[2006] NISSCSC C1_06_07(IS) (16 November 2006) 

Decision No:  C1/06-07(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 14 July 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 14 July 2005 of an appeal tribunal sitting at Armagh.  The decision under appeal to the tribunal was a Departmental decision dated 8 June 2004 referring to an earlier decision dated 6 December 2000 awarding income support (IS) from and including 4 September 2000.  The decision of 8 June 2004 was to the effect that there had been a relevant change of circumstances since the earlier decision was given.  This was that the claimant’s incapacity benefit (IB) had been disallowed, that this was a material fact and the claimant had failed to disclose this material fact.  He had also misrepresented this material fact when he signed the declaration on his IS order book throughout the period 10 September 2002 to 11 November 2003.  As a consequence IS amounting to £4878.85 for the period 28 August 2002 to 11 November 2003 was paid which would not have been paid but for the failure to disclose and misrepresentation.  Accordingly that amount was recoverable from the claimant.

2.	The claimant appealed to the tribunal.  He submitted that he had not failed to disclose the material fact that IB had been disallowed.  He also submitted that he had not misrepresented this material fact when he signed the declaration on his IS order book throughout the period 10 September 2002 to 11 November 2003.  He agreed that he had been overpaid IS in the sum of £4878.85 in respect of the period 28 August 2002 to 11 November 2003 but submitted that this amount was not recoverable from him.

3.	At the hearing before the tribunal the central plank of the claimant’s argument was that he had never received any notification that he had been disallowed IB.  He could not therefore have failed to disclose or misrepresent this fact.  

4.	The tribunal did not believe him.  The tribunal’s reasons include the following:

“9.	In his written submission to the Tribunal the Appellant made a number of points.  The only point of substance is an assertion that the Appellant did not receive notification of the decision in relation to his claim for Incapacity Benefit.  The submission does however place weight on issues of the Appellant’s apparent intention and motive.  It is important to make clear that there is a duty on a claimant to notify the Department of any ‘change in circumstances’ that might affect his right to, or amount of, social security benefits.  In particular, it does not have to be established that the Appellant is careless or fraudulent if he either fails to disclose, or misrepresents, a material fact.  This would be so even if the failure to disclose or misrepresentation were because the claimant did not understand how the benefit system worked.  In this case the Tribunal is satisfied that the Appellant was very familiar with the benefit system even to the extent of finding himself in a similar position previously regarding the impact of decisions on claims for Incapacity Benefit on entitlement to Income Support and the Tribunal attaches significant weight to that fact in determining this appeal.

10.	The crux of the Appellant’s argument appears to be that since he, allegedly, was not notified of the material fact in question, namely, the decision disallowing his claim for Incapacity Benefit, he had no knowledge of the relevant fact and therefore, did not fail to disclose it, on the basis that one cannot fail to disclose something one does not know about.  At first sight there might appear to be some merit in this argument on the facts of this case, if it is accepted that neither of the two notifications of the said decision were received by the Appellant (the Tribunal accepting as a finding of fact that both notifications were sent).  However, the Tribunal concludes that it would have been reasonable for the Appellant to have made enquiries that would have revealed the information to him.  The Tribunal finds it quite incredible that the Appellant, having made a claim for Incapacity Benefit, apparently made no enquiries as to the outcome of his claim, particularly when he was familiar with the social security system and found himself in a remarkably similar position a short time previously.  On that basis alone, therefore, the Tribunal rejects the argument of the Appellant that he could not have failed to disclose the relevant material fact because he allegedly had no knowledge of it.

11.	The Tribunal further concludes, in any event, on the balance of probabilities, that the Appellant was twice notified by the Department of the outcome of his claim for Incapacity Benefit.  On his own evidence, the Appellant has had extensive correspondence with the Department over a period of time in relation to his various interactions with the social security system; he did not recall there being any difficulty with the postal service at that time and there appears to have been no difficulty, before or since, with the Appellant receiving correspondence through the post in relation to his benefits and indeed, his appeal.

12.	The burden of proof in this appeal is on the Department.  The Tribunal is satisfied, on the balance of probabilities, that the Department has discharged that burden and that the Appellant failed to disclose a material fact, namely, that his claim for Incapacity Benefit had been disallowed and secondly, that the Appellant misrepresented that material fact by encashing his order book throughout the period 10.09.2002 to 11.11.2003.  The Tribunal is further satisfied that, as a result of the said failure to disclose and misrepresentation of the Appellant, an overpayment of Income Support was made to him for the period 28.08.2002 to 11.11.2003 amounting to £4,878.85 and that this amount is recoverable from the Appellant.

13.	Accordingly, this appeal is dismissed.”

5.	The tribunal disallowed the appeal and the claimant appealed to a Commissioner.  The claimant is, as he was before the tribunal, represented by Mr McBride, Solicitor of Messrs K J Morgan, Solicitors.  The Department is represented by Ms McHugh of Decision Making Services branch.  I am obliged to both representatives for their assistance.

6.	The grounds of appeal were set out in a submission attached to an OSSC1 form received in the Commissioners’ Office on 3 November 2005.  The grounds of appeal were fivefold.  Ground one was that the tribunal had attributed inappropriate probative value to some evidence relating to previous experience of the social security system which was then used to inform its findings.  Ground two was that the tribunal had failed to give consideration to available evidence in particular as to the appellant’s exemplary character and the lack of notice prompting the claimant to make disclosure.  The third ground was that the tribunal had failed to address the issue of the failure to tender forms IB65 and BF220C (these were the forms which allegedly notified the claimant of the disallowance of IB) as evidence of verification of the decision disallowing the claimant’s IB.  As the tribunal had not addressed this issue it could not logically conclude that the said notifications were sent.  Ground four was that the tribunal had failed to give adequate reasons for its rejection of the appellant’s evidence.  Reference was made to decision C11/03-04(IB) to the effect that reasons should be given for rejecting evidence.  Ground five was that evidence as to character and motive was not adequately considered.  

7.	Ms McHugh for the Department opposed the appeal on all grounds.  It made its submissions in a letter dated 17 February 2006.  In relation to ground one Ms McHugh submitted that the tribunal was entitled on the appellant’s own evidence to its finding that the appellant had experience and knowledge of the social security system.  There was no perversity in the tribunal drawing that conclusion.  As regards ground two Ms McHugh submitted that the tribunal’s reasons made it clear that intention and motive were not relevant matters to the right of recovery.  Decision R(SB)15/87 made it clear that the responsibility of keeping the Department informed of changes in circumstances rested on the claimant.  Honest or dishonest intent was irrelevant.  As regards ground three Ms McHugh referred to screen print RP001803 which formed part of the tribunal papers and which showed that form IB65 was sent on 27 August 2002 and form BF200C was sent on 28 August 2002.  She submitted that the tribunal was entitled to conclude that the said notifications were issued. As regards ground four Ms McHugh submitted that decision C11/03-04(IB) was distinguishable on its facts from the present case.  In that case there was a communal point for receiving mail in a block of flats.  That was not so here.  She submitted that the tribunal was entitled to reject the claimant’s evidence that he did not receive the notifications.

8.	However, Ms McHugh further submitted that there was an error in the decision in that the tribunal failed to satisfy itself that a supersession decision had actually been made.   Ms McHugh had obtained and attached a copy of the said supersession decision.  There was an error in that decision as it incorrectly displayed the effective date of the supersession as 11 December 2002 where in fact the actual date of change was 27 August 2002.  Referring to decisions CIS/3228/02 and CIS/764/2002 Ms McHugh submitted that this error did not vitiate the overpayment decision and asked me to correct the supersession decision.

9.	The Department also, at my request, furnished, on 11 July 2006, pro forma copies of the IB65 and BF220C forms.

10.	Mr McBride made further comments on the appeal by letters dated 5 April 2006 and 16 August 2006.  These in large measure repeat previous submissions and I do not propose to set them out here.  Mr McBride did submit that the existence of pro forma documents did not mean they were generated, appropriately drafted, posted correctly or delivered correctly.

11.	I granted leave on the basis of the error identified by Ms McHugh.  I am, however, of the view that this error does not vitiate the tribunal’s decision.  It is quite apparent that the decision of 8 June 2004 was in fact a supersession decision on the basis of relevant change of circumstances.  While the tribunal should have re-formulated the decision to expressly so state, the matter is of little importance.  Grounds for supersession were set out and dealt with and the claimant’s solicitors expressly and properly agreed that there had been an overpayment of IS for the period 28 August 2002 to 11 November 2003, thereby indicating clearly that there was no dispute that there was no IS entitlement for that period.  The only real issue in this case was whether or not the overpayment was recoverable.  While the tribunal erred, this error was not such as to vitiate the decision.

12.	As regards the more substantive grounds, I consider there to be no merit in grounds one or two.  The tribunal was, in my view, entitled to its conclusion that the claimant was familiar with the benefit system and entitled to give “significant weight” to that fact.  The weight to be given to evidence is a matter for the tribunal.  The tribunal appears to have used this familiarity on the part of the claimant as one of the factors to be taken into consideration in assessing the credibility of the claimant’s evidence that he received neither of the two notifications sent to him by the Department.  It considered that had he received no word of the outcome of his IB claim he would, in light of previous experience of the system, and his awareness of the impact of decisions on IB on entitlement to IS have made enquiries as to the outcome of his claim.  It concludes on this basis and on the basis of his having had correspondence with the Department over a period of time without there being any difficulty with the postal service, that the claimant did receive the relevant notifications.  It is quite apparent from the reasoning that the tribunal did not believe that the claimant had not received the two notifications and was therefore unaware that he had been disallowed IB.  Essentially the tribunal disbelieved him because:

(a)	he was familiar with the system and in particular on the impact of incapacity decisions on income support, having previously failed the All Works Test (the forerunner of the Personal Capability Assessment test) and would have made enquiries following administration of the All Works Test had he not received notification of failing it. He had made no such enquiries;

(b)	he had extensive correspondence with the Department over a period of time, he did not recall there being any difficulty before or since with receipt of correspondence and there was no difficulty with the postal service at that time.

	Accordingly the tribunal concluded that the claimant was aware that he had failed the All Works Test and that he had actually received the two letters notifying him of this.

13.	I consider the tribunal was entitled to its conclusions and entitled to disbelieve the claimant’s evidence in this respect.  The assessment of evidence is essentially a question of fact.  As such I can disturb it only if it is perverse or unreasonable.  As Lord Hoffman said (giving the unanimous judgment of the House of Lords in Piglowska v Piglowski [1999] 3 AER 632 at p643:

“First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses.  This is well understood on questions of credibility and findings of primary fact.”

	Carswell LCJ delivering the judgment of the Court of Appeal in Northern Ireland in the case of Chief Constable of the Royal Ulster Constabulary and another v Sergeant A (24, 25 November 1999, 26 January 2000) CA261 at page 273f:

“A tribunal is entitled to draw its own inferences and reach its own conclusions, and however profoundly the appellate court may disagree with its view of the facts it will not upset its conclusions unless –

(a)	there is no or no sufficient evidence to found them, which may occur when the inference or conclusion is based not on any facts but on speculation by the tribunal (Fire Brigades Union v Fraser [1998] IRLR 697 at 699, per Lord Sutherland); or

(b)	the primary facts do not justify the inference or conclusion drawn but lead irresistibly to the opposite conclusion, so that the conclusion reached may be regarded as perverse: Edwards (Inspector of Taxes) v Bairstow [1956] AC14, per Viscount Simonds at 29 and Lord Radcliffe at 36.”

14.	In this case there does appear to me to be sufficient evidence to support the tribunal’s conclusions.  The claimant did have prior knowledge of the social security system and in particular of the impact an adverse decision on capacity for work would have on his entitlement to IS.  He had previously received decisions disallowing incapacity credits and consequently IS.  He had appealed the previous incapacity decision.  It was therefore reasonable for the tribunal to conclude that if he had heard nothing after he underwent a medical examination pursuant to the personal capability assessment he would make enquiries.  It was also reasonable to conclude that, as he had not done so, he had already heard by way of letters from the Department that he had been found capable of work.

15.	The tribunal was also entitled to its conclusion that the said letters had been received by the claimant.  True there was no direct evidence of receipt.  There was however evidence in the form of the screen print at Tab 5 of the tribunal papers indicating that forms IB65 and BF220C had been issued on 27 and 28 August 2002 respectively, evidence that other correspondence had been received and that there was no indication of postal difficulties at the relevant time.

16.	The claimant’s solicitor has submitted that the claimant’s earlier conduct showed that he appealed a previous disallowance of IS and determination that he was capable of work and that therefore he would have appealed the decision on incapacity credits had he received same.  There is no doubt that the claimant did appeal a previous disallowance of IS following an adverse decision on IB.  He did in all probability also appeal the earlier determination that he was capable of work as there would have been no point in his appealing in relation to IS had he not done so.  His earlier award (as this one) of IS was dependent on his being incapable of work.  On this occasion, however, no decision was made that the claimant was not entitled to IS.  The circumstances on this occasion are therefore so different that I consider it was reasonable for the tribunal to reach the conclusion it reached despite the fact that there had been an appeal on the earlier occasion.  I refer again to the cases at paragraph 13 above as to drawing of inferences.

17.	The claimant’s solicitor submits that the claimant would probably have appealed the decision, would probably have realised that a failure to notify IS section about his being found fit for work would eventually be discovered and recovery of IS be sought and that there was no logical reason for the claimant not to report that he had received notification about incapacity credits.

18.	All the above may or may not be correct but, as the Department submits, the tribunal was not concerned with whether or not the claimant had any fraudulent intent, nor with whether he had acted logically.  The tribunal correctly stated that it did not “have to be established that the Appellant is careless or fraudulent if he either fails to disclose, or misrepresents, a material fact.”  The tribunal made no finding of fraudulent intent.  It was not required to do so.  It simply disbelieved the claimant when he asserted that he had never received the said letters.  That, as mentioned above, is essentially a conclusion of fact.  Bearing in mind the evidence of issue of the letter and receipt of other letters and of no enquiries having been made as to the outcome of the personal capability assessment after the medical examination, the conclusion is not in my view perverse or unreasonable.   I therefore cannot disturb it.  

19.	As regards the fourth ground, the rejection of the claimant’s evidence without adequate reasons, I again consider there is no merit in this ground.  The claimant’s solicitor has referred to decision C11/03-04(IB), a decision of Mr Commissioner Powell sitting as a Deputy Commissioner in Northern Ireland.  The solicitors submit, correctly that on the basis of that decision a tribunal is free to accept or reject a claimant’s uncorroborated evidence but has to give reasons for rejecting it, the form and extent of the reasons depending on the circumstances.  The submission continues that in this case there did not appear to be a conflict of evidence since there was no evidence of the Department’s generating or sending any notification of the decision relating to incapacity credits.  In those circumstances, therefore, it was submitted that the claimant’s evidence should be accepted.

20.	At paragraph 16 of that decision Commissioner Powell expressed agreement with the following statement by the claimant’s representative in that case:

“… Regarding corroboration of a claimant’s evidence, it has been the subject of many appeals to the Commissioners and there are two main principles that I can identify.  Firstly, a claimant’s evidence does not have to be corroborated in order for a tribunal to accept it, and equally, just because there is no contrary evidence, does not mean that a tribunal must accept a claimant’s uncorroborated evidence.  In either situation, however, I submit that the tribunal would still have to give reasons for accepting or rejecting the evidence, and the fact that it is uncorroborated is not a valid reason for rejecting it.”

21.	However, Commissioner Powell continues:

“ … The form and extent of the reasons will depend on the circumstances.  Normally brief reasons will suffice.  Indeed there will be some cases where the reasons why a particular piece of evidence was rejected will be all too obvious from the circumstances and little or no explanation will be needed.  Further, although the basic approach should be as stated at the beginning of this paragraph there will be many cases where it is obvious that a person’s evidence is unreliable or where a tribunal is required to decide between differing testimonies. …”

22.	From the above passage it can clearly be seen that Commissioner Powell was not of the view that evidence had to be accepted because “there being no or very little conflicting evidence.”  He gives some examples, one of which is applicable here:

“… where a tribunal has had the advantage of seeing and hearing someone give evidence and, as a result, has become convinced that the evidence is not acceptable in its entirety.”

	At paragraph 17 Commissioner Powell continues:

“However, where there is no obvious reason for disbelieving what a person says and that person has not appeared at the hearing, a tribunal cannot reject uncontradicted evidence without indicating why.  Defences based on missing letters are common place.  In appropriate circumstances, such excuses are rightly rejected in a robust manner.  It will usually be appropriate to reject such an excuse where it extends to a number of letters or is coupled with other suspicious circumstances.  All the more so if the non-receipt of mail is selective and it is only certain letters which are not received.”

23.	I do not think the tribunal in this case took any a priori attitude to the evidence of the claimant that he had not received either of the notifications sent to him.  Rather it found the evidence unreliable in light of the claimant’s having failed to make enquiries in spite of his previous experience of having been found capable of work following a medical examination, in light of its finding that two notifications had been sent and it was claimed that neither had been received, and in light of the fact that other correspondence before and since had been received and there being no indication of postal difficulties.  It has clearly set out the above as its reasons for not accepting his evidence.  The tribunal has rejected the claimant’s evidence and its so doing is not, in my view, perverse or unreasonable.

24.	Ground five is related to the above.  It is that evidence as to good character and motive was not adequately considered.  As will be apparent from the above, motive was not a matter which the tribunal needed to be concerned with.  The Department did not have to establish fraudulent intent.  It could well have been that the claimant when he received no decision on IS simply took it upon himself to ignore the instructions in his order book to report that he had been found no longer incapable of work because it was having no effect on his IS.  The tribunal was not required to make any finding about whether the motive was fraudulent or otherwise.  Evidence of character and motivation is irrelevant.  It is simply a matter of reliability of evidence.  The “evidence” given in any event was merely a submission by the claimant’s solicitor on the claimant’s behalf.  It was not so much evidence of general character as a submission to the effect that he believed in this one instance.  It was not found by the tribunal that the claimant’s evidence on the salient factor in this case (whether or not notification was received) was reliable.  In such circumstances the tribunal did not have to reason further into the matter.  Its decision was adequately explained by the reasons given.

25.	The third ground remains.  Part of the submission on this ground related to whether there was adequate evidence to enable the tribunal to conclude that the two forms of notification had been sent.  I consider that the computer print out already mentioned at TAB 5 of the tribunal papers does provide this evidence.  What it does not do, of course, is provide evidence of the content of each form.

26.	The claimant’s solicitors have, in my view, correctly raised an issue that the tribunal failed to address the issue of the Department not having tendered forms IB65 and BF220C.  These were the forms on which the Department allegedly notified the claimant that he had been found capable of work.  The solicitor is correct that the Department did not tender these forms or even pro formas of them (which would in my view have been sufficient to establish their content) to the tribunal.  The tribunal did not seek to see the relevant forms though this matter was raised by the solicitors in their written submission to the solicitors.  Both these are matters of some concern to me.  Without knowing the content of the said forms I fail to see how the tribunal could conclude that they provided the said notification.  In general terms I consider that the Department should supply copies or pro formas of relevant notifications in recoverability cases.  In cases where notification is an issue the tribunal should ask to see at least pro formas of these documents if they have not been furnished.

27.	In order to ascertain whether this failure amounted to an error of law and if so whether the error was such as to render the decision in error of law, I obtained copies of the said forms: form IB65 is a straightforward notification that the relevant claimant is no longer entitled to IB.  It contains the sentence “If you are receiving Income Support you should take this letter to your Social Security Office immediately.”  The form BF220C does not, however, contain any notification that the relevant claimant will no longer receive IB or credits.  The only reference to this which I can see is in the opening sentence which states:

	“ABOUT YOUR CLAIM
	You have recently been getting National Insurance (NI) credits from this office.”

	It then continues with advice to claimants as to what to do next in the event of a return to work, embarking on a training course or remaining unemployed.  In the last case the advice is to hold onto the letter.  It appears that this form is complementary to form IB65 though it makes no reference to that form.

28.	I have considerable concerns that form BT220C was represented to the tribunal in the Department’s submission at paragraph 4 as being a second notification of disallowance when it is nothing of the sort.  This situation highlights the desirability of providing pro forma copies of the relevant forms.  The Department should bear in mind that it has the burden of proof in overpayment cases and it should clearly set out, with any relevant supporting documentation, the evidential basis for its case.

29.	How then does this omission affect the tribunal decision?  The tribunal made findings of fact that notification had been issued on 27 August 2002 on form IB65 and received by the claimant.  As indicated above that was a finding which it was entitled to make.  It is enough for a claimant to receive one notification of a material fact.  Two are not required.  The tribunal found also that further notification of disallowance had been issued on 28 August 2003 on form BF220C and received by the claimant.  That finding it was not entitled to make as the form BF220C was not a notification of disallowance.

30.	Did this finding vitiate the tribunal’s decision?  The claimant denied having received either notification.  The tribunal disbelieved him.  In actuality there had only been one notification (form IB65) issued.  Form BF220C was not a notification.  I am driven to the conclusion that the finding that two notifications had been sent influenced the tribunal’s thinking on this entire matter.  As this finding was not sustainable on the evidence it therefore vitiates the decision.  I set the decision aside for that reason.

31.	I do not consider that I can give the decision which the tribunal should have given.  There are evidential issues to explore here and the tribunal is the more suitable body to do this.  I therefore remit this matter to a differently constituted tribunal for rehearing and re-determination.

32.	I direct the Department to put before that tribunal and copy to the claimant the pro forma IB65 and BF220C forms in use at the relevant time.  I further direct the Department to consider making a supplementary submission to the tribunal as to what happened between IB section and IS section at the time of the disallowance as this may be of assistance to the tribunal in determining whether the said notification was issued though it is not necessarily conclusive on this matter.

33.	The claimant wins his appeal.  However he should not take the fact that this appeal has been successful as any indication of the likelihood of success or failure before the new tribunal.

(signed):  M F Brown

Commissioner

16 November 2006