PLH                                                                             Commissioner's File:  CIS 4322/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Income Support (Overpayment)
Appeal Tribunal: 	Whittington House
Tribunal Case Ref:  	U/42/156/2001/00021
Tribunal date:		17 July 2001
Reasons issued:		24 August 2001

1.	In this case the claimant, a single lady aged 47, appeals against the decision of the Whittington House appeal tribunal on 17 July 2001 that she is liable to repay the sum of £3550.40 income support to the Secretary of State.  That was the total amount she received over the period 13 October 1998 to 3 July 2000 by way of a “severe disability premium” included in the departmental calculation of her income support entitlement.  
2.	The relevant condition for getting a severe disability premium is that one has to be a severely disabled person in receipt of the highest or middle rates of care component of disability living allowance, which is a separately awarded  non-means-tested benefit: see para 13(2)(a) Sch 2 Income Support (General) Regulations 1987 SI No 1967, and section 72(1) Social Security Contributions and Benefits Act 1992.  The claimant met this condition at all material times down to 13 October 1998, but not on or after that date because her previous care component award had expired and was not renewed by the Secretary of State, despite her application that it should be. 
3.	Nevertheless the severe disablement premium went on being included in the income support the department calculated and paid her. The amount is recoverable from her under section 71 Social Security Administration Act 1992 if (and for present purposes only if) the mistaken overpayment is shown by the Secretary of State to have been in consequence of a misrepresentation of, or failure to disclose, a material fact on her part.  The decision under appeal to the tribunal, and the tribunal’s own decision, were based solely on an alleged “failure to disclose”, as to which the established law accepted and applied in this field over many years is that “failure” to disclose necessarily imports the concept of some obligation, so that in order to found recovery it must be shown that the non-disclosure has occurred in circumstances where disclosure by the person in question was reasonably to be expected: see the decision of Mr Edwards-Jones QC in reported case R(SB) 21/82 at paragraph 4(2).
4.	In the present case it is not and cannot of course be disputed that the Secretary of State had actual knowledge of the material fact that he had disallowed the claimant’s renewal claim for the care component of disability living allowance from 13 October 1998 onwards so that she no longer counted as a severely disabled person for the purposes of the renewal premium.  The “failure to disclose” relied on and accepted by the tribunal was the fact that she had not sent a separate notification of this to the different section of the same department dealing with her income support, even though it was of course doing so in the name and on the behalf of the same Secretary of State.
5.	The question of law that arises in such circumstances is whether there can properly be said to have been any failure of disclosure and to what extent any continued miscalculation of the claimant’s benefit can be properly attributed to wrongful failure on the part of the claimant, rather than the department’s own failure to marry up the information it already has. This is a question on which differing views have been expressed by Commissioners, and it is of course one of general importance. 
6.	The tribunal’s decision holding the claimant liable to repay is expressed with admirable clarity, and there is no question of it being open to challenge on the way the facts are found and recorded, or the way the reasons for the decision are explained in the statement issued to be parties on 24 August 2001.  The only issue is whether the tribunal was right in law to follow as it did the recent decision of a tribunal of Commissioners on the “failure to disclose” issue in case CG 4494/99, it being conceded as recorded in paragraph 7 of the statement of reasons that this was indistinguishable, and binding so far as the tribunal was concerned.  
7.	The decision in CG 4494/99, together with that of the same tribunal of Commissioners on a related point in CG 5631/99, was given on 19 December 2000 and neither was taken further on appeal.  On the evidence before the tribunal and in view of the concession, I am not persuaded there is any separately arguable error of law in the tribunal not having instituted further inquiries into the factual possibilities discussed in CG 5631/99, as the written submissions to me at one point suggested.
8.	It is the practice of the Commissioners in the interests of comity and certainty of the law to follow the decision of a tribunal of Commissioners on a question of legal principle unless there are compelling reasons not to do so: case R(I) 12/75 paragraph 21. It is not suggested that there are such reasons for me to depart from the normal practice here, even though I understand it has been decided not to select case CG 4494/99 for reporting in the official series (for the relevance of this cf. R(I) 12/75 para 17(c)).
9.	In those circumstances the claimant, now represented by the Child Poverty Action Group in view of the point of principle involved, concedes that the appropriate order for me to make is to dismiss her appeal.  However leave to appeal to the Court of Appeal is sought to enable the correctness of the approach in CG 4494/99 to be tested and more authoritative guidance obtained on an important point of legal principle.
10.	I accordingly dismiss the claimant’s appeal and despite the departmental submission that the matter should be treated as settled on the basis of what the tribunal of Commissioners decided in CG 4494/99, it does seem to me right to take the course asked on behalf of the claimant.  Applying the approach in Cooke v Secretary of State (CA, 25 April 2001), this is a proper case for the Court of Appeal to be asked to pronounce on the issues of principle involved, in the interests of an orderly development of the law in a difficult area that affects a lot of people’s cases.  I therefore grant the claimant leave to appeal to the Court of Appeal. 

(Signed)
P L Howell
Commissioner
3 May 2002