CIS/756/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal in part.  I set aside the decision of the Harlow appeal tribunal dated 30 June 2000 and I substitute my own decision for that of the tribunal.  £331.96 supplementary benefit in respect of the period from 26 February 1987 to 14 May 1987 is recoverable from the claimant under either section 12 of the Supplementary Benefit Act 1976 or section 74 of the Social Security Administration Act 1992.  Supplementary benefit and income support has been overpaid to the claimant from 15 May 1987 to 1 August 1999 and the overpayment from 13 February 1990 to 1 March 1996 is recoverable from the claimant under section 71 of the 1992 Act.  The amount of the recoverable overpayment is to be agreed between the claimant and the Benefits Agency, failing which this case is to be restored before me or another Commissioner.

REASONS

2.	The primary facts of this case appear not to be in dispute.  The claimant is a married man and has at all material times been living with his wife.  He claimed supplementary benefit from 3 February 1987.  He said on his claim form that his wife was getting SDA “at present being re-assessed”.  In fact, her claim for severe disablement was treated as being in the alternative a claim for sickness benefit and, as she satisfied the relevant contribution conditions, sickness benefit was awarded to her.  A payment of £331.96 arrears was made on 19 May 1987.  Sickness benefit was replaced in due course by invalidity benefit and then incapacity benefit.  The claimant did not mention the award of sickness benefit to the supplementary benefit authorities.  Supplementary benefit itself was replaced by income support in 1988.  On 12 February 1990, the claimant completed a review form, answering “no” to the question whether he or his partner were getting any benefits.  His claim for income support appears to have come to an end in May 1991.  After a period abroad, he made a new claim from 27 March 1992.  This time he answered “yes” to the question on the claim form as to whether he or his partner had claimed or were getting any benefits and he declared a claim or receipt of invalid care allowance in his name and mobility allowance for his wife.  There is no evidence that he did ever receive invalid care allowance, although he appears to have been advised to claim it when he reclaimed income support in 1992.  He did not mention incapacity benefit.  On 23 February 1996, he completed another income support review form and this time he declared that his wife was in receipt of incapacity benefit and disability living allowance.  Despite being given that information, the Benefits Agency gaily continued to pay income support until 1 August 1999 without taking account of the claimant’s wife’s incapacity benefit.

3.	In September 1999, an adjudication officer reviewed the awards of supplementary benefit and income support and decided there had been a recoverable overpayment.  The claimant appealed.  Before the tribunal, the Secretary of State, who had taken over the adjudication officer’s functions, argued that £357 supplementary benefit was recoverable from the claimant under section 74 of the 1992 Act in respect of the period from 26 February 1987 to 14 May 1987 and that £23,382.77 had been overpaid and was recoverable form the claimant from 20 February 1987 to 1 March 1996.  According to the decision notice, the tribunal decided that £23,382.77 in respect of the period from 19 May 1987 to 1 March 1996 was recoverable form the claimant, on the ground that he had failed to disclose the fact that his wife was in receipt of sickness, invalidity and incapacity benefit and had also made material misrepresentations.  In the statement of reasons, the tribunal also held that £357 was recoverable under section 74 in respect of the period from 26 February 1987 to 2 April 1987.  The claimant now appeals with the leave of a Commissioner.

4.	The Secretary of State now concedes that the tribunal may have been confused by the written submissions of the adjudication officer and that she was not helped by the all too familiar failure of the Benefits Agency to send a presenting officer to the hearing, despite the large amount of public money at stake.

5.	The Secretary of State also concedes that the tribunal’s decision is erroneous in point of law.  The discrepancy between the decision notice and the statement of reasons would be a sufficient ground.

6.	It is further submitted that the tribunal erred in respect of the recovery under section 74.  That right arose because the arrears of sickness benefit were paid to the claimant’s wife and it is rightly submitted that the evidence in the papers shows that the amount recoverable under that head is only £331. 96.  It is further submitted, on the authority of CSB/1204/88, that the relevant provision was section 12 of the 1976 Act and not section 74 of the 1992 Act.  It does not seem to me to matter which of those powers is relevant.  The claimant argues that section 9(1) of the Limitation Act 1980 has the effect that the sum is not recoverable.  However, it does not seem to me that the decision of the adjudication officer was an “action”.  Accordingly, I find that £331.96 is recoverable from the claimant under either section 12 of the 1976 Act or section 74 of the 1992 Act.

7.	It is further conceded that, in respect of the period from 15 May 1987 to 12 March 1990, the overpayment to the claimant is not recoverable because the information he supplied on the claim form ought to have led the Benefits Agency to make further enquiries.  CIS/222/91 is cited in support of that concession.  It is not argued that the claimant made misrepresentations when signing payable orders during that period – as, perhaps, could have been argued in the light of Jones v. Chief Adjudication Officer (reported as R(IS) 7/94) – and I am prepared to accept the concession.  It is also conceded that the overpayment from 2 March 1996 is not recoverable because the claimant had then disclosed the fact that his wife was in receipt of incapacity benefit and the overpayment was due to the failure of the Benefits Agency to act on the information provided by the claimant, rather than being due to any failure to disclose or misrepresentation on the claimant’s part.

8.	However, the Secretary of State does maintain that the overpayment from 13 February 1990 to 1 March 1996 is recoverable form the claimant under section 71 of the 1992 Act because the claimant made clear misrepresentations on the forms he signed on 12 February 1990 and on 31 March 1992 and those misrepresentations were a cause of the overpayment.  The claimant’s representative submits that the overpayment was due to the failure of the Secretary of State to act on the information he already had because the part of the Benefits Agency administering the claimant’s wife’s claim obviously knew she had been awarded benefit.  I have no doubt that there was a breakdown in the Benefits Agency’s administration but the Agency is entitled to ask a claimant to provide information as an additional safeguard and, in my view, the overpayment was due both to the claimant’s misrepresentation and the Benefits Agency’s failure properly to co-ordinate its activities.  The Benefits Agency’s failure does not mean that the claimant’s misrepresentation was not also a cause of the overpayment (see Duggan v. Chief Adjudication Officer (reported as R(SB) 13/89)).  The claimant’s representative also submits that disclosure by the claimant was not reasonably to be expected because the claimant did not read and write English and relied on his son to complete the forms.  I do not accept that argument.  Recovery is sought on the basis of misrepresentation rather than failure to disclose and, in any event, in signing the forms he accepted responsibility for their contents.  He was not entitled to delegate responsibility for completing the form to someone who was not fully aware of his and his wife’s circumstances and then avoid the consequences of doing so.  Insofar as the claimant relies on CIS/2498/97, that case is distinguishable because here the claimant made specific misrepresentations.  Insofar as he relies on CSB/677/86, that case is distinguishable both because here the claimant made specific representations and because, as the Secretary of State’s representative points out, here the benefit that was not disclosed was the claimant’s wife’s, whereas in that case it was the claimant’s own benefit.  The claimant’s representative also submits that section 9(1) of the Limitation Act 1980 prevents recovery in respect of part of the period but, again, I do not consider that an adjudication officer as to the recoverability of an overpayment is an “action”  See also R(SB) 5/91.

9.	I therefore accept the Secretary of State’s submission that the overpayment from 13 February 1990 to 1 March 1996 is recoverable from the claimant.  The Secretary of State suggests that the amount needs to be recalculated and, as a new schedule has not been placed before me, I am content to leave that to be agreed between the parties.  

(signed)	M. ROWLAND
Commissioner
25 June 2002