AMcC-v-Department for Social Development (PC) [2015] NICom 12

Decision No:   C2/13-14(PC)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PENSION CREDIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 22 July 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 22 July 2013 is not in error of law.  Accordingly the decision of the appeal tribunal is confirmed.  Although not specifically stated by the appeal tribunal in its decision notice or in its statement of reasons, the effect of its decision is that while there has been an overpayment of pension credit (PC) amounting to £2233.64 for the period from 28 May 2007 to 18 March 2012, that amount is not recoverable from the respondent.

	Background

2.	The decision under appeal to the appeal tribunal was a decision of the Department dated 6 July 2012 which was set out in the following terms:

‘As a result of the decision dated 11/05/12 an overpayment of Pension Credit has been made for the period for the period 28/05/2007 to 29/04/2012 (both dates included) amounting to £2,275.61.

On 19/05/2007, or as soon as practicable afterwards, (the claimant) failed to disclose the material fact that his rate of DLA had changed, and as a result he was not entitled to the extra amount for severe disability.

As a consequence, Pension Credit amounting to £2,233.64 from 28/05/2007 to 18/03/2012 (both dates included) was paid which would not have been paid but for the failure to disclose.

Accordingly that amount is recoverable from (the claimant).

The balance of the overpayment amounting to £41.97 is not recoverable as it did not arise as a consequence of the failure to disclose.’

3.	In the Case Summary which had been prepared for the oral hearing of the appeal, Mrs Carty, of the Law Centre (Northern Ireland), who represented the respondent before the Social Security Commissioner, set out the following background to the decision under appeal:

‘A decision was made that (the claimant) was entitled to state pension credit and issued to him on 14 November 2004.  The decision took effect from 10 November 2003.  Disability and Carers Branch sought and received confirmation from him on 30 November 2004 that he was in receipt of the guarantee element of state pension credit.  At the time of claim he was in receipt of middle rate of the care component of DLA for a fixed period which was due for renewal on 24 March 2005.  On 25 March 2007 this award was changed to the lowest rate of the care component and the higher rate of the mobility component.  Unfortunately (the claimant) did not advise the Pension Service that his award of Disability Living Allowance had changed.’

4.	The respondent was notified of the decision dated 6 July 2012 on the same date.  An appeal against the decision dated 6 July 2012 was received on 31 July 2012.  On 22 October 2012 the decision dated 6 July 2012 was looked at again but was not changed.

5.	Following the setting-aside of an earlier appeal tribunal decision, the substantive appeal tribunal hearing took place on 22 July 2013.  The respondent was not present but was represented.  The Department was represented by a Departmental presenting officer.  The appeal tribunal allowed the appeal and issued a decision notice in the following terms:

‘Appeal allowed.

Clear instructions to report changes on his benefit to the respondent were not given.’

6.	Subsequently, the appeal tribunal issued a statement of reasons for its decision which was in the following terms:

‘The respondent has failed to prove on a balance of probabilities that the appellant was informed that he should report changes in his DLA entitlement to the Department or more correctly the Pension Credit Office of the Department.

The only evidence produced that is alleged to have so informed the appellant is a copy of form INF4.  This form does make it clear what must be reported but not to whom such report should be made.  The form includes references to “The Social Security Agency”, “The Department of Social Development” and “Pension Credit”.  It is unreasonable to suggest that the appellant was informed that he must specifically inform the Pension Credit Office of the Department.’

7.	On 19 November 2013 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  The application for leave to appeal was made by Mr McGrath of the Decision Making Services (DMS).  On 26 November 2013 the application for leave to appeal was granted by the legally qualified panel member (LQPM) of the appeal tribunal.  In granting leave to appeal, the LQPM identified the following point of law:

‘Insufficient evidence to allow appeal to reach the conclusion that it did.

Decision could not have been reached by properly addressing evidence.’

	Proceedings before the Social Security Commissioner

8.	On 20 December 2013 the appeal was received in the Office of the Social Security Commissioners.  On the same date written observations on the appeal were sought from the respondent.  On 17 January 2014 written observations were received from Mrs Carty.  In these initial written observations, Mrs Carty opposed the appeal on the grounds submitted on behalf of the appellant.  Written observations were shared with Mr McGrath on 13 February 2014.

9.	On 31 March 2014 I directed an oral hearing of appeal and requested that in the Case Summaries which were to be prepared for the oral hearing, the parties should address the question of the effect of the decisions in R (Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982) (Iran’), E and R v Secretary of State for the Home Department ([2004] EWCA Civ 49) (‘E and R’) and Shehu v Secretary of State for the Home Department ([2004] EWCA Civ 854) (‘Shehu’) on the issues arising in the appeal.

10.	The oral hearing was listed for 13 May 2014.  The appellant was represented by Mr McGrath and the respondent by Mrs Carty.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision.  That delay was for reasons which were largely unavoidable but apologies are, nonetheless, extended to the parties.

	The submissions of the parties

11.	In the appeal which was lodged with the Office of the Social Security Commissioners, Mr McGrath submitted that:

‘While I agree with the Chairman that the INF4 (PC) makes it clear what must be reported I would submit that the Chairman has erred in his view that the instructions in the INF4 (PC) are not specific enough as to whom such a report should be made.

Firstly I must point out that the Chairman was possibly misinformed by the Presenting Officer.

In reply to the Chairman’s question ‘INF4 is only evidence suggesting that appellant was informed of duty to report’ the Presenting Officer stated ‘Yes’.

However following further investigation this has proven not to be the complete picture.’

12.	Mr McGrath noted that on page 5 of the relevant form ‘INF4 (PC)’ it was stated that:

‘Our phone number and address are at the top of the letter that came with this information booklet.’

13.	Mr McGrath submitted that he had:

‘… requested and been supplied with sample copies of these letters which are issued following the initial award Pension Credit and, subsequently, every year the benefit is due to be up-rated.’

14.	Mr McGrath attached copies of two letters and, based on their contents, submitted that:

‘… as the INF4 (PC) refers to the letter which accompanies it, and this letter includes the address of the Pension Service, that there are clear instructions as to where the change of circumstances should be reported.’

15.	In her written observations on the appeal Mrs Carty noted, by reference to paragraph 28 of the decision of the Tribunal of Commissioners in R1/05 (ICA)(T), that the burden of proof in overpayment cases lies with the Department.  Mrs Carty also noted that under Article 15(10) of the Social Security (Northern Ireland) Order 1998 an appeal lies to a Social Security Commissioner from a decision of an appeal tribunal solely on a point of law.  Guidance on what amounts to an error of law had been given by the Court of Appeal for England and Wales in Iran.  Mrs Carty submitted that the Department had not identified any error of law which accorded with the principles in Iran, but, rather, sought to reargue factual issues.  Reference was made to paragraph 12 of the decision of Upper Tribunal Judge Rowland in Hastings Borough Council v PA Hanlon (HB) ([2013] UKUT 0232 (AAC)). Mrs Carty concluded:

‘It is submitted that the decision of the appeal tribunal is not erroneous in law.  The Department bore the onus of proving its case on the facts before the tribunal.  It failed to do so.  It now attempts in the course of this appeal to adduce further evidence in an attempt to prove its case before the commissioner.  That evidence was not before the tribunal and the tribunal cannot be said to have erred for failing to consider it.  If the Department wished to rely on the evidence that it now adduces it should have done so before the tribunal.’

16.	As was noted above, I directed that the parties should address, in the Case Summaries prepared for the oral hearing, the decisions in question of the effect of the decisions in Iran, E and R and Shehu on the issues arising in the appeal.  After making reference to various passages in the decisions, Mr McGrath submitted:

‘These three decisions in the main deal with what constitutes an error in law and what conditions must be satisfied before a subsequent appellate authority can admit new evidence.

In relating these points to the instance case I would submit the following.

In respect of paragraph 9 of the R (Iran) v Sec of State decision that the tribunal made a mistake as to the material fact that (the claimant) had not been informed as to where he should report any changes to his circumstances.  The fact could have been established by objective and uncontentious evidence i.e. obtaining a copy of the letter mentioned in the INF4 (PC).

Although this letter was not produced at the hearing by the Department the tribunal did not investigate this issue thoroughly and consequently made a mistake as to this material fact.

As a result of this mistake the resultant decision was unfair.

I would also submit that in relation to paragraph 32 of the R(Iran) v Sec of State decision that all 3 principles regarding further evidence as defined by Ladd v Marshall may not be satisfied but as noted in paragraph 33 these principles might be departed from in exceptional circumstances where the interests of justice require.’

17.	In his Case Summary, Mr McGrath also added that the evidence which was before the tribunal clearly stated that form ‘INF4 (PC) was accompanied by a letter which gave an address of an office to which changes could be reported.  Mr McGrath noted that there had been no reference to the letter in the statement of reasons for the appeal tribunal decision and no questions had been asked about the letter during the course of the oral hearing.

‘It would appear that this “letter” has been overlooked by the tribunal and this important central issue has not been investigated adequately.

Therefore I would submit that the tribunal has failed in its inquisitorial role.’

18.	In her Case Summary, Mrs Carty submitted that the Department could not rely on the category of error identified in Iran as:

‘Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake and where unfairness resulted from the fact that a mistake was made.’

19.	Mrs Carty submitted that the Department could not rely on this ground as the Department was responsible for ‘… the fact that that the INF4 (PC) was not before the tribunal.’  I am certain that what Mrs Carty meant to state was that the ‘sample letters’ were not before the appeal tribunal.

20.	Mrs Carty referred to the conditions which had been set out by the Court of Appeal for England and Wales in E and R for the founding of unfairness arising from a mistake of fact.  Mrs Carty submitted that:

‘… the Department has not satisfied these criteria.  In particular the Department is clearly responsible for the fact the evidence, which it now states was material was not before the tribunal.  In addition it is not accepted that the further information was material.  The Tribunal has not established on the balance of probabilities that such information was in fact sent.  It is relevant to the assessment of the Department’s credibility that it did not comply with its statutory duty to issue the entitlement decision in this case until many months after the decision to raise an overpayment was made.’

21.	Mrs Carty also referred to the criteria established in Ladd v Marshall ([1954] 3 All ER 745) for the admission of new evidence as to a mistake as to a relevant fact.  This had been set out in Shehu at paragraph 23.  Mrs Carty submitted that:

‘… the Department does not meet this test for the admissibility of further evidence as to an alleged mistake as to fact.  In particular the evidence could have, with due diligence, been obtained for use at tribunal level.  It is not accepted that if the evidence had been given that it would have had an important influence on the result.  In line with Carnwath LJ’s comments the fact that the failure to adduce evidence was that of the Department’s representatives is of no excuse.  As he stated at para 69, “A claimant who had the opportunity to produce evidence and failed to take it may not say that he has not had “a fair crack of the whip”.’

22.	At the oral hearing, Mrs Carty and Mr McGrath expanded on their written submissions.

	The burden of proof and the evidential duty

23.	It is clear that it is for the Department to demonstrate, on the balance of probabilities, all of the facts which are necessary to justify the recovery of an overpayment of a social security benefit – see the decision of the Tribunal of Commissioners in Great Britain in R(SB) 6/85 at paragraph 5 and the decision of the Upper Tribunal Judge in DG v Secretary of State for Work and Pensions (DLA) ([2011] UKUT 14 (AAC)) at paragraph 75.  It is equally clear that the Department should adduce all of the evidence which supports the overpayment decision – see paragraph 28 of the decision of Mrs Commissioner Brown in C1/06-07(IS).

	The proper scope of an appeal on a point of law

24.	For many years I have been citing the decisions in R(I) 2/06 and CSDLA/500/2007, in which Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in Iran, 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.”

25.	Those principles have always been incontrovertible but the added dimensions in the present case are, firstly, the extent to which the ambit of an appeal on a point of law encompasses a ground that the error in law in the decision under appeal was unfairness as a result of a mistake of fact and, secondly, the extent to which the appellate body should be willing to admit new evidence to identify the mistake of fact.  In Iran, Brooke LJ, set out the first question, in paragraph 28, as follows:

‘The next matter we must address relates to the circumstances in which an appellate body like the IAT, whose primary role during the relevant period was restricted to identifying and correcting errors of law, could entertain an argument to the effect that the outcome in the lower court was unfair as a result of a mistake of fact, and that this constituted an error of law which entitled it to interfere.’

26.	At paragraph 31, he put the second issue as follows:

‘Needless to say, such a mistake could not be identified by the supervising or appellate court unless it was willing to admit new evidence in order to identify it.

27.	In Iran, the Court of Appeal for England and Wales also considered the earlier decision of that Court in E and R.  In turn E and R had considered the principles set out Ladd v Marshall.  Finally, the principles in Ladd v Marshall had also been considered by the Court of Appeal for England and Wales in Shehu.

28.	In Iran, Brooke LJ reviewed the decision in E and R, and, at paragraphs 29 to 30, set out the principles which emerged on the first issue identified above, namely the circumstances in which an appellate body, whose appellate role was restricted to identifying and remedying errors of law, would consider an argument that unfairness as a result of error of fact constituted an error of law:

‘29. In E and R v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 this court was concerned to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when a minister or an inferior body or tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ gave at least eight examples in his review of the case law …

30. At para 64 Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis.  At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result.  He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that:

	(i)  there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

	(ii)  it must be possible to categorise the relevant fact or evidence as “established” in the sense that it was uncontentious and objectively verifiable;

	(iii)  the appellant (or his advisers) must not have been responsible for the mistake;

	(iv)  the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.

He made it clear that he was not seeking to lay down a precise code.’

29.	I would state, at this point, that in my view, the decision-making and appellate scheme in social security is a further example of one where the appellant, the Department, through its decision-makers, and the appellate bodies, including the appeal tribunal, have a shared interest in ‘co-operating to achieve the correct result’ – see the remarks of Baroness Hale in Kerr v Department for Social Development ([2004] UKHL 23, (appendix to R1/04 (SF)) at paragraphs 56 to 65.

30.	At paragraphs 31 to 33, Brooke LJ addressed the manner, in which the Court in E and R had considered the second issue set out above, namely the extent to which the appellate body should be willing to admit new evidence to identify the mistake of fact:

‘31. Needless to say, such a mistake could not be identified by the supervising or appellate court unless it was willing to admit new evidence in order to identify it.  Paragraphs 68 to 89 of the judgment in E and R contain an analysis of relevant case law on the power to admit new evidence.  It concluded with the observation that the case of Khan v SSHD [2003] EWCA Civ 530 that gave rise to the problem summarised in (viii) above was a good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact and that it illustrated the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts that gave rise to the fear of persecution and the need for some flexibility in the application of Ladd v Marshall principles.

32. The reference to the Ladd v Marshall principles is a reference to that part of the judgment of Denning LJ in Ladd v Marshall [1954] 1 WLR 1489 when he said at p 1491 that where there had been a trial or hearing on the merits, the decision of the judge could only be overturned by the use of further evidence if it could be shown that:

(1)  the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);

(2)  the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);

(3)  the new evidence was apparently credible although it need not be incontrovertible.

33. By way of a final summary of the position, Carnwath LJ said in E and R at para 91 that an appeal on a question of law might now be made on the basis of unfairness resulting from “misunderstanding or ignorance of an established and relevant fact” and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required.’

31.	It is apposite to quote paragraph 91 of the decision in E and R in its entirety:

‘In summary, we have concluded in relation to the powers of this Court:

(i)  An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;

(ii)  Such an appeal may be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" (as explained by Lord Slynn in CICB and Alconbury);

(iii)  The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.’

32.	In Shehu, Brook LJ, at paragraph 23, and after setting out the Ladd v Marshall principles, reminded himself that:

‘In E Carnwath LJ added as a general rule the fact that the failure to adduce the evidence was that of the parties' legal advisers provides no excuse (see the decision of the House of Lords in Al-Mehdawi [1990] 1 AC 876, [1989] 3 All ER 843, E para 23).’

33.	In R v Secretray of State for the Home Department, ex part Al-Mehdawi ([1990] 1 A.C. 812)(‘Al-Mehdawi’), the applicant, a student from Iraq, was given notice by the Secretary of State that he was to be deported.  The applicant's solicitors lodged a notice of appeal and wrote to the applicant at the correct address informing him of their action.  They wrote to him again to inform him of the date of the hearing before the adjudicator but sent the letter to an old address and the applicant never received it.  The solicitors took no further steps so the applicant was not represented before the adjudicator and the appeal was dismissed.  The solicitors then wrote to the applicant telling him of the time limit for any further appeal but again sent the letter to the wrong address.  Lord Bridge reviewed, amongst other cases, the decision of the Court of Appeal for England and Wales in R v West Sussex Quarter Sessions, ex parte Albert & Maud Johnson Trust Ltd ([1973] 3 All ER). He stated, at page 899:

‘The primary issue before the Court of Appeal was whether the availability of fresh evidence afforded any ground on which the court could quash by certiorari.  The majority of the court (Orr and Lawton L.JJ.) held that it did not.  Orr L.J. said, at p. 39:

"The limits of certiorari are, in my judgment, well established and do not extend beyond defects or irregularities at the trial.  I need not enumerate all the headings under which the relief has hitherto been granted, but they all fall within those limits, and they include fraud because fraud is recognised as vitiating proceedings.  In my judgment, however, it cannot be said that for this purpose there is a defect or irregularity in proceedings because the tribunal, if other evidence has been adduced, might have come to a different conclusion.  To extend the ambit of certiorari to such cases would, it seems to me, be a radical transformation of its character."’

34.	Lord Bridge added that although Lord Denning did not agree with the conclusions of the majority on the question of the limits of certiorari, he did agree that the appeal should be dismissed:

‘In reaching this conclusion Lord Denning M.R. was applying the well-known principle applicable to the reception of fresh evidence on appeal as laid down in Ladd v. Marshall [1954] 1 W.L.R. 1489.  Thus the decision demonstrates that even in relation to a public law decision conclusively determining a matter of status (the existence of a public right of way over land) and even assuming a valid ground for attacking the decision by certiorari (new evidence not available at the trial) the party attacking the decision cannot invoke that ground when the reason for the non-availability of that evidence at the trial is his own solicitor's failure to exercise due diligence to discover it in time.  This seems to me wholly inconsistent with the application of a new principle to public law decisions which would be at variance with the principle applicable to private law decisions and which would allow a party affected by a decision to have it quashed on the ground of unfairness when the unfairness resulted solely from the failure of his own advisers to take the appropriate steps.’

35.	Lord Bridge concluded, at page 901:

‘But I would add that, if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as a ground on which the High Court in the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a "fundamental unfairness," which would justify the exercise of the jurisdiction, and a less than fundamental unfairness, which would not … I am of the opinion that the decision of the Court of Appeal can only be supported at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making.

The effect of this conclusion in a deportation case may appear harsh, though no harsher than the perhaps more common case when an immigrant's solicitor fails to give notice of appeal under section 15 within the time limited by rule 4 of the Rules of 1984.’

	Analysis

36.	I have to accept, based on the principle set out by Carnwath LJ at paragraph 64 of the decision in E and R, that ‘… a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law.’  Unfairness does not arise automatically, however.  At paragraph 66 of E and R Carnwath LJ set out the ‘ordinary requirements for a finding of unfairness.’  I now have to ask whether those requirements are met in the instant case.  My conclusion is that they are not.

37.	The principal requirement which is not met in the instant case is the absence of responsibility, on the party seeking to rely on a mistake of fact, for the mistake itself, remembering that ‘mistake’ includes a mistake as to the availability of evidence on a particular matter.  It is important to remember that the onus of proof lay with the Department.  It is important to note that the Department was responsible for the collation and preparation of the appeal submission for the oral hearing of the appeal, including the adducing of all of the evidence relevant to the overpayment decision under appeal.

38.	It is highly significant that the Department was represented at the oral hearing of the appeal by a presenting officer.  In CSC3/07-08, I said the following about the role and function of presenting officers, at paragraph 68:

‘68.	The importance of the presence of a presenting officer, at an oral hearing of an appeal, cannot be over-emphasised.  That attendance serves a number of significant functions.  Firstly, it provides the appellant with a visible confirmation that the Department is a party to the proceedings, which, in turn, serves to emphasise the independence of the appeal tribunal.  Secondly, the presenting officer is able to make submissions to the appeal tribunal, on the legal and evidential issues arising in the appeal.  In so doing, the officer can address any conflicts which have arisen, possibly as a result of further evidence adduced by the appellant, at the oral hearing.  Further the officer can test the appellant’s evidence, by asking questions of the appellant or any witness who also attends.  Thirdly, the officer can provide answers to any queries which the appellant may have concerning the handling of the case at Departmental level.  Finally, the officer, in the role of amicus curiae, can raise points not addressed by the appellant, or the appeal tribunal, and, on the basis of what has been seen and heard at the oral hearing, make relevant concessions and compromises.’

39.	It is clear that the appeal tribunal was alert to the requirement to identify the evidential basis for the Department’s submission that the respondent had, for the purposes of section 69 of the Social Security Administration (Northern Ireland) Act 1992) and regulation 32 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, failed to disclose a material fact and, more pertinently, the evidential basis for the source of the duty on the respondent to notify the Department of any change of circumstance which he might reasonably be expected to know might affect his right to benefit.  It also seems to me that the appeal tribunal was concerned to be certain that the instructions which had been issued to the appellant concerning the duty to disclose, and to whom and to where disclosure should be made, were clear and unambiguous.  The following exchange is recorded in the record of proceedings for the appeal tribunal hearing:

‘Chair
INF4 is only evidence suggesting that appellant was informed of the duty to report?

Presenting Officer
Yes.

Chair
This form has SSA and DSD and Pension Credit marked on it. Nowhere does it state repaid specifically to Pension Credit.’

40.	It seems to me that the presenting officer had two opportunities to inform the appeal tribunal of the proper evidential basis of the source of the duty to disclose and to allay the appeal tribunal’s concerns as to the clarity and unambiguity of the instructions, including the identification of the proper recipient of any notification of a change of circumstances.  The proper evidential basis is the position, of course, now argued for on behalf of the Department by Mr McGrath.  It seems to me, firstly, that in response to the question ‘INF4 is only evidence suggesting that appellant was informed of the duty to report?’ the presenting officer might have responded ‘Yes but supplemented by other correspondence received at various times by the appellant’.  Secondly, in response to the statement made by the LQPM that ‘This form has SSA and DSD and Pension Credit marked on it.  Nowhere does it state repaid specifically to Pension Credit’, the presenting officer could have stated ‘Yes but the form, on page 5, also makes reference to a letter which accompanied the form and which contains the proper address and telephone number.’

41.	Those opportunities were lost by the Department through the omission by its presenting officer to provide additional information or point to other evidence.  It seems to me, therefore, that the Department could not be said to have no responsibility for the mistake ‘as to the availability of evidence on a particular matter’ and, accordingly, cannot satisfy the requirement of absence of responsibility for the mistake arising, as set out by Carnwath LJ in paragraph 66 of E and R.

42.	Mr McGrath submits that the appeal tribunal has an inquisitorial role and, in the instant case, did not fulfil that inquisitorial role in its failure to seek additional evidence beyond that contained in the form ‘INF4 (PC)’.  Mr McGrath submits that the appeal tribunal might have identified that there was a reference, on page 5 of the relevant form, to a letter which accompanied the form.  There is no doubt that the appeal tribunal has an inquisitorial role.  I set out the ambit of the inquisitorial role at paragraphs 25 to 40 of my decision in C37/09-10(DLA).  As was noted above, however, it seems to me that the appeal tribunal in the instant case was alert to its duty to inquire whether there was anything additional, by way of evidence or submission, on which the Department intended to rely.  In those circumstances, the appeal tribunal was entitled to rely on the negative response by the Department’s presenting officer.

43.	I have concluded, therefore, that while a mistake of fact giving rise to unfairness is, now, a separate head of challenge in an appeal on a point of law, the Department has not established the ordinary requirements for a finding that an unfairness has arisen.  The Department has not obviated the requirement that there has to be an absence of responsibility for the mistake, on the part of the party, seeking to rely on a mistake of fact, for the mistake itself, including a mistake as to the availability of evidence on a particular matter.

44.	If I am wrong on this point, I also ask whether an appellate body, such as the Social Security Commissioners, should be willing to admit new evidence, only available at the appellate stage, to identify a mistake of fact.  The relevant principles are set out above.  They are to be found in Ladd v Marshall.  The first of those principles was that:

‘The new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing).’

45.	I conclude that, in the instant case, this principle is not met.  The new evidence, on which Mr McGrath relies to identify the mistake of fact, are the two ‘sample’ letters which he appended to the appeal to the Social Security Commissioners.  Mr McGrath, exercising his usual degree of diligence, was able to produce that evidence for use in the proceedings before the Social Security Commissioner.  It seems to me that had the Departmental appeals writer or presenting officer exercised the same degree of diligence then the same evidence could have been obtained for use at the original appeal hearing.

46.	It is important to note that a common ground for seeking leave to appeal to a Social Security Commissioner is that the appellant has adduced new supportive evidence (usually medical evidence) in connection with the issues arising in the appeal.  Self-evidently the new evidence was not before the appeal tribunal.  Where the new evidence post-dates the decision under appeal and cannot be related to the circumstances obtaining in the period over which the tribunal has jurisdiction, leave to appeal will usually be refused on the basis of the principles set out in paragraph 9 of R(DLA) 2/01 and paragraph 8 of C24/03-04(DLA).  Nonetheless, even where the new evidence does relate to the period over which the appeal jurisdiction and was not but could have been produced to the appeal tribunal, leave will usually be refused, with the support of the Department, on the basis of the principle that an appeal tribunal cannot be faulted for failing to take into account evidence which was not before it – see, for example, paragraph 80 of the decision in JAMcC-v-Department for Social Development (II) ([2013] NICom 41, C2/13-14(II)) and paragraph 20 of the decision in HMcL-v-Department for Social Development (DLA) ([2011] NICom 158, C77/10-11(DLA)).

47.	I have noted that Carnwath LJ, at paragraph 91 of E and R, indicated that the principles in Ladd v Marshall could be departed from ‘… in exceptional circumstances where the interests of justice require.’  I do not consider that, in the instant case, there are exceptional circumstances where the interests of justice require a departure from the Ladd v Marshall principles.  In Al-Medhawi, the Court of Appeal refused to depart from those principles in a case involving deportation.  The comments of Lord Bridge at paragraph 901 are apposite:

‘… if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as a ground on which the High Court in the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a "fundamental unfairness," which would justify the exercise of the jurisdiction, and a less than fundamental unfairness, which would not …’

48.	Finally, if I am wrong on either of the points above, I have reviewed the substantive decision of the appeal tribunal in light of the principles relevant to identification of the legal and evidential source of the duty to disclose.

49.	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.

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

‘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.

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.

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.

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.’

51.	In C6/08-09(IB), I said the following, at paragraphs 40 to 42:

	‘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.’

52.	My comments reflect those of Upper Tribunal Judge Lane in DG v Secretary of State for Work & Pensions ([2009] UKUT 120 (AAC)).  At paragraphs 13 to 18 of her decision, she summarised the most recent case-law on the source of the duty to disclose:

‘13.	Section 71(1) of the Social Security Administration Act 1992 clearly entitles the Secretary of State to recover an overpayment which arises as a consequence of a failure to disclose a material fact, however innocent.  The appellant’s return to work was undoubtedly a material fact.

14.	In R(IS)9/06 a Tribunal of Commissioners reconfirmed the established principle that the failure to disclose a material fact under section 71(1) presupposed the existence of a duty to disclose.  However, it rejected the proposition laid down in previous cases, including R(SB)21/82 and R(SB)54/83, that the duty derived from section 71(1) and its breach established by showing that the claimant failed to disclose a material fact where such disclosure was reasonably to be expected.

15.	The Tribunal of Commissioners held instead that the source of the duty was regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, as then formulated, which imposed various obligations to furnish information and notify changes of circumstances.  Regulation 32(1) was amended into its current form from 5 May 2003 by the Social Security and Child Support (Miscellaneous Amendments) Regulations 2003 (SI 2003/1050).  Though the regulation is now laid out in three paragraphs, 32(1), (1A) and (1B), the duties remain essentially similar to those in the previous formulation.  Unsurprisingly, the Tribunal of Commissioners confirmed that their reasoning was equally applicable to the amended form of the regulation.  The reasoning of the Tribunal of Commissioners in R(IS)9/06 was upheld in full by the Court of Appeal in B v Secretary of State for Work and Pensions [2005] EWCA Civ 929. Paragraphs (‘§’) 23, 27, 29 and 42; and also §11 of B v Secretary of State) refer.

16.	It is clear from R(IS)9/06 (§54) and B v Secretary of State for Work and Pensions (§ 36 and 40) that section 71(1) does not include a test that a claimant must reasonably be expected to disclose a material fact (‘the reasonable expectation’ test) before the Secretary of State can recover an overpayment.  The Court of Appeal went so far as to refer to the importation of that test into section 71(1) as incoherent.  R(SB) 21/82 and subsequent cases purporting to impose this test, including R(SB)54/83 upon which decision makers frequently rely, were considered to be wrong.

17.	Although the Tribunal of Commissioners and Court of Appeal in R(IS)9/06 and B v Secretary of State for Work and Pensions were dealing specifically with the scope of what is now regulation 32(1)/(1A), their reasoning is equally applicable to the relationship between section 71(1) and regulation 32(1B).  The test of reasonable expectation is as legally incoherent for regulation 32(1B) as it is for regulations 32(1) and (1A).  Indeed, the implication of this test into section 71(1) overpayments by reference to a breach of the duty in regulation 32(1B) would, in effect, impose a double hurdle on the Secretary of State, who would first have to establish what the claimant might reasonably be expected to know might affect his benefit, and then whether he could reasonably be expected to make a disclosure.  I note that the learned authors of Sweet and Maxwell’s Volume III, Administration, Adjudication and the European Dimension of Social Security Legislation 2008/09 still refer to the reasonable expectation test in their commentary on regulation 32(1B) (§2.187), but they may have overlooked the need consequent on the change in relation to section 71(1) when amending the commentary for regulation 32 of the Claims and Payments Regulations.

18.	I therefore conclude that the gateway duties to recovery are as defined in regulation 32, and it is to those duties that the tribunal must look when deciding if a case for recovery is made out.’

53.	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.’

54.	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.’

55.	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.’

56.	The appeal tribunal concluded that:

‘The respondent has failed to prove on a balance of probabilities that the appellant was informed that he should report changes in his DLA entitlement to the Department or more correctly the Pension Credit Office of the Department.’

57.	That decision is wholly sustainable on the basis of the appeal tribunal’s assessment of the evidence which was before it and in light of the relevant legal principles.  For the reasons which I have set out above, the appeal tribunal was entitled to determine the appeal on the basis of the evidence which was before it.

	Disposal

58.	The decision of the appeal tribunal dated 22 July 2013 is not in error of law.  Accordingly the decision of the appeal tribunal is confirmed.  Although not specifically stated by the appeal tribunal in its decision notice or in its statement of reasons, the effect of its decision is that while there has been an overpayment of PC amounting to £2233.64 for the period from 28 May 2007 to 18 March 2012, that amount is not recoverable from the respondent.

(signed):  K Mullan

Chief Commissioner

18 March 2015