[2009] NISSCSC C6_08_09(IB) (24 June 2009)

Decision No:  C6/08-09(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 11 December 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 11 December 2007 is in error of law.  The error of law identified will be explained in more detail below.

2.	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.

3.	For further reasons set out below, 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 as there are further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	It is imperative that it is noted that while the decision of the appeal tribunal has been set aside, the issues arising in the appeal remain to be determined by another appeal tribunal.  The newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

5.	On 17 May 2007, a decision-maker of the Department issued a decision which raised an overpayment of incapacity benefit (IB) against the claimant, for various periods during which he was in detention in prison.  In the remainder of this decision, Mr APT will be referred to as the claimant.

6.	An appeal against the decision dated 17 May 2007 was received in the Department on 21 June 2007.  The appellant was Mr AMT, the father and appointee of the claimant.  In the remainder of this decision, Mr AMT will be referred to as the appellant.

7.	The appeal tribunal hearing took place on 11 December 2007.  The appellant was not present and was not represented.

8.	The appeal tribunal disallowed the appeal and confirmed the decision dated 17 May 2007.

9.	On 4 March 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).

10.	On 13 March 2008, the application for leave to appeal was refused by the legally qualified panel member (LQPM).

Proceedings before the Social Security Commissioner

11.	On 31 March 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

12.	On 24 April 2008 observations were sought from Decision Making Services (DMS) and these were received on 21 May 2008.  DMS opposed the application.

13.	Observations were shared with the appellant on 4 June 2008.

14.	On 18 June 2008, further observations on certain questions were sought from DMS and these were received on 17 July 2008.

15.	On 21 October 2008, I granted leave to appeal.  In granting leave to appeal I stated that an arguable issue arose as to the extent to which the appeal tribunal considered whether various supersession decisions were issued to the claimant’s appointee and whether the appointee was notified of rights to appeal arising from such notifications.

16.	I directed that there should be an oral hearing of the appeal.  At the oral hearing, the appellant was represented by Mr McGlade from Dungannon and Cookstown Citizens Advice Bureau, and the Department was represented by Mr McGrath of DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

17.	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.

Errors of law

18.	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 errors of law in the instant case

Failure to disclose

19.	There is in place a legislative mechanism for the recovery of all social security benefits which have been overpaid.  Section 69(1) Social Security Administration (Northern Ireland) Act 1992, as amended provides that:

“(1)	where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –

(a) a payment has been made in respect of a benefit to which the section applies;

(b) any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.”

20.	In the present case, a decision-maker of the Department decided that an overpayment of IB had occurred for the periods from 23 August 2004 to 6 September 2004, from 13 September 2004 to 15 September 2004, and from 29 October 2004 to 17 January 2006.  Further, the Department decided that the overpayment of IB was recoverable as the appellant had failed to disclose the material fact that the claimant was detained in prison during the relevant periods.  The overpayment decision is grounded firmly on the basis of a failure to disclose.

21.	In B v Secretary of State for Work & Pensions (reported as R(IS)9/06), the Court of Appeal for England & Wales upheld the decision of the Tribunal of Commissioners in Great Britain in R(IS)9/06.  In that latter decision, the Tribunal of Commissioners had considered, in depth, the nature of the legal test in respect of failure to disclose, by analysing the relationship between section 71 of the Social Security Administration Act 1992 (the Great Britain equivalent to section 69 of the Social Security Administration (Northern Ireland) Act 1992) and regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (which has an equivalence in regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

22.	In summary, the Tribunal of Commissioners found that:

“1.	Section 71 does not purport to impose a duty to disclose, but rather presupposes such a duty, the actual duty in this case being in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, which provides for (a) a duty to furnish information and evidence pursuant to a request from the Secretary of State, and (b) a duty to notify the Secretary of State of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit.

2.	In relation to the duty to furnish information and evidence pursuant to a request, whilst there is no duty to disclose that which one does not know, if a claimant was aware of a matter which he was required to disclose, there was a breach of that duty even if, because of mental incapacity, he was unaware of the materiality or relevance of the matter to his entitlement to benefit, and did not understand an unambiguous request for information, and a failure to respond to such a request triggered an entitlement to recovery under section 71 of any resulting overpayment.

3.	Insofar as R(SB) 21/82 imported words from regulation 32 into the construction of section 71 in stating that the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected, that decision and subsequent decisions that have relied on it were wrongly decided.

4.	The form INF4 supplied to claimants contained an unambiguous request by the Secretary of State to be informed if a claimant’s children went into care and by not disclosing the fact to the Department, the claimant was in breach of her obligation under regulation 32, so that the Secretary of State was entitled under section 71 to recover the overpayment resulting.”

23.	In Hinchy v Secretary of State for Work & Pensions ([2005] UKHL 16), Baroness Hale, in discussing the regulation 32 duty to provide information, stated, at paragraph 55:

‘I say this because this regulation has to be interpreted and applied in its factual context.  Those administering the system on behalf of the Secretary of State have to understand all its ramifications and interactions.  Claimants cannot be expected to do so.  They cannot be expected to guess all the information which may be relevant to their claims.  They do not know the conditions of entitlement or how their right to one benefit may affect their right to another.  It is incumbent upon the Secretary of State to make it clear what information he requires.  This has to be made particularly clear where any reasonable claimant might not think that it was relevant at all.  It should also be made particularly clear where it might not occur to any reasonable claimant in this day and age that the relevant office did not already have the information in question.  In this context, there is a difference between matters which only the claimant can know and matters which someone in the benefits system knows or ought to know.  The claimant cannot be expected to guess who needs to know the information required.  It is incumbent upon the Secretary of State to make it plain to whom the information is to be given or the change in circumstances notified.’

24.	In R(A)2/06, Commissioner Rowland stated, at paragraph 17:

‘17.	This once again brings to the fore a point that has frequently been made by Commissioners over the last quarter of a century: in cases where the Secretary of State seeks to recover an overpayment on the ground that there has been a failure to disclose a material fact, it is essential for the Secretary of State to produce evidence showing why the claimant was under a duty to disclose that fact.  That usually involves showing why the claimant should have realised that the fact was relevant.  Evidence of instructions to report the fact is likely to be the best evidence.  It is particularly important that there should be evidence of a duty to report the relevant change in circumstances in cases like the present where the fact in issue may appear obviously relevant to those involved in the administration of benefit but where its possible relevance might reasonably have escaped a member of the public in the absence of any instructions or other information provided to him or her by the Department.  Before a person can be shown to have failed to disclose a material fact, it must be shown that, under regulation 32 (or some other statutory provision or legal principle), there was a duty on that person to make the disclosure.’

25.	In my view, these decisions mean that an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of a failure to disclose, will have to consider where the requirement to provide the relevant information came from.  This will necessitate identifying whether the case comes within the first or second duty in regulation 32.

26.	In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant.  That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book.  It will not be enough, however, for the information leaflet or order book to be produced.  The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.

27.	In CDLA/4384/2003, Commissioner Rowland noted that the instructions in B were clear and unambiguous.  At paragraphs 8 and 9 of his decision, he stated:

‘8.	 … The more difficult cases, which the Tribunal of Commissioners did not have to consider, are those where instructions to report facts are ambiguous or expressed in such general terms as to require some interpretation by a claimant or where written instructions have been qualified by an officer acting on behalf of the Secretary of State or, indeed, where there have been no relevant instructions at all but the claimant might have had reason to suspect that he was not entitled to all the benefit he was receiving.

9.	In any of those circumstances, it seems to me that the question whether there has been a “failure” by the claimant to “disclose” (for the purposes of section 71(1) of the 1992 Act) or to “notify” (for the purposes of regulation 7(2)(c)(ii) of the 1999 Regulations) a fact to the Secretary of State must inevitably be determined by considering whether the Secretary of State could reasonably have expected the claimant to disclose or notify that fact.  Regulation 32(1) of the 1987 Regulations does not provide a simple answer where it is necessary to consider whether the Secretary of State has actually required the claimant to report particular “facts affecting the right to benefit”.  It may be necessary to decide how a reasonable claimant could have construed the instruction and it is, furthermore, expressly provided that a general requirement to keep the Secretary of State informed of changes of circumstances applies only in respect of “any change of circumstances which [the claimant] might reasonably be expected to know might affect the right to benefit”.  In the present case, there is no evidence in the papers before me as to what, if any, instructions were given to the claimant.  Not only is such information required when considering whether an overpayment is recoverable under section 71(1) of the 1992 Act, it is also required for the purpose of determining whether a supersession decision is to be made retrospective under regulation 7(2)(c)(ii) of the 1999 Regulations.’

28.	In the case of the second duty, the requirement is that the change of circumstances is which the claimant might reasonably be expected to know would affect his entitlement to benefit.

29.	How was the issue of ‘failure to disclose’ addressed in the present case?

30.	I have already set out the terms of the overpayment decision, which the Department included in the appeal submission as Tab No 15.  To repeat what was said above, the overpayment decision is grounded firmly on the basis of a failure to disclose, on the part of the appellant, that the claimant was detained in prison.

31.	Tab 16 of the appeal submission is a letter from the Department to the appellant, which is undated.  The letter informs the appellant that the Department is writing to him because the Department has looked again at the money paid in respect of his son.  The letter goes on to state that ‘you’, meaning the appellant, has been paid ‘too much Incapacity Benefit’ for certain periods which are then set out.  The basis upon which ‘too much’ benefit was said to have been paid was the claimant was in prison for those periods.  There is no mention in this letter of a duty to disclose or a failure in that duty.

32.	Earlier in the appeal submission, at Tab 11, is a letter from the Department to the appellant telling him that a decision has been made that IB has been overpaid to his son, and asking for additional information from him, in order to assist the Department to decide whether the overpaid benefit has to be paid back.  In an attached page, at Tab No 12, the appellant is notified that as the person appointed to act on behalf of his son, that he was under ‘a duty to advise Incapacity Benefits Branch of any changes in his circumstances which may affect his benefit.’  The appellant is asked to provide details of any ‘extenuating circumstances’ which the Department could take into account.  In his reply, which is the completed Tab No 12, the appellant states that he did notify the Department on each occasion that his son was in legal custody.  I shall return to the detail of that reply below.

33.	The general appeal submission is drafted in a standard template format which the Department has been utilising for overpayment appeals for some time.  In my view, that format requires revising to take into account the significant developments which have taken place, at Social Security Commissioner and appellate court level, in connection with the scope of the ‘failure to disclose’ test, as set out in section 69 of the Social Security Administration (Northern Ireland) Act 1992, and the equivalent section 71 of the Social Security Administration Act 1992.  Some of the relevant case law has been set out above.  Other important cases include Hinchy v Secretary of State for Work & Pensions ([2005] UKHL 16) and Hooper v Secretary of State for Work & Pensions ([2007] EWCA Civ 495).  All of those decisions set out important principles with respect to ‘failure to disclose’, identify relevant issues associated with the legislative test, and impose requirements on adjudicating authorities including decision-makers of the Department and appeal tribunals.  It is essential that appeal submissions reflect the currency of the legal developments with respect to particular issues arising in the appeal.  In this respect, the current standard template utilised for overpayment appeals requires to be amended.

34.	In the appeal submission, the issue of a failure to disclose is mentioned at paragraphs 14, 15, 17, 19 and 20.  In paragraph 14 it is not clear whether the Department was submitting that the failure to disclose was on the part of the claimant or the appellant.  Paragraph 15 is poorly drafted but appears to submit that both the claimant and the appellant failed to disclose a material fact.

35.	More significantly, the appeal submission does not address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances.  The failure of the appeal submission to address that issue was put to DMS, in a request made by another Social Security Commissioner, who dealt with this appeal in its early stages.  On 18 June 2008 DMS were asked to provide observations on the following:

‘With respect to the overpayment, the Department relies on failure to disclose.  There has to be a duty to disclose, arising under either (1A) or (1B) of regulation 32 of the Claims and Payments Regulations.  The submission to the tribunal does not identify which or both of these duties is relied upon, nor, in any event, is there supplied a copy of the relevant order book or other instructions to the appointee.  The tribunal decision was accordingly to the effect simply that the appellant ‘failed to declare’, without any attempt to identify either where the requirement to furnish information of that type came from or why the appointee might reasonably be expected to know that the circumstance might affect benefit.’

36.	In reply, DMS stated that a computer print showed that on 24 April 2003 an ‘IB 30’ was issued, although it does not state to whom it was issued.  An ‘IB 30’ is a template decision notice letter which is issued to a claimant when a positive decision is made in connection with a claim to IB.  At page 3 of the letter there is a section which is headed ‘Changes you must tell us about’.  DMS submit that the legal source of the duty to inform the Department of any change of circumstances derived from regulation 32(1B) of the Social Security (Claims and Payments) regulations (Northern Ireland) 1987, as amended.  Further DMS submit that the duty to report changes was notified through the issue of the decision letter ‘IB 30’.

37.	It would, of course, be for an appeal tribunal to accept or reject that the legal and evidential basis for the requirement to disclose a change of circumstance was as submitted by the Department in the reply to the Social Security Commissioner.  I would observe, however, that this type of submission is what is, in my view, and following from the recent case law developments, required to be included in all appeal submissions in overpayment appeals.

38.	How did the appeal tribunal deal with the issue of ‘failure to disclose’?  In the statement of reasons for the appeal tribunal’s decision, it is stated that:

‘… The Appellant failed to declare to the Department that he had been in lawful custody (except for the period from 23.08.2004 to 06.09.2004. That disclosure was made after the event on 28.09.2004 and therefore too late). …’

39.	I find that the appeal tribunal’s decision and reasons with respect to the issue of failure to disclose to be problematic, in two respects.

40.	Firstly, as was noted above, the practical outcome of the cases referred to above is that an appeal tribunal, when determining whether an overpayment of a social security benefit is recoverable on the basis of a failure to disclose, will have to consider where the requirement to provide the relevant information came from.  This will necessitate identifying whether the case comes within the first or second duty in regulation 32.

41.	In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant.  That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book.  It will not be enough, however, for the information leaflet or order book to be produced.  The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.

42.	In the case of the second duty, the requirement is that the change of circumstances is which the claimant might reasonably be expected to know would affect his entitlement to benefit.

43.	The appeal tribunal failed to address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances.  It may be the case that the appeal tribunal was misled by the appeal submission, which, as already noted, is also deficient in this regard.  As I noted in C4/08-09(IS), at paragraph 42, in deciding whether the identified decision under appeal is correct, an appeal tribunal:

‘… may be directed by the submissions of the Department on what the decision under appeal is, on the factual, evidential and legal issues arising, on the legislative provisions and case-law applicable to the issues arising and on the correctness of the decision which has been made.  The Departmental submission, and any addenda, should be as accurate, comprehensive and useful as possible.  The submission is for direction, however, and does not negate the responsibility of the appeal tribunal to make its own examination and analysis.’

44.	There has been confusion throughout the decision-making and appeal process as to whether the duty to disclose fell on the appellant or the claimant.  The name ‘Mr T’, and the term ‘appellant’ are used interchangeably for father and son.  The Department, in the decision under appeal, is clear that the duty to disclose lay on the father.  The appeal tribunal in the statement of reasons for its decision is clear that the duty lay on the son, although the decision notice refers to both ‘appellant’ and ‘appointee’.  In any event, the appeal tribunal has failed to set out the legal and evidential basis on which it has determined that there was a duty to disclose and a failure to disclose.

45.	The failure to address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances by the appeal tribunal renders its decision on that aspect of the appeal erroneous in law and it must, accordingly, be set aside.

46.	There is a second basis upon which the appeal tribunal’s decision and reasons on the issue of ‘failure to disclose’ is problematic.  The statement of reasons for the appeal tribunal’s decision includes a clear statement that there was a failure on the part of the claimant to disclose that he had been in lawful custody.  The appeal tribunal fails to address the evidence from the appellant that he had made relevant disclosures on each occasion on which his son was detained in custody.  As was noted above, there is such evidence at Tab No 12.  There is further such evidence at Tab No 17.  It may be the case that the appeal tribunal was rejecting that evidence which it would be entitled to do.  As I stated in C8/08-09(IB), however, at paragraph 56:

‘… if the appeal tribunal was rejecting the appellant’s evidence concerning his problems with his hearing, then it was under a duty to make that clear in its statement of reasons.  The extent of the duty is not onerous. …’

And at paragraph 60:

	‘… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.’

47.	There was also additional evidence before the appeal tribunal, at Tab Nos 2 to 5, which indicates that the Department were notified, on various dates, by the Prison Service of the claimant’s detention in custody.  In my view, that evidence should also have been addressed by the appeal tribunal in determining the extent of a duty to disclose on the part of anyone else.

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.

55.	In the present case, the Department has submitted that several decisions were made which could be classified as section 69(5A) entitlement decisions which are to be found at Tab Nos 6, 7, 8, 9 and 10.

56.	The issue of the notification of the decisions referred to in the previous paragraph, and, more significantly, the notification of appeal rights against those decisions was raised by another Social Security Commissioner, who dealt with this appeal in its early stages.  On 18 June 2008, DMS were asked to provide observations on that issue.

57.	In reply, DMS stated that:

‘… The decisions made on the 6-1-2006 have the annotation “BS20 10-1-06” and “BS20 18-1-06”.  The BS20 is in fact the actual notification letter (at the bottom left hand corner of the notification letter it is labelled BS20).  A copy of a screen print (appendix 1) shows that on 10-1-06 and 18-1-06 BS 20’s where [sic] issued.  Unfortunately there is only one copy of a BS20 held in the case papers and this only refers to the period 29-10-04 to 10-10-05.

I would submit that on 10-1-06 and 18-1-06 notification letters where [sic] issued which informed the appointee of his right of appeal.  Unfortunately I am unable to confirm if three such notifications were issued and if these notifications covered the relevant periods.

On 2-3-06 a further decision was made and a copy of the notification letter is retained in the case papers (Tab 9a) although there is no confirmation of this by way of the computer printout.

Also on the 2-3-06 a second decision was made this time concerning entitlement to Incapacity Benefit under the incapacity in youth rules.  Again a copy of the notification (IBY 35) is retained in the case papers but the date of its issue cannot be confirmed. …’

58.	At the oral hearing of the appeal before me, Mr McGrath again conceded that evidence concerning the notification of the relevant decisions was problematic, although he did not concede that the validity of the decisions themselves was necessarily affected.

59.	In the statement of reasons for the appeal tribunal’s decision, the first three paragraphs make reference to the ‘appellant’ being either disqualified from receiving, or not entitled to IB for various periods.  Mr McGrath, at the oral hearing of the appeal, submitted that these three paragraphs are sufficient to fulfil the appeal tribunal’s duty, under section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended, to identify decisions which alter previous decision(s) awarding entitlement to benefit.

60.	Identification of a section 69(5A) decision(s) is not enough, however.  The importance of the proper notification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS).  At paragraph 8 he stated:

‘The need for formal decisions has two important consequences.  First, everybody needs to know what were the terms of the decision.  Not just at the time when the decision is made but thereafter whenever it is necessary to refer back to it.  Secondly, it is important that the person most concerned is told what has been decided, whether in his favour or adversely to him, as soon as possible so that he can take appropriate action by, for example, appealing, or providing the decision-maker with further evidence or by making a new claim. …’

And, at paragraph 9:

‘Commonsense, good practice and simple fairness all dictate that the decision should be communicated to the person most affected by it.  I have already referred to some of the reasons why.  The principle is not in doubt.  Nor is there any doubt that a failure to communicate may have practical consequences for the decision.  The issue for present determination is whether, if there has been a failure to communicate, the decision lapses or is deprived of legal effect?’

61.	As has already been noted, the evidence concerning notification of the decisions identified as section 69(5A) decision is problematic.  In my view, the appeal tribunal, in the instant case, was under a duty to consider whether there had been proper notification of those decisions and to determine the legal effect of those decisions in light of any evidence of lack of proper notification.

Disposal and directions

62.	The decision of the appeal tribunal dated 11 December 2007 is in error of law.  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.

63.	For further reasons set out below, 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 as there are further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

64.	The Department is directed to prepare a new appeal submission for the re-determination of this appeal before a newly constituted appeal tribunal.  It is expected that in preparing a new appeal submission, the Department will take into account the comments set out above, concerning the format of appeal submissions in appeals concerning overpayments of social security benefits.

65.	In any event, the appeal submission must address the following issues:

(i)	the legal and evidential source of the duty to disclose a change of circumstances;

(ii)	a clarification as to whether the duty to disclose lay, in the instant case, on the appellant that is the father and appointee of the claimant;

(iii)	a clarification of the person against whom any overpayment is being raised;

(iv)	a submission concerning the notification of the decisions set out at Tab Nos 6, 7, 8, 9 and 10 in line with the principles set out in C10/07-08 (IS);

(v)	a further analysis of all of the evidence available to the decision-maker, including the evidence of the appellant concerning notification and the evidence from the Prison Service, concerning notification of periods of custody.

65.	It may be the case that the Department, in addressing the issues set out above, will adopt certain of the submissions, made in writing and at the oral hearing of this appeal, but that is an issue for the Department.

66.	It will be for the appellant, and his representative, to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal, in response to the new submission prepared by the Department.

67.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

24 June 2009