[2007] UKSSCSC CIS_1960_2007 (11 October 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:
I SET ASIDE the decision of the Luton appeal tribunal, held on 17 January 2007 under reference 914/06/00081, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is to confirm the Secretary of State’s decision of 17 March 2006 on recoverable overpayment.

REASONS
2.	This case concerns the recoverability of an overpayment of income support. It occurred because the claimant continued to receive income support after her husband, who was living with her, was awarded a state pension credit. 
3.	The tribunal found that the claimant had not caused the overpayment after 11 September 2003. The Secretary of State appealed against that decision with my leave. The claimant has made short observations and the Secretary of State has not commented further. 
History of benefit decisions
4.	The claimant made a claim for income support on 4 February 2002. On her claim form, she explained that her husband was unwell and was going abroad for a few months. Their daughter had bought a ticket for him so that he could benefit from a change of atmosphere. 
5.	The claimant completed a further claim form in October 2002, on which she did not mention her husband.
6.	The claimant’s husband was awarded a state pension credit from 21 July 2003 for himself and the claimant. She says that she and her husband were advised by a local advise centre that it was permissible for her to continue to claim income support.
7.	On 11 September 2003, the local authority’s housing benefit section contacted the income support section to say that the claimant might be on her husband’s claim and that he was over 60. 
8.	On 25 November 2004, the Pensions Service notified the state pension credit section of an award of a retirement pension to the claimant’s husband from 17 January 2005. A handwritten note drew attention to the fact that he had declared that his wife was receiving income support and that there was a possible overpayment. On appeal to the Commissioner, the Secretary of State has said that the income support and state pension credit sections are based in the same office, although in different sections. On appeal to the tribunal, the Secretary of State was unable to say where the Pensions Service was based at the time, but said that it was possible, but not certain, that it was based in the same office as the income support section. I shall proceed, in the absence of any more precise information, on the basis that they were based in the same building. 
9.	On 13 March 2006, a decision-maker decided that the claimant had not been entitled to income support from 21 July 2003. On 17 March 2006, a decision-maker decided that, as a result, the claimant had been overpaid by £15,412.42 and that this was recoverable from the claimant on the ground that she had failed to disclose the award of state pension credit to her husband. 
The appeal to the appeal tribunal
10.	The claimant exercised her right of appeal to an appeal tribunal and the tribunal allowed her appeal in part. It decided that the overpayment was only recoverable for the inclusive period from 21 July 2003 to 11 September 2003. The reason was that there had been disclosure by the housing benefit section to the income support on the latter date. The tribunal also found that there had been a further disclosure in November 2004. No action had been taken on either disclosure. As the material fact had been known to the relevant office from 11 September 2003, the overpayment was not recoverable beyond that date. 
Was there disclosure in September 2003?
11.	No, there was not. The evidence does not support the tribunal’s finding. 
12.	The tribunal found that the material fact, the receipt of state pension credit, was known to the income support section from 11 September 2003. It was not. All that the housing benefit section had said was that the claimant ‘may be on partner’s claim who is over 60’. That was not sufficiently certain to disclose that the claimant had a partner who was receiving state pension credit. It certainly gave the income support section reason to investigate. And the failure to do so was a cause of the overpayment, additional to the claimant’s failure to disclose. However, that additional cause is not sufficient to deprive the claimant’s failure of any causative effect. The Court of Appeal so decided in Duggan v Chief Adjudication Officer, reported as R(SB) 13/89. 
13.	The tribunal was, therefore, wrong in law to decide that the overpayment was not recoverable after 11 September 2003.
Disclosure on the state pension credit claim
14.	When the claimant’s husband claimed state pension credit, he may have disclosed that he was living with his wife. I assume that he did, although I have not seen the form on which he made the claim. However, the disclosure was not made in the context of the claimant’s claim for income support. It was not, therefore, sufficient. The Tribunal of Commissioners so decided in R(SB) 15/87 at paragraph 29.
The relevance of disclosure on the retirement pension claim
15.	The tribunal also decided that the information was already known once it was disclosed in respect of the retirement pension claim by the claimant’s husband. Once again, that disclosure was not made in the context of the income support claim.
CIS/1887/2002
16.	The tribunal relied on this decision by Mr Commissioner Howell. It concerned the particular arrangements when a claimant makes a claim for income support pending the determination of a claim for incapacity benefit. The Secretary of State’s representative has argued that the decision is distinguishable. I agree. It is the fact that the case involved ‘interconnected benefits’ (paragraph 5 of the decision) that explains the decision. This case does not involve interconnected benefits. Income support and state pension credit are unconnected benefits administered separately, albeit perhaps in the same building. That distinguishes Mr Howell’s case. 
Disposal
17.	I allow the Secretary of State’s appeal, set aside the tribunal’s decision and substitute the decision that it should have made, which is to confirm that the overpayment is recoverable in full from the claimant. I have no power over the method of repayment. This is a matter for discussion between the representative of the Secretary of State and the claimant.

Signed on original
on 11 October 2007	Edward Jacobs
Commissioner