[2005] UKSSCSC CIS_4935_2003 (07 July 2005)

PLH                                                                          Commissioner's File:  CIS 4935/03

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Appellant: 	Secretary of State
Respondent :	[the claimant]
Claim for:  	Income Support (Overpayment)
Appeal Tribunal: 	Bexleyheath 
Tribunal Case Ref:  	
Tribunal date:	24 July 2003
Reasons issued:	6 October 2003

     1.     	This appeal by the Secretary of State is allowed, as although the Bexleyheath tribunal consisting of Mrs S Elias sitting alone as chairman on 24 July 2003 was right to decide the case in favour of the claimant on the legal authority binding her at that time, that authority and therefore her decision has now been held wrong in law by the House of Lords in Hinchy v Secretary of State [2005] UKHL 16, [2005] 1 WLR 967, overruling the Court of Appeal decision in the same case on which she relied.  I set the decision aside and in accordance with section 14(8)(b) Social Security Act 1998 refer the case for rehearing and redetermination by the same chairman (or if it is not reasonably practical for her to hear it, another tribunal), since as she rightly recorded in the statement of reasons for her decision at pages 21-22 the information and evidence provided to the tribunal by the Secretary of State was not in a satisfactory state to establish a right to repayment quite apart from the Hinchy point, and some further clarification of the facts is needed. 
     2.     	This case is one of a number of overpayment cases deferred to await the decision of the House of Lords, which is the reason its final determination has been delayed for so long.  The claimant has failed to respond to two separate directions dated 8 March and 28 April 2005 giving him an opportunity to make further representations in the light of that decision.  A short submission dated 6 May 2005 has been made by Mrs J Douglas on behalf of the Secretary of State and I now proceed to determine the appeal for which I originally granted leave on 3 February 2004.
     3.     	The facts appear to be that the claimant, a man now aged 59, had been in receipt of income support for some years, including a dependant's addition in respect of his eldest son.  The son's date of birth was stated by the Secretary of State to be 20 August 2002 but as the tribunal pointed out that must be wrong: it has never been corrected.  The right to this addition depends on a the child counting as a “child or young person” who was a member of the claimant's family and at some point the claimant's eldest son ceased so to qualify as his child benefit was stopped.  The claimant did not notify the local office dealing with his income support that this had happened and as a result of this, and of there having been no effective notification from the child benefit centre to the local office of the change, the claimant went on getting more income support than he was entitled to, amounting in all to £1046.20 over the period 8 September 2000 to 9 August 2001 on the Secretary of State's calculation.  This amount was claimed by the Secretary of State to be legally recoverable from the claimant under section 71 Social Security Administration Act 1992, on the ground that he had failed to disclose to the Secretary of State the material fact that the child benefit had come to an end.  
     4.     	The issue of law to which such facts give rise is whether there can be a “failure” of disclosure for the purposes of section 71 when the material information is of course already in the possession of the Secretary of State, albeit in a different section or office of his very large department.  That was the issue on which the case was decided in favour of the claimant by the tribunal, wrongly as has now been shown by the House of Lords, which decided in Hinchy that the Secretary of State is not taken to “know” everything within the knowledge of every different section of his department so as to relieve claimants from the obligation to make disclosure to the particular section or officer that actually matters.  Here, that was the local office which dealt with the claimant's own income support; he was not justified in assuming the change in the child benefit would come to the attention of that office automatically.  
     5.     	I therefore remit the case to the tribunal to be redetermined applying that principle, which is of course binding and not distinguishable in any relevant way from the facts of this case as the Secretary of State alleges them to be.  However before a claim to make an overpayment legally recoverable from a claimant can be allowed it must, like any other legal proceeding for the recovery of money, be properly stated and proved; and as I have already said I agree with Mrs Elias that the material put before her was inadequate for this purpose.  In this case the previous tribunal direction of 5 June 2003 at page 15 may perhaps have lulled the Secretary of State's representative into a false sense of security by directing a further submission dealing with the Hinchy point alone, so I think the just course is for there to be a further opportunity to repair the gaps in the case identified in the statement of reasons at pages 21-22.  The Secretary of State may perhaps be fortunate in that, as it is for him to bring cases before the tribunal properly prepared and presented; a tribunal faced with incomplete or inadequate material in an overpayment case is under no obligation to adjourn, and is within its rights to determine the case at once in favour of the claimant if it does not find the claim satisfactorily made out.
     6.     	The appeal is allowed and the case remitted accordingly.

(Signed)

P L Howell
Commissioner
7 July 2005