Decision No:  C12/08-09(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 1 August 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Having considered the circumstances of the case, I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 1 August 2008 is in error of law.  The error of law identified will be explained in more detail below.

3.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

4.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  My decision is that the Department has failed to prove that the conditions for recoverability of an overpayment of income support (IS) have been met, in that the legislative conditions in section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 are not satisfied.

	Background

5.	The decision under appeal to the appeal tribunal was a decision of the Department dated 13 February 2006 which decided that the applicant was not entitled to IS for the period from 10 May 2001 to 25 July 2004.  The precise status of that decision will be examined in greater detail below.

6.	An appeal against the decision dated 13 February 2006 was received in the Department on 23 October 2007.

7.	The appeal tribunal hearing took place on 1 August 2008 the appellant was not present but was represented.

8.	The appeal tribunal disallowed the appeal and confirmed the decision dated 13 February 2006.

9.	On 8 October 2008 an application for leave to appeal against the decision of the appeal tribunal was received in the Appeals Service.

10.	On 14 October 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM) of the appeal tribunal.

	Proceedings before the Social Security Commissioner

11.	On 25 November 2008, a further application for leave to appeal was received in Office of the Social Security Commissioners and Child Support Commissioners.

12.	On 23 December 2008, observations were sought from Decision Making Services (DMS) and these were received on 29 January 2009.  DMS supported the application.

13.	Observations were shared with the appellant on 6 February 2009.

	Errors of law

14.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

15.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

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 difference to the outcome do not matter.”

	The submissions of the parties

16.	In the application for leave to appeal to the Social Security Commissioner, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law as:

(i)	the appeal tribunal had come to a decision based on an irrelevant consideration; and

(ii)	the reasons for the appeal tribunal’s decision were inadequate.

17.	In its observations on the application for leave to appeal to the Social Security Commissioner, DMS submitted that the decision of the appeal tribunal was in error of law as it had not satisfied itself that the provisions of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 had been satisfied in the present case.

18.	In the event of my not accepting the concession that the decision of the appeal tribunal was in error of law on the section 69(5A) ground, the Department submitted that it was also so in error on different grounds.

	Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992

19.	In C6/08-09(IB), at paragraphs 48-53, I said the following about section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992:

‘48.	As was noted above, the decision under appeal to the appeal tribunal was a decision dated 17 May 2007, in which a decision-maker of the Department issued a decision which raised an overpayment of IB against the appellant for various periods during which he was in detention in prison.

49.	Section 69(5A) of the Act provides that:

	‘(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above 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.’

50.	In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded.

51.	Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

52.	The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS).  At paragraph 4 he stated:

	‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision.  In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable.  Put like that, the sequence of decisions is logical.  The two decisions can be contained in a single document provided that the sequence is apparent.  Section 69(5A) is an important safeguard.  Tribunals, rightly, are alert to see that it has been complied with.  Nothing I am going to say casts doubt on their vigilance.  A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner.  Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken. …’

53.	In essence, the appeal tribunal will have to identify two decisions.  The first is a decision which alters previous decision(s) awarding entitlement to benefit – that can be described as the entitlement or section 69(5A) decision.  The second is a decision that overpaid benefit is recoverable – that can be described as the recovery or section 69(1) decision.  At paragraph 10 of C10/07-08(IS), Commissioner Powell stated:

	‘… It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”.  The latter being based on the former.  I use the word “distinct” deliberately.  Since the recoverability decision is based on the entitlement decision it must be proceeded by it.  Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first. …’

54.	Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a section 69(5A) decision, to a claimant, and set out the consequences where no such proper notification had been made.’

	‘Living together as husband and wife’

20.	There is a common background to certain appeals relating to the overpayment of social security benefits.  The background is that the initial claim to the relevant benefit is made by an individual as a single person.  Some time later and after benefit has been paid at the single person’s rate, and any relevant premia, the Department determines that, during the period when benefit was paid at a single person’s rate, the ‘single’ person is, in fact, involved in a relationship with a partner.  The implications for entitlement to benefit might be that:

	(i)	the claimant should not have had any entitlement to any benefit at all during the relevant period, as certain other conditions of entitlement to the benefit were not satisfied eg that the partner was engaged in remunerative work; or

	(ii)	the claimant should have had an entitlement to benefit during the relevant period, but calculated on the basis of a claim for a couple rather than for a single person; and/or

	(iii)	there has been an overpayment of benefit during the relevant period as the due amount of benefit under (i) and (ii) would inevitably have been less than the paid amounts during the period claimed as a single person.

21.	In the decision-making and appeals structure at Department and appeal tribunal level, such cases are often known as ‘living together as husband and wife’ cases or appeals.

22.	As was noted above, to properly effect a decision seeking a recoverable overpayment of social security benefit, section 69(5A) of the Social Security Administration (Northern Ireland) Act means that the Department will have to revise or supersede the original decision which gave rise to the award of benefit, now deemed to have been overpaid.  Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

23.	In ‘living together as husband and wife’ cases, the section 69(5A) decision should purport to revise or supersede the decision which gave rise to entitlement to the relevant benefit on the claim as a single person.  I say ‘should purport’ because the precise legal status of the decisions attempting to alter or change previous entitlement decisions has proved to be problematic.

	R(IS) 13/05

24.	Many of these issues were explored by Commissioner Mesher in R(IS)13/05.  At paragraphs 9 to 13 of his decision, he stated the following:

9.	‘The underlying reasoning is explained in my decision in appeal CIS/1720/2004.  There were a number of complications in CIS/1720/2004, including that the purported appeal before the appeal tribunal there was against a living together determination, but an overpayment recoverability decision had been made later, against which there had been no appeal.  The essential principle was set out in paragraph 13:

	“I agree with the Secretary of State’s submission of 17 November 2004 that there was no decision before the appeal tribunal that was capable of being appealed.  If a decision had actually been made in the form described in the letter of 26 March 2003 ... or in the Secretary of State’s written submission to the appeal tribunal, that could have been accepted as in substance a supersession decision on the ground of relevant change of circumstances, with the superseding decision being that the claimant was not entitled to income support from and including 8 April 2002.  The deficiencies of an absence of any express mention of powers of supersession or of any explanation of why not being a lone parent meant that the claimant could not be entitled to income support would not have affected the substance.  There would, in the current jargon, have been an ‘outcome decision’ affecting entitlement to benefit that was capable of appeal under section 12(1) of the Social Security Act 1998.  But the documents clearly show that no such decision was ever made with effect from 8 April 2002.  The ‘decision’ of 20 March 2003 on page 81 [that the income support claimant in that case was living as husband and wife with Mr A] merely determined one question, one building block, that would have been necessary along with the determination of other questions for a decision altering entitlement from 8 April 2002 to have been made.  It was not a decision within the meaning of section 12(1) and therefore was not capable of being appealed.”

10.	I went on in paragraph 15 of the decision to suggest (in accord with the Secretary of State's submission) that the living together determination would not have satisfied the condition in section 71(5A), so that the overpayment recoverability decision, although not before the appeal tribunal in that case, could not have been upheld.  I now have to decide the issue.  I conclude that a determination in the form of the decision of 16 July 2003 does not satisfy the condition in section 71(5A), so that a decision that an overpayment is recoverable cannot be based on such a determination.  There is no question of the application of regulation 12 of the Payments on account Regulations, since non-disclosure or misrepresentation of facts relating to Mr F’s presence in the claimant’s house, if that is accepted, would plainly provide a basis for revision or supersession.  It was because of the particular circumstances of CIS/1720/2004 that the result there was a decision that the appeal tribunal had no jurisdiction.  Here, there had been an overpayment recoverability decision on 13 November 2003 that was appealable and had been properly appealed against.  Thus the appeal tribunal had jurisdiction, but the only decision that it could have given on the evidence before it was the one I have set out in paragraph 1 above.

11.	I must deal briefly with the effect of the Tribunal of Commissioners’ decision R(IB) 2/04.  The statements in paragraphs 72 to 82 of that decision, as summarised in paragraph 192, were made in the context of what an appeal tribunal, carrying out a rehearing, could do on an appeal against a decision that was defective in some way.  It could be said that those statements should only apply where the appeal tribunal has the power to give a decision that avoids the defects of the initial decision.  It is no doubt the case that an appeal tribunal has no power to “remedy” or “perfect” or “recast” a decision that is not under appeal to it, like the decision of 16 July 2003 in the present case.  However, I agree with Mr Commissioner Bano in paragraphs 14 to 16 of decision CIS/3228/2003 that in such circumstances similar principles allow an appeal tribunal to ignore defects in the decision put forward as the basis of the overpayment recoverability decision, providing that those defects are not so extensive as to make the decision not a decision at all (see paragraphs 72 and 192(2) of R(IB) 2/04).  I prefer not to put the distinction in terms of form and substance, as that is not consistent with R(IB) 2/04.  Another Tribunal of Commissioners in R(IB) 7/04 applied the principles of R(IB) 2/04 is deciding whether decisions earlier in a chain than the decision under appeal were “so fundamentally flawed as to be inconsistent with any proper exercise of a legal power” (paragraph 18).

12.	Thus, the appeal tribunal in the present case was right to consider whether defects in the decision put forward as the basis of the overpayment recoverability decision could be ignored, so that section 71(5A) would be satisfied.  However, it was wrong in law to conclude that it could proceed on the basis that there had been supersessions (or revisions) of the decisions awarding income support for the periods in question.

13.	It is not really appropriate to talk in terms of a defect in the decision of 16 July 2003.  There was nothing wrong with it as a determination on the question of living together as husband and wife, as one building block as I put it at the end of paragraph 13 of CIS/1720/2004, that might, with other determinations, have built to a decision altering the claimant’s entitlement to income support.  It is simply that, if it is contended that the decision altered the claimant’s entitlement to income support in the periods in question or was a revision or supersession within the terms of section 71(5A), it gets nowhere near having that effect.  And no process of the correcting or ignoring of defects can alter that conclusion.  Using the terminology of R(IB) 2/04, if it is contended that the decision had that effect, it had so little connection to the legal powers to produce that effect that it was not a decision of that kind at all.  The decision did not purport to alter the claimant's entitlement to income support at all.’

25.	I adopt and accept the reasoning and analysis of Commissioner Mesher in R(IS)13/05, which, in my view, properly reflects the law in Northern Ireland.

	The decision-making process in the instant case

26.	In the submissions on the application for leave to appeal to the Social Security Commissioner, DMS indicated the following:

‘Observations

24.	In this case the Department determined that on the available evidence and on the balance of probabilities (the claimant) was living with … from a date accepted as the 15 October 1998.  On the basis of this finding the Department purported to make a decision to disallow (the claimant’s) entitlement to Income Support from 10 May 2001 (this date was accepted because of the limitations of the Income Support computer system which could only provide details of payments from 10 May 2001).

25.	In Commissioner’s decision CIS/3228/2003 involving a recoverable overpayment where it was found that an entitlement decision covering the full period of the overpayment was not properly made, Commissioner Bano, held:

	“I consider that a decision awarding a claimant benefit of a stated amount can only be effectively revised if it is replaced by a new decision which also specifies the amount of benefit (if any) to which the claimant is entitled, in the light of the fact which was not taken into account when the original decision was made.  A revision decision to the effect that an earlier decision awarding benefit of a specified amount has been ‘revised’, but which does not state the amount of the revised entitlement is, in my judgment inchoate.”

Having carefully considered the Department’s ‘decision’ of 13 February 2006 I submit that the ‘decision’ is not a valid decision on entitlement but is only a determination or ‘building block’ towards an outcome decision.

26.	The Decision Maker outlined the facts of the case before making the determination that (the claimant) was residing with … from 15 October 1998 and as a consequence she was no longer a lone parent.  Unfortunately the Decision Maker did not continue and decide as a result of that determination (the claimant) was not entitled to Income Support from 15 October 1998.

27.	The Decision Maker also purported to revise the decision of 9 May 2001 based on information obtained from the full record print of (the claimant’s) Income Support account.  The information referred to was obtained from a screen print which showed details of payments made to (the claimant) from 10 May 2001.  However, the ‘decision’ of 9 May 2001 is actually the date the payment due for 10 May 2001 was issued to (the claimant).  It was not a decision awarding (the claimant) Income Support from 10 May 2001.  A copy of this screen print was not before the tribunal.

28.	I acknowledge that the Decision Maker made a genuine attempt to make a decision to remove (the claimant’s) entitlement to Income Support on 13 February 2006.  However, the “decision” fails to correctly identify the decision on entitlement which is to be revised and, as noted at paragraph 26 above, also fails to remove (the claimant’s) entitlement to Income Support from 15 October 1998.  Therefore it cannot be held that a valid decision was made.  At best it could be said that it was a decision that was flawed or defective.

29.	When dealing with similar circumstances in R(IS)13/05, the Commissioner held at paragraph 13:

	“It is not really appropriate to talk in terms of a defect in the decision of 16 July 2003.  There was nothing wrong with it as a determination on the question of living together as husband and wife, as one building block as I put it at the end of paragraph 13 of CIS/1720/2004, that might, with other determinations, have built to a decision altering the claimant’s entitlement to income support.  It is simply that, if it is contended that the decision altered the claimant’s entitlement to income support in the periods in question or was a revision or supersession within the terms of section 71(5A), it gets nowhere near having that effect.  And no process of the correcting or ignoring of defects can alter that conclusion.  Using the terminology of R(IB) 2/04, if it is contended that the decision had that effect, it had so little connection to the legal powers to produce that effect that it was not a decision of that kind at all.  The decision did not purport to alter the claimant's entitlement to income support at all.”

30.	For the reasons stated above, I submit the Department has not given a valid decision to revise (the claimant’s) entitled to income Support.  The end result is that there is no decision in place to take away (the claimant’s) entitlement to Income Support from 10 May 2001 and the provisions of Section 69(5A) of the Social Security Administration (NI) Act 1992 (NI equivalent to Section 71(5A) of the GB Administration Act) could not be satisfied.

31.	At paragraph 10 of R(IS)13/05 the Commissioner held:

	“….the living together determination would not have satisfied the condition in section 71(5A), so that the overpayment recoverability decision, although not before the appeal tribunal in that case, could not have been upheld.  I now have to decide the issue.  I conclude that a determination in the form of the decision of 16 July 2003 does not satisfy the condition in section 71(5A), so that a decision that an overpayment is recoverable cannot be based on such a determination.”

32.	I submit that there were no grounds on which to make the overpayment decision on 15 February 2006 because there was no decision to remove (the claimant’s) entitlement to Income Support. At paragraph 15 of R(IS) 13/05 Commissioner Mesher held:

	“The upshot for the claimant is this.  First, no decision has been made that takes away her entitlement to income support for the period from 26 February 1992 to 25 March 1997.  Thus no overpayment for that period can yet be identified.  Second, the effect of my decision in paragraph 1 above is that there is no overpayment recoverability decision in existence in relation to that period.”

33.	Continuing at paragraph 15 of R(IS)13/05 the Commissioner further held:

	“However, there is nothing in law to stop the Secretary of State from taking action now to make a proper revision or supersession decision in relation to that period, building on the determination of 16 July 2003.  Before doing so, the Secretary of State would need to consider whether …. there is sufficient evidence that the claimant would not have been entitled to income support or would have been entitled to a reduced amount if she had been living together as husband and wife with Mr F.  If the Secretary of State does make a proper revision or supersession decision covering the period from 26 February 1992 to 25 March 1997, he may also consider making an overpayment recoverability decision properly based under section 71(5A), either as part and parcel of the revision or supersession decision or separately.”

34.	For the reasons stated in paragraphs 26 to 32 above, I respectfully submit that the tribunal has failed in its inquisitorial role to satisfy itself that the decision awarding Income Support was overturned on revision or supersession or whether there was an overpayment.’

27.	I am in agreement with the submissions made by DMS in respect of the decision-making process in the instant case, and, on the basis of the application of the principles in R(IS) 13/05, determine that the decision of the appeal tribunal is in error of law.

	The other grounds cited by DMS

28.	As was noted above, in the written observations on the application for leave to appeal, DMS indicated that in the event of my not accepting the concession that the decision of the appeal tribunal was in error of law on the section 69(5A) ground, the Department submitted that it was also so in error on different grounds.  These grounds are set out at paragraph 35 of the written observations.  I am in agreement that the decision of the appeal tribunal was also in error of law on the basis of the further grounds cited by DMS.

	Disposal

29.	The decision of the appeal tribunal dated 9 January 2008 is in error of law.  The error of law identified will be explained in more detail below.

30.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

31.	I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  My decision is that the Department has failed to prove that the conditions for recoverability of an overpayment of IS have been met, in that the legislative conditions in section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 are not satisfied.

32.	In R(IS) 13/05, in disposing of the appeal before him, Commissioner Mesher made the following observation:

‘… there is nothing in law to stop the Secretary of State from taking action now to make a proper revision or supersession decision in relation to that period, building on the determination of 16 July 2003. … If the Secretary of State does make a proper revision or supersession decision covering the period from 26 February 1992 to 25 March 1997, he may also consider making an overpayment recoverability decision properly based under section 71(5A), either as part and parcel of the revision or supersession decision or separately.  The claimant would have a right of appeal against any decision or decisions that are made.’

33.	It is important to note that similar principles apply in the present case.

34.	Additionally, the DMS, in the written observations on the application for leave to appeal have submitted that in light of additional information which it had received:

‘Should the Commissioner admit this appeal and decide in the appellant’s favour, (the claimant) should be made aware that the Department will be within its right to consider her earnings and the capital value of the other property when re-assessing her entitlement to Income Support from 11 November 1997 after the appeal has concluded.’

(signed):  K Mullan

Commissioner

8 October 2009