[2005] NISSCSC C4_04_05(IS) (27 May 2005)

Decision No:  C4/04-05(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 March 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified panel member (LQPM), by the Department against a decision dated 4 March 2004 of an appeal tribunal sitting at Newry.  The Tribunal decided to allow the claimant’s appeal against a decision of the Department dated 22 November 2002 which superseded an earlier decision awarding income support (IS) to the claimant.  The Tribunal decided that the claimant had been overpaid IS in the sum of £498 in the period 5 October 2001 to 17 January 2002.  It decided further that that sum was not recoverable from the claimant as the Department had not shown that there had been a failure to disclose or misrepresentation of a material fact by the claimant which had resulted in the overpayment being made.

2.	The Tribunal relied on the decision of the Court of Appeal in England and Wales in the case of Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 183.  The Department appealed to a Commissioner.  Its initial grounds of appeal related to the manner in which the Tribunal had dealt with the question of misrepresentation of a material fact.  The Department submitted that the Tribunal had erred in law in considering that remarks in certain of the judgments of the Court of Appeal in Hinchy which (it submitted) were obiter were binding on it and in ignoring case law or misrepresentation in the case of Jones and Sharples v Chief Adjudication Officer [1994] reported as R(IS)7/94 which had been endorsed by the Northern Ireland Commissioner in R6/94(IS).

3.	I arranged for a hearing of the appeal.  Prior to the hearing the decision of the House of Lords in the Hinchy case was issued.  It overturned the decision of the Court of Appeal and decided (para 32) that the duty imposed on a claimant by the relevant statutory provisions was to make disclosure to the person or office identified to the claimant as the decision maker.

4.	The claimant has made no observations on the appeal and did not attend the hearing.  Ms Boal of Decision Making Services branch (DMS) attended to represent the Department.  It is obvious from the Tribunal decision that it considered there could not be a failure to disclose in this case because one branch of the Department (Incapacity Benefit Branch) already knew of the material fact in question – that the claimant had been found capable of work by a tribunal.

5.	The Tribunal did not therefore investigate the issue of whether there had been a failure to disclose this fact to the person or office identified as the decision maker for IS purposes.

6.	In connection with the issue of failure to disclose I have no criticism to make of the Tribunal.  It was following the decision of the Court of Appeal in England and Wales in Hinchy.  That decision has, however, been decided by the House of Lords to be in error of law.  The Tribunal’s decision is, therefore, also in error of law.  I set it aside.

7.	In light of the above it is not necessary for me to comment in detail on how the Tribunal dealt with the issue of misrepresentation.  The Department’s submission on the issue was inadequate.  It should have cited the relevant authorities.  It should have laid a proper evidential basis for its assertions. The Tribunal’s reasoning was somewhat unclear in relation to misrepresentation.

8.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I remit this matter to a differently constituted tribunal for re-hearing and re-determination.  

9.	I direct the Department to prepare a submission for the tribunal dealing with the question of failure to disclose after the House of Lords decision in Hinchy and setting out argument and authorities to support its contention that misrepresentation of a material fact took place.

10.	The Department wins its appeal.

(Signed):  Moya F Brown

Commissioner

27 May 2005