[2008] NISSCSC C11_06_07(IS) (03 March 2008)

Decision No:  C11/06-07(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 6 July 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the tribunal dated 6 July 2006 is set aside.  It upheld the overpayment decision made by the Department on the basis of misrepresentation.  I accept the argument of the appellant that neither he nor the Department was given an opportunity to present arguments or evidence in relation to misrepresentation at the appeal hearing.  Neither was the issue of misrepresentation addressed in the submission to the tribunal.  The hearing was therefore unfair. 

2.	At the conclusion of the hearing before me, I asked the parties to comment on whether the appeal should be remitted to an entirely new tribunal or to the tribunal which heard the appeal.  The appellant’s representative requested that the appeal be referred to the same tribunal.  The Departmental Presenting Officer said that he had no application to make.  I therefore refer the appeal back to the same tribunal with the following directions.

3.	The letter of appeal is not in the papers.  The appellant’s representative explained that there may be a copy in the Citizens Advice Bureau dealing with the case.  It would be helpful if the letter of appeal could be produced to the tribunal at the rehearing.

4.	The Department is requested to clarify the following matters in relation to the evidence in the appeal:

	A.	On the letter of 11 November 2000 from Incapacity Benefits Branch to the Income Support Office in Andersonstown, there is a handwritten note at the top of the page that the order book was recalled on 17 November 2000.  Were any decisions taken by the Department at this time and what notification was sent to the appellant as required by regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999?

	B.	There is a reference in a computer printout to a reduction of income support (IS) on 3 December 2000.  What decision was taken at this time and what regulation 28 notification was given?  In particular, was the claimant informed why his IS was to be reduced?

	C.	There are a series of entries made on the computer on 26, 29 and 30 January 2001.  What do these entries mean and were any decisions made at this time?  If so, what were they and how were they communicated to the appellant?

	D.	It seems to be recorded on the computer printout that the order book was recalled on 17 February 2001 “for reduction and removal of DP.”  What decision was taken at this time and what regulation 28 notification was given to the claimant?  I note that this recall took place more than 4 weeks after the tribunal heard the appeal in respect of the personal capability assessment.

	E.	In the letter dated 13 December 2002 from Incapacity Benefits Branch, it is stated; “Date decision notified to customer 13.12.02”.  What decision was this and what was notified to the claimant?

	F.	On what date was the decision required by section 69(5A) of the Social Security Administration Act (NI) 1992 made and was regulation 28 notification given to the claimant?  I note that in the document headed ‘overpayment referral stencil’, which is unsigned and undated, there is a reference to a “review” carried out on the system on 7 January 2003.

	G.	The computer printout requested by an official on 9 April 2003 records that the claimant was issued with a form IB65 on 8 November 2000.  This form should be produced to the tribunal.  There is a hand written note on the printout which I assume describes the IB65 contents; “System generated letter notification of IB disallowance and informing of right to appeal”.  The Department is asked to explain why the claimant was advised that his incapacity benefit (IB) was disallowed when no such decision was made.  The claimant was not in receipt of IB.  Was a notification referred in paragraph B above sent to the claimant at the same time?

	H.	In the letter dated 13 December from Incapacity Benefits Branch to Andersonstown Income Support Office it is stated that a decision was notified to the customer on 13 December 2003.  What are the details of this decision?

	I.	It is not clear from the schedule of overpayments how benefit was calculated over the two-year period detailed.  Why were the weekly amounts altered?  Were there a number of supersession or revision decisions during the period?  Was the claimant’s entitlement changed due to changes in his circumstances?  It is also puzzling that if the order book was recalled on 17 February 2001, what was the reduction made at that time.  The schedule does not note a change in February 2001.  The information given to the tribunal should show clearly the amount of benefit paid to the claimant and some explanation given of changes.  The amount of the overpayment in this case is very substantial and it is essential that the amounts are fully explained.  It should also be explained to the tribunal what reduction was made in the claimant’s entitlement as the result of the appeal against the outcome of the personal capability assessment and the date from which the reduction took effect.

5.	The computer printout produced by the Appeals Service shows that the appeal was registered as an IB appeal and the decision of the tribunal was therefore sent to Incapacity Benefits Branch.  Incapacity Benefits Branch took no action until an enquiry was received from the Income Support Office almost two years later.  Incapacity Benefits Branch was aware that the appellant was in receipt of IS on grounds of incapacity as it had notified that office of the claimant’s failure of the personal capability assessment in November 2000.  The tribunal should therefore consider whether the overpayment was the consequence of Departmental error.

6.	With regard to the issue of misrepresentation, the Department and the tribunal are referred to the decision of Commissioner Jacobs in Great Britain in R(IS) 4/06 which contains a detailed analysis of misrepresentation by omission at paragraphs 30 to 41.  It is essential that the tribunal identifies what questions were addressed to the appellant, when they were addressed and what his misrepresentation was.  A full copy of order book instructions is required.  The submission in this appeal contained an extract.

7.	There are circumstances identified in the Franklin v Chief Adjudication Officer reported as R(IS) 16/96, citing R v Medical Appeal Tribunal Ex parte Hubble, in which there is no misrepresentation where a fact is not known to the claimant.  The Department has also identified a case, CF/14643/1996, where the Commissioner discussed the issue of constructive knowledge.  The time within which appeals are heard varies considerably and the tribunal should consider when it was reasonable to expect the claimant to enquire.  There is also an issue whether, in view of the fact that Incapacity Benefits Branch knew the outcome of the appeal, the claimant’s failure was a causative factor in the overpayment.

8.	As the claimant was not in receipt of IB, his appeal should not have been registered as an IB appeal.  It was an IS appeal arising from an issue as to the claimant’s fitness to work as ascertained by the personal capability assessment - Income Support (General) Regulations (Northern Ireland) 1987 Schedule 1B paragraph 7.  It is advisable that administrative arrangements should be made by the Appeals Service to register such appeals so that the Income Support Office is notified of the outcome and overpayments of the kind arising in this case avoided.

(signed):  C MacLynn

Deputy Commissioner

3 March 2008