DB-v-Department for Communities (IS) [2017] NICom 43

Decision No:  C5/16-17(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 20 January 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	As will be explained in greater detail below, both parties, through Mr Hatton of the Law Centre (Northern Ireland) on behalf of the appellant, and Mr Smith, of Decision Making Services (DMS), on behalf of the Department, have expressed the view that the decision appealed against was erroneous in point of law.

2.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

3.	I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that in his written observations on the application for leave to appeal, Mr Smith has conceded that in relation to one significant issue arising in the appeal, ‘the Tribunal was not helped in this matter by the Department’s submission or the absence of a Presenting Officer.’ 

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of whether an overpayment of Income Support (IS) has occurred and, if so, the period and amount of that overpayment and whether that overpayment is recoverable from him, remains to be determined by another appeal tribunal. 

5.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

		(i) The decision under appeal is a decision of the Department, dated 18 June 2015, which decided that an overpayment of IS amounting to £1,778.18, for the period from 26 December 2013 to 11 February 2015, had occurred and which was recoverable from the appellant.

		(ii) In his written observations on the original application for leave to appeal, Mr Smith has submitted that the Department will be required to undertake a further decision making process to remedy an error in the decision-making process giving rise to the appeal. It is axiomatic that it is for the Department to undertake that further decision-making process before this case can be referred to a differently constituted tribunal for determination.

		(iii) The Department is directed to prepare a new submission for the further appeal tribunal hearing.  The submission should draw on the detailed submissions made by Mr Smith in his written observations on the application for leave to appeal and in his further written submissions.

		(iv) The new submission must be forwarded to the appellant and Mr Hatton in sufficient time in advance of the appeal tribunal hearing date to permit them to prepare a response.

		(v) The appeal should be listed as an oral hearing and, given the complexity of the evidential issues arising in it, consideration should be given to listing the appeal as the only case in a session.

		(vi) A Presenting Officer from the Department must be in attendance at the oral hearing. 

		(vii) It will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.

		(viii) 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. 

	Background

6.	On 18 June 2015 a decision maker of the Department decided that an overpayment of Income Support amounting to £1,778.18, for the period from 26 December 2013 to 11 February 2015, had occurred and which was recoverable from the appellant.  An appeal against the decision dated 18 June 2015 was received in the Department on 29 June 2015. The decision dated 18 June 2015 was reconsidered on 18 August 2015 but was not changed.  

7.	Following an earlier postponement, the substantive appeal tribunal hearing took place on 20 January 2016.  The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 18 June 2015.

8.	On 10 June 2016 an application for leave to appeal to the Social Security Commissioners was received in the Appeals Service (TAS).  The appellant was represented in the application by Mr Hatton of the Law Centre (Northern Ireland).  On 16 June 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM). 

	Proceedings before the Social Security Commissioner

9.	On 21 July 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 12 August 2016 observations on the application for leave to appeal were requested from Decision Making Services (‘DMS’).  In written observations dated 5 September 2016, Mr Smith, for DMS, supported the application for leave to appeal on certain of the grounds submitted on behalf of the appellant. Written observations were shared with the appellant and Mr Hatton on 5 September 2016.  Written observations in reply were received from Mr Hatton on 5 October 2016 which were shared with Mr Smith on 7 October 2016.  On 20 October 2016 a further submission was received from Mr Smith which was shared with Mr Hatton on 31 October 2016. Further correspondence was received from Mr Hatton on 14 November 2016.

10.	On 22 March 2017 I granted leave to appeal. In granting leave to appeal, I gave, as a reason, that it was arguable that (i) the decision-making process within the Department was flawed (ii) the appeal tribunal did not properly address the question of modification of instruction and (iii) the appeal tribunal’s conclusions with respect to the period of the overpayment were incorrect.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	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.  What is an error of law?

12.	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.” 

	Analysis

13.	In the application for leave to appeal which was received in the Office of the Social Security Commissioners, Mr Hatton made the following submissions on behalf of the appellant:

‘The tribunal made a material error of law by finding that disclosure to the compliance officer was not effective disclosure.  In addition, it is submitted that the tribunal has misapplied the law in this regard.

A compliance officer visited (the appellant) at his home on 14 September 2014.  We understand that he was notified of this visit by letter in advance.  At this visit, the compliance officer enquired about (the appellant’s) benefit entitlement and requested information from (the appellant) regarding paid employment that had not been disclosed to the social security agency.  (The appellant) provided a statement (Tab 9 of the Department’s appeal submission) confirming that he had been working in B&Q and provided payslips regarding this.

An argument was put forward on behalf of (the appellant) at the appeal hearing that the compliance team should have closed his income support award at that time or informed the income support office.  The tribunal rejected this argument on the basis that i) the compliance team do not make decisions on benefit claims and ii) that, relying on Hinchy, the claimant is not entitled to make assumptions about internal communications within different parts of the Department.  The tribunal as a result find that (the appellant) was not entitled to assume that the income support section would automatically become aware of his employment after involvement by the compliance team.

We would respectfully submit however that the tribunal has misapplied the law in this case.  We would respectfully submit that the issue before the tribunal was whether (the appellant) had disclosed the material fact that he was working in accordance with the instructions given to him.  There is no dispute that the instructions indicate that the start of employment is a change in circumstances which would need to be reported.

However, the instructions within the INF4 also contain some information as to who the disclosure should be made to.  The instruction is to "Tell us" and "us" is not defined by the document. The front of the INF4 states "Income Support".  It has the SSA branding top right and further branding under a white line at the bottom of the front page.  Within the document, there is a section entitled "How to tell us about changes".  It then states "Get in touch with your local Social Security or Jobs and Benefits office".  Clearly the instruction requires that the person speaks to a staff member there rather than the physical office.  However we note that the document does not specify any particular staff member that the person should speak to or seek to write to.

In (the appellant’s) case, he was contacted by a compliance officer about a visit regarding his benefits.  We do not yet have a copy of the letter that was sent to him regarding the visit but we are familiar with the letters and they usually confirm that the person carries a card confirming that they are a member of the social security agency.  The letter also advises people to contact them in advance if they had any changes in circumstances they wish to disclose.

When the compliance officer attended at (the appellant’s) house, he was there as a staff member of the social security agency who was there to check details on (the appellant’s) benefit entitlement.  He had information which would have been known only to the SSA and he purported to be a person to whom (the appellant) should make a statement regarding a change of circumstances. 

As a result of the above, we would submit that (the appellant) has made valid disclosure in accordance with the necessary instructions in one of the following ways:

i)	The compliance officer was a staff member of the SSA. (The appellant) has therefore disclosed in accordance with the instructions.  There is no reason why his disclosure should be less effective simply because the staff member happened to be in his house (for the purpose of ascertaining information relating to his claim for a benefit) rather than on the end of a telephone or in a social security office.  As a result he has disclosed in the way required by the instructions.

ii)	In the alternative, if the above is not accepted as being in strict adherence to the INF4 instructions, then we would submit that the actions of the compliance officer have varied the written instructions in the INF4 so as to permit (the appellant) to make effective disclosure to him. In submitting this, our instructions are that the compliance officer expressly stated he was there about (the appellant’s) claim to Income Support, that he took a statement from him regarding a change of circumstances, advised (as acknowledged in the statement) that there may be a potential overpayment and advised that he would make further enquiries with (the appellant’s) employer.  In addition, he did not advise (the appellant) that he needed to disclose separately to the Income Support office.  He also did not indicate that he would need to pass this information to the Income Support. From (the appellant’s) point of view, the information had been disclosed and, pending further enquiries with B&Q there was nothing further for him to do.  As a result of the above, we would submit that the actions of the compliance officer have varied the written instructions to (the appellant) so as to allow disclosure to be made to the compliance officer.

As a result of the above, we submit that the tribunal has erred in law.  The issue was not whether the compliance unit make benefit decisions or whether there was an inter-office communication system in place as in Hinchy but instead, whether (the appellant) had disclosed in accordance with the required instructions.  We would therefore submit that effective disclosure was made on 14 September 2014 and any recoverable overpayment should end at that date.

In the alternative, we would submit that the tribunal has erred in law by finding that any overpayment after 17 December 2014 is recoverable from (the appellant).

The Department confirms in its appeal submission that it received information from the compliance officer on 17 December 2014 which showed that (the appellant) had been working in B&Q along with the statement he provided on 14 September.  However, the Department continued to pay (the appellant) until at least 11 February (being the last date of the overpayment period).

Given that the information had been provided to the Department on 17 December 2014, it is submitted that any payment from that date cannot have been made but for (the appellant’s) failure to disclose.  Even if (the appellant) had disclosed the information on that date, 17 December 2014, the facts of the case show that this benefit would have continued to be paid until at least 11 February 2015.  Any payment after 17 December 2014 is not therefore due to his failure to disclose.’

14.	Mr Smith provided very detailed and constructive written observations on the application for leave to appeal.  As was noted above, the submissions made by him should form the basis of the new submission which the Department is required to prepare for the further appeal tribunal hearing and to which Mr Hatton may respond. Mr Smith’s summary of his observations was as follows:

‘I submit the Tribunal’s decision is in error of law for the following reasons:

a)	The Tribunal, in reaching its decision that the overpayment is recoverable in full, relied on the principle in Hinchey that a claimant is not entitled to assume the existence of infallible channels of communication between one office and another.  However, as noted above, it is possible for an officer of the Department to modify the written instructions supplied to the claimant to the extent that a claimant does not have to do all or part of what they were instructed to do.  Therefore it was incumbent on the Tribunal to ascertain to what extent the Compliance officer modified (the appellant’s) instructions by accepting the information he provided regarding his employment with B&Q and in this respect the Tribunal failed in its duties.  

b)	The Tribunal made an error of judgment when it held that the overpayment was recoverable for the whole period of the overpayment when the Department was in receipt of the full facts on 17.12.14.  Any benefit overpaid after this date is not recoverable because once the Department knows the full facts (the appellant) could not be deemed to have failed to disclose the facts.  On this point I would support (the appellant’s) application for leave to appeal.

c)	The Tribunal failed in its inquisitorial role to properly examine the entitlement decision upon which the overpayment decision was founded. Pursuant to the GB Commissioner’s decision CIS/3228/2003 and the Northern Ireland Commissioner’s decision C008/10-11(IS) the entitlement decision is incomplete and as a consequence Section 69(5A) of the Social Security Administration (NI) Act 1992 has not been satisfied. Therefore the overpayment decision dated 18.06.15 has no legal effect which effectively means that there is no overpayment.

For the reasons noted above I submit the decision of the Tribunal dated 20.01.16 is in error of law.  Therefore I would respectfully ask the Commissioner to admit the Law Centre’s application for leave to appeal on behalf of (the appellant), set the decision of the Tribunal aside and refer the appeal back to a newly constituted appeal in accordance with Article 15(8)(b) of the Social Security (NI) Order 1998. 

Should the Commissioner set the decision of the Tribunal aside, the Department will then have the opportunity to make a valid entitlement decision upon which a new recoverability decision can be founded.  However, before making the new recoverability decision, the decision maker should investigate the circumstances of the interview with the Compliance officer to determine if any modification of instructions occurred and, if so, its effect on (the appellant’s) legal obligations to report the change in his circumstances.’

15.	It is clear, therefore, that both parties have expressed the view that the decision appealed against was erroneous in point of law.

16.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

17.	I have taken into account that both Mr Hatton and Mr Smith have made additional submissions on other matters which are relevant to the issues arising in the appeal.  These matters may be addressed by them both in written and oral submissions to the differently constituted appeal tribunal to which the appeal is referred for determination. 

(signed) K Mullan

Chief Commissioner

22 August 2017