DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s File No.: CIS 3338 2001

1	This appeal succeeds.  I have concluded that the decision of the appeal tribunal sitting
at Sheffield on 10 May 2001 is wrong in law and so must be set aside.  It is not possible for me to determine the claimant’s appeal on its merits as further findings of fact need to be made. Therefore this matter must now be reheard by a new appeal tribunal.  The fact that the claimant’s appeal to the Commissioner has succeeded should not be taken as any indication as to the outcome of the rehearing before the new tribunal.  The new tribunal will consider all the relevant evidence afresh.  It follows that ultimately it may arrive at the same conclusion as the first tribunal or it may reach a different outcome. 

2	The claimant’s appeal concerns an alleged overpayment of income support of £1,710.13 that the Secretary of State is seeking to recover from her under section 71 of the Social Security Administration Act 1992.

3	On 16 June 1997 the claimant applied for income support.  On her claim form she declared receipt of incapacity benefit and an occupational pension from her former employer, a local health authority.  This claim was disallowed as her weekly income exceeded her applicable amount.

4	Some three weeks later, on 8 July 1997, the claimant made a further application for income support.  On this occasion the claim form disclosed receipt of incapacity benefit and disability living allowance (DLA) (at the higher rate for mobility and the middle rate for care) but made no mention of any occupational pension.  An adjudication officer decided on 14 July 1997 that the claimant was entitled to income support at the then weekly rate of £44.80 as from the date of claim.  The award of DLA at the rates in question meant that the claimant’s income support applicable amount included the severe disability premium.

5	The claimant’s entitlement to the DLA care component was subsequently reduced from the middle rate to the lower rate  as from 8 July 1998 and that component was withdrawn altogether as from 3 January 1999.  (It appears that this decision in relation to DLA was subsequently upheld on appeal to a tribunal, although there is no copy of the tribunal’s decision on file). The consequential removal of the severe disability premium resulted in a substantial reduction in the claimant’s income support as from 22 December 1998, when the appropriate adjustment was made.  No account, however, was taken of the claimant’s occupational pension which had been disclosed on the earlier unsuccessful claim but had not been mentioned on the second successful claim.

6	On 10 February 2000 the claimant was visited and an income support review form was completed.  The existence of the occupational pension was declared on this review form.  In March 2000 a decision maker decided that the claimant was no longer entitled to income support.  In June 2000 a decision maker concluded that the claimant had been overpaid income support in the sum of £1,710.13 from 15 July 1997 to 25 January 1999 and that this sum was recoverable from her on the basis of her failure on the July 1997 claim form to disclose the material fact that she was in receipt of an occupational pension.  No recovery was sought in relation to the period after 25 January 1999 as it transpired that a review form completed in January 1999 referred at least to the prospect of a health authority pension.

7	When the claimant complained about the decision as to the allegedly recoverable overpayment, the matter was reconsidered by a decision maker.  He or she confirmed the amount of the overpayment but changed the basis for recovery from failure to disclose to misrepresentation.  The claimant then appealed to a tribunal.

8	The claimant’s appeal was heard by a tribunal sitting in Sheffield on 10 May 2001, comprising a single legally qualified panel member as required by the Social Security Act 1998 and the relevant regulations.  The claimant attended with her sister; a presenting officer from the Department was also present.  The chairman’s record of proceedings was short and to the point:

[Claimant]: “I don’t know what happened.  I didn’t [fill] the form [in] myself. Two or three people came to my house. They said from Benefits Agency. They asked me questions and I gave the answers. At the end they didn’t give me forms to read over. I didn’t read over the form. I signed it without reading it over. I signed that the officer had not read back the form.”

[Claimant’s sister]: “Three weeks before the forms were completed correctly. Now the form was completed incorrectly. Why wasn’t it spotted.”

9	The tribunal’s decision was to dismiss the appeal and confirm the decision on the recoverability of the overpayment.  The summary decision notice continued:

“[The claimant] made a misrepresentation on her application form to benefit dated 8/7/99.  As a result of that income support in the sum of £1710.13 from 15.7.97 to 25.1.99 was overpaid to her and that sum is recoverable. In putting her signature in the two boxes on the last page of the claim form [the claimant] adopted all the representations contained in it even if they represented an incorrect record of the answers she gave to the questions asked.”

10	Just over a month after the hearing, the claimant’s social worker applied to the Appeals Service on 11 June 2001 for the decision to be set aside, explaining that he had been unable to accompany her to the hearing.  The social worker stated that the claimant suffered from a severe form of mental illness.  One feature of this was “a morbid suspicion of the DSS and local council which becomes paranoid in the extreme.  This prevents her from rationally comprehending the process of applying for benefits.”  A different tribunal chairman considered this application but decided that there was no procedural error justifying a set aside.

11	In August 2001 solicitors acting on behalf of the claimant applied for a full statement of the tribunal’s reasons to dismiss her appeal.  For reasons that need not be explored here, no full statement was prepared.  The claimant’s grounds of appeal to the Commissioner are that “the facts found were such that no person acting judicially and properly instructed by the relevant law could have come to the decision”. The grounds of appeal also refer to the claimant’s mental health problems, contending amongst other matters that the claimant was neither mentally competent to complete the claim forms (i.e. raising a defence known in law as ‘non est factum’, or ‘it is not my deed’) nor to represent herself at the tribunal hearing. Mr Commissioner Bano subsequently granted leave, notwithstanding the absence of a full statement, and observing that the tribunal may have failed to consider the relevance of the claimant’s mental condition to her capacity to make a representation.

12	The Secretary of State’s representative, in a detailed submission, does not support the appeal and invites me to dismiss it.  I think it would be fair to summarise her submission in this way: (i) the tribunal was not under any obligation to consider the claimant’s alleged mental incapacity; (ii) the principle of ‘non est factum’ does not apply in the context of social security law, notwithstanding the suggestion of the Tribunal of three Commissioners in decision CG/4494/1999; (iii) even if ‘non est factum’ is a relevant issue, the criteria for its application are very strict and are not made out in this case; and (iv) if the claimant had the capacity to make a claim for benefit, she had the capacity to make a (mis)representation (applying the Court of Appeal’s decision in Chief Adjudication Officer v Sherriff (1995, and reported as decision  R(IS) 14/96).

13	The submission of the Secretary of State’s representative deals with a number of important points (not least the applicability of ‘non est factum’ in the social security context).  However, for present purposes I do not have to address all these issues.  I am, however, satisfied, notwithstanding the absence of a full statement of the tribunal’s reasons, that the tribunal’s decision is erroneous in law. 

14	My conclusion is that in all the circumstances of this case there was a breach of natural justice in the tribunal deciding to proceed with the hearing without apparently offering the claimant the opportunity for an adjournment.  There is no indication from the record of proceedings that this possibility was considered by the tribunal.  There were, however, a number of factors which, in combination, should have led the tribunal actively to address this option.  First, this appeal concerned a relatively large alleged overpayment.  Secondly, it should have been clear from the appeal papers that the claimant might have difficulty in adequately representing herself. The correspondence from the claimant more than suggests that she might have considerable difficulty in properly understanding the points at issue.  Thus her appeal letter started in this confused fashion:

“Being as the BA Social Security have stolen my income support of which is NI in which case you have committed fraud I’ve had no choice but to report it to the police…”

	It is also headed “replied from a person of whom has severe illness”.  There are similarly confused comments annotated by the claimant on correspondence from the Department.  Thirdly, the standard form Appeals Service enquiry document, completed by the claimant prior to the appeal, listed a local solicitor as her representative.  In addition, in response to the inquiry about special needs, the claimant had written “being as I’ve sever illness I have to take things a bit slow”.  The case file also includes a letter from the claimant’s named solicitor representative received before the hearing and stating that they were no longer instructed by her.  The combination of factors referred to above in my view was such that the tribunal should, in fairness to the claimant, have actively canvassed the possibility of an adjournment to enable her to obtain representation.

15	Support for this approach can be found in Commissioner’s decision CIS/6002/1997, a case in which the claimant was illiterate and faced an alleged overpayment liability in excess of £7,000.  The claimant’s representative applied for a postponement of the hearing, which was refused, and the tribunal proceeded to hear his appeal without considering whether to adjourn.  Mr Commissioner Howell QC, setting aside the tribunal’s decision as being in breach of natural justice, concluded that:

“I do of course accept that it is not every refusal of a request for postponement that can give rise to a breach of natural justice, and the procedure for a tribunal to adopt is generally for it to determine. However if the right of appeal to a tribunal against departmental decisions is to mean anything at all there must not only be, but also be seen to be, a fair and proper opportunity for the claimant's case, for whatever it is worth, to be put before the tribunal on his or her behalf in a way that enables the material points to be raised adequately. The normal right to have this done through the means of a representative of the claimant’s choice is of particular importance where the claimant is a disadvantaged or illiterate person as in this case. It seems to me that in such circumstances a tribunal should be particularly hesitant in going ahead on its own despite a request made on reasonable grounds by a responsible representative so that proper advice and representation can be provided” (para. 9).

Although in the present case there had been no explicit prior request for a postponement, in my view the same principle applies.

16	Subsequent correspondence in the case file merely confirms my view that the proper approach in this case would have been to consider an adjournment.  The grounds of appeal reveal that the claimant’s social worker had been unable to attend the tribunal hearing as he was on annual leave at the time.  There is also, remarkably, compelling and contemporaneous evidence from other tribunal proceedings which demonstrates that the claimant could not properly conduct her appeal on her own behalf.  By a curious coincidence, the claimant was the subject of a mental health review tribunal (MHRT) hearing on the very same day as her appeal tribunal hearing in relation to the alleged overpayment.  (The MHRT hearing was at 10 am on 10 May 2001 and the appeal tribunal hearing  at 2.40 that afternoon).  It is unnecessary to refer at length to the MHRT decision.  Suffice it to say that the MHRT recorded that the claimant was detained under section 3 of the Mental Health Act 1983 and that she was not fit to be discharged (although clearly she was granted some form of leave to attend her appeal tribunal that afternoon in the company of her sister).  In the course of its decision the MHRT held that “there are very real concerns that the patient’s capacity to deal with important decisions in the community is severely limited by her illness.”  In my view this means that it would be positively perverse to conclude that she received a fair hearing at an appeal tribunal later the very same day when she ‘represented’ herself.

17	I therefore conclude that the decision of the Sheffield appeal tribunal of 10 May 2001 in relation to the alleged overpayment is wrong in law for breach of the principles of natural justice.  Regrettably there is insufficient information for me to resolve the claimant’s appeal on the facts.  I therefore set aside the tribunal’s decision and direct that the case be reheard by a fresh tribunal (Social Security Act 1998, section 14(8)(b)).  The new tribunal should consider all the evidence afresh, and determine whether indeed the claimant (a) had the capacity to make a misrepresentation and (b) actually did so, which then caused the alleged overpayment.  At the previous hearing the claimant’s sister made the point that the existence of the occupational pension had been disclosed on the previous claim form only a matter of a few weeks earlier.  However, the legal position is that an earlier disclosure does not negate a subsequent misrepresentation (R(SB) 3/90).  I should also mention that the Secretary of State’s representative argues that the claimant’s mental capacity is not an issue as she was only formally diagnosed as having mental health problems in May 2000 (some three years after making the claim in question).  I have some reservations about this argument, as the claimant’s social worker makes it clear that she had apparently been mentally unwell for many years. But this is pre-eminently a question of fact and therefore not for me to determine. Whether this was indeed the case, and its implications for the alleged overpayment, will be matters for the new tribunal to decide.

(Signed)	N J Wikeley
Deputy Commissioner
(Date)		17 April 2002