[2009] NISSCSC A49_07_08(IB) (11 March 2009) 

Application No:  A49/07-08(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal’s decision
dated 13 September 2007

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

	Having read the case papers carefully, including all the submissions referable to this application, it does not appear that there is any sufficiently arguable ground with realistic prospects of success which suggests that the decision of the tribunal sitting in Newry on 13 September 2007 (the tribunal) was erroneous in law in a way which could have made any material difference to the outcome.  Leave to appeal is accordingly refused.

REASONS

	Evaluation of the evidence and determination of the merits is for the tribunal.  The Commissioner’s jurisdiction is limited to errors of law and none which could have a material effect have been demonstrated by the applicant, nor discerned from the documents.  Unless there is an irrational or improper approach or it is inadequately explained, a Commissioner cannot interfere.  In R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal in England and Wales emphasised the requirement for errors by appellate legal tribunals to be material before an appeal on point of law may succeed:

“Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no material difference to the outcome do not matter.”

	Importantly for this jurisdiction, that guidance was followed by a Tribunal of Commissioners in Great Britain in R(I)2/06.  If the error would not have affected the outcome, an appeal does not succeed.

	The tribunal in its statement of reasons did not say that the onus of proof lay with the Department.  However, as now submitted on behalf of the Department, and which submission I accept, the tribunal clearly indicated where the applicant had failed in his duty and why, therefore, the overpayment is recoverable from him.

	It would have been preferable if the tribunal had consciously considered whether or not it was appropriate to direct an oral hearing.  However, it was twice expressly stated on the applicant’s behalf, in response to enquiry, that the applicant wished to proceed with the appeal without an oral hearing.  A prior hearing on the papers dated 4 June 2007 had been adjourned for relisting again as a paper determination only and, further, gave the applicant the opportunity “… to supply confirmation from the bank that he was not issued with statements showing Incapacity Benefit in payment”.  The applicant did not object to that re-listing, nor state a desire now to attend the re-convened hearing, nor supply the documents requested.  In these circumstances, further adjournment would have been fruitless.

	In B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 (reported as R(IS) 9/06), the Court of Appeal in England and Wales held that a duty to disclose arises under regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (and there is an identical provision in Northern Ireland), which provides for, firstly, a duty to furnish information and evidence pursuant to any relevant requests from the Department and, secondly, a duty to notify the Department of any change of circumstances which a claimant might reasonably be expected to know might affect the right to benefit.  At paragraph 47 Buxton LJ said this:

“Read in isolation, the phrase ‘failed to disclose’ might seem to be addressed to some sort of deliberate concealment, or conscious suppression, of a material fact.  That might well be its application where the fact in issue is not one addressed by specific regulations, but is nonetheless determined to be ‘material’.  But that cannot be the expression’s meaning or application where, as in our case, the fact in question is mandated for transmission to the Secretary of State by a specific regulation.  Provided … Mrs B knew the fact and was able to communicate it to others, then the language of failure to disclose comfortably fits her case.  It is nothing to that point that she did not understand the materiality of the fact.  That issue is determined in respect of this fact by regulation 32(1).” (original emphasis)

	It has never been suggested on behalf of the applicant that he did not know the relevant fact, which was that he had returned to work in August 2005.  A copy of the leaflet IB 40(NI) of April 2005, which leaflet would have been issued to the applicant when he was awarded incapacity benefit (IB), is in the papers.  An IB claimant is clearly instructed to tell the Incapacity Benefits Branch of the Department (and an address and phone number are given) straight away if going back to work or if there is an improvement in his condition and he is able to do more.

	Relying on the reasoning of the Court of Appeal in England and Wales in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, (reported as R(IB)4/07), by using the word “must” rather than “should”, the language could not be clearer in indicating a formal requirement to notify.  Therefore, the applicant’s circumstances fall within regulation 32(1A) of the Social Security (Claims and Payments) Regulations (NI) 1987.  He must furnish specified information, such as about starting work, which is material to any decision relating to payment of IB once claimed, and this duty is not qualified in any way; it is therefore not dependent, for instance, on whether or not he supplied medical evidence, or on whether or not IB should have continued in payment in the absence of such further medical evidence, or of whether he did or did not know he was in receipt of IB.  He had claimed IB; there was an unambiguous request to him to provide the specified information, but he did not provide it.

	Fault on the applicant’s behalf is irrelevant.  It does not matter how the failure to provide the required information arose.  Breach of a duty under regulation 32(1A) automatically constitutes the necessary failure to disclose, which grounds a recoverable overpayment under section 69(1) of the Social Security Administration (Northern Ireland) Act 1992.  It is irrelevant that a claimant may not appreciate his duty so to disclose.  The instructions in the present case, both as to what was to be disclosed and to whom, were “crystal clear and unambiguous” (as the tribunal said), and the applicant does not suggest that he complied with their express terms.

	The grounds of the application for leave to appeal to the Commissioner are that the applicant did not send in the necessary medical evidence after his initial two weeks certificate, and thus IB should not have been paid for the period it was.  Awards are usually made for an indefinite period, but subject to alteration if a claimant’s circumstances change.  One such change in IB cases is where a claimant fails to provide evidence of being incapable of work (usually, but not necessarily, in the form of a medical certificate).  However, any award continues until formally terminated.  That the award in issue was not altered as it should have been, arose from two causes: firstly, inaction by the Department through overlooking the lack of evidence of incapacity to support the continuation of IB and, if necessary, superseding the award; and, secondly, the applicant’s failure to comply with the obligation imposed by the Department in the IB 40(NI) to tell it straight away if he went back to work.

	Under section 69(1), the overpayment must be “in consequence of the … failure [to disclose]”.  However, in Duggan v Chief Adjudication Officer (reported as an appendix to R(SB)13/89), the Court of Appeal in England and Wales held that, even if there are two causes of an overpayment, one of them due to a claimant and the other due to the Department, provided it is the case that the Department would not have paid the benefit if the claimant had disclosed a material fact, then the necessary causal connection is made.  Only if it can be said that, even if the claimant had made proper disclosure, IB would still have been paid to him on account of administrative error, will he succeed.  That is clearly not the case here; even though the Department erred in continuing payment of IB without requiring the necessary evidence of incapacity, yet had the claimant told it he was working, IB would, in all probability, have been immediately withdrawn.

	Later assertions made on the applicant’s behalf in the course of the appeal that he did not know he was receiving IB, (on 25 June 2008, it is said this is because he received no letter to state when payment would be made and, on 11 April 2007, that no bank statements were available over the relevant period), are inconsistent with a much earlier admission (on 24 April 2006, so more contemporaneous with the actual events) that the first relevant payment was around £500.  Moreover, the applicant never took the opportunity to give oral evidence on his own behalf, nor to produce any bank statements.  However, the point is not whether and when payment was made, but that an IB claim was in existence and yet the applicant did not comply with the duty to inform the Department if he returned to work following it; this was a duty unqualified by any consideration of what was reasonable in the circumstances, so what was argued on the applicant’s behalf, even if correct, could not exonerate him in any way.

	It is, however, undeniable, and it is accepted on behalf of the Department, that it was an error on the part of the Incapacity Benefits Branch to continue to pay the applicant IB after the period covered by his medical certificate had expired.  There is no scope under the legislation to divide responsibility according to the number of causes of an overpayment; nevertheless, the Department will surely take into account its own error when determining whether to seek recoverability of all or any part of the overpayment.  But this is a matter over which I have no jurisdiction.

(signed):  L T PARKER

NI Deputy Commissioner
(Deputy GB Upper Tribunal Judge)

(Dated:)	11 March 2009