PLH                                                                             Commissioner's File:  CIB 1294/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Incapacity Benefit
Tribunal:	Chippenham
Tribunal case ref:	U/03/904/2001/00058
Tribunal date:	15 January 2002
Reasons issued:	4 February 2002

1.	This appeal by the claimant is dismissed, as in my judgment there was no error of law in the decision of the Chippenham appeal tribunal sitting on 15 January 2002, in which they confirmed the decision of the Secretary of State given on 19 April 2001 that the claimant was not entitled to have reopened and altered in his favour a much earlier decision of an adjudication officer made on 23 October 1997 that he had not been entitled to incapacity benefit for the period from 1 June 1996 to 30 October 1997.
2.	The claimant is a man now aged 48 who, according to the findings of the tribunal set out in their statement of reasons issued to the parties on 4 February 2002 (pages 52-55 of the appeal file), was working from January 1996 onwards while continuing to draw incapacity benefit.  It appears that to some extent the department was made aware of the fact that he was working and this was accepted as being for therapeutic reasons, but the information provided by the claimant on which the department relied and continued to pay him incapacity benefit down to October 1997 was that the hours he was working and the earnings he was receiving from this work were both relatively trivial, and not such as to affect his entitlement to benefit.  
3.	The adjudication officer’s decision of 23 October 1997 reviewed the claimant’s earlier continuing award made on that basis, and determined that he had not after all had any entitlement to incapacity benefit for the period from and including 1 June 1996 (page 86: the gist of the decision so far as material is recorded in the tribunal’s findings at pages 52-53).  It was based on a fraud investigation and written details of the claimant’s actual earnings provided by his employers, which, if they were correct, showed he had no entitlement at all to the benefit he had continued to draw.  
4.	That decision, based on the evidence then before the adjudication officer, was not appealed by the claimant. It therefore became conclusive to determine against the claimant any question of his entitlement to incapacity benefit for the period it covered, subject only to any provision of the legislation from time to time in force permitting a decision which has once become final to be reopened subsequently:  see section 60(1) Social Security Administration Act 1992, which was the relevant provision of the primary legislation in force at the time that decision was given.
5.	The appeal to the tribunal arose out of an attempt by the claimant’s representative on his behalf to have that decision reopened some three years after it had thus become final, by an application made by letter on 18 September 2000 (page 16).  This was for what was then called a “supersession of the decision of 23 October 1997”, the provisions of the Social Security Act 1998 being by that time in force and applicable to incapacity benefit cases.  
6.	The single ground put forward for asking for the powers in the new Act to reopen past decisions (which it is common ground apply to earlier adjudication officers’ decisions, by virtue of transitional provisions) to be used was that “the decision was erroneous in law”.  There is no doubt that this is one of the grounds under which an earlier adjudication officer’s decision adverse to the claimant may be replaced by another decision “superseding” it under section 10 Social Security Act 1998, though only with effect from the date of the application for the later decision itself:  see regs 6(2)(b)(i) Social Security and Child Support (Decisions and Appeals) Regulations 1999 SI No. 991, and section 10(5) of the 1998 Act.  
7.	It is also relevant, though not raised by the claimant’s representative until later, that the Secretary of State also has power under section 9 of that Act to “revise” an earlier decision of an adjudication officer which was adverse to the claimant at any time if it is shown that it “arose from an official error”, as specially defined.  In that case the revision may be made so as to take effect retrospectively to the date of the original decision so as to give the claimant the corrected result for the entire period at issue; the Secretary of State moreover having power to treat an application for a “supersession” as an application for a “revision” instead:  see regs 1(3), 3(5)(a), 3(10) of the Decisions and Appeals Regulations.
8.	The reason argued on the claimant’s behalf for taking one or other of those steps in the circumstances of his case was the intermediate decision of another tribunal, sitting at Swindon on 1 November 1999, in which they had upheld an appeal by the claimant against the separate decision of an adjudication officer dated 7 May 1998 that he had to pay back the incapacity benefit mistakenly overpaid to him for the period from 1 June 1996 to the end of October 1997 (to which, as has been conclusively determined against him by the decision of 23 October 1997, he had not been entitled).  
9.	As recorded by the Chippenham tribunal in their statement of reasons at page 53, the stated reasons of the Swindon tribunal for their 1999 decision, issued to the parties only many months later in August 2000, are “somewhat unclear”: in particular because they appear to embody a measure of confusion about the issues that were then before the tribunal to decide.  However there can in my judgment be no doubt that the only issues before the Swindon tribunal for determination in November 1999 were what are referred to as the “overpayment issues” arising out of the adjudication officer’s decision of 7 May 1998 (page 39).  Those were in practice confined to whether there had been a failure on the claimant’s part to make the disclosure reasonably required of him about his earnings, for the purpose of deciding whether the overpaid benefit was recoverable from him under section 71 Social Security Administration Act 1992.  That was a different question from whether he had received benefit to which he was not entitled over the period 1 July 1996 to the end of October 1997, the question already conclusively determined against him by the adjudication officer’s review decision of 23 October 1997 which had become final and was not the subject of any appeal.  
10.	Nevertheless, the Swindon tribunal on 1 November 1999 appear erroneously to have regarded both questions as effectively before them.  In allowing the appeal and holding the overpayment not recoverable, they expressed their view that the evidence before them on both questions was in an unsatisfactory state, saying:
“… the alleged overpayment, the subject matter of this appeal, was said to have arisen as a result of the Appellant’s failure to disclose the fact that he had earnings in excess of the exempt earnings limit.  … the Appellant challenged the accuracy of his employer’s records and in his appeal maintained that he was not earning in excess of the exempt earnings limit.  The Appellant’s employer at the relevant time had gone out of business and problems were experienced in checking the accuracy of his employer’s records …  at this third hearing neither party had been able to produce any further satisfactory evidence to resolve the position.
	As the onus was on the Respondent [i.e. the Secretary of State] to justify the review and the alleged overpayment, the Respondent had failed to discharge that onus of proof and in these circumstances, and for those reasons, the appeal was allowed.”
11.	Based on those findings, the claimant’s representative applied for the October 1997 decision to be reopened, and appealed against the Secretary of State’s refusal to the Chippenham tribunal on 15 January 2002.  His argument is that the review decision of October 1997 and the tribunal decision of November 1999 cannot both be right.  Since the 1999 tribunal has held the evidence of an alleged overpayment of benefit to be unsatisfactory, it must follow that the adjudication officer’s decision that there was no entitlement to that same benefit for the period in question was wrong in law or for some other reason, and this is sufficient to justify altering it under the 1998 Act provisions.  
12.	In my judgment, the Chippenham tribunal were entirely correct to reject these arguments.  As they correctly record in their statement of reasons at page 54, there were “erroneous expressions” in the previous tribunal’s statement of reasons. The overpayment issues under section 71 of the 1992 Administration Act were the only issues for determination by the Swindon tribunal on the 1999 appeal: those were separate from, and not the same as, the question of entitlement.  That had already been finally determined against the claimant by the adjudication officer on review on 23 October 1997 and was outside the scope of the 1999 appeal.  
13.	I therefore reject the argument by the claimant’s representative on page 71 that:
“… quite clearly the review (revision) of 23/10/97 and the new decision of 7/5/98 were both centred on the same criteria, failure to disclose a material fact and both decisions were made using exactly the same evidence, to support the contention there had been a failure to disclose.” 
That is simply not correct, and I am not persuaded that in maintaining the distinction between the earlier decision of October 1997 that there was no entitlement, and the issues arising from the later one of 7 May 1998 that the overpaid benefit was recoverable, the Chippenham tribunal in any way erred in law.  As they correctly observed, the fact that the tribunal considering the overpayment issues on 1 November 1999 found the evidence unsatisfactory for that purpose does not show that any error of law occurred in relation to the earlier unappealed decision of 23 October 1997 on the separate issue of entitlement.
14.	I also reject the second point made in the observations of the claimant’s representative at page 72, that “By failing to address the additional evidence the decision document of 7/5/98, we feel that the tribunal have failed to make sufficient findings of fact.”  The separate nature of that decision and what it decided, as distinct from the earlier decision of 23 October 1997, is in my view quite clearly and accurately recorded in the tribunal’s statement of reasons. 
15.	The third main submission made on behalf of the claimant, that the tribunal erred in rejecting the contention that the decision of 23 October 1997 fell to be revised for “official error”, is in my judgment equally wrong.  In the first place it does not seem to me to be established by the evidence that there was any error, either of fact or of law, in the original adjudication officer’s decision of 23 October 1997.  The most that can be said is that such evidence as was before the Swindon tribunal some two years later in November 1999 was not thought by that tribunal to be sufficient to prove recoverability, in particular because after the lapse of time it was not possible to obtain further details and corroboration of the earnings figures supplied by the employers.  That does not however show that the original information given to the fraud investigators and the adjudication officer in 1997 was actually incorrect; simply that it was difficult to investigate and confirm two years later.  Nor does it show that it was wrong in law for the adjudication officer to have based his 1997 decision on the best factual information then available to him, as actually provided to him by the fraud investigators and the employers, and not apparently challenged at that time by the claimant.  
16.	I am not therefore persuaded that any error either of law or fact was shown by the evidence before the Chippenham tribunal to have been established, which would have been the precondition for any action by the Secretary of State to revise the earlier decision under section 9 of the 1998 Act on the application made in September 2000.  
17.	But however that may be, the contention that such a revision should have taken place on the ground of “an official error” becomes in my judgment hopeless when one looks at the definition of that expression in regulation 1(3) of the Decisions and Appeals Regulations.  This requires that such an error must be 
“an error made by an officer of the Department … acting as such which no person outside either Department caused or to which no person outside either Department materially contributed”.  
Insofar as it might be argued that any of the figures on which the adjudication officer on 23 October 1997 based his decision were incorrect, any resultant error of fact or law must fall outside that definition of “official error”; since the figures themselves were supplied by the employers, persons outside the department.
18.	For those reasons, the Chippenham tribunal on 15 January 2002 were in my judgment right in rejecting the contentions that any ground had been shown for reopening the adjudication officer’s decision of 23 October 1997, and this appeal is accordingly dismissed.
(Signed)
P L Howell
Commissioner
19 August 2002