamby's contention in relation to adopting the summary of facts as set out by the Adjudication Officer Mrs McRory stated that there was no error of law in the Tribunal's decision in this respect.  In support of this she cited to me decision R(IS)4/93.  She relied on that decision as authority for the proposition that it was not always necessary for a Tribunal to record specific findings of fact but that it could adopt a statement of fact from the Adjudication Officer's submission where what was incorporated in the Tribunal's findings was a statement of conclusion on disputes of fact and where the statement, where it constituted the sole recorded findings, included all relevant matters on which findings were necessary.  She stated that the Tribunal's findings satisfied the first criteria and that the Tribunal had made other findings of fact.  Mrs McRory stated that the Tribunal had not erred in this respect.

14.	I am in agreement with Mrs McRory that there was no error in the Tribunal's decision in the matters alleged above.  The Tribunal has clearly stated that it did not believe that the claimant made the appeal in the first place and it has referred to the lack of corroborative evidence in the Department of any appeal having been received.  Mr Allamby had, as indicated above, considered that the Tribunal was at fault in treating the Presenting Officer's submission as evidence in this respect.  It might have erred if it had done so but I do not think that it did do so.  There was evidence in the form of "tab A" in the documents before the Tribunal regarding the checks that had been made as to whether any sick lines or appeal had been received.  In any event as Mr Allamby stated, he himself had made inquiries and there was no record of any sick lines or appeal having been received so the matter may be somewhat academic.  I further understand from Mr Allamby that no hearing of any such appeal has ever taken place.

15.	As regards the matter of the inquisitorial role of the Tribunal, Mr Allamby contends that there was a failure of this role in that the Tribunal did not adjourn to ascertain if the claimant's General Practitioner had issued certificates following his failure of the All Work Test and in support of his contention he refers to C9/97(IS) and in particular paragraph 11 thereof.

16.	Mrs McRory opposes this ground stating that even if the Tribunal had adjourned that would not have proved that the certificates were lodged with the relevant Departmental Branch.

17.	I have perused the said decision C9/97(IS).  Paragraph 11 states:-

		"In my view it is not correct for a Commissioner to rule that 
		a Tribunal was wrong in its interpretation of evidence that 
		was not even before it, unless it could be said that the 
		Tribunal should, in its inquisitorial role, have 
		specifically required this evidence to deal with the issues 
		before it.  However, I cannot accept that the Tribunal erred 
		in not calling for a copy of the High Court order when it 
		appears that no one before the Tribunal was arguing that this 
		High Court order was an issue in the case."

18.	The Tribunal does of course have an inquisitorial role but the limits on that role have been clearly defined in the past and it is also settled law that the onus of producing evidence is on the party endeavouring to establish a particular fact.  The decision C9/97(IS) in so far as relevant, is, in my view simply stating that a Tribunal cannot err in its interpretation of evidence that is not in front of it unless it should have specifically required that evidence to deal with the issues before it.  It implies that there is no duty on a Tribunal to go looking for evidence which was not needed to deal with the issues before it.  

19.	In this case therefore should the Tribunal has specifically required the evidence that certificates had been issued after the determination of incapacity for work?  In this case no request for an adjournment or request for the Tribunal to obtain the relevant evidence was made.  Indeed the claimant's representative stated to the Tribunal that the doctor would not supply the evidence in question.  Secondly the issue to which the evidence related was whether or not the claimant had appealed the decision on incapacity for work and had sent in medical certificates.  However, that was not the only or main issue in the case.  This case related to whether or not he had failed to disclose to his local office a material fact to do with Income Support.  The Tribunal states:-

		

		"The Appellant's first ground of appeal in his letter dated 
		20 August 1998 is that he sent in a letter of appeal along 
		with sick lines to Castle Court against the decision that 
		he had been found fit for work.  The Tribunal find that 
		there is no evidence to substantiate this.  The Appellant's 
		Representative stated in oral evidence that they had 
		specifically asked Dr C…, General Practitioner for 
		verification.  However the General Practitioner was 
		apparently only prepared to confirm by her letter dated 
		14 October 1998 that she had issued medical certificates 
		but did not confirm that any were issued after the 
		Appellant's Incapacity Benefit ceased on 16 June 1997.  
		It is not in dispute that Medical Certificates were issued 
		by the General Practitioner prior to the appellant's benefit 
		ceasing and accordingly the Tribunal find that this General 
		Practitioner's letter does not substantiate that Appellant's 
		submission that he sent in a letter of appeal with medical 
		certificates.

		Furthermore the Tribunal believe that even if the General 
		Practitioner had issued medical certificates subsequent to 
		16th June 1997 this would not prove that a letter of appeal 
		or indeed the certificates had actually been sent in by the 
		Appellant.

		The Tribunal accepts the Presenting Officer's submission that 
		Incapacity Benefits Branch have no record of receiving a letter 
		of appeal plus medical certificates."

20.	It is therefore quite apparent that the Tribunal did consider this matter and reached the conclusion that even if such certificates had been issued subsequent to 16th June 1997 they would not prove that a letter of appeal or indeed certificates had actually been sent in by the appellant.  That conclusion is undoubtedly correct and indeed the undisputed facts of this case would indicate that no appeal or certificates were received.  

21.	More importantly, however, the Tribunal did not consider that the making of any appeal would have discharged the duty of disclosure to his local office in connection with Income Support.  It was whether or not this duty had been discharged that was the central issue in the case.

22.	The Tribunal has further stated in its reasons:-

		"The Appellant's Representative submitted at the hearing that 
		the onus was on Incapacity Benefits Branch to notify Income 
		Support.  The third ground of appeal in the Appellant's letter 
		is that by appealing the decision he considered this cancelled 
		out the fact of his non-disclosure.  Also that he thought 
		computerisation meant all relevant bodies would have been 
		informed of his Incapacity Benefit Appeal.  The Tribunal finds 
		that the Appellant's own evidence is an admission that he failed 
		to disclose the material fact to Income Support.

		In addition to the Tribunal not believing that the Appellant 
		lodged an appeal in the first place, we also reject the argument 
		that the onus was on Incapacity Benefits Branch to notify Income 
		Support that this benefit had ceased or that any appeal was 
		lodged.

		Furthermore the Tribunal find that it was reasonable to expect 
		disclosure from the Appellant direct as the notes in the back of 
		his Income Support order books clearly instruct him to tell his 
		local Social Security Office straight away if there are any 
		changes in his circumstances including his benefits."

23.	Against that background ie where the Tribunal did not accept (and were correct in my view in not accepting) that any appeal to Incapacity Benefits Branch would have fulfilled the claimant's duty of disclosure to his local office, I can see no failure of the inquisitorial role.

24.	It seems apparent and indeed was not contested that the claimant did realise that disclosure of the fact of termination of the Incapacity Benefit claim to the local office was necessary.  He stated that he assumed that correspondence sent to one branch was being passed to the other and that therefore disclosure had already been made.

25.	The claimant stated that he made this assumption because he was submitting sick lines to his local Social Security Office yet receiving correspondence from Central Benefits Branch as regards attendance at "medical hearings".  I do not think the fact that he submitted sick lines to his local office but the administration arrangements for medical examinations etc were made by Central Benefits Branch would have led a reasonable person to assume Central Benefits would inform the local office of his failure of the All Work Test.  I am also puzzled as to why, if the claimant considered that his correspondence passed automatically between Central Benefits and his local office, he would have written to Central Benefits and sent the sick lines relating to his appeal to them.  The claimant's Order Book was quite specific that disclosure should be made to the local office.  There was nothing to indicate that he was to make disclosure anywhere else or that information given to Central Benefits Branch would be passed on.  No one in Central Benefits gave him that assurance, no one led him to believe his local office already knew.  He simply made the assumption.

26.	The Order Book does not specifically mention the All Work Test or capacity for work.  However, it does mention reporting any changes in circumstances since the claim.  Being found fit for work is undoubtedly such a change.  The claimant appears to have been aware that disclosure to his local office was needed.  He simply thought he was absolved from his duty in that respect because he has lodged an appeal with Central Benefits.  As already stated he was not so absolved and it was not reasonable for him to think he was.

27.	The third ground of appeal remains outstanding.  Mr Allamby contends that the Tribunal erred in law in that it did not apply Regulation 13 of the Social Security (Payments on Account, Overpayment and Recovery) Regulations (Northern Ireland) 1988.  

28.	Mrs McRory has supported this ground of appeal.

29.	That regulation states:-

		"In calculating the amounts recoverable under Article 54(1) of 
		the Order or regulation 11, where there has been an overpayment 
		of benefit, the adjudicating authority shall deduct -
		(a)	any amount which has been offset under Part III;
		(b)	any additional amount of income support or income-based 
			jobseekers allowance which was not payable under the 
			original, or any other, determination, but which should 
			have been determined to be payable -
   			(i)	on the basis of the claim as presented to the 
				adjudicating authority, or
			(ii)	on the basis of the claim as it would have 
				appeared had the misrepresentation or non-
				disclosure been remedied before the 
				determination, 

		but no other deduction shall be made in respect of any other 
		entitlement to benefit which may be, or might have been, 
		determined to exist."

30.	The record of the proceedings does indicate that the claimant's representative at the hearing before the Tribunal raised the question of offset and that a response was made by the Presenting Officer basically to the effect that as no other benefit had been claimed there could be no offset against the Income Support paid.

31.	The Tribunal has made no comment on this issue and I consider that it was in error in failing to deal with it.  

32.	Thereafter the two representatives part company.  While Mrs McRory considers that the Tribunal did err in not dealing with the application of Regulation 13 she states that no offset would have been applicable because Regulation 13 could not assist the claimant.  This is because Regulation 13(a) is not applicable (there is no dispute on this matter) and Regulation 13(b) can assist only where either there had been under-awarding on the basis of the claim as presented (again there was no indication that any issue was raised under this provision) or where there would have been an additional amount of Income Support awarded had the misrepresentation or non-disclosure been remedied before the determination.  Mrs McRory contended that the final phrase of Regulation 13:-

		"but no other deduction shall be made in respect of any other 
		entitlement to benefit which may be, or might have been, 
		determined to exist."

	prevented any potential entitlement to benefits other than to the one actually claimed being taken into account.

33.	Mr Allamby, on the other hand, contended that Regulation 13 could have assisted the claimant by having the amount of any overpayment reduced.

34.	Mr Allamby contended that only Regulation 13(b)(ii) was relevant and I consider that he was correct in that respect.  He contended that the non-disclosure in this case was the claimant's failure to tell the local Social Security Office that he had failed the All Work Test.  Again I am in agreement with him.  He stated that where an appeal is lodged against the decision on an All Work Test a reduced amount of Income Support is payable and this is of course is correct.  It is also correct that it is payable until the conclusion of the appeals process.  However, the lodging of the appeal was not the material fact which the claimant failed to disclose, it was the failure of the All Work Test and that consequently his Incapacity Benefit claim had terminated.  Had the claimant disclosed to his local office that he had failed the All Work Test then his claim for Income Support would have been terminated.  It would only have been when an appeal was lodged and Income Support was so informed that he could have continued to receive Income Support at a reduced rate.  The lodging of the appeal was not the material fact in question for purposes of Article 54(1) and Regulation 13.  The mere disclosure of the fact that he had failed the All Work Test would not of itself have meant that he remained entitled to Income Support quite the reverse.  I can not see therefore how Regulation 13(b)(ii) can assist in that respect.

35.	Mr Allamby had a second strand to his argument in relation to the application of Regulation 13(b)(ii).  This was that the overpayment could be offset by the amount of Jobseekers Allowance that would have been payable during this period.  As Mr Allamby stated there does not appear to be any decided case supporting the contention that Regulation 13(b)(ii) can be interpreted to include an underpayment of benefit not claimed.  Equally as Mr Allamby stated no case law appears to preclude such a situation.  The legislation must be read giving it its ordinary meaning.
36.	Mr Allamby submitted that in the normal course of events a claimant who failed the All Work Test and did not appeal would be advised to claim income based Jobseekers Allowance.  He stated that providing the test on availability for work and actively seeking work were met, then a sum equivalent to Income Support (less the disability premium) would be payable.  He stated that the difference between the Income Support paid and the income based Jobseekers Allowance which might have been awarded was the financial loss suffered by the Department.  He stated that prior to the introduction of Jobseekers Allowance no new claim would have been required had the circumstances in this case occurred.  Taking account of the facts he submitted that Regulations 13(b)(ii) should be interpreted as covering a fresh claim for an alternative benefit where such a claim would follow in the normal course of events following the remedying of the nondisclosure.  Mr Allamby stated that he did not put this argument forward with a great conviction and I can understand why.   

37.	His argument, while ingenious, appears to me to fly in the face of the clear wording of Regulation 13(b)(ii) which provides that any additional amount of Income Support or income based Jobseekers Allowance has to be payable on the basis of the claim as it would have appeared had the misrepresentation or nondisclosure been remedied before the determination.  It appears to me that "the claim" refers to the claim for the benefit which was claimed otherwise the definite article would not have been used. 

38.	The use of the word "payable" is relevant.  This appears to me to imply that there must have already been a determination as to entitlement to the benefit.  It appears to me that the structure of Regulation 13(b) is that a claimant can have any additional amount of the benefit claimed deducted from an overpayment if it should have been determined to be payable on the basis of the claim as presented or on the basis of the claim as it would have been had the misrepresentation or non-disclosure been remedied before the determination.  The repeated use of the words "the claim" indicates that it is only on the foot of the claim actually made that the offsets can be made.  I am reinforced in this conclusion by the last phrase of the regulation which is as follows:-

		"but no other deduction shall be made in respect of any other 
		entitlement to benefit which may be, or might have been, 
		determined to exist."

	This makes it quite clear, to my mind, that potential entitlements to benefits which have not been claimed are not relevant.

39.	I do note that Income Support and income based Jobseekers Allowance are specifically mentioned and I do take Mr Allamby's point that before the introduction of Jobseekers Allowance a claimant would not have had to (or indeed been able to) claim Jobseekers Allowance.  That, however, does not alter the clear provision of the Regulation.  

40.	For the reasons given above I consider that while the Tribunal did err in law in the two ways indicated ie in the amount determined to be recoverable and in not dealing with the issue of Regulation 13 when that issue was raised, the said Regulation 13 could not assist the claimant.

41.	I set the decision aside for the above mentioned errors.

42.	I do consider that this is a case where I can give the decision which the Tribunal should have given.  My decision is that the decision of the Adjudication Officer of 3rd June 1998 was correct except that the amount of the overpayment and recovery should be reduced by £8.88 and should therefore be £2,847.55.

43.	Mr Allamby mentioned that if I was deciding the appeal in substance against Mr T..., which in substance I have done, it would be helpful if I could make some remarks as to the possibility of something less than full recovery being made.  This matter is of course outside my jurisdiction but it does appear to me that the Department may wish to look sympathetically on the matter.  The matter is, however, one for the Department alone to decide.

	(Signed): MOYA F BROWN

	COMMISSIONER

	5 JULY 2000