DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14 of the Social Security Act 1998. It is:
The decision of the Birmingham appeal tribunal under reference U/04/024/2000/05614, held on 14 February 2001, is not erroneous in point of law. 

History and background
2.	This case concerns the recoverability of an overpayment of income support that arose because the adjudication officer who made the award was not aware that the claimant’s wife was receiving a retirement pension. Recoverability was based on misrepresentation. No attempt has been made at any stage to rely on failure to disclose in substitution or in the alternative. (The form in which the decision under appeal is recorded on page 1B appears to do this, but as Mr Norman pointed out at the hearing, this was a mistake. The correct decision is at page 3C.)
3.	The case has a long history. The claim for income support was made in 1993. The decision under appeal and the appeal to a tribunal were made in 1996. The appeal was dismissed by a social security appeal tribunal in 1997, but this was set aside by Mr Commissioner Howell in 2000 (CIS/6002/1997). The appeal was reheard by an appeal tribunal in 2001; it was again dismissed. Leave to appeal was given to the claimant by Mrs Commissioner Heggs in 2002. Having received the parties’ written observations, she directed an oral hearing. This was postponed and the case was stayed to await the outcome of the appeal to the Court of Appeal in Hinchy. When that appeal was decided, the stay was continued to await the outcome of the further appeal to the House of Lords. That appeal has in turn now been decided. In the meantime, Mrs Heggs had retired and the case was transferred to me for decision.
4.	In view of the issues raised by the appeal, I directed an oral hearing. It was held in the Commissioners’ court in London on 21 June 2005. The claimant did not attend, but was represented by Mr Norman, a solicitor. The Secretary of State was represented by Mr Henshaw, of counsel. As I told them at the time, I greatly enjoyed the discussion at the oral hearing and am grateful to them for the quality of their written and oral submissions. 
Public funding
5.	Mr Norman told me that he had public funding to represent the claimant on this appeal. Having read his written argument and engaged in discussion with him at the oral hearing, I can say that that those funds were well spent. I am sure that I speak for all the Commissioners when I say that a more liberal use of public funds would greatly assist us in dealing with the more difficult cases that come before us. I make no comment on whether that is possible under either the existing rules or the current interpretation and application of those rules.
6.	Mr Norman was given public funding on two grounds. One ground was the complexity of the law of non est factum. My discussion below confirms that complexity. The other ground was whether he was entitled to raise a point of law before the Commissioner that had not been raised before the appeal tribunal. That matter is no longer in contention, because Mr Henshaw accepted that the point had been raised below. However, even if the point had not been raised below, my inclination would have been to allow it to be raised on appeal. I say that for two reasons. First, the Commissioners are a more suitable forum for points of law than an appeal tribunal. Second, our jurisdiction is inquisitorial (R(IS)14/93 at paragraph 7). There is, though, a possible impediment to this in section 12(8)(a) of the Social Security Act 1998, which provides that:
	‘(8)	In deciding an appeal under this section, an appeal tribunal-
		(a)	need not consider any issue that is not raised by the appeal’.
I could, therefore, only deal with a point that had not been raised below in three circumstances. First, if there was an error of law in respect of one of the issues that the tribunal did deal with. That would allow me to deal with any other issue that was relevant in substituting my own decision or giving directions for a rehearing. Second, if the new point could be classified not as a separate issue, but as an argument on an issue that was dealt with by the tribunal. Third, if the tribunal had improperly exercised its discretion to consider other issues despite the power left to it by section 12(8)(a).
The issues
7.	Mr Norman raised three issues. To adopt his headings, they were: (a) non est factum; (b) misrepresentation by omission; and (c) ambiguity and CIS/222/1991. I deal with them in that order.
Mistake as to the nature of the document - non est factum
8.	I confess to some difficulty with the application of this concept to claims for a social security benefit and representations made within them. If I were otherwise minded to apply it to the claimant’s advantage, I would have wanted fuller argument on three issues. 
9.	First, there is the issue whether non est factum can be applied in social security at all. It has its origin, as it name indicates to anyone conversant with basic Latin, in the law relating to deeds. It has been extended into the law of contracts. I raised this point at the hearing. Mr Norman replied that there was the authority of the Tribunal of Commissioners in CG/4494/1999 that the doctrine might apply. I do not regard that decision as binding precedent on the issue. However, I accept that the Tribunal did not reject the possibility that it might apply and envisaged the possibility that it might. Without further argument, I am prepared out of comity and respect to assume that it may apply. But how? This question leads to the other two issues that concern me. 
10.	Second, there is the issue whether non est factum applies to the whole claim. The significance is this. I put it to Mr Norman that his reliance on non est factum ran this danger: I might find that it applied with the effect that there was no claim. That would then leave the claimant in the position of being liable at common law to repay the whole of the benefit paid on the claim. Of course, that would be subject to any defence available to  him in the law of restitution. (In this case the overpayment is of the whole amount of the claim, but in another case it might be less. If so, the claimant would be worse off by relying on non est factum.) Mr Norman replied that this would not be permissible, because the Secretary of State cannot deny the validity of a claim once it has been decided. He cited R(SB) 9/84, although none of us at the hearing could remember the number. In that case, a Tribunal of Commissioners was concerned with a claim that had been made without authority but purportedly on behalf of a mentally incapable claimant. The Tribunal decided that a decision on the claim was not a nullity, although this would not operate to the prejudice of the claimant (paragraph 8). That decision was relied on in the Court of Appeal’s consent order in Walsh v Chief Adjudication Officer (19 January 1995). However: (a) a decision on a consent order is binding only on the parties to it (R(FC) 1/97 at paragraph 28); and (b) the basis of the consent order was that the Commissioner was bound by the decision of the Tribunal of Commissioners. I accept the authority of R(SB) 9/84. However, there is an issue of the scope of the decision. Does it extend sufficiently beyond claims made without authority to include claims that are void for lack of consent by the claimant? Anyway, for a court that had to decide a claim for restitution, the decision would not be regarded as a binding authority.
11.	Third, there is the issue of whether non est factum can apply to a representation. It can only assist the claimant to resist the Secretary of State’s claim for recovery if its effect is to deprive the statements in the claim of any representational effect. I have difficulty understanding how a representation can be of a sufficiently different nature from one intended and more difficulty understanding how the concept applies to an omission.
12.	I now come to the arguments of the parties. These were presented around the summary of the conditions necessary for a successful plea of non est factum set out by Lord Justice Purchas in Lloyds Bank plc v Waterhouse [1993] 2 Family Law Reports 97 at 111:
‘To summarise, therefore, it appears that in order for this defence to succeed the father [who relied on the defence] must establish three things:
(a)	that he was under a disability, in this case illiteracy …;
(b)	that the document which the father signed was “fundamentally different” or “radically different” or “totally different” from the document which he thought he was signing; and 
(c)	that he was not careless … or that he did not fail to take precautions which he ought to have taken in the circumstances to ascertain the contents or significance of the document he was signing.’
13.	Mr Norman drew my attention to the courts’ concern for the rights of third parties  to a transaction (Lord Justice Woolf in Waterhouse at 121-122). This is always a factor that is considered when there is an issue whether a transaction is void or merely voidable. The latter affords some protection for third parties, whereas the former does not. Non est factum renders a transaction void and the courts have referred to the possible effect on third parties in order to justify limiting the scope of the plea. It is a justification for the narrow scope allowed to the plea. It is not an element of the plea that allows a differential application according to whether or not third parties are involved. It is, therefore, irrelevant whether the Secretary of State was, as Mr Norman argued, a culpably negligent party.
14.	I now come to the application of the three conditions.
Condition (a)
15.	There was no dispute on this. The claimant is illiterate, experiencing problems with both reading and writing. I emphasise, as I did at the oral hearing, that that is the only disability that is argued or shown on the evidence. There is no evidence of any impairment of intelligence, common sense or shrewdness. 
Condition (b)
16.	Mr Norman argued that the difference between the document the claimant actually signed and the one he thought he was signing could be a matter of its character, its class or its content. For this, he cited the decision of the House of Lords in Saunders v Anglia Building Society, also often known as Gallie v Lee [1971] Appeal Cases 1004. I accept that argument.
17.	Mr Norman also argued that a difference in the extent of a person’s liability could be a difference that is sufficient to satisfy this condition. For this, he cited Waterhouse (especially at 111H). I do not reject that as an impossibility. However, I do not consider that Waterhouse supports it. The significant point in that case was that guarantee signed by the father covered his son’s business and personal liabilities, whereas he believed it only covered the former. 
18.	Mr Norman identified three ways in which the form signed by the claimant was fundamentally different from the one he believed he was signing. 
19.	The first suggestion difference is that the claimant did not realise that he was signing a claim for income support. This was a late argument by Mr Norman. He had previously accepted that the claimant was aware of this, but had recently doubted whether it was in fact so. Mr Henshaw argued that the claimant knew he was claiming income support. For this, he relied on the letter signed by the claimant in 1996 (pages 4 and 4A), in which the form is twice referred to as a claim for income support. I reject that argument. The letter was written for the claimant at a time when he knew the form was a claim for income support. It was natural for him to refer to the form in that way. It does not show what he thought he was signing in 1993. Mr Henshaw also argued that there was no evidence that the claimant did not understand that the form was a claim for income support. I accept that argument. Mr Norman’s argument was attractively presented, but it amounted to no more than speculation around the claimant’s previous history of benefit entitlement and a reference to being supported by a particular local office. However, there is no mystery about his previous entitlement – it was income support: see the comments by the claimant’s former representative at page 13. And that explains the reference to the local office. Anyway, even if the claimant did not know what he was signing, he could have discovered what it was with minimum care. All he had to do was to ask his wife before he signed it. 
20.	The second suggested difference is that the claimant did not realise that he was incurring liability on the form as completed. I do not consider that the presence of a risk of liability for inaccuracy is sufficient to bring the case within non est factum. The claimant knew he was signing a form to claim public money. I accept that he may not have thought about it, but I do not believe that he had in mind that he would bear no responsibility for any inaccuracy on the form. 
21.	Later in his argument, Mr Norman emphasised the extent of the liability that the claimant was exposed to. Mr Henshaw replied that the amount of the overpayment reflected not the nature of the form signed by the claimant, but the time it had taken to discover the mistake. In response, Mr Norman distinguished between liability for some portion of weekly benefit and liability for the whole of a week’s entitlement. I do not underestimate the importance of even small sums to a claimant who qualifies for income-related financial support. However, the weekly sums involved in the claimant’s award of income support are relatively modest. I do not consider that the difference between the weekly amount awarded to the claimant and his proper entitlement of nil or a reduced amount (see page 3C) is sufficient to bring him within non est factum. 
22.	Anyway, even if the claimant did not understand this consequence, he could have discovered it with minimum care. All he had to do was to ask his wife what was written along side the space for his signature. She could then have read to him that ‘if I give information that is incorrect or incomplete action may be taken against me.’ Admittedly that does not distinguish between civil and criminal action, but that is because it refers to both. It would have alerted the claimant to the risk of liability. 
23.	The third suggested difference, as Mr Norman expressed it in his written argument, is that the key test is whether the completed claim form was fundamentally different from what the claimant believed it to be, not whether the blank form was different. I accept that, but find it difficult to see how that helps with proving condition (b). In his oral argument, Mr Norman made his point more clearly. He argued that the form was fundamentally different because he believed it was a properly completed form when it was not. I accept that there is a difference between a form that is properly completed and one that is not. But I do not see that that changes its fundamental nature, at least not on the facts of this case. The difference was important but not in any sense fundamental to the nature of the claim that the claimant was making. 
24.	In short, I accept Mr Henshaw’s argument that non est factum sets a high standard which the facts of this case do not meet. 
Condition (c)
25.	Mr Norman argued that the claimant had taken reasonably care. I have already made some comments on this in discussing condition (b). I now come to Mr Norman’s argument directly on this condition.
26.	I base my decision on the claimant’s account of how the form was completed. His wife completed the form and he signed it. He discussed the answers with his wife as she wrote them down and, Mr Norman argued, he could hardly have been expected to ask his wife each time whether she had written down what she had said. At the point in the form where his wife’s retirement pension should have been recorded, there was a disruption while she went to find some information. It is likely that the retirement pension was overlooked as a result of that disruption. 
27.	I also base my decision on the claimant’s account of what happened at his local benefit office. This is set out in the letter on pages 4 and 4A. In short, the claimant took the form to the office and asked for help on account of his illiteracy. A lady came and read the form. She pointed out that some of the questions had been answered, but told him to sign the form and she would see that it was processed. 
28.	Mr Norman made much of the claimant’s request for help and the lack of care taken by the lady in the local office. Mr Henshaw replied that the care relevant was the care taken by the claimant, not the care taken by the local office. I accept Mr Henshaw’s argument on this point. Waterhouse shows that it is relevant whether one party asked the other for assistance. The purpose of that is to demonstrate that the person asking for help was taking precautions to ensure a proper understanding of the nature of the document that was being signed. 
29.	I accept that the claimant acted innocently throughout. I accept that he took some care, both in the way the form was completed and by asking the local office for help. I accept that he was not required to ask his wife whether she had actually written what she had said. However, as I pointed out at the hearing, there was an obvious step that the claimant could have taken. It is sensible, whenever anyone completes a form, to check it through before signing it. Mistakes can occur: information can be put in the wrong box or questions can be overlooked. A final check through would have not involved any unreasonable check on what his wife had written. It would not be a counsel of perfection. It would be a simple and obvious precaution that would guard against slips that can and do occur. Asking for help from the local office was not sufficient. No one there would know what should have been on the form. No one there could have done anything that the claimant’s wife could not have done for him. This lack of care by the claimant is fatal to his reliance on non est factum.
Misrepresentation by omission
30.	Mr Norman argued that it was possible (a) to have a misrepresentation by omission and (b) to have an innocent misrepresentation, but that it was not possible (c) to have an innocent misrepresentation by omission. He argued that what happened in this case was properly classified as an innocent failure to disclose, not an innocent misrepresentation. As Mr Henshaw pointed out, this argument is contrary to the statement of Lord Justice Dillon in Page and Davis v Chief Adjudication Officer, reported as part of R(SB) 2/92, that the predecessor of section 71 of the Social Security Administration Act 1992 ‘covers innocent as well as fraudulent misrepresentation and non-disclosure’. Nevertheless, I will deal with the argument on its merits. 
31.	Mr Norman referred to the requirement that a misrepresentation must be an act. I accept that. He cited Mr Commissioner Angus’ comments in CIS/5117/1998. The Commissioner there considered misrepresentations by silence. In doing so, he referred to ‘an incorrect factual statement which is deliberately made’ (paragraph 26) and to being ‘deliberately silent’ (paragraph 27). Mr Norman’s argument equates being deliberate with not being dishonest or fraudulent. He then argued that as the claimant in this case had acted innocently, he had not acted deliberately. Mr Henshaw argued that there was a difference between acting deliberately and acting dishonestly or fraudulently. I accept Mr Henshaw’s argument. I can see no reason why a claimant cannot make an innocent misrepresentation by omission. 
32.	I also reject Mr Norman’s argument for another reason. I do not accept the underlying classification that this case involved a failure to disclose. For one thing, I do not accept that the concepts of misrepresentation and failure to disclosure are as distinct as Mr Norman’s argument supposes. Some things can only be classified as a misrepresentation or a failure to disclose. Others can be classified or presented in either way. In this case, for example, the omission of the retirement pension was a failure to disclose, but by signing and presenting the claim form, the claimant also misrepresented that the information on the form was complete. For another thing, Mr Norman’s argument overlooks the importance of the declaration. This brings me to an aspect of Mr Norman’s argument that developed at the oral hearing.
33.	Mr Norman referred to the decisions of the Court of Appeal in Jones v Chief Adjudication Officer and Sharples v Chief Adjudication Officer, both reported together as R(IS) 7/94, and to Franklin v Chief Adjudication Officer, reported as R(IS) 16/96. I consider that those cases can be distinguished on the basis of the forms of declaration involved. I have shamelessly lifted the following analysis from my decision in CIS/6065/1999.
34.	In Sharples v Chief Adjudication Officer, the claimant signed this declaration:
	‘As far as I know, the information on this form is true and complete.’
He did not mention on the form that his wife had inherited some policies from her father, because he was not aware that she had. The Court of Appeal held that the declaration qualified all the answers on the form. So there was no misrepresentation when the claimant failed to record on the form information of which he was unaware. The key words in the declaration that were decisive were ‘as far as I know’.
35.	In Jones v Chief Adjudication Officer, the claimant signed this declaration on an order book counter foil:
‘I DECLARE that ... I have correctly reported ANY facts which could affect the amount of my payment.’
He had begun to receive unemployment benefit. He had reported that he had claimed that benefit, but not that he had begun to receive it. He knew that he was receiving unemployment benefit, but did not realise that it could affect the amount of his payment. The Court of Appeal held that there was a misrepresentation, because it was irrelevant whether the claimant realised the significance of the facts. On the interpretation of the declaration, the Court read it as limited to facts known to the claimant. Lord Justice Stuart-Smith said:
	‘The declaration ... must be qualified by the implied inclusion of the words “known to me” after the words “reported any facts”.’
And Lord Justice Dillon said:
	‘The representation must be limited, as a matter both of common sense and law, to a representation that he has disclosed or reported all material facts known to him, since he cannot sensibly be expected to represent that he has disclosed all materials facts that are not known to him.’
36.	The claimant had signed the same declaration in Franklin v Chief Adjudication Officer. She had not reported changes in the interest rate on her mortgage, because she was not aware of the change. The Court of Appeal held that the declaration referred only to facts that were known to the claimant. The case was in substance one of failure to disclose rather than misrepresentation, and knowledge was essential before there could be a failure to disclose. Lord Justice Evans said:
‘In a case which rests essentially upon non-disclosure, the words “I have correctly reported any facts” cannot be read literally, because there had been no relevant report. In such a case, it seems to me that the representation has to be taken as meaning something to the effect of “I have not failed to disclose any material fact”. Since you cannot disclose what you do not know and there is no duty to do so, I would hold that the representation is not false in a case where the claimant had no knowledge of the relevant facts.’
Lord Justice Swinton Thomas said:
	‘The central word is “reported”. I, for my part, find it difficult to understand how a person can report something of which she has no knowledge.’
37.	The declaration signed by the claimant is this case was:
	‘I declare that the information I have given on this form is correct and complete.’
This was the same form of declaration that was signed on a claim form by the claimant in Chief Adjudication Officer v Sherriff, reported as R(IS) 14/96. The claimant in that case had not mentioned her savings. The main issue in the case was the relevance of the claimant’s mental capacity. However, the Court of Appeal also considered Franklin. Lord Justice Staughton distinguished it, saying:
‘that was not a case where an attempt was made to convert non-disclosure into misrepresentation.’
Lord Justice Evans said that, although knowledge was essential in a failure to disclose case:
	‘That is not the case where the claim is based upon an allegation of misrepresentation. That has clearly been established by the Court of Appeal in the Sheriff [sic] case ... No such questions as to knowledge then arise ....’
38.	This form of declaration was also considered by Mr Commissioner Rowland in CIS/674/1994 at paragraph 15. He wrote:
	‘Where a claimant is asked specific questions he guarantees the accuracy of the answers by his declaration and lack of knowledge on his part is no bar to recovery on the ground of misrepresentation if his answers are wrong.’ 
39.	Mr Norman argued that in effect there was a failure to disclose here, not a misrepresentation. If he is correct, it might appear that he is entitled to rely on the analysis of Franklin given in Sherriff. However, I cannot disregard the language of the declaration. In Franklin, the reference in the declaration to reporting facts allowed the court to interpret it as requiring knowledge of those facts. The language of the declaration in this case and in Sherriff is different. I can see no way to read it other than as a guarantee that the form has been completed in a way that accurately sets out all income and other details that may affect entitlement to the benefit claimed. I can see no basis on which I could imply any qualifications into it. I respectfully agree with the analysis of Mr Commissioner Rowland in CIS/674/1994. 
40.	In his written argument, Mr Henshaw identified an argument by the claimant that the contents of the form were qualified by the surrounding circumstances. He related this to what occurred when the claimant asked for help at his local office. I am not sure that Mr Norman developed an argument on this basis, either orally or in writing. But it is fair to treat it as implicit in what he said and I will deal with it. 
41.	I have already said that I am dealing with this case on the basis of the letter setting out the claimant’s account of what happened at the local office. It is possible for a signed form to be qualified by surrounding circumstances. However, I can see nothing in the account that could qualify the contents of the form. The claimant asked for help. The lady concerned clearly interpreted the request for help as limited to the way the form was completed, not its contents. That explains her response. The claimant did not say or do anything to qualify what was on the form. That is especially so when he signed the form on request. 
Ambiguity and CIS/222/1991
42.	Mr Norman’s argument on ambiguity is based on the decision of the late Mr Commissioner Johnson in CIS/222/1991. In that case, the claimant had completed a claim form for income support indicating both that her home was freehold and that she was paying ground rent. That was an obvious contradiction. The adjudication officer could not determine her claim until the conflict was resolved. But the officer decided the claim without inquiring further and an overpayment resulted. The Commissioner held that the overpayment was not recoverable, as it was caused by the adjudication officer's failure to investigate the conflicting information on the claim form. It is clear from the language used by the Commissioner that he dealt with the case as one of causation:
‘7.	… That the adjudication officer saw fit to make an award without resolving that obvious conflict and, moreover, took into account ground rent without establishing whether the conditions of regulation 18(1)(6) were satisfied, seems to me manifestly an error on the part of the Department rather than a misrepresentation by the claimant.’ 
(I have corrected an obvious mistake in the reference to the regulation.)
43.	Neither party challenged the authority of that decision. I respectfully agree with it and with the Commissioner’s reasoning. Mr Norman argued that the principle of that case applies here. Mr Henshaw argued that it did not apply. He argued that the form was not ambiguous, only incomplete. He also argued that the form as presented allowed the claim to be decided. 
44.	Mr Norman also relied on the decision of the Court of Appeal in Duggan v Chief Adjudication Officer, which is reported as the Appendix to R(SB) 13/89. In that case, the claimant, who was receiving supplementary benefit, correctly reported that his wife was no longer receiving maternity allowance, but did not mention that she was now receiving unemployment benefit. An overpayment resulted. The Court of Appeal dealt with the causation issue and the related issue of the duty on an adjudication officer to investigate a claim. On the causation issue, the Court held that it was sufficient if the claimant’s failure to disclose was but one cause of the overpayment. It did not matter if the adjudication officer was also partly to blame. On the duty of an adjudication officer, the position was put like this by Lord Justice May:
‘But I would deprecate any suggestion that when any claim is made for social security benefit there then necessarily arises an obligation on the adjudication officer investigating it effectively to investigate the full financial position of the claimant. His job is to deal fairly with the claim made and to obtain for that purpose any necessary information that he needs to do so.’
45.	Mr Norman argued that: (a) CIS/222/1991 was decided after Duggan; (b) it cannot have been overruled by it; (c) must have been decided in the light of it; and (d) provided a gloss on it. Broadly, I agree. I would, though, prefer to see Mr Commissioner Johnson’s decision as an instance in which inquiries were necessary in order ‘to deal fairly with the claim made’ rather than a gloss on the Court of Appeal’s decision.
46.	Mr Norman also argued that it was significant that the failure to disclose occurred during a claim and not, as in this case, on a claim form. I accept that that is a difference between this case and Duggan. But I do not accept that it is significant. I can see no basis on which to distinguish Duggan on the ground that the principles set out there do not apply on a claim. Indeed, this suggestion is at odds with the passage I have quoted from Lord Justice May’s judgment, which expressly refers to a claim. 
47.	I do not have to decide the extent of a decision-maker’s duty of inquiry on a claim or during an award. All that concerns me on this appeal is the significance of the duty for causation. In CIS/222/1991, the adjudication officer could not decide the claim without resolving the conflicting answers given. As a result, the adjudication officer was the sole cause of the overpayment for not investigating before deciding the claim. In this case, there were obvious deficiencies in the claim form presented and signed by the claimant. However, the claim could be decided on the information given. Even if the decision-maker was partly responsible for failing to investigate at least the unanswered questions, the claimant shared that responsibility for not providing the correct answers to the question asked about his partner’s benefits. Accordingly, any failure to investigate by the decision-maker does not relieve the claimant of responsibility for the overpayment. 
Disposal
48.	I dismiss the appeal.

Signed on original
on 27 June 2005	Edward Jacobs
Commissioner