DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Reference:	CIS/1769/1999

1.	I allow the claimant’s appeal against the decision of the social security appeal tribunal held on 24 July 1998 on the grounds that that decision is erroneous in law:  accordingly I set it aside.  This does not, however, assist the claimant, since I consider that I can, on the evidence that was before that tribunal and on the evidence that was given to me, make sufficient findings of fact to substitute my own decision, which is to the same effect as that of the tribunal, namely, that an amount of £12,235.92 is recoverable from the claimant in respect of overpayment of income support.

2.	The claimant is a married man born in 1948.  He has two children, respectively born in 1981 and 1984.  For some years prior to 1988 he worked as a charity volunteer worker and was in receipt of supplementary benefit.  He suffered an attack of adult whooping cough in November 1986.  Though he recovered from the acute stage of this infection in early 1987, he developed a complex of other symptoms which are described in the papers as post viral fatigue syndrome, mild myalgic encephalomyelitis, and chronic fatigue syndrome.

3.	In April 1988 the claimant completed a claim form for sickness benefit:  his claim was disallowed on the grounds that he had an insufficient contributions record.  He then applied for income support in May 1988 on a form completed by his wife but signed by himself.  Income support was awarded from May 1998.  The claimant’s wife started remunerative work on 17 February 1989 as a temporary medical secretary at a hospital:  she found this employment through an employment agency.  She continued in this employment until 5 April 1991.  She took another job as a teacher on 7 June 1991 which continued until some time in October 1991.

4.	As a result of the discovery of the wife’s employment an adjudication officer issued the following decision, which is the decision under appeal, on 5 March 1993.

	“On 13.1.92 I reviewed an award of income support and on that date decided that the resulting overpayment was recoverable.  I have reviewed that decision where it applies to the determination of the overpayment and its recoverability.  I am satisfied that the decision was based on a mistake as to a material fact.  My revised decision for the period from 1.3.89 to 7.3.89 (both dates included) is that the claimant is entitled to reduced amount of income support.  From 8.3.89 to 16.4.91 and from 7.6.91 to 15.10.91 (all dates included) the claimant is not entitled to income support.  As a result an overpayment of income support has been made from 1.3.89 to 15.10.91 (both dates included) amounting to £12,247.71.  On 3.3.89 or as soon as practicable afterwards [the claimant] failed to disclose the material fact that his wife was in receipt of earnings from [name].  On 7.6.91 or as soon as practicable afterwards, [the claimant] failed to disclose the material fact that his wife was in remunerative employment with [name].  As a consequence income support amounting to £12,247.71 from 1.3.89 to 15.10.91 (both dates included) as detailed below was paid which should not have been paid but for the failure to disclose.  Accordingly that amount is recoverable from [the claimant].”

5.	The claimant appealed that decision.  A social security appeal tribunal held on 18 July 1995 decided that the overpaid amount of £12,235.92 was recoverable from the claimant.  (The discrepancy between that figure and the amount of £12,247.71 is due to the tribunal accepting the results of a recalculation made by the claimant’s representative.  This lower figure has subsequently been agreed as correct).  The claimant appealed the decision of the 1995 tribunal with the leave of the Commissioner.  The Commissioner allowed the claimant’s appeal, essentially on two grounds, namely that the tribunal had failed to make any, or any sufficient, record of proceedings and that the tribunal had failed to determine whether it was reasonable for the claimant to hold the belief (which he asserted) that he was in receipt of not income support but sickness or invalidity benefit.  The Commissioner directed the new tribunal how it should deal with any submission to the effect that the claimant’s mental state was such that there could be no “failure” on his part to disclose the material fact of his wife’s earnings within the meaning of “failure” in Section 71 of the Social Security Administration Act 1992.  I shall have to return later in this decision to the terms of the Commissioner’s direction.

6.	The newly constituted tribunal reheard the claimant’s appeal on 24 July 1998.  It disallowed the claimant’s appeal and held that the overpaid amount of £12,235.92 was recoverable from the claimant.  The claimant appeals with the leave of the Commissioner.

7.	An oral hearing of the appeal was directed by a Commissioner.  At the same time he asked for submissions and observations on whether any sum might be recoverable on the ground of misrepresentation and whether the Secretary of State (who has succeeded to the functions of the adjudication officer) could rely before the Commissioner on fresh evidence directed towards the issue of misrepresentation.

8.	I held an oral hearing of the appeal on 5 July and 2 October 2000.  On both days the claimant and his wife were present:  the claimant was represented by Mr Stagg of Counsel instructed through the agency of the Free Representation Unit.  The Secretary of State was represented by Miss Powick of the Office of the Solicitor to the Department of Social Security.  I am grateful to both Mr Stagg and Miss Powick for their submissions.

9.	The first issue that arises is whether the 1998 tribunal erred in law.  In my judgment, as submitted by Mr Stagg in his first ground of appeal, it did so err, inasmuch as it failed to deal with certain evidence given by the claimant.  Miss Powick did not really seek to argue to the contrary.  In its statement of material facts and reasons at paragraph 7 the tribunal concluded

	“Considering all the facts and evidence in the case, we have reached the conclusion that disclosure of the fact that his wife was working was reasonably to be expected of someone in [the claimant’s] circumstances and considered that he failed to disclose that fact.  A subsidiary issue was raised at how that disclosure might be communicated to the Department, bearing in mind his illness.  We can see no reason why [the claimant] could not have telephoned in his better moments or why he could not have asked his wife to do so.”

Previously, in paragraph 4 of the statement, the tribunal had stated that the claimant himself acknowledged there were periods most days, albeit short periods, when his illness lifted.  Mr Stagg’s note of evidence of the proceedings at the tribunal was to the effect that the claimant had said that he was fully “compos” for about five minutes once a month, that this usually happened late at night, and that the claimant during these periods confined himself to simple thoughts.  This evidence was not recorded in the record of the proceedings made by the tribunal.  I consider, at the very least, that it should have been recorded, referred to in the statement, and if it was to be dismissed, reasons given for its dismissal.  I recognise that a chairman of a tribunal is not bound to take a verbatim note of everything that is said, but the note must record everything of substance, and if evidence is given which substantially bears on the way in which the claimant puts his case it is necessary not only that that evidence should be summarily recorded, but also that it be dealt with in the tribunal’s decision.  In my judgment the failure in the present case to deal with the claimant’s evidence referred to above does not fall within that category of cases where the failure is of no materiality to the decision arrived at.  For this reason I consider that the tribunal fell into error and I accordingly set the decision aside.

10.	At the hearing on 5 July I indicated that I was likely to take the course set out in the preceding paragraph and further indicated that, rather than remit this matter to a new tribunal (which, under the provisions of the Social Security Act 1998 and the Decisions and Appeal Regulations 1999 would have been constituted by a single legally qualified chairman with no lay representation), I would decide the matter myself, taking new evidence if necessary.  The case was then adjourned so that the Secretary of State could address certain further material which had not been received and also deal with certain arguments that Mr Stagg wished to raise on the question of misrepresentation, which included arguments raising human rights issues.

11.	At the adjourned hearing Miss Powick indicated that the Secretary of State no longer wished to pursue any recovery of overpayment based on misrepresentation, as opposed to recovery based on failure to disclose a material fact.  Although the Commissioner’s jurisdiction is inquisitorial, this does not mean that the Commissioner is obliged to pursue an issue which the Secretary of State has decided, whether as a matter of discretion or of policy, not to pursue:  accordingly, notwithstanding quite extensive written submissions on the issue, questions of misrepresentation no longer arise and I do not deal with them.

12.	At the hearing on 2 October the claimant gave evidence and was cross examined by Miss Powick.  He also answered a few questions from myself.  Before, however, I turn to the evidence (both that given by the claimant and that already within the papers), it is necessary to consider the issues of law that arise.

13.	The statutory right of recovery of overpayments of benefit arises under Section 71(1) of the Social Security Administration Act 1992 which provides

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

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

		...

	the Secretary of State shall be entitled to recover the amount of any payments which he would not have made ... but for the misrepresentation or failure to disclose”

(Section 71(11)(d) applies Section 71 to income support).  It is not in dispute in the present case that the claimant at all material times knew that his wife was working and was earning.  It is further not in dispute that the claimant knew that he was in receipt of benefit.  It is also settled by the decision of the Court of Appeal in Page v. the Chief Adjudication Officer (to be found as an Appendix to R(SB) 2/92 - decided on the statutory predecessor to Section 71) that innocent failure to disclose falls within the scope of Section 71(1).  What is in dispute in the present case is whether and, if so, to what extent the claimant’s illness could be taken into account in considering whether or not there had been a failure to disclose on his part.

14.	The clearest explanation of what is meant by “failure to disclose” is to be found in paragraph 4(2) of the decision of the Commissioner in R(SB) 21/82 – a decision which has consistently been followed by other Commissioners (including a Tribunal of Commissioners in R(SB) 15/87 at paragraph 26).  In that paragraph the Commissioner stated

	“In my judgment ‘any person’ is quite clearly to be taken in its ordinary sense and extends to any person whatsoever – provided that it is he or she who has made the material misrepresentation or failed to make the material disclosure; but whilst the concept of making or not making a misrepresentation needs no explanation or refinement, I consider that a ‘failure’ to disclose necessarily imports the concept of some breach of obligation, moral or legal – i.e. the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected ...”

(I here interject that I accept the submission made by Miss Powick that the reference at the end of the passage cited to “the person in question” was not intended to address the issue whether personal characteristics were, or were not, to be taken into account:  the words were clearly used as a shorthand for identifying the person responsible for the non-disclosure).

15.	In R(A) 1/95 the Commissioner considered whether or not mental capacity of the claimant could be taken into account when considering the question of failure to disclose.  In that case a claimant, who was in receipt of attendance allowance in respect of his disabled son, had failed to disclose that the son was living in a local authority residential home.  The submission was made to the Commissioner that the claimant’s mental state at the relevant time was such that he could not reasonably have been expected to know that he should report that his son was under local authority care.  The Commissioner cited the passage from R(SB) 21/82 which I have cited above and then continued, in paragraph 6 of his decision, as follows:-

	“[The claimant’s representative] said everything that could possibly be said on behalf of the claimant but I consider that her argument was ill-founded.  In paragraph 4(2) of his decision [in R(SB) 21/82] the Commissioner was concerned with what it was reasonable for the Department to expect of the claimant and he was not suggesting that the personal characteristics of the claimant were relevant.  It is true that at paragraph 19(2) of his decision the Commissioner said the tribunal should have considered whether:

		“If and insofar as there was any non-disclosure by the Mother, could it be held a ‘failure’ to disclose having regard to the medical evidence as to her mental capacity?”

	However it seems to me that the explanation for the reference to mental capacity is that a claimant’s mental capacity may not only be relevant to his or her ability to understand whether a fact is material but may be also relevant to the question whether he [or] she ever knew that fact.  In Joel v. Law Union and Crown Insurance Company [1908] 2KB 863, which is a case arising in the field of general insurance law where a failure to disclose a material fact may make an insurance contract voidable, Fletcher Moulton LJ said at page 884:

		“The duty is a duty to disclose, and you cannot disclose what you do not know.  The obligation to disclose, therefore, necessarily depends on the knowledge you possess.  I must not be mis-understood.  Your opinion of the materiality of that knowledge is of no moment.  If a reasonable man would have recognised that it was material to disclose the knowledge in question, it is no excuse that you did not recognise it to be so.  But the question always is, Was the knowledge you possess such that you ought to have disclosed it?”

	That is the approach that I have always understood to have been adopted in social security law.  Thus mental capacity of a claimant must be considered by a tribunal if it is relevant to the question whether or not the claimant knew the material fact;  however, once knowledge has been established, the claimant’s mental capacity ceases to be relevant.  Unless there is a question as to the claimant’s knowledge of the material fact, an adjudication officer or a tribunal considering whether disclosure by the claimant was reasonably to be expected will usually focus on the clarity and circumstances surrounding the instructions or request for information which the adjudication officer claims gave rise to the claimant’s obligation to disclose.  Those matters are relevant to the question of whether “a reasonable man would have recognised that it was material to disclose the knowledge in question”.

Miss Powick relied upon this decision and submitted that I should follow it, subject to the qualification that disclosure should be shown to be, or made as soon as, “reasonably practicable”:  in the written submissions on behalf of the Secretary of State the example was given of a claimant who acquired knowledge of a material fact, but very shortly thereafter became unable to disclose it for a period because of some wholly disabling illness.

16.	The decision in R(A) 1/95 was raised before the Commissioner who decided the earlier appeal in this case (CIS/12032/96).  In paragraph 16 of his decision he stated as follows:

	“I received detailed oral legal argument from [the parties’ representatives] on the extent to which, if at all, a claimant’s mental state could show that there was no ‘failure’ to disclose.  Among Commissioner’s decisions cited to me were R(SB) 21/82, paragraph 4(2), 13(1) and 19(5), R(SB) 40/84, paragraph 11(1) and Appendix paragraph 1 and CA/303/92 to be reported as R(A) 1/95.  Insofar as the last of those decisions appears to state that mental state is never relevant to failure, then I consider that it is inconsistent with the earlier reported decisions, one of which (R(SB) 40/84) does not appear to have been cited to the Commissioner.  However, insofar as the earlier reported decisions do admit the relevance of mental state to ‘failure’ to disclose, I conclude, after a close examination of them, that such state is only relevant where it renders the claimant wholly incapable of appreciating the need to disclose the material fact which he knows (see e.g. R(SB) 21/82 paragraph 13(1) – psychotic chronic schizophrenia and R(SB) 40/84 – possible senility of 80 year old).  Anything less will not suffice.  I leave it to the new tribunal to decide whether the claimant’s own medical evidence in this case shows such a state of mind.  Clearly, cogent evidence is needed, when the non-disclosure was of a comparatively elementary fact, not a esoteric one.”  

17.	Mr Stagg’s first submission was to the effect that by virtue of either Section 60(1) of the Social Security Administration Act 1992 or Section 17(1) of the Social Security Act 1998 I was bound to adopt the direction given by the Commissioner in the passage just cited.  The sections referred to provide that a decision on any claim or question in accordance with the provisions of the relevant Act shall be final.  Mr Stagg submitted that the decision of the Commissioner on the appeal from the 1995 tribunal had not itself been appealed.  That decision was accordingly final and therefore it was binding on me.  He submitted that the Commissioner’s direction in paragraph 16 was “a decision on a question” within the sections cited.  In my judgment this submission is wrong.  The words “claim or question” in the sections clearly refer to either a decision on a claim for benefit or a decision on a question such as a question as to capacity for work or the recoverability of an overpayment.  The Commissioner on the appeal from the 1995 tribunal decided neither a claim nor a question in the sense just mentioned:  he remitted the matter to a newly constituted tribunal.

18.	Mr Stagg further submitted that the doctrine of “res judicata“ applied.  It cannot:  there is no matter upon which a final judgment has yet been given in this case.

19.	That said, if the appeal before me had been solely on the footing that the 1998 tribunal erred in law in following the decision of the Commissioner given on the appeal from the 1995 tribunal, I would not have acceded to any such submission since the 1998 tribunal cannot have erred in law by following an express direction from its own appellate body.  However, if as is the present case, the appeal from the 1998 tribunal is on other grounds, and its decision is set aside on one of those other grounds, then in my judgment I am free to approach the decision of the Commissioner on the appeal from the 1995 tribunal in the same manner as I would approach the considered decision of a Commissioner in another claimant’s case.

20.	R(A) 1/95 is a reported decision.  This indicates that it carried the assent of the majority of the then Commissioners.  I am aware that CIS/12032/1996, although put forward for reporting has not in fact been selected for reporting. It would normally be expected that I should follow R(A) 1/95.  However, after careful consideration, I am satisfied that it would be wrong to take this course.  First, as regards the citation by the Commissioner in R(A) 1/95 of the passage from Joel v. Law Union Crown Insurance Company, although the first proposition contained in that passage, namely, that you cannot disclose what you do not know clearly applies in social security law (see, for example, R v. Medical Appeal Tribunal, ex parte Hubble 1958 2  Q.B.228), I am not satisfied that the second proposition, namely, that if a reasonable man should have recognised that it was material to disclose the knowledge in question, it is no excuse that the claimant did not recognise it to be so, has been so accepted.  Joel‘s case was concerned with non-disclosure for the purpose of a contract of insurance:  the Tribunal of Commissioners commented in paragraph 26 of R(SB) 15/87 that the statutory language under consideration for the purposes of social security is not non-disclosure, but “failure to disclose”;  and the only other reliance which I could find in social security law on this passage from Joel‘s case was in the unreported decision of the Commissioner (who also decided CIS/12032/96) in CF/26/90.  Secondly, I am far from certain that the Commissioner in paragraph 19(5) of R(SB) 21/82 was saying that a claimant’s mental capacity was not relevant to his or her ability to understand whether a fact is material:  the same Commissioner in R(SB) 40/84, at paragraph 1 of the Appendix, seems to have accepted that mental capacity could be of relevance on the question of a claimant recognising the obligation to disclose material facts.  Thirdly – and perhaps most importantly – the qualification made by Miss Powick on behalf of the Secretary of State, namely that questions of reasonable practicability should be taken into account, in my judgment recognises that the test propounded by the Commissioner in R(A) 1/95 is too stringent.  If the claimant’s physical ability to disclose a material fact which he knows is to be taken into account – for example when he is seriously ill in hospital – in my judgment any other circumstances which might also affect his ability to disclose should also be taken into account; and I can see no reason why those other circumstances should not include the claimant’s mental state.

21.	This does not, however, mean that the claimant’s own subjective analysis of whether disclosure should be made is the right test.  The test is still objective.  In the words of the Commissioner in CSB/957/1987 (which does not appear to have been cited to the Commissioner in R(A) 1/95):

	“The relevant test is not what a reasonable man in the shoes of a particular claimant would have thought it appropriate to disclose, but what a reasonable man knowing the particular circumstances of the claimant would have expected him to disclose”  (my added emphasis)

In that case the Commissioner went on to state that the tribunal

	“should in my opinion should have considered the medical evidence about his medical condition and also all other evidence relevant to his awareness of responsibility for disclosure including evidence as to how he actually behaved before, during and after the period in issue”.

I agree.

22.	I recognise that the formulation given by the Commissioner in the decision last cited differs from that given by the Commissioner in CIS/12032/1996 (the previous appeal in this case), where the Commissioner indicated that mental state is only relevant where it renders the claimant wholly incapable of appreciating the need to disclose the material fact which he knows.  I prefer the formulation in CSB/957/1987 on the grounds that it leaves the question open, for each individual case, as to what disclosure may be reasonably expected given the circumstances of each particular claimant.

23.	I now turn to the evidence in this case.  There is no dispute that the claimant, when he received the order book for the period from 2 November 1988 (which order book would have covered a period through until May 1989), received a covering letter dated 4 November 1988 which stated

	“The issue of this book in no way affects the position that benefit is payable only so long as you remain incapable of work.  You should return the book to me at once if you become fit for work or if there is any change in your circumstances or those of your dependants which affects your right to benefit.  These changes are explained in the coloured pages at the back of the order book and it is important that you should read them before cashing any orders.  If after reading them you are still in any doubt, please get in touch with me.”

The order book itself, under the heading “CHANGES WHICH YOU MUST REPORT” contained the paragraph

	“You must not cash any more orders in this book but must return it and report the facts fully to your local Social Security Office on form A9 (OR) at once in any of the following circumstances:-

		If you or your partner intend doing ANY work, you should first report the facts to your local Social Security Office ...”

24.	The claimant gave evidence that, during the period in question, namely, from February 1989 through to October 1991 his condition varied in severity from day to day and that he was sometimes in bed for all of the day and sometimes out of it for a short period.  He said that his reading ability fluctuated but was for the most part generally poor.  He might be able to read a paragraph or two of a light novel that he had previously read, but he could not read a newspaper and rarely attempted to do so.  He recalled trying to read the directions in the order book, but found them entirely incomprehensible.  He said that he had moments of lucidity for about 5 minutes once a week, invariably late at night.  During those moments of lucidity he realised “the full horror that he didn’t have a brain during the rest of the day” and said he became emotional and talked to his wife about matters of relationship, rather than anything else.  Outside his “lucid” periods he stated that he was aware that he was receiving state benefit and that he was also aware the entire time that his family was desperately short of money.  He was referred to various passages in the documentation received by him from the Department:  he said that, insofar as he thought about benefit matters, he understood those passages as meaning that he was on a sickness benefit, rather than on any other form of benefit;  he also pointed out that his benefit was paid from the sickness benefit office in Glasgow.  Since he was under the impression that he was getting a benefit awarded for illness, he thought that the only circumstances which were relevant were the facts that he was not working and ill and that it was a matter of entitlement (like child benefit), to which the circumstances of any other member of his family were irrelevant.

25.	In answer to questions from Miss Powick the claimant stated that he found the documentation received from the Department incomprehensible.  He said that he had not sought any clarification of it and that it did not occur to him at the time to seek any clarification.  I asked him whether he had discussed the material with his wife.  He stated that he could not recall doing so, but that he might have done so:  he candidly said that logic led him to say that he would have done.  In answer to further questions from myself, he admitted, by reference to the record of an interview he had had with an officer of the Department in November 1991, that he had signed claim forms for housing benefit and community charge benefit on 15 March 1989, 25 January 1990, 3 September 1990 and 10 April 1991.

26.	I asked Mr Stagg whether he wished the claimant’s wife to give evidence before me.  He indicated that he did not.  Accordingly I did not have the assistance of her evidence.  However, she had given evidence to the 1998 tribunal to the effect that there was no discussion about money or benefits between her and her husband and that her husband had not asked her to help him understand the documents from the Department. She had also given evidence to the effect that, although her husband occasionally did so, it was mainly she who actually collected the benefit.  She also had stated that two consultant physician’s reports (to which I shall turn next) were a fair reflection of the claimant’s state of health.

27.	In evidence before the 1998 tribunal and myself were two consultant’s reports respectively dated 19 July 1993 and 16 June 1998:  the second report was prepared in answer to certain specific questions put to the consultant.  The consultant saw the claimant first in February 1988:  during the period from March 1989 to October 1991 he saw the claimant at approximately six-monthly intervals, the first being on 6 March 1989.  In his first report, the consultant described the claimant as having a complex of symptoms characteristic of post viral fatigue syndrome, the principle features being a continuing sensation of lethargy and fatigue, exercise-induced malaise, and a range of cognitive disturbances such as short-term memory impairment, a reduction in powers of mental concentration, often with severely reduced attention span together with an increased tendency to emotional lability.  During the period from March 1989 to October 1991 the consultant stated that the claimant was still severely affected by his post viral fatigue syndrome.  He stated that the cognitive disturbances of loss of short term memory and occasional complete lack of powers of mental concentration were evident during the period.  He stated that claimant’s illness would have affected his ability to understand the complexities of the social security benefits system.

28.	In the 1998 report the consultant (who was then asked to consider some of the documentation which had been sent to the claimant by the Department, with the most relevant parts highlighted) stated:-

	(a)	in answer to a question whether the claimant would have been “totally incapable” of reasoning in relation to the fact that his wife was working, that this was an extreme term to use, but that the claimant was impaired in his ability to reason that because his wife was working the fact had relevance in relation to the benefit he was claiming;

	(b)	that there would have been times during the relevant period when the claimant’s powers of reasoning would have been sufficient for him to understand the principle that he should have informed the Department that his wife was working, but that it would have been a separate matter altogether for the claimant actually to have acted upon this understanding and for him to have informed the Department of the fact; and

	(c)	that, having considered the documentation supplied, he thought it was likely that the claimant would have been able to read the notes and understand what they meant; however, that the crux of the matter was whether the claimant’s unreliable short-term memory would have enabled him to record this information for him to be able to act on later; and that, if the highlighted requests for information (requiring disclosure) had been buried in a large amount of other information concerning benefits, the claimant’s powers of mental concentration would not have permitted him to perceive the relevance of the parts which had been highlighted.

The consultant’s evidence was not challenged.

29.	Mr Stagg, on behalf of the claimant, submitted that the claimant could not because of his mental state reasonably be expected to make disclosure.  The moments of lucidity to which the claimant admitted were of such a nature and of such brevity that it could not be reasonably expected that the claimant should then turn his mind to social security matters.  As regards the rest of the time Mr Stagg submitted that the evidence showed that the claimant was at no time in a fit state to act upon any appreciation that he might momentarily have had of the potential relevance of his wife being at work. He further submitted that the documentation, including its references to sickness and incapacity for work demonstrated that it was reasonable for the claimant to believe that he was being paid benefit in respect of sickness and that it was further reasonable for the claimant to assume that this benefit was personal to him and him alone.  He finally submitted that the obligation to disclose was that of the claimant and not that of the claimant’s wife; and that since the claimant could not reasonably be expected to understand or act upon the information and documentation sent to him by the Department, it was not reasonable for him to be expected to seek assistance.

30.	Miss Powick urged me that the proper test was that set out by the Commissioner in R(A) 1/95 and that I should find, on the facts of this case, that it was reasonably practicable for the claimant to obtain assistance from his wife and to make, through her, the necessary enquiries as to the true position.

31.	The question I have to answer, on the conclusion of law that I have come to, is whether disclosure could reasonably be expected of a person in the circumstances of this claimant.  There is no question but that the obligation to disclose was clearly set out by the Department.  Having considered the evidence, I find that disclosure was reasonably to be expected of this claimant.  I accept that the claimant during the brief moments of total lucidity which he explained could not be expected to turn his mind to social security matters.  However, even allowing for his impaired mental state during the rest of the time (as described by his consultant) and for his greatly limited powers of concentration and comprehension, I am in no doubt that the claimant understood that he was receiving benefit and that he was receiving information from the Department.  He had, during the relevant period, shown himself capable of signing forms for claiming other benefits.  He had also on occasions been able to go out and collect his own benefit.  I find that it was not reasonable for him to act on his own misguided assumption as to the nature of the benefit he was receiving.  If he was confused, as he stated he was, as to the import of documentation that he received from the Department, he should not have attempted to resolve that confusion himself, but should have sought assistance.  This is not a case where the claimant was living by himself and was bereft of assistance.  He had a wife whom he could have used to make enquiries on his behalf.  The letter of 4 November 1988 clearly demonstrated that if he was in any doubt he should make enquiry.  The use of his wife to help him does not, in my judgment, constitute a shifting of the burden of disclosure from the claimant to the claimant’s wife.  Rather it is to be regarded as a substitute means of making the personal, written or telephone enquiry that a fully mentally fit claimant would have been able to make.  I do not consider that it was reasonable for the claimant to rely on his own mistaken view as to the nature of his benefit he was receiving, without at least seeking confirmation that his assumption was correct.  I consider that the ten day period that passed between the claimant’s wife first starting work and the commencement of the period of overpayment was long enough for disclosure to have been made, given that the commencement date of the employment was likely to have been known for a few days beforehand.

32.	For the sake of completeness, I should add that if I am wrong on the law and the test is as set out in R(A) 1/95, then I am satisfied that, since the claimant was aware of the material fact that his wife was working and since the obligation to disclose had been made out with clarity, his non-disclosure of the material fact amounted to a failure to disclose within that decision.  If, on the other hand, the test is as set out by the Commissioner in the previous appeal in this case, I find, on the evidence of the consultant referred to in paragraph 28 above, that the claimant was not wholly incapable of appreciating the relevance of the fact that his wife was working.

33.	Accordingly, although this appeal is allowed, my substituted decision is adverse to the claimant and as set out in paragraph 1 above.

					(Signed)	A Lloyd-Davies
							Commissioner

					(Date)	13 November 2000