CIS/5131/98
CIS/1148/99

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	These are appeals, brought by the claimant with the leave of a Commissioner, against decisions of the Doncaster social security appeal tribunal dated 26 October 1998 whereby they dismissed his appeals against two decisions of adjudication officers reviewing and revising awards of income support and deciding that the sums of £733.41 in respect of the period from 7 October 1994 to 19 October 1995 and £2,091.68 in respect of the period from 27 October 1995 to 4 December 1997 were recoverable from him.  (It looks as though the Benefits Agency had neglected to pay him any benefit for the week commencing 20 October 1995.)  I held an oral hearing of this appeal at which the claimant appeared in person, with his wife who has been appointed to act on his behalf (although the basis of her appointment is a little obscure), and the Secretary of State was represented by Mr Stephen Cooper of the Office of the Solicitor to the Departments of Social Security and Health.

2.	It is not in dispute that the claimant was in fact overpaid the sums mentioned above.  The overpayments arose because the adjudication officers awarding income support did not take into account the fact that the claimant was in receipt of disablement benefit and reduced earnings allowance at rates that exceeded by a considerable extent the rate at which income support was awarded.  The principal question that arises in these proceedings is whether the tribunal erred in holding the overpayments to be recoverable from the claimant.

3.	However, before I deal with that question, I must consider the claimant’s first ground of appeal against the tribunal’s decision, which is that there was a breach of the rules of natural justice in the proceedings before the tribunal.  The claimant says that the presenting officer appearing on behalf of the adjudication officer was in the tribunal room before he was.  The presenting officer herself does not recall the case but does say that it is her “rigid practice never to enter the appeal tribunal room before an appellant” and that that reflects the Departmental guidance.  The chairman has given a statement to the regional chairman in which she says:-

“…. it may be that the Presenting Officer was in the Tribunal room dealing with an earlier case, but she was certainly not in the Tribunal room before [the claimant] for his case.  The Tribunal was conducted in the presence of both [the claimant] and the presenting officer ….”

The claimant says that there was no-one else there before his case was called on.  However, it is quite possible that there was an earlier hearing for which the relevant claimant failed to appear.  In any event, I am not satisfied that there was any breach of the rules of natural justice.  The claimant conceded that he had no reason to suppose that the presenting officer spoke to the tribunal about his case before he entered the room and it is that that would create a breach of the rules of natural justice rather then the mere presence of the presenting officer alone in the room with the tribunal.  At the hearing before me, the claimant also said that, at the rather abrupt conclusion of the proceedings, the presenting officer and he both left the tribunal room together but she then returned.  However, he conceded that she might have returned merely to get her papers and, again, I am not satisfied that there was a breach of the rules of natural justice.  The burden of proving a breach of the rules of natural justice rests on the claimant.  He submitted that it was for the Secretary of State to show that there was no breach, but I do not agree.  I accept that there may be circumstances that so strongly suggest improper communication between a party and a tribunal that a breach of the rules of natural justice will be presumed unless a clear explanation is forthcoming from that party or the tribunal, but I am not satisfied that this is such a case.  The appearance of fairness is important and the Departmental guidance to which the presenting officer referred reflects good practice, but it does not follow that that there is a breach of the rules of natural justice every time that a presenting officer is seen alone with a tribunal in unexplained circumstances.

4.	I turn, then, to the main question arising on this appeal.  An overpayment is recoverable under section 71 of the Social Security Administration Act 1992 only if it arises due to a misrepresentation as to a material fact or a failure to disclose a material fact on the part of the person from whom recovery is sought.  The claimant says that he and his wife did in fact tell his local office in Goole that he was in receipt of disablement benefit and reduced earnings allowance.  However, the tribunal did not accept that that was so.  An appeal to a Commissioner lies only on a point of law and I am not entitled to interfere with the tribunal’s findings of fact unless there is an error of law.

5.	It was not in dispute that the claimant first claimed income support on a form signed on 2 October 1995, although the claim was treated as having been made a year earlier, on 3 October 1994 and benefit was awarded from 7 October 1994.  The claim seems to have been prompted by the fact that he had been awarded disability living allowance and his wife had been awarded invalid care allowance.  On page 14 of the claim form, the claimant was asked to read a list of benefits and then say whether he was getting any of them.  Inexplicably, despite the comprehensive nature of the list of benefits (which included even war pension), it did not include industrial injuries benefits such as disablement pension or reduced earnings allowance, although the last item on the list was, unhelpfully, “any other social security benefit”.  In any event, the claimant answered “yes” and on the next page he declared his invalidity benefit and disability living allowance and his wife’s child benefit.  That took up the three available spaces but the form told him to mention any other benefits in Part 15 on page 36 and he did not mention the disablement pension or reduced earnings allowance there.  On page 16, he declared his wife’s invalid care allowance.  On page 22, he declared that he had no other money coming in.  On page 37, he declared that the information he had given was “correct and complete”.  The tribunal rejected the claimant’s evidence that he had declared orally that he was in receipt of disablement pension and reduced earnings allowance and been told that they were not relevant.  Such an oral declaration might have been taken to have qualified the answers recorded on the claim form.

6.	Having rejected the evidence that there had been an oral qualification of the answers given on the forms, it was inevitable, subject to one point that I shall consider below, that the tribunal should find that there had been a misrepresentation in each case (although the representation was that the claimant was not receiving disablement pension and reduced earnings allowance and not that he was receiving them as the adjudication officer and tribunal found).  Either the claimant should have realised that disablement pension and reduced earnings allowance were “other” social security benefits within the list on page 15 so that they should have been declared on pages 16 or 36, in which case the misrepresentation lay in the declaration on page 37 that the information given was complete, or else the claimant should have treated the benefits as “other money coming in” and the misrepresentation lay in the answer given on page 22.

7.	On 6 August 1997, the claimant’s wife, acting on his behalf as his appointee, completed a review claim form in the same terms as the original claim form.  If there was a misrepresentation on the original claim form, there was one here as well, as she clearly knew of the disablement pension and reduced earnings allowance.  Because she was acting on behalf of the claimant, the overpayment due to that misrepresentation is recoverable from him.  (It would presumably be recoverable from her as well as from him - although it may be recovered only once - but, in my view, an overpayment should generally be recovered from a claimant rather than an appointee and so it was right for the adjudication officer to make a decision in respect only of the claimant.)

8.	At the beginning of December 1997, the generalised matching service revealed to the income support authorities the fact that the claimant was in receipt of disablement pension.  That is what led to the present proceedings.  The claimant told me that the case was not picked up by data matching but because he was reported to the Benefits Agency by someone.  It is quite possible that such a report did trigger the data matching exercise but I do not consider that that matters.  The more serious question is whether it is significant that such an exercise could have revealed from the outset that the claimant was in receipt of disablement benefit and reduced earnings allowance.  Can there be a misrepresentation by non-disclosure to one person in the Benefits Agency of a fact known to another person in the Benefits Agency ?

9.	Mr Cooper very properly drew my attention to CIS/2498/97 but he submitted that I should not adopt the same approach and that, in any event, CIS/2498/97 was distinguishable from the present case.  In that case, the claimant was awarded income support at a rate that took into account the payment of child benefit.  She then claimed, and was awarded, one-parent benefit but she did not disclose her receipt of the benefit to the Benefits Agency.  She continued to cash her order book, signing the conventional declaration that she had correctly reported any facts that might affect her entitlement to income support.  The tribunal, applying Jones v. Chief Adjudication Officer [1994] 1 W.L.R. 62 (also reported as R(IS) 7/94), decided that there was a misrepresentation whenever the claimant signed that declaration, once she was in receipt of one-parent benefit but had not reported it.  However, the Commissioner said:-

“I do not see how it can be a misrepresentation to fail to tell the Secretary of State something that the Secretary of State already knows.  Of course, I appreciate that the Secretary of State does not have personal knowledge of claims and payments.  However, claims are processed and payments are made on behalf of the Secretary of State, files are kept whether on computer or otherwise, national insurance numbers and other identifying information are recorded, and in those circumstances it is not an appropriate use of the concept of misrepresentation to apply it in the way that the tribunal has applied it.  The Court of Appeal case is to be distinguished because it concerned payments by different Secretaries of State and decisions in relation to failure to disclose (such as R(SB) 15/87) do not apply.”

In CIS/5848/99, a case concerning an alleged failure to disclose a material fact, the Commissioner said:-

“22. 	….  The normal position under the general law is that actual knowledge on the part of a large organisation such as a business or a government department is established by the due submission of information in written form to any relevant arm of that organisation, without there having to be repeated separate acts of ‘disclosure’ to each other arm that is or may be concerned with the same piece of knowledge.

23.	I do not for my part find it obvious why any different principle should now apply in determining whether multiple or repeated notifications of the same information, to different people all acting in the same name and on behalf of the same Secretary of State should be held to be necessary before the Secretary of State can be said to have knowledge of that information for the purposes of s. 71.  Particularly now that the operations of the department and indeed government itself are being made increasingly monolithic, and with the enormous advances over the last twenty years in systems for the storage and rapid retrieval and dissemination of information without the need for separate pieces of paper to be carried between offices, it seems to me that the answers to what is ‘reasonably to be required of the claimant’ in any particular case must reflect current, not past, conditions.”

It seems to me that there are indeed many circumstances in which a claimant may properly assume that one part of the Benefits Agency has access to information supplied to another part and that one part knows of benefits awarded by another.  A person cannot “disclose” to a person what is already known to that person and cannot be expected to disclose what he or she reasonably believes to be already known.

10.	However, it is to be borne in mind that section 71 does not provide that only misrepresentations to the Secretary of State, or failures to disclose to the Secretary of State, may be material.  Even a  misrepresentation to a Post Office clerk may be material (CG/662/98, CG/1567/98 and CG/2112/98) and the conventional approach in relation to disclosure to the Benefits Agency is that it must be made in a manner calculated to come to the attention of those officials actually dealing with the relevant claim (R(SB) 15/87).  Plainly, increasing use of computers may make it reasonable for a claimant to believe that information is available to, and will be obtained by, those officials in situations where that might not have been a reasonable belief in the past and I therefore agree with what was said in paragraph 23 of CIS/5848/99.  This may be of particular relevance when consideration is being given to the duty to make casual disclosure of changes of entitlement to other benefits or to the scope of a representation that relevant information has been correctly reported.  (Indeed, it is at least arguable that, on a true analysis of Jones and of the duty to disclose, there can be no misrepresentation when a claimant says that he or she has correctly reported all material facts unless disclosure of those facts was reasonably to be expected.)  On that basis, CIS/2498/97 can be distinguished from the present case and it is unnecessary for me to consider whether, on the facts of that case, I would have reached the same conclusion as the Commissioner did.

11.	The present case is different because here the claimant and his wife were specifically asked to give complete answers to specific questions asking them what social security benefits the claimant was getting and what other income he had coming in.  In those circumstances, even a reasonable belief that the relevant officials had access to that information on computer could not have justified failing to answer the questions properly.  It is notorious that information held on computers can be inaccurate and out-of-date and, even when computers are used, the Benefits Agency is perfectly entitled to ask claimants for the same information for the purpose of a cross-check.  The claimant does not actually suggest that he relied upon such a belief because his case before the tribunal was that he and his wife had in fact mentioned the benefits orally and were told they were irrelevant but, as I have said, the tribunal rejected the evidence to that effect.  In the light of that finding by the tribunal, it must follow that there was a clear duty on the claimant and his wife to answer the material questions accurately and fully and there were misrepresentations when they did not do so and then signed the standard declarations.  Even if the Benefits Agency was at fault in not making better use of computers – as to which I make no finding – and that was one cause of the overpayments, the misrepresentations by the claimant and his wife were another cause of the overpayments (Duggan v. Chief Adjudication Officer, reported as an appendix to R(SB) 13/89).  Accordingly, the tribunal did not err in law in holding that the overpayments were recoverable from the claimant.

12.	I dismiss the claimant’s appeals.

M. ROWLAND
Commissioner
25 October 2000
(corrected, 16 January 2001)