[2007] NISSCSC C5_06_07(IS) (13 November 2007)

Decision No:  C5/06-07(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 28 June 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The proceedings before me begin with a purported grant of leave by the legally qualified panel member of an appeal tribunal which made a decision dated 28 June 2004.  The application for leave was made by the Department.  The tribunal had allowed the claimant’s appeal against a departmental decision dated 25 February 2006 to the effect that the claimant had been overpaid income support (IS) in the sum of £5256.42 and that this sum was recoverable from the claimant because the overpayment had resulted from the claimant’s failure to disclose the material fact that she had been disallowed incapacity benefit (IB) on 14 April 2003.  She was only entitled to benefit by way of incapacity credits, not having sufficient contributions to be entitled to IB in the form of payment.  She therefore received IS instead.  The claimant’s grounds of appeal to the tribunal were that she had not received notification of being disallowed incapacity credit.

2.	The tribunal held a hearing which the claimant attended accompanied by her representative Mr Murphy of the Elliott-Trainor Partnership, Solicitors.  Mrs Beagan represented the Department.  At hearing Mrs Beagan requested an adjournment pending the decision of the House of Lords in an appeal from the case of Hinchy v Secretary of State for Work and Pensions [2003] EWCA Civ 138.  That was a decision of the Court of Appeal in England and Wales relating to the origin and nature of the duty to disclose and what constitutes compliance with it.  The Court of Appeal decision had reversed long-standing authorities in Commissioners decisions (eg in R(SB)15/87 and CG/449/1999).  On appeal to the House of Lords the Court of Appeal decision was overturned.  Lord Hoffman, giving the lead opinion with which the majority of the other Law Lords agreed, expressed the view that the line of authority established by the Commissioners’ decisions was correct.  He stated at paragraph 32:

“… The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department.  In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another.  Her duty is to comply with what the Tribunal called the “simple instruction” in the order book …  For my part, I would approve the principles stated by the Commissioners in R(SB)15/87 and CG/4494/99.  The duty of the claimant is the duty imposed by regulation 32 or implied by section 71 to make disclosure to the person or office identified to the claimant as the decision maker.  The latter is not deemed to know anything which he did not actually know.”

3.	It does not appear that the tribunal entered into any exploration of the case before it nor of the grounds of appeal in Hinchy nor of the progress of the proceedings in Hinchy.

	It refused Mrs Beagan’s application for an adjournment to await the Hinchy decision stating that it felt it “could make a safe decision in the matter.”  It then based its decision on the Court of Appeal decision in Hinchy reasoning:

“The Hinchy case made clear that the person through whom all Departmental decisions are ultimately made, was the Secretary of State, and he, had within his knowledge all decisions made in relation to individuals, where those decisions were made by an adjudication officer or a decision maker.

The Hinchy case confirmed that an individual cannot be accused of failure to disclose a material fact when the Secretary of State had within his realm of knowledge, all Departmental decisions relating to that individual.

I appreciate that the Hinchy case is being appealed to the House of Lords, but a very recent House of Lords decision, Kerr v Department for Social Development (Northern Ireland) has a direct bearing on the issue of failure to disclose.

Although the Kerr case (decision given 6/6/04) related to a funeral payment, Baroness Hale of Richmond gave a lengthy opinion on the matter which relates to the present case.
In paragraph 65, the Court notes that Section 3 of the Social Security Act 1998 provides that the relevant Departments are able to use the information relating to Social Security which they hold for any purposes connected with their functions in relation to Social Security.  This section also applies to Northern Ireland.

It would therefore follow that there cannot be a failure to disclose of information which is readily available to the Department either from computer or paper administration systems.

I find that the Department knew that [the claimant] had failed to satisfy the personal capability assessment.  It was therefore up to the Department, internally to transfer this information to another section.  (From Incapacity Section to Income Support Section).

I feel it is regrettable that this internal transfer of information did not happen as it should have in [the claimant’s] case, because then, the Department could have adjusted the amount of money [the claimant] should actually have received, having failed the personal capability assessment.

I accept that [the claimant] has indeed received an overpayment of income support amounting to £5256.42 for the period 10.4.03 to 29.12.03.  However this sum is not recoverable from appellant as there was no failure to disclose on part of [the claimant], following the judgements in Hinchy … in Kerr ….  

This appeal is therefore allowed.”

4.	In the proceedings before me the Department is represented by Mr Donnan and the claimant by Mr Murphy.  I am grateful to both for their assistance but particularly to Mr Donnan whose comprehensive submissions covering the strengths and weaknesses of the Department’s case admirably fulfil the amicus curiae role.  I trust both Mr Donnan and Mr Murphy will forgive me if I do not detail the submissions and skeleton arguments which they made in relation to the substantive merits of the tribunal’s decision.  Mr Murphy very properly conceded that, in the light of Hinchy, there had been no disclosure but continued to submit that his client could not have disclosed that her IB had stopped not having been informed that it had done so.  He also acknowledged that his client’s case in relation to that matter had not been prejudiced by any delay on the Department’s part.

5.	I consider the tribunal’s reasoning to be fundamentally flawed.  I accept Mr Donnan’s submission that the Kerr judgment was not relevant to the concept of failure to disclose under section 69 of the Social Security Administration (Northern Ireland) Act 1992 (the Northern Ireland equivalent to section 71 of the Great Britain legislation dealt with in Hinchy).  I dealt with this matter in C7/04-05(IS) and I adhere to the views expressed in that decision.  I also find it puzzling that the tribunal was of the view that it could make a “safe” decision to proceed in light of the appeal to the House of Lords in Hinchy.  If, therefore, I had jurisdiction to do so I would grant leave and set the tribunal’s decision aside as in error of law.

6.	I come then to deal with the fundamental preliminary issue of whether I do have such jurisdiction.  Whether or not I do so depends on whether there is a valid grant of leave and therefore a valid appeal to a Commissioner.  The tribunal’s decision in this case was dated 28 June 2004.  Its full statement of reasons was issued on 23 August 2004.  The Department states and I have no reason to doubt that it either hand delivered to the office of the Tribunal Appeals Service or sent to that office by first class post a letter dated 21 September 2004 seeking leave to appeal addressed to the “clerk to the Appeals Service.”  The Department received no acknowledgement of receipt of that letter.  Mr Donnan was uncertain but thought it was probably not the practice at that time for such acknowledgement to be sent out.  In any event the Department, partly because it assumed the matter was delayed pending Hinchy and partly because of staff changes in its office did not do anything further about the matter until contacted by the local office in January 2006.  It appears that there may have been some contact with the Tribunal Appeals Service between January 26 and a letter dated 12 May 2006.  This letter enclosed a copy of the letter dated 21 September 2004 and asked that the legally qualified panel member rule on whether that application (of 21 September 2004) was received on time.  By that stage it appears the Tribunal Appeals Service no longer held records on the case.

7.	The matter was placed before the legally qualified panel member.  It appears that both documents were placed before her (ie the copy letter of 21 September 2004 and the letter of 12 May 2006 enclosing it).  The clerk referred the matter to the legally qualified panel member in the following terms:

“1.	The attached papers show that: 

AN APPLICATION FOR LEAVE TO APPEAL TO THE SOCIAL SECURITY COMMISSIONER HAS BEEN RECEIVED.

2.	May I therefore ask you to decide whether, under Regulation 58(1)(a) and 58(5) of The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 

	(a)	THE APPLICATION IS LATE
	(b)	YOU FIND THAT SPECIAL REASONS EXISTED AND ACCEPT THE APPLICATION.”

	At section 3 of the form there was a space for the legally qualified member to request further information.  There is no indication that such information was requested.  Section 4 sets out the legally qualified member’s decision:

	“Application is late.
Special reasons exist for delay in this application.  (See letters dated 21/9/04 and 12/5/06 from Decision Making and Appeals Unit).
The application can proceed.”

8.	I find it extremely difficult to ascertain which document the legally qualified panel member considered to be the application.  If it was the document allegedly delivered by hand on 21 September 2004 or by post on 22 September 2004 (on the assumption that the document was received by the clerk to the tribunal on the same day as it reached the tribunal office) the application was not late.

9.	The letter of 12 May 2006 was not an application for leave and did not purport to be one.  It merely enclosed the application of 21 September 2004 and explained the circumstances.  Even if it could have been considered to be an application, time could not have been extended to allow the letter of 12 May 2006 to have been admitted.  All parties agree the letter of 12 May 2006 was received outside the absolute 13 month time limit in regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.

10.	Mr Donnan has endeavoured to persuade me that the legally qualified panel member must have accepted that the letter of 21 September 2004 was timeously delivered ie she must have accepted the accuracy of the letter of 12 May 2006.  I am not so persuaded.  I think she was ruling on the letter dated 12 May 2006.  For her to rule (a) that the application was late and (b) that special reasons existed to admit it, she may well have accepted that the letter of 21 September 2004 was timeously taken or posted to the Tribunal Office or building, I do not know which.  That is not enough to satisfy the requirements of the Appeals Regulations.  Regulation 58(1)(a) provides that an application for leave to appeal must be made in writing and must be sent to “the clerk to the appeal tribunal”.  The clerk to the appeal tribunal is a person assigned to the appeal tribunal in accordance with regulation 37 and there is, as Mr Donnan very properly concedes, absolutely no evidence to indicate that the letter of 21 September 2004 was ever received by the clerk to the tribunal.  Regulation 2(a) provides for a document to be sent to the clerk to the tribunal to be treated as having been given or sent on the day said document is “received” by the clerk.  I conclude therefore that the legally qualified member was ruling on the letter of 12 May 2006.  That letter, as mentioned previously, did not purport to be an application for leave.  Even if it could properly be considered to be one there was no power to extend time on foot of it.  I come then to consider whether or not I have power to declare invalid the decision of the legally qualified panel member to grant leave.

11.	Neither can there be a direct application for leave to a Commissioner.  Regulation 9(4) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999 does not permit a Commissioner to extend time beyond the 13 month period from the date the statement of reasons was issued.

12.	I am far from happy with this situation where a decision of a tribunal which does appear to be in error of law is permitted to stand and a possible overpayment out of public funds made without proper exploration of whether or not it was recoverable.  However the Department is not without fault in this matter.  It made no effort to check on the situation as regards the application for leave even long after the Hinchy decision had issued from the House of Lords.  More importantly there is absolutely no indication that the letter of 21 September 2004 was ever received by the clerk.  Nor indeed is there any evidence that it was received in the Tribunal office.  The letter of 12 May 2006 was written almost 20 months after the event and while there is no reason to doubt its veracity it does not appear that anything definite was known about the mode of sending the letter of 21 September 2004.

13.	I have no jurisdiction in this matter and therefore cannot consider the purported appeal.  It is not a valid appeal being made on foot of a grant of leave which the legally qualified panel member had no jurisdiction to give.

(signed):  M F Brown

Commissioner

13 November 2007