Decision No:  C8/06-07(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL SECURITY COMMISSIONERS (PROCEDURE) REGULATIONS
(NORTHERN IRELAND) 1999

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 29 July 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Commissioner, by the claimant against a decision dated 29 July 2005.  The claimant is represented by her sister, Ms Flannagan and the Department by Mr McGrath of its Decision Making Services branch.  The tribunal had disallowed the claimant’s appeal against a Departmental decision dated 7 December 2000.  The Department’s decision was somewhat obscurely phrased as follows:

“This decision is given in respect of [the claimant’s] claim for Income Support from 02 December 1996 to 04 January 2000 (both dates included).

Of £16436.62 already paid to [the claimant] as Income Support from 02 December 1996 to 04 January 2000 (both dates included) £12439.03 is to be offset against the arrears of Income Support now due from 02 December 1996 to 04 January 2000 (both dates included).

As a result of the decision dated 04 January 2000, an overpayment of Income Support has been made from 02 December 1996 to 04 January 2000 (both dates included) amounting to £3997.59 as shown on the schedule.

On 02 December 1996, or as soon as possible afterwards, [the claimant] failed to disclose the material fact that Invalid Care Allowance was in payment.

As a consequence, Income Support amounting to £3997.59 from 02 December 1996 to 04 January 2000 (both dates included), as detailed on the schedule, was paid which would not have been paid but for the failure to disclose.

Accordingly, that amount is recoverable from [the claimant].”

2.	The decision is not well phrased but essentially it appears that what happened was that the claimant had been awarded and paid income support (IS) from 2 December 1996 to 4 January 2000 (both dates inclusive) amounting to £16436.62.  The Department initially considered that only £12439.03 of this should have been paid as the claimant had been paid invalid care allowance (ICA) during this period. This left an overpayment of IS initially computed as £3997.59.  The Department decided that this overpayment had occurred because the claimant had failed to disclose that she had been paid ICA and decided therefore that £3997.59 was recoverable.

3.	The claimant appealed.  The matter initially came before an appeal tribunal on 17 February 2003.  That tribunal adjourned (inter alia) directing the Department to provide a further written submission plus documentary evidence, indicating the date on which the claimant first received an actual payment of ICA.  An addendum dated 25 February 2003 was furnished which stated inter alia:

“… I am submitting an e-mail from Invalid Care Allowance confirming dates ICA was paid and the periods these payments covered.  This confirms Invalid Care Allowance was issued to [the claimant] as follows;

(a)	Payment of Invalid Care Allowance issued for period 01/04/96 to 05/10/96 for total of £986.85 less income support recovery of £662.11.  An amount for the difference of £324.74 was issued to [the claimant] on 26/10/96.

(b)	Payment of ICA for periods 23/12/96 to 28/06/97 for total of £997.20 was issued to [the claimant] on 25/06/97.  No recovery of Income Support requested.

(c)	Payment of ICA for periods 30/06/97 to 26/10/97 for a total of £634.95 was issued to [the claimant] on 22/10/97.  No recovery of Income support done.

(d)	This information clearly shows payment of Invalid Care Allowance was first made on 25/06/97 and was paid for the period 23/12/96 to 28/06/97.  The period of the overpayment should therefore actually start from 23/12/96 as ICA was not paid for period 02/12/06 to 22/12/96 the amount of the overpayment would decrease by £47.20.  Thus making overpayment for the period 23/12/96 to 04/01/00 (both dates included) = £3950.39. …”

4.	The matter came before another tribunal on 19 May 2003 which adjourned the case directing re-listing after the issue of the decision of the House of Lords in the case of Hinchy v Secretary of State for Work and Pensions (UK HL 16).  Following the decision in Hinchy the matter was re-listed and came before another tribunal on 29 July 2005.  That tribunal decided that IS amounting to £3997.56 from 2 December 1996 to 4 January 2000 had been paid which should not have been paid and was recoverable from the claimant. The claimant appealed to a Commissioner against that decision.

5.	The copy which I have of the Record of Proceedings of that tribunal appears to be incomplete.  However from that tribunal’s reasons it appears that the claimant raised before it the same argument which she had raised at the tribunal on 17 February 2003.  These were that she had claimed ICA about April 2006 and had declared all the benefits she was on (including IS) on her ICA claim form.  She contended that there was a Departmental error as staff in ICA did not contact IS branch.  She also submitted that she had claimed IS from 2 December 1996 at which time she had claimed but not yet received ICA on foot of a claim for it in April 1996.  On an IS review form dated 18 August 1997 she informed IS that she had claimed attendance allowance (AA) but that her claim had not yet been worked out.  She should have said ICA instead of AA.  In her submission IS should have realised this was wrong as she was under 65 and should have checked with AA.  In summary she contended that there were errors by the different branches of the Department not communicating with each other.  Had these errors not occurred there would not have been an overpayment.  Consequently the overpayment was not recoverable from her.

6.	The claimant also contended to the tribunal on 17 February 2003 that she was not paid through her Order Book so could not have complied with notes in the back of that book as she did not get them.  The addendum to the appeal referred to this and supplied screen prints showing issue of IS Order Books between 9 December 1996 and 24 March 1997.  Even after the claimant was paid IS directly into her bank account she was, according to the addendum screen print, issued with documents 1NF1 and 1NF4 on 1 September 1997, 13 January 1998, 12 October 1998, 19 January 1998, 7 March 1999 and 28 April 1999.  Copies of these leaflets or part of them were attached to the addendum.  From my perusal of the copy of part of the leaflet 1NF1 which was furnished, it appears to be instructions to a claimant as to what to do in the event of disagreement with a Departmental decision.  It does not relate to information to be supplied by claimants.  As regards leaflet 1NF4, it does give instructions about telling the local Social Security Office about changes and purports to reproduce at least part of leaflet 1NF1.  There are instructions to tell “if anything changes”, and some details of changes “we need to know about”.  Included in this for IS claimants is to tell the local office if they “get money from somewhere else.”  The copy 1NF4 is also, I think, only part of that full leaflet.

7.	The tribunal also had before it a pro-forma of part of the instructions in the IS Order Book.  In that part the claimant was advised that:

“The amount of money that you are entitled to is based on what you told us when you claimed.  

If things change and you do not tell us, you might get the wrong amount of money - and you could be breaking the law.”

	She was advised further that there was “information on the next few pages about the following changes”.  Included amongst the listed “changes” were “Benefits, allowances, pensions and training grants Notes 14-15”, and “Any other money coming in Notes 16-17.”  I have not had sight of these further notes and neither, it appears did the tribunal.  This is unsatisfactory.  It appears to me that the instructions given to claimants are, following Hinchy, of particular importance in section 69(1) cases.  As Lord Hoffman stated at paragraph 32 the claimant’s duty is “to comply with the “simple instruction” in the order book”.  The majority of the other Law Lords agreed with his reasoning.  It seems to me post Hinchy that the best practice would be that copies of the full instructions given should be supplied to tribunals.

8.	It appears that in this case there had been more than one claim for ICA as there are details of a payment of ICA being made for the period 1 April 1996 to 5 October 1996 of £986.65 less IS recovery of £662.11.  The payment for the difference of £324.76 was issued to the claimant on 26 October 2006.  It is likely that the claimant worked for a short period (as she stated) and the ICA claim terminated.  She then reclaimed ICA and IS.  She was awarded ICA from 23 December 1996 but was not paid on foot of the award until 25 June 1997.  She had reclaimed and been awarded and paid IS from 2 December 1996.  There is no copy of her IS claim form dated December 1996.  She, however, completed a review form dated 8 August 1997 and in it was asked to state what benefits (including ICA) she was getting.  The only benefits which she mentioned were AA and Child Benefit.  She stated that the AA was being paid in respect of B….  She did not mention being in receipt of ICA.  As I understand it AA is not taken into account as income when computing the applicable amount of IS whereas ICA is considered as part of the claimant’s income for IS purposes.

9.	The tribunal in disallowing the claimant’s appeal reasoned, following Hinchy, that the claimant was not entitled to assume that there existed infallible channels of communication between different departmental offices and that the primary onus of keeping the appropriate office informed rested on the claimant.  Again following Hinchy, it reasoned further that the fact that a system of communication existed within the Department did not relieve the claimant of her duty to disclose.  It reasoned further that she should have been aware of this duty to disclose by reason of notes on her IS Order Book and the subsequent issue of Forms 1NF1 and 1NF4.

10.	The claimant appealed to a Commissioner.  Her grounds of appeal are set out on an OSSC1 form received in the Office of the Commissioners on 30 May 2006.  They are:

(1)	That as her original IS claim form had been lost it could not be proved that she did not report receipt of ICA on it.

(2)	That while in her subsequent review form she had mistakenly declared that she was in receipt of AA and had not stated that she was in receipt ICA, this was a mistake on her part and should have been investigated, not ignored, by IS section.

11.	The Department supported the appeal but not on the grounds put forward by the claimant.  It is represented by Mr McGrath of its Decision Making Services branch to whom I am indebted for the thorough and helpful submissions contained in his letter of 16 August 2006.  Mr McGrath referred to Hinchy and in particular to paragraph 32 of Lord Hoffman’s judgment thereon which is in almost identical terms to the tribunal’s reasoning in relation to the claimant having a duty to disclose and not being able to rely on one departmental branch informing another.  He also relied on the decision of the Court of Appeal in England and Wales in the case of Duggan v Chief Adjudication Officer (reported as an appendix to decision R(SB)13/89) as authority for his submission that even if there were two causes of an overpayment – namely an administrative error by the Department and a failure to disclose by the claimant - that did not and could not prevent failure to disclose by the claimant from having been one of the causes of overpayment.  He submitted that in this case there had been a failure by the claimant to disclose the fact that she was in receipt of ICA and the overpayment resulted from that failure.  He submitted therefore that although no checks had been made regarding the mention of AA in the claimant’s A2 review form the tribunal was correct to decide that there had been a failure to disclose the fact that she was in receipt of ICA.

12.	As regards the grounds relating to the fact that the original IS claim form was missing, Mr McGrath made two submissions.  It appears that the form was “weeded” ie removed from the file as an old or redundant document and destroyed.  Mr McGrath submitted, relying on R(IS) 11/92, that an adverse presumption could only be drawn where the documents were destroyed with the intention of destroying evidence.  As that was not the case here the only detriment to the Department was the lack of corroboration that the document might have afforded.  R(IS)11/92 was to the effect that adjudicating authorities should take account of all available evidence including secondary evidence, and decide on the balance of probabilities what the original document contained.  He submitted that as the claimant did not report receipt of ICA in her review form and as no account of ICA was taken in her IS assessment, on the balance of probabilities ICA was not reported on the original claim form.

13.	Alternatively, he submitted, that even if the claimant had reported the claim for ICA on her IS claim form this would not have absolved her of her duty to report receipt of ICA which she was instructed to do in forms 1NF1 and 1NF4.  There was no merit in the claimant’s grounds.

14.	However, Mr McGrath submitted that the tribunal had erred in law with regard to the legislation under which the overpayment relating to the period 23 December 1996 to 28 June 1997 was recoverable.  This in fact was recoverable under Section 72(1) of the Social Security Administration (Northern Ireland) Act 1992 rather than section 69(1) of that Act.  The overpayment for that period related not to failure to disclose or misrepresentation (as was needed to found recovery under Section 69(1)) but to late payment of ICA.

15.	Mr McGrath submitted that there was a further error by the tribunal in that it failed in its inquisitorial role in not ascertaining whether or not valid supersession/revision decision(s) had been made covering the award of IS for the relevant period.  Mr McGrath himself produced evidence of the supersession decision dated 4 January 2000 but submitted that it was only effective back to 4 November 1998.  He submitted that the Department should have carried out an “off-line” decision for the period 23 December 1996 to 3 November 1998.  This was, he submitted, necessary to comply with the requirements of section 69(5A) of the said Administration Act which provides that an amount shall not be recoverable under section 69(1) “unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.”

16.	Mr McGrath also alluded to the discrepancy in the amount which the tribunal found to be recoverable (£3997.56 for the period 2 December 1996 to 4 January 2000) and the period and amount mentioned in the addendum (£3950.35 for the period 23 December 1996 to 4 January 2000).

17.	The claimant was afforded an opportunity to make comment on Mr McGrath’s submissions but did not do so.

18.	I largely but not entirely agree with Mr McGrath’s submissions.  Most importantly, however, I consider the submissions are correct in that the tribunal erred in law in not ascertaining that all necessary supersession/revision decision(s)were in place and that all necessary periods were covered thereby.  This error would not perhaps be sufficient to vitiate the decision if in fact all necessary decisions were in place.  In this case, however, they were not.  There were periods not covered by any such decision.   Section 69(5A) of the Administration Act clearly provides that there shall be no recovery under that section unless the determination in pursuance of which the amount was paid has been reversed or varied on an appeal (not relevant here) or has been revised under Article 9 or superseded under Article 10 of the 1998 Order.  In this case Mr McGrath submits that there has been a supersession decision (albeit not one covering the entire period) on 4 January 2000.  This is, in my view, a revision decision as it extends to a period in the past.  It does not, however, go back far enough.  It should cover the entire period for which a recovery is sought under section 69(1).  The terms of section 69(5A) are clear.  There can be no recovery unless the relevant revision or supersession decisions are in place.

19.	The tribunal did not check on this matter and it therefore fell foul of section 69(5A).  This is not the only case where this error has been made.  The Department should assist tribunals by dealing with the requirements of section 69(5A) in submissions by clearly presenting evidence of any relevant revising/supersession decisions.  The best such evidence is copies of the decisions.  If such evidence is not presented a tribunal should seek it to ensure that it has not fallen foul of section 69(5A) as happened here.

20.	In this case there is no revision or supersession decision dealing with the period 29 June 1997 to 3 November 1998.  The Department should deal with this matter by making the appropriate decision(s) revising all previous awarding decisions covering that period.  The claimant will have appeal rights against any such decision(s).  As I understand it, however, the claimant concedes that she was not entitled to IS from 23 December 1996 to 4 January 2000.  Her concern is with the attempt to recover IS paid during that period.  If that is correct the claimant may not wish to appeal any such revising decision.  If she does not so wish it would be helpful and may speed up this process if the claimant would inform the tribunal office that she does not wish to appeal the revising decision when she receives same.

21.	As regards the overpayment for the period 23 December 1996 to 28 June 1997 that is, as Mr McGrath submits, not recoverable under section 69(1).  The tribunal erred by determining that it was.  The claimant could not have reported receipt of ICA before she received it.  Any recoverability could only be under section 72(1).

22.	I set the tribunal’s decision aside for the above reasons.

23.	The new tribunal to which I am remitting this matter should determine when the claimant received ICA.  According to the Addendum to the appeal this was not until 25 June 1997.  Section 69(5A) does not therefore apply to the overpayment for the period 23 December 1996 to 28 June 1997.  If the Department seeks to recover IS paid for that period it should revise its decision to base that part of the overpayment on section 72(1).  Recovery under section 72(1) does not depend on any misrepresentation or failure to disclose or any fault.  It relates simply to benefit (in this case IS) being paid which would not have been paid if another benefit (in this case ICA) had been paid from the first day of the period to which it relates (in this case 23 December 1996).  It is thus of a technical nature and less likely to be upset on appeal if the relevant facts are established.  That is, however, a matter for the claimant and her adviser.  As stated above, the Department should revise its section 69 decision to remove this period from it. It should also, pursuant to the Addendum to appeal and as conceded by Mr McGrath remove the period 2 December 1996 to 22 December 1996 from its section 72(1) decision.

24.	I come now to deal with the claimant’s grounds of appeal.  As regards the ground relating to the IS claim form dated 2 December 1996 it is for the Department to show that the claimant failed to disclose receipt of ICA.  There appears to be nothing sinister in the destruction of that claim form.  No conclusions can be drawn as to its contents from the mere fact that it was destroyed in the course of routine weeding (R(IS) 11/92).  As Mr McGrath states secondary evidence is admissible to prove its contents.  However, the burden of proof of non-disclosure still lies with the Department.  The standard of proof is balance of probabilities.  It is for the new tribunal to determine whether failure to disclose has been established.  The matter of the claim form may however be largely academic in that it is difficult to see how the claimant could have reported being in receipt of ICA on 2 December 1996 when she was not in receipt of it at that time.  Payment of ICA did not resume until 28 June 1997 when a payment was made for the period 23 December 1996 to 28 June 1997.  It is only from 28 June 1997 on that any failure to disclose could be relevant.  If the issue of the claim form is still considered relevant it can be raised before the new tribunal.

25.	As regards the ground relating to the subsequent review form dated 18 August 1997 it is common ground that the claimant did not report in that form that she was in receipt of ICA.  Instead she put that she was in receipt of AA (a benefit which is not taken into account as income for IS purposes).  She considers that the Department erred in not investigating her stated receipt of this benefit as she is too young to be eligible for it.  Mr McGrath is correct that the Duggan case is authority for the proposition that even if there was an error by the Department so long as the claimant’s failure to disclose was a cause of overpayment section 69(1) can still apply.  In this case in any event the claimant stated she was in receipt of AA for someone else so I can see no reason why the Department would have investigated further.

26.	In any event the case of Hinchy is relevant.  At paragraph 32 of that case Hoffman LJ stated that the duty of the claimant was:

“the duty imposed by regulation 32 or implied by section 71 [the GB equivalent of section 69] 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.”

	The claimant, upon whom this particular burden lies, has not produced any evidence that her local office knew that she was not in receipt of AA.  Even if she could show this it would still not establish that the local office knew she was in receipt of ICA.  If it had known she was not in receipt of AA this might have provoked enquiries which might have produced the information that she was in receipt of ICA but the claimant is not entitled to make any assumptions about what the Department would do.  Her duty is simply to make this disclosure imposed by regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and section 69(1).

27.	Regulation 32 so far as relevant to the present case provides at regulation 32(1), (1A) and (1B) for a benefit recipient (including an IS recipient) to supply such information or evidence as the Department may determine and to inform the Department -

“of any change of circumstances which he might reasonably be expected to know might affect – 

(a)	the continuance of entitlement to benefit; or

(b)	the payment of benefit,

as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office.”

	There then follow provisions on the method of notification.

28.	It is apparent from Hinchy therefore that the focus is on the claimant’s duty under regulation 32 and that the question is whether or not the claimant complied with same.  She is not entitled to make assumptions about internal Departmental procedures and same do not affect her duty to comply with regulation 32.  I consider there to be no merit in this ground.  

29.	The new tribunal may have to determine whether or not the claimant discharged her regulation 32 duty.  So doing it may consider what information or evidence the Department required of the claimant and in what manner and at what times it required it.  This may involve consideration of the instructions given to the claimant at the time of claiming and afterwards and the review form.  As regards the instructions leaflets 1NF1 and 1NF4 and the Order Book instructions the Department should lay a proper evidential basis for its case.  So doing it should supply the tribunal with pro-forma copies of the full leaflets and Order Book instructions in use at the relevant times on which it relies.  Copies thereof should of course be given to the claimant.  

30.	The Department should ensure all relevant revision/supersession decisions are in place.  It should include them in its submission to the new tribunal.  It should amend the recoverability decisions firstly to base the 23 December 1996 – 28 June 1997 period on section 72(1) and secondly to alter the amount of the overpayment to £3950.39.  It will be necessary also for the Department to split the overpayment between the two periods 23 December 1996 – 28 June 1997 and 29 June 1997 – 4 January 2000.  The claimant should inform the tribunal clerk whether or not she wishes to appeal against any of the section 69(5A) revision/supersession decisions mentioned above.  If she does appeal them those appeals should be heard with the overpayment appeals.

(signed):  M F Brown

Commissioner

6 March 2007