CIS 1675 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal from the decisions of the tribunal. For the reasons below, the decisions of the tribunal are wrong in law. They are set aside. I take the decision that the tribunal should have taken. This is:

The purported decisions dated 8 October 2003 on which the Secretary of State seeks to rely are not properly made appealable decisions. There is no proper operative decision before the tribunal dealing either with supersession or revision of the underlying income support entitlement, or any overpayment for the period in question (from 11. 10. 1996 onwards), or recoverability of any overpayment, and the whole matter is referred back to the Secretary of State either to reinstate benefit or to consider the matter afresh.

2	For the avoidance of doubt, this appeal relates to a series of purported decisions heard together by the York appeal tribunal on 11 February 2004 under the reference U 01 008 2004 00147 and therefore by me. The effect of this decision is to confirm that the purported decisions under appeal have no legal effect. The decisions that were assumed to be displaced by those purported decisions (and of which I have no details) therefore remain unchanged. But the Secretary of State has the power under the Social Security Act 1998 to consider whether to revise or supersede all or any of the underlying decisions, and to take any further decisions following from any revision or supersession. Any such revision, supersession, or further decision is subject to fresh rights of appeal, and does not form part of this appeal. 

REASONS FOR THE DECISION 

3	The parties have agreed that I should set aside the decision of the tribunal and I do so. I refer the matter to the Secretary of State and not to a new tribunal for the reasons below. 

4	The claimant has been entitled to income support since 1990.  In May 2003 the income support section of the Department carried out a Generalised Matching Service (GMS) check on the claimant. A GMS check enables the Department for Work and Pensions (DWP) to check by computer searching techniques across not only its own records as held by different sections of DWP but also to cross-check with information held by various other Departments, local authorities and agencies, including the Inland Revenue. The results of the check against the claimant are – in somewhat cryptic form – in the papers. They show that the records held by the Inland Revenue show that the claimant had received significant sums of interest from two building society accounts held in his name. I assume that information came to light because the building societies are required by law to return details of payments of interest to individuals to the Inland Revenue. The GMS check revealed this information to DWP. 

5	It is not surprising that DWP decided to look further into the claimant’s claim for income support, as he had told DWP more than once that he had no savings or property.  The papers contain details of the levels of savings in the two accounts. One was opened in 1992 and the other in 1997. Both were held in the sole name of the claimant.  As the totals in the accounts were at times in excess of £8,000 and for a longer period over £3,000 it is not surprising that officers took the view that the claimant was not entitled to income support, or at least to the full amount of income support, by reason of the capital held.

6	When asked for an explanation, the claimant stated that the money was not his. His brother had opened the accounts in his name so that he, the brother, “could get extra windfall shares from both companies”.  This explanation was offered when officers visited the claimant on 26 June 2003.  I am told that immediately following that visit the two accounts were closed. The closing balances totalled over £11,000. This was apparently given by the claimant to his brother. The officers noted, from information obtained from the two building societies, that until then both accounts had remained open and active since being established. They considered that the claimant had deliberately deprived himself of capital for the purpose of getting income support when he closed the accounts. 

7	An officer then took the following “decisions”:

- the claimant “had been overpaid is for the period 11.10.96 – 5.6.97 as he had capital over £3,00 which attracts tariff income”;
- the claimant had “no entitlement to income support from 6.6.97 – 25.6.03 onwards due to capital over £8,000”;
- the claimant “has no entitlement to income support due to notional capital over £8,000 from 26.6.03 onwards. Diminishing notional capital calculation to be completed to check the date he may requalify for income support”.

8	As the secretary of state's representative now acting fully agrees, these are not appealable decisions. The officer has stopped part-way through the process of reaching a set of appealable decisions. The tribunal, which copied out these “decisions” on its decision notice without apparently considering the terms of any of them, has failed to remedy any of a considerable number of defects.

9	Even assuming that the money did belong to the claimant and not, as he stated, his brother, the decisions up to 25.6.2003 are incomplete and inconsistent with the available evidence. The evidence in the papers shows that the total of capital clearly did not exceed £8,000 for the whole of the period from 6.6.97 to 25.6.03. Nor is there any statement of the amount said to be paid and overpaid in the initial period to 5.6.97, leaving that decision incomplete. Nor is there any actual evidence, rather than assertion, that the claimant did not have the capital after 25.6.97 (as against some other date, or indeed at all). Nor is any decision produced superseding the previous entitlement to income support for either of the first two periods. Nor is there any specific decision on recoverability under section 71 of the Social Security Administration Act 1992 or any other provision. Nor is there any mention of the claimant’s alleged disablement or the status of the person said to be appointee.

10	The secretary of state's representative invited me to make good the defects in these decisions under the power to do so confirmed by the Tribunal of Commissioners in CIB 4751 2002 and associated decisions. That undoubtedly gives me some power to do so, but the errors in this appeal are so extensive that the only safe course is to declare that none of the “decisions” are operative and to refer the matter to the Secretary of State on the terms set out above.  Nor would I be able fairly to do so without giving the claimant and representative a fair chance to challenge the issues of fact and law in each new proposed decision. 

								David Williams
								Commissioner

								05 October 2004
[Signed on the original on the date shown]