AL-v-Department for Social Development (IS) [2010] NICom 11

Decision No:  C8/08-09(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 15 January 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 15 January 2008 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. This is because there may be 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.	In referring the case to the newly constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside the issue of whether there has been an overpayment of income support (IS), for a particular period, which is recoverable from him, remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

	Background

6.	This appeal has a complex background which requires examination in some detail.

	The Departmental decision-making process

7.	On 7 April 2006 a decision-maker of the Department decided that an overpayment of IS, amounting to £11425.05, for the period from 23 July 1999 to 5 May 2005 had occurred which was recoverable from the appellant. 

8.	In the Departmental submission which is before me is a copy of what has been referred to as the letter of appeal. In fact, the document referred to is a standard Departmental form of appeal which claimants can utilise to make an appeal against a decision of the Department. The form is dated 5 May 2006 and is stated to be about a decision dated 27 February 2006. Although the form has been stamped as having been received in a ‘post room’ it is impossible, due to the illegibility of the stamp, to say where and, more importantly, the date on which it was received. 

	The first oral hearing of the appeal

9.	The first hearing of the appeal took place on 4 January 2007. The appellant was present and was represented by Mr Armstrong.  A Departmental presenting officer was also present. 

10.	The appeal was adjourned. The record of proceedings for the appeal tribunal hearing records the following:

‘Chairman’s introductions.

Presenting Officer confirms no prosecution pending.

(The claimant): Thought this was inconsistent with Canada Life was a pension fund, which wouldn’t have access to until retirement. Would say he was very confused during the period in question due to heavy medication.

Thought had only one policy only with Canada Life and that a pension policy. In fact two policies, only one of which pension. Hasn’t been able to concentrate to read the Department’s submission thoroughly. Didn’t keep check on values.

Has in fact cashed policy (Presenting Officer).

Not until August/September 2005 realised had the capital.

Presenting Officer: Had (the claimant) disclosed fact he had this policy at time of application could have been investigated at that stage.

Current account and cash ISA with Ulster Bank were over £3,000 and would have brought in tariff income.

Cashed in and bought new car.

Didn’t read communications from Canada Life.

Hearing terminated for consideration by Tribunal.

Appellant and Presenting Officer then asked to return so that Chairman could ask Presenting Officer about diminution of capital.

Presenting Officer would have to refer to overpayment section.

Chairman then indicated would adjourn for further Departmental submission.’  

11.	The reasons given for the adjournment were stated to be:

‘Tribunal seeks further submission from Department.’

12.	The terms of the adjournment were stated to be:

‘Department to make a further submission dealing with ‘diminution of capital’ aspect in relation to the repayment sought’. 

13.	A further submission, dated 27 June 2007, was subsequently received from the Department. In this further submission it was indicated that, following the consideration of the ‘diminution of capital’ point, the overpayment had been recalculated at £11370.60. 

14.	Attached to the further submission are three documents. The first of these is headed ‘DMA1’ and ‘Social Security Agency Off Line Decision’. In the body of this document a question is asked, the following effect:

‘Income Support has been overpaid due to (the claimant’s) capital being in excess of £8000.00 at his date of claim to Income Support. As computer records are only available from 23.07.99 an overpayment has been calculated from this date. (The claimant) appealed this decision and the Tribunal has asked for a diminishing capital calculation to be completed. 

How is the overpayment of Income Support affected by a diminishing capital calculation?’

15.	The Form DMA1 is signed and dated 13 June 2007.

16.	The second document is headed ‘Decision Maker’s Decision’ and is signed and dated on 19 June 2007. 

17.	The document reads, in part, as follows:

‘In accordance with SSA (NI) Act 92, sec 69(6)(a) and SS (POR) (NI), reg 14(1), reg 14(3) and reg 14(2) I have completed a diminishing capital calculation in respect of an overpayment of Income Support for the period 23.07.99 to 05.05.05. Prior to this, (the claimant’s) overpayment of Income Support had been calculated at £11425.05. As a result of the calculation, the overpayment has now been reduced to £11370.60. 

In completing this calculation the following has been taken into account:

…’

18.	There then follows a long list of materials which have been taken into account.

19.	The document finishes as follows:

‘THE LAW USED TO MAKE THIS DECISION

SSA (NI) Act 92, sec 69(6)(a) and SS (POR) Reg (NI), reg 14(1), reg 14(3) and reg 14(2)’

20.	The third accompanying document is a letter dated 19 June 2007 from the Jobs and Benefits Office, Larne and addressed to the appellant. It reads:

‘As you are aware, your appeal against a decision relating to an overpayment of Income Support was adjourned some time ago. The Tribunal had requested that we complete a calculation reducing the amount of capital we were taking into account on a quarterly basis, by the amount of Income Support overpaid. 

This calculation has now been completed as a result of which the overpayment of Income Support has reduced from £11425.05 to £11370.60. A copy of the decision is enclosed.

All relevant documents are now being returned to our Appeals Officer who will then arrange for your Appeal hearing to proceed. You will be contacted with further details.’ 

	The second oral hearing of the appeal

21.	A further appeal tribunal hearing took place on 15 January 2008. The appellant was not present. A Departmental presenting officer was present. 

22.	The record of proceedings for the second oral hearing of the appeal reads as follows:

‘Appellant not present at 3.00 pm. Called for 2.30 pm. Had returned form indicating would attend.

Presenting Officer
Nothing to add to written submission. Diminution of capital calculation results in a small reduction only.

23.	The appeal tribunal disallowed the appeal, and confirmed that there was a recoverable overpayment in the amount set out in the additional submission. 

	Post-hearing action and determinations

24.	On 24 January 2008 a letter was received in the Appeals Service (TAS) from the appellant. It reads as follows:

‘Dear Sir

Sorry for missing the appointment last week as I got my dates mixed up. As I was at the Royal School of Dentistry getting crowns fixed. I was in so much pain I took painkillers and went to bed. And a week later my Jaw is still tender to touch. That is because of the scare [sic] tissue from the radiotherapy years ago. I thought it was the 25/1/2008. I only realized that when the letter off the decision came through the door a few days later. 

I would like a copy Statement off Proceeding off the Decision’

25.	On 18 April 2008, the statement of reasons was issued to the appellant.

26.	On 7 May 2008 an application to set aside the decision of the appeal tribunal was received in TAS. The appellant was now represented by the Law Centre. The basis of the application was that the appellant had not been able to attend the oral hearing of the appeal due to a hospital appointment. More specifically the application stated:

‘When asked by the Appeals Service by letter dated 24 November 2007 (copy enclosed) if he wished to have an oral hearing of his appeal I understand that (the claimant) completed and returned the form in which he indicated that he wished to have an oral hearing.

Unfortunately however, on the date of the hearing i.e. 15 January 2008 (the claimant) had to attend the School of Dentistry for urgent dental treatment and only became aware on his return home that he had missed his tribunal. A copy of a note from C McL, at the clinic is also enclosed which confirms his attendance on that date.

Therefore, while his intention was to attend his tribunal at which he wished to give oral evidence, he was unable to be present owing to his need to attend the hospital.’

27.	Accompanying the application to set aside there was a letter dated 1 May 2008 from C McL, Senior House Officer Restorative Dentistry, School of Dentistry, Royal Hospitals. The letter read as follows:

‘I can confirm that (the claimant) attended the Restorative Department of the School of Dentistry on the morning of Tuesday 15th January 2008. He was treated by myself as an emergency patient and discharged.’

28.	On 5 June 2008 the application to set aside was refused. The reasons for the refusal were as follows:

‘The appellant was duly notified of the date of the adjourned hearing. The appellant gave evidence at the hearing on 25/01/07 (at which he was represented).
 
That hearing was adjourned only so that a diminution of capital calculation could be carried out and taken into consideration in the Tribunal’s decision.’

29.	On 1 July 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. The basis of the application was that:

(i)	there had been a failure to consider adjourning the appeal tribunal hearing on 15 January 2008; and 

(ii)	there had been an inadequate explanation as to the period of the overpayment. 

30.	On 14 August 2008, the application for leave to appeal was granted by the legally qualified panel member (LQPM). In granting leave to appeal to the Social Security Commissioner, the LQPM identified the following points of law:

‘1.	Whether the tribunal has erred in law by failing to indicate whether consideration was given to an adjournment of the hearing on 15/01/08 was necessary and/or not explaining why it decided to proceed in the absence of the appellant.

2.	Whether the tribunal has erred in law by not adequately explaining its finding that the period over which overpayment arose was 23/07/99 to 05/05/05.

3.	Whether, having found that the appellant had capital in excess of £8000 which he failed to disclose in his applications for Income Support, the tribunal erred in law by not adequately considering whether the appellant was given instructions on changes he should report which were both clear and ambiguous.’

31.	I am certain that the word ‘ambiguous’ in the final reason for granting leave to appeal should read ‘unambiguous’ but nothing turns on that.

	Proceedings before the Social Security Commissioner 

32.	On 12 September 2008, the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC). 

33.	On 10 October 2008 observations were sought from Decision Making Services (DMS) and these were received on 14 November 2008. DMS supported the application on the ‘adjournment’ ground, but opposed the application on other grounds. 

34.	Observations were shared with the appellant on 21 November 2008.

35.	Further submissions in reply were received from the representative on 18 December 2008. In these further submissions, the representative: 

(i)	comments on the adjournment issue; 

(ii)	introduces a new issue concerning the re-calculation of the amount of the overpayment, and whether the original overpayment decision had thereby been revised with consequences for the jurisdiction of the appeal tribunal; 

(iii)	introduces a further issue concerning the evidence before the appeal tribunal.

36.	Further submissions in reply were received from DMS on 27 January 2009. In these further submissions DMS: 

(i)	re-addressed the issue of the appeal tribunal’s purpose in seeking the re-calculation of the amount of the overpayment; and

(ii)	made submissions on the status of the ‘decision’ which accompanied the Department submission following the first adjournment of the appeal.  

37.	These further submissions were shared with the representative on 30 January 2009. 

38.	On 11 March 2009, I directed an oral hearing of the appeal. 

39.	In advance of the oral hearing, the appellant’s representative forwarded further correspondence, dated 23 April 2009 to OSSC. In this further correspondence, the appellant’s representative indicated that the appellant had been forwarded correspondence from the Social Security Agency and enclosed a copy of the correspondence, dated 5 June 2006, with her own letter.

40.	The correspondence dated 5 June 2006 is in the form of a FORM DR3. It reads, in part, as follows:

‘You made an appeal against an Income Support decision issued to you on 07.04.06. 

We have looked again at the facts and evidence we used to make our decision. As a result we have changed the decision. We will send details of the revised decision to our District Overpayments Unit so that the amount overpaid may be re-calculated.

What happens now

The Appeals Service will be informed that the decision has been changed in your favour.

…

How to appeal

If you want to appeal you should fill in the form in leaflet GL24 If you think our decision is wrong …’

41.	In her covering correspondence dated 23 April 2009, the appellant’s representative submitted that the letter dated 5 June 2006 suggests that the Department was of the view that by notifying TAS, the appellant’s appeal would lapse. The appellant’s representative also submitted that the explanation accompanying the letter dated 5 June 2006 had created confusion concerning the period of the overpayment and the amount in issue. 

42.	The oral hearing of the appeal took place on 5 May 2009. At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mr McGrath of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

	Errors of law

43.	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.

44.	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 error of law in the instant appeal
 
	The adjournment issue

45.	Two specific issues arise under this heading. The first is the extent to which the appeal tribunal, at the oral hearing held on 15 January 2008, was obliged when the appellant did not attend to consider whether to adjourn the appeal. The second is whether, given the benefit of the additional information concerning the reasons for the failure of the appellant to attend, there has been a breach of the rules of natural justice in deciding to proceed with the case.

46.	In relation to the first issue, an appeal tribunal has the legislative power, under regulation 51(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, to adjourn an appeal tribunal of its own motion. Such an adjournment might be for the attendance of an appellant or other witness, or for the production of additional evidence. A decision by an appeal tribunal as to whether or not to adjourn is one within its own judicial discretion. 

47.	In C7/08-09(IB), I said the following about the appeal tribunal’s power to adjourn an appeal, at paragraphs 62-64.

	‘62.	Appeal tribunals should, of course, consider critically the issue of adjournment.  The appeal tribunal should first ask whether the evidence to be obtained is necessary and if so whether it is likely to assist in determining the matter when the case comes back.  The precise nature and relevance of the additional evidence should be identified.  Only if the evidence is material to the issues arising in the appeal, and not presently available to the appeal tribunal, should an adjournment to obtain that evidence be considered.  Appeal tribunals should also take into account the opportunity which the parties have had to obtain the evidence, the need to avoid delays to others and whether there is a reasonable prospect of obtaining the evidence.  A conflict of evidence between parties may not necessarily be resolved by seeking further evidence.  Rigorous evaluation of the available evidence to resolve the conflict is often more appropriate.

63.	Additionally, it should not be assumed that because an appeal tribunal gives a direction as to evidence, it will be supplied.  Some thought should also be given to how long the delay might be in obtaining evidence, especially in relation to medical reports which may not be given priority by medical practitioners.  Consideration should also be given to the person who will take responsibility for (i) obtaining the evidence and (ii) preparing the evidence.

64.	In summary, adjournments for further evidence require very careful consideration to determine whether they are really needed and, if so, whether they will achieve the intended outcome of providing the additional evidence needed.’

48.	I am also mindful of what was said by Mrs Commissioner Brown at paragraph 16 of C6/05-06(IB):

“I do not consider that the tribunal need even consider adjourning unless there is something to indicate that the appeal should not be heard on the papers. It therefore follows that unless there is some such indication the tribunal need not consider adjourning and need not refer to having considered adjourning … If there is no indication that determination on the papers would not lead to a fair hearing the tribunal need not adjourn nor even consider adjourning.”  

49.	In the instant case, there is some indication of the reasoning employed by the appeal tribunal, in arriving at its decision not to adjourn the appeal tribunal hearing, in the reasons given for the refusal of the application to set aside the decision of the appeal tribunal. It is clear from those reasons that the appeal tribunal satisfied itself that the appellant had been given proper notification of the date and time of the oral hearing of the appeal, and that the appeal tribunal’s decision to proceed was taken some 30 minutes after the scheduled time for the commencement of the hearing, thus satisfying itself that the failure to attend was not caused by delay.

50.	What concerns me, however, is that the appeal tribunal, in the reasons for the refusal to set aside, also indicated that:

‘The appellant gave evidence at the hearing on 25/01/07 (at which he was represented).

That hearing was adjourned only so that a diminution of capital calculation could be carried out and taken into consideration in the Tribunal’s decision.’

51.	That suggests to me that the appeal tribunal, at the end of the first oral hearing of the appeal, had decided that it had heard all of the evidence relevant to the substantive issues arising in the appeal, namely whether there had been a failure to disclose or misrepresentation, and that the purpose of the adjournment was simply to deal with a possible adjustment to the amount of benefit stated to be overpaid. 

52.	The difficulty is that the record of proceedings, reasons for adjournment, and the terms of adjournment for the first oral hearing of the appeal give no indication that the appellant was made aware that the appeal tribunal had  heard all of the evidence relevant to the substantive issues arising in the appeal, namely whether there had been a failure to disclose or misrepresentation, and that the purpose of the adjournment was simply to deal with a possible adjustment to the amount of benefit stated to be overpaid. It is clear that a purpose of the adjournment was to ask the Department to undertake a re-calculation; what is not clear is that it was the only purpose. Accordingly, it may have been the case that the appellant was of the view that he would have a further opportunity to state his case, and give evidence on the substantive issues arising in the appeal. 

53.	In relation to the second adjournment issue, the appeal tribunal cannot be faulted for not knowing that the appellant had apparently been forced to attend for emergency dental treatment at the School of Dentistry, Royal Group of Hospitals. Accordingly, at the time of the making of the decision to proceed with the oral hearing of the appeal, that factor could not be taken into consideration. 

54.	In C22/00-0(IB), Commissioner Brown stated the following, at paragraphs 13 to 15:

‘13.	I am impressed and influenced by the fact that while there may be some confusion between the 27th and 29th September the doctor did see the claimant either shortly before or on the day of the Tribunal and advised her that she was not fit to attend.  It is unfortunate and the claimant is to be faulted in that she herself did not advise the Tribunal of this but appears to have left the matter to her doctor.  Nonetheless, in the light of the doctor’s statement and of his having seen her so close to the time of the Tribunal I must accept that the claimant was unfit to attend the Tribunal.

14.	I must therefore ask myself whether or not there was a breach of the rules of natural justice in the Tribunal, albeit unwittingly and with out fault, deciding to proceed in this case.  The claimant had obviously had numerous chances of attending a Tribunal and had not attended and it is obvious that a Tribunal cannot endlessly adjourn.  Sooner or later a decision must be made.  However, in light of the fact that the claimant’s condition was likely to improve so that she could attend and indeed it appears that it did improve, I am of the view that the Tribunal in all probability would have adjourned had it known the circumstances which I now know.  I should state that if I was dealing simply with a situation of a claimant informing her doctor after the Tribunal that she had been ill and was unable to attend I would have been less impressed.  It is the evidence from the doctor of attendance on either the 27th or 29th September 1999, before the Tribunal and his express contemporaneous advice that the claimant was unfit to attend, which impresses me.

15.	With hindsight therefore and without faulting the Tribunal I set the decision aside as in error of law …’  
     
55.	In the instant case, and despite what was stated by the LQPM in the reasons for the refusal of the application to set aside, I am of the view that had the appellant, on or shortly before the appeal tribunal hearing date, made TAS and/or the appeal tribunal aware of the reasons why he would be unable to attend the appeal tribunal hearing, and emphasised his desire to be present to give oral evidence, then the appeal tribunal in all probability would have adjourned.

56.	As in C22/00-01(IB), therefore, and with hindsight, I set aside the decision of the appeal tribunal as being in error of law.

	The legal status of the ‘decision’ contained in the Department’s further submission

57.	As was noted above, following the adjournment of the first oral hearing of the appeal, a further submission, dated 27 June 2007, was subsequently received from the Department. In this further submission it was indicated that, following the consideration of the ‘diminution of capital’ point, the overpayment had been recalculated at £11370.60. Attached to the further submission were three documents, including what was described as a ‘Decision Maker’s Decision’ signed and dated on 19 June 2007. 

58.	Further, the appellant’s representative had submitted further correspondence received by the appellant, in the form of Form DR3, dated 5 June 2006, and which, together with the attached explanation, she submitted was evidence that the Department was of the view that by notifying TAS, the appellant’s appeal would lapse. This was on the legal basis that the ‘Decision Maker’s Decision’ was a revision decision which was more advantageous to the appellant than the decision under appeal. 

59.	DMS have taken a different view and have submitted that the re-calculation carried out by the Department is simply that, or that the ‘decision’ is sufficiently defective in both form and substance as to render it no more than a re-calculation. Although the re-calculation was contained in a document headed ‘Decision Maker’s Decision’, DMS submits that it contains no reference to any decision-making power, including the power to revise, and there is no reference to a revision of the overpayment decision. In the alternative, DMS submits that should I hold that the ‘decision’ is, in fact, a revision, then on the basis of the principles in R(IB) 2/08, the appeal should not automatically lapse.

60.	Article 10(6) of the Social Security (Northern Ireland) Order, as amended, provides that:

‘Except in prescribed circumstances, an appeal against a decision of the Department shall lapse if the decision is revised under this Article before the appeal is determined.’   

61.	Regulation 30(1) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that: 

‘An appeal against a decision of the Department shall not lapse where the decision is revised under Article 18 of the Child Support Order or under Article 10 before the appeal is determined and the decision as replaced or revised is not more advantageous to the appellant than the decision before it was replaced or revised.’

62.	Regulation 30(2)(e) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 provides that decisions which are more advantageous include a decision where:

‘… in consequence of the revised decision, benefit paid is not recoverable under section 69, 69A or 72 of the Administration Act or regulations made under any of those sections, or the amount so recoverable is reduced …’

63.	The net effect of these provisions is that it makes it unnecessary for the appellant to submit a fresh appeal where the decision under appeal is revised, before the appeal is determined, and the revised decision no more favourable to the appellant. Where the decision under appeal is revised, and the decision as revised is more advantageous than the decision under appeal, then the appeal lapses and the appellant will be forced to make a fresh appeal against the revised decision.

64.	All of this hinges on the Department revising the decision under appeal under Article 10 of the Social Security (Northern Ireland) Order 1998. In the instant case, the hanging question is whether the Department, as a result of the direction issued as part of the terms of adjournment of the first oral hearing of the appeal, revised the decision under appeal, under Article 10 of the Social Security (Northern Ireland) Order 1998, as amended. 

65.	My conclusion is that the Department has not, since the making of an appeal against the decision dated 7 April 2006, made a decision which satisfied the requirements of Article 10 of the Social Security (Northern Ireland) Order 1998, as amended, and which revised the decision dated 7 April 2006. Accordingly, the question of whether the appeal against the decision dated 7 April 2006 does or does not lapse does not arise because there is no further revision of the decision dated 7 April 2006, whether more advantageous or otherwise.

66.	Since the appeal tribunal, in the terms of the adjournment for the adjourned first hearing of the appeal, requested the Department to prepare an additional submission, there are in existence various documents which from their described headings look like ‘decisions’ of the Department. Further the documentation accompanying those documents reinforces the impression that ‘decisions’ have been made by outlining the consequences of those decisions. 

67.	The document which most closely resembles a Departmental ‘decision’ is the second document accompanying the further appeal submission. As was noted above, it is headed ‘Decision Maker’s Decision’ and is stated to be made in accordance with various legislative provisions, namely, ‘SSA (NI) Act 92, sec 69(6)(a) and SS (POR) Reg (NI), reg 14(1), reg 14(3) and reg 14(2)’. 

68.	These references are firstly to section 69(6)(a) of the Social Security Administration (Northern Ireland) Act 1992, which reads as follows:

‘(6) Regulations may provide—
(a) that amounts recoverable under subsection (1) above or regulations under subsection (4) above shall be calculated or estimated in such manner and on such basis as may be prescribed …’

69.	The further reference is to regulation 14(1) to (3) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (Northern Ireland) 1988, which read as follows:

	‘Quarterly diminution of capital

14.—(1) For the purposes of Article 54(1) of the Order, where income support, state pension credit, income-based jobseeker’s allowance, income-related employment and support allowance, family credit or disability working allowance has been overpaid in consequence of a misrepresentation as to the capital a claimant possesses or a failure to disclose its existence, the adjudicating authority shall treat that capital as having been reduced at the end of each quarter from the start of the overpayment period by the amount overpaid by way of income support, state pension credit, income-based jobseeker’s allowance, income-related employment and support allowance, family credit or disability working allowance within that quarter.

(2) Capital shall not be treated as reduced over any period other than a quarter or in any circumstances other than those for which paragraph (1) provides.

(3) In this regulation—

“a quarter” means a period of 13 weeks starting with the first day on which the overpayment period began and ending on the 90th consecutive day thereafter; 

“overpayment period” is a period during which income support, income-based jobseeker’s allowance or income-related employment and support allowance, family credit or disability working allowance is overpaid in consequence of a misrepresentation as to capital or a failure to disclose its existence.’ 

70.	Regulation 14 provides a basis for the calculation of a recoverable amount as envisaged by section 69(6)(a) of the Social Security Administration (Northern Ireland) Act 1992.

71.	It cannot be said, therefore, that the document dated 19 June 2007, no matter how it is headed or dressed up amounts to a revision of the decision dated 7 April 2006, and which satisfies the requirements of Article 10 of the Social Security (Northern Ireland) Order 1998, as amended.

72.	The correspondence which accompanies that document, and the further correspondence which was forwarded to the appellant on 5 June 2006, no matter how described or expressed in the language of Departmental decision-making, cannot transform any of the other documents into the status of a revision decision.

73.	It seems to me that the Department’s intended response to the terms of adjournment for the first oral hearing of the appeal was to undertake the requested re-calculation, and provide the details of that re-calculation to assist the appeal tribunal in arriving at its own decision. It did not intend to usurp the appeal tribunal’s decision-making function. It is unfortunate that the re-calculation details were included in documentation framed to appear to be formal Departmental decisions, and accompanied by documentation which reinforced that picture.

74.	I have concluded, however, that the Department has not, since the making of an appeal against the decision dated 7 April 2006, made a decision which satisfied the requirements of Article 10 of the Social Security (Northern Ireland) Order 1998, as amended, and which revised the decision dated 7 April 2006.

75.	One consequences of my decision on this issue is that there is no requirement to analyse the applicability of the principles in R(IB) 2/08.

	The evidence before the appeal tribunal

76.	The appellant’s representative has submitted that the statement of reasons for the appeal tribunal’s decision makes reference to the appellant misrepresenting a ‘ …material fact when he signed the declaration on the order book foil dated 5 August 2005 and on subsequent dates …’ The representative refers to Tab 15 of the appeal submissions which consists of a Form INF4(IS) dated December 2005, and submits that as this document was in force after the period in issue, that is 23 July 1999 to 5 May 2005, the inclusion of that document could have no bearing or relevance to the issues in dispute.

77.	The appellant’s representative also submits that while there is a reference in the appeal submission to the fact that from 31 July 2003 the appellant would have been issued with further Forms INF4 (IS), the Department did not specify when these were issued. Finally, the appellant’s representative submits that it is unclear how the appeal tribunal formed the view that the appellant had misrepresented and failed to disclose material facts during the period from 23 July 1999 and 31 July 2003 and failed to disclose those facts between 31 July 2003 and 5 May 2005.

78.	In response to the initial submissions made by the appellant’s representative, DMS submits that despite the reference to 5 August 2005 in the paragraph from the statement of reasons, cited by the appellant’s representative, that date is an error, but that, nonetheless, and from evidence contained in the appeal tribunal’s decision notice, that the appeal tribunal were aware of the relevant period during which benefit was overpaid. Further, DMS submits that it did not have copies of the relevant order book instructions, and did not have copies of all of the Forms INF4 relevant to the period under consideration, and did not have details when relevant Forms INF4 were issued to the appellant, but submits that those omissions were not sufficient to vitiate the appeal tribunal’s decision. With these submissions, DMS provided details of when the relevant Forms INF4 would have been issued to the appellant, and provided copies of those Forms and of relevant order book counterfoils.  

79.	In response to the further observations, the appellant’s representative submitted that the production of the further documentation by DMS means that the decision of the appeal tribunal was vitiated in that the Department had not met the evidential assessment requirement set out by a Tribunal of Commissioners in R1/2005 (ICA)(T). 

80.	In CC-v-Department for Social Development (IS) [2010] NICom 5 (C6/08-09(IS)), I stated the following, at paragraphs 43 to 44:

‘43.	I am of the view that there is something to Mr McGrath’s submission. In C1/06-07(IS), at paragraph 26, Commissioner Brown stated:

‘The claimant’s solicitors have, in my view, correctly raised an issue that the tribunal failed to address the issue of the Department not having tendered forms IB65 and BF220C.  These were the forms on which the Department allegedly notified the claimant that he had been found capable of work.  The solicitor is correct that the Department did not tender these forms or even pro formas of them (which would in my view have been sufficient to establish their content) to the tribunal.  The tribunal did not seek to see the relevant forms though this matter was raised by the solicitors in their written submission to the solicitors.  Both these are matters of some concern to me.  Without knowing the content of the said forms I fail to see how the tribunal could conclude that they provided the said notification.  In general terms I consider that the Department should supply copies or pro formas of relevant notifications in recoverability cases.  In cases where notification is an issue the tribunal should ask to see at least pro formas of these documents if they have not been furnished.’

44.	This paragraph is reflective of other appellate authority opinion that in overpayment or recoverability appeals, it is essential that the appeal tribunal is provided with actual copies, not photocopies of relevant forms, order books declarations etc. In my view, it will be safest and best practice for the Department to routinely provide actual copies of the relevant forms for consideration by the appeal tribunal …’ 

81.	In R1/2005 (ICA)(T), the Tribunal of Commissioners had stated, at paragraphs 28 and 29:

‘28.	We ask ourselves whether there was sufficient evidence in this case to enable the tribunal to make its findings as to the form of declaration signed. There appears to have been an assumption, recited in paragraph 28 of the submission to the tribunal, that the declaration which the claimant signed was:

“I have correctly reported any facts which could affect the amount of my payment”. 

There was no evidence laid before the tribunal as to whether this was the declaration in force at the time in question and as to whether or not it was in force in relation to invalid care allowance. There was no evidence before the tribunal as to the instructions that were given to the claimant. Mr Morrison is correct that the claimant did not take issue with the form of declaration she was alleged to have signed. Indeed she could scarcely have done so as she was unlikely to have held the counterfoils for that time, they being handed in to the Post Office in order that the claimant could be paid the benefit. It must be remembered that the onus in overpayment cases is on the Department. Whether an issue is taken or not an adequate evidential basis must be laid for the Department’s contention that declarations were signed in the form alleged. This is central to the Department’s case and the tribunal should have satisfied itself that the evidence before it in the case was sufficient to establish that the claimant had signed the declaration she was stated to have signed. We consider that the tribunal erred in law in not so doing and that, on the evidence presented to the tribunal, that evidential base was not established. We set the tribunal decision aside for that reason.

29.	That said we do not think that it is necessary in every case for the Department to produce the signed counterfoils. We consider that it would be open to a tribunal to conclude that the Department had established that the claimant signed the said declarations if the claimant obtained benefit and if a specimen declaration was produced with evidence that that specimen declaration was in force at the relevant times for the relevant benefit. It must be remembered that the claimant did obtain the benefit and would not have done so unless a declaration had been signed.’

82.	I am of the view that, contrary to the submission from DMS that the omission by the Department to provide the appeal tribunal with details of when relevant Forms INF4 were issued to the appellant, to provide copies of those relevant Forms INF4, and to provide copies of order book instructions and counterfoils is sufficient to vitiate the appeal tribunal’s decision. In my view, the 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. As I stated in C6/08-09(IB), this will necessitate identifying whether the case comes within the first or second duty in regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

83.	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.

84.	In the present case, the appeal tribunal failed to address the evidential source of the duty on the appellant to disclose a material fact. I accept that the Department failed to provide the appeal tribunal with copies of the relevant documentation, but that does not obviate the appeal tribunal’s responsibilities.     

85.	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.’
    
	The capital issue   

86.	At one stage in the proceedings before the Social Security Commissioner, the appellant’s representative had submitted that there was no requirement for the appeal tribunal to request a diminution of capital calculation as the basis of the case against the appellant was that he had actual capital which he allegedly failed to disclose and which he misrepresented as a fact. 

87.	It seems to me that the appellant’s representative, in making this submission, may, with respect, have been confusing the legislative provisions with respect to the rules on diminishing notional capital such as are found in regulation 51A of the Income Support (General) Regulations (Northern Ireland) 1987, as amended, and the legislative provisions relating to the quarterly diminution of capital rules as found in regulation 14 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (Northern Ireland) 1988, as amended. It was the latter category of calculation which was carried out in the instant case.

	Disposal

88.	The decision of the appeal tribunal dated 15 January 2008 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. 

89.	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. This is because there may be 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. 

90.	The Department is directed to prepare a further submission for the appeal tribunal hearing to be conducted by the differently constituted appeal tribunal. The new submission should address all of the issues set out above, and should specifically address the legal and evidential basis on which the Department submits that there has been an overpayment of IS for a particular period. The Department should attach to that submission all of the evidence in its possession which relates to the legal issues identified as arising in the appeal.  

91.	It will also 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. 

92.	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):  Kenneth Mullan

Commissioner

8 February 2010