[2008] UKSSCSC CG_37_2008 (19 May 2008) 
CG/37/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
Summary of the decision of the Social Security Commissioner

1.		This appeal by the Secretary of State to the Social Security Commissioner is allowed.  The decision of the Taunton appeal tribunal on 4 September 2007 is wrong in law, but on one point only and not for the reasons advanced by the Secretary of State in the appeal to the Commissioner.  The decision of the appeal tribunal is set aside and replaced by the following decision.

		This appeal by the claimant to the appeal tribunal is allowed in part.

The decision of the Secretary of State dated 5 December 2005 is revised.

The claimant has been overpaid a total of £1,385.79 in widowed parent’s allowance relating to the period from 8 February 2005 to 26 September 2005 (both dates included).

The bulk of that total overpayment, the sum of £1,216.91, relates to the period from 8 February 2005 to 29 August 2005.  This sum of £1,216.91 is NOT recoverable from the claimant.  The reason for this is that the Secretary of State has failed to show that the claimant has either misrepresented or failed to disclose a material fact within section 71(1) of the Social Security Administration Act 1992.

The balance of that total overpayment, the sum of £168.88, relates to the period from 30 August 2005 to 26 September 2005.  This sum of £168.88 IS recoverable from the claimant.  The reason for this is that the Secretary of State has shown that this part of the overpayment has been caused by the direct credit transfer arrangements within section 71(4) and (5) of the Social Security Administration Act 1992.

2.		I appreciate that this appeal and the consequential uncertainty has caused considerable anxiety to the claimant and his family.  I regret that the technical nature of the law involved means that some parts of this decision may be difficult to follow at times.  I hope, but cannot guarantee, that this is now the end of the matter. 

The background to this appeal to the Commissioner

3.		The background facts to this appeal, as explained in this paragraph, are not in dispute.  The claimant, a man now aged 47, was widowed in 2001.  His daughter was then aged just seven years old.  In that same year he applied for and was awarded widowed parent’s allowance (WPA) as from 20 April 2001.  This award was made in a decision dated 6 June 2001. However, on 6 August 2005 the claimant remarried.  Following his honeymoon he notified the Department for Work and Pensions (DWP) that he had remarried.

4.		The first substantive issue at the heart of this appeal was whether he was living together with his new wife as husband and wife (in the social security law sense of that expression) before their actual date of marriage.  If he was, then as a matter of law his entitlement to WPA ceased.  This is because although he would still have been widowed and obviously still have been a parent at this time, statute specifically states that there is no entitlement to WPA where a claimant is “cohabiting” (Social Security (Contributions and Benefits) Act 1992, section 39A(5)).

5.		Assuming that there was an overpayment of benefit, this leads to the second substantive issue in this appeal.  As a matter of law, just because a person is not entitled to a social security benefit, and has been overpaid, does not mean that the DWP can automatically recover the money involved.  The DWP must show both that there has been an overpayment of benefit and that the overpayment is recoverable under section 71 of the Social Security Administration Act 1992.  In broad terms, at least under section 71(1), the Secretary of State has to demonstrate that the claimant either misrepresented or failed to disclose a material fact and that this caused the overpayment.  In this particular case the DWP’s argument is that the claimant failed to disclose a material fact (that he was living with his wife-to-be as husband and wife as from February 2005).

6.		A DWP officer visited the claimant at his home on 31 October 2005.  At that meeting the claimant signed a statement to the effect that his wife-to-be had moved into his home on 6 February 2005, that they had lived as partners since that date and married on 6 August 2005.  His statement acknowledged that there was an overpayment of benefit and that that sum was recoverable.  The claimant’s version of events now puts a rather different complexion on the nature of this visit but, for reasons which will become apparent, I do not need to resolve the disputed accounts of that meeting.

The 5 December 2005 decision

7.		On 5 December 2005 a DWP decision maker made a formal decision to disallow entitlement to WPA.  Technically this decision was a supersession of the original decision back in June 2001 to award WPA. Equally technically, the decision as made was actually an aggregate of three separate decisions.  First, the decision was that the claimant had been “living together” since 6 February 2005, and so entitlement to WPA ceased from that date.  Secondly, the decision was that there had been an overpayment of WPA amounting to £1,385.79 for the total period from 8 February 2005 to 26 September 2005.  Thirdly, the decision was that this amount was recoverable from the claimant, albeit for different reasons for different periods.  

8.		The bulk of the overpayment of WPA, the sum of £1,216.91, was said to cover the period from 8 February 2005 to 29 August 2005.  This amount was said to be recoverable on the basis of the claimant’s alleged failure to disclose.  I call this the “failure to disclose overpayment”.  The balance of the overpayment, a sum of £168.88, related to the period from 30 August 2005 to 26 September 2005 and was recoverable due to the direct credit transfer arrangements for payment of WPA. I call this the “direct credit transfer overpayment”.

9.		A week after that decision, on 12 December 2005, the claimant was sent a letter headed “Your Widowed Parents Allowance”.  The material part read as follows:

“I am writing to inform you that a decision has been made regarding your entitlement to Widows Parents Allowance [sic].

The decision maker has decided that you are no longer entitled to receive Widowed Parents Allowance from and including 8th February 2005.  This is because on the 6th February 2005 you commenced living together as husband and wife with a woman to whom you were not married.  You continue to be not entitled to Widowed Parents Allowance because you remarried on 6th August 2005.

As a result of the decision you have been overpaid Widowed Parents Allowance of £1385.79 for the period 8th February 2005 to 26 September 2005. Our Debt Management Section will be in contact with you as soon as possible.”

The letter then continues with advice on where to get more information, and appears to have been accompanied by a leaflet outlining appeal rights.

10.	The terms of this letter are crucial to the case.  In my judgment this letter effectively communicates the decision that the claimant had been “living together” and that he had consequently been overpaid WPA.  It does not, in my view, expressly communicate the third element of the decision, namely that the amount of the overpayment was recoverable from him.  That may have been the inference, especially from the final sentence in the extract quoted above, but an inference is not enough where people’s legal rights and duties are concerned.  In addition, the letter certainly fails to communicate the fact that recoverability was based on different reasons for different periods (a failure which has impacted on the subsequent proceedings in this case).

The 15 January 2007 (purported) decision

11.	It is unclear whether anything happened for a year or more.  Certainly there is no indication in the appeal bundle of any action by the DWP and in particular by its Debt Management Section.  On 15 January 2007, however, a further “Overpayment Decision” was made.  This stated that as a result of the 12 December 2005 decision, there had been an overpayment of £1,385.79 covering the period from 8 February 2005 to 26 September 2005, which had been caused by the claimant’s failure to disclose.  This amount was said to be recoverable from the claimant.  I just note that 12 December was actually the date of the earlier letter to the claimant, not the date of the earlier decision (5 December 2005).

12.	The decision maker on this occasion is described as “computer generated”.  This may sound strange but in law is permissible (see Social Security Act 1998, section 2).  It may, however, explain why the claimant is referred to as “she” at one point in the decision.  The lack of proper human oversight may also explain why this purported decision sought to remake a decision which had already been made.  I agree with the tribunal that for that reason the purported decision of 15 January 2007 was itself of no effect.

13.	I would add, however, that the ineffective decision of 15 January 2007 was not in precisely the same terms as that of 5 (or 12) December 2005.  True, it referred to the same period and the same total overpayment as being recoverable.  But the earlier decision distinguished between the “failure to disclose overpayment” and the “direct credit transfer overpayment”.  The January 2007 decision treated the entire sum as recoverable on the basis of the alleged failure to disclose.  Yet there was no suggestion in the computer generated decision that the earlier decision was being revised or superseded.  This is further evidence of its ineffective nature.

14.	The DWP Debt Management Section also wrote to the claimant on 15 January 2007.  The letter, headed “Notice of Overpayment”, stated that £1,385.79 in WPA had been overpaid.  It also stated “This amount that has been overpaid must be paid back under Social Security law”.  I agree with the tribunal that this was the date of notification, at least in the sense of notification of the recoverability decision.

The claimant’s appeal to the appeal tribunal

15.	The claimant appealed by letter sent on 13 February 2007 but not received until 17 February 2007.  The appeal was technically just out of time but in the circumstances the tribunal chairman very reasonably admitted the late appeal for hearing.  There was also further correspondence between the claimant and the DWP about the situation prevailing in 2005.  In May 2007 two DWP decision makers reconsidered but did not change the earlier decisions.  At that stage it seems that they regarded the decision of 5 December 2005 as relating exclusively to entitlement to WPA and the decision of 15 January 2007 as relating to the resulting overpayment.  For the reasons explained above this approach was mistaken.

16.	The claimant submitted further evidence by way of letters from himself, his new wife and his daughter.  However, neither the claimant nor the DWP asked for an oral hearing of the appeal.  The appeal was therefore heard as a “paper hearing”, i.e. on the papers and in the absence of the parties, by the Taunton tribunal on 4 September 2007.  That tribunal comprised a legally qualified panel member (“the chairman”) sitting alone.

17.	It is clear that the chairman devoted considerable care and attention to the appeal.  He issued a Decision Notice on the day of the paper hearing allowing the appeal.  He stated that the claimant had been overpaid WPA totalling £1,385.79 for the period from 8 February 2005 to 26 September 2005.  He also ruled, however, that this sum was not recoverable as the DWP had not shown that the claimant failed to disclose a material fact. In his brief reasons he explained that a claimant must be given clear and unambiguous instructions as to what he is to disclose before he can be said to have failed to disclose it. He added that the DWP had failed to produce any evidence of such an instruction.  The Decision Notice stated that the tribunal was accordingly revising the Secretary of State’s decision of 15 January 2007.	

18.	The tribunal later issued a corrected Decision Notice stating that it was revising the Secretary of State’s decision of 5 December 2005.  At the DWP’s request the tribunal chairman also issued a Statement of Reasons for Decision.  This is a long and detailed document running to nearly 8 pages of text, setting out the background, the tribunal’s findings and its reasons for its decision.  It is admirably well organised, with useful signposting sub-headings and conveniently set out in numbered paragraphs.  It explores the factual and legal context of the appeal in considerable depth.
The Secretary of State’s appeal to the Social Security Commissioner

19.	On receipt of that Statement of Reasons for Decision, the Secretary of State lodged an application for leave to appeal to the Social Security Commissioner.  The single ground of appeal was that the tribunal had erred in law in holding that the Secretary of State had not provided a clear and unambiguous instruction as to what the claimant was to disclose.  That application for leave (or permission) to appeal was refused by another tribunal chairman.

20.	The Secretary of State has renewed that application before the Social Security Commissioner.  Mr Commissioner Mesher granted leave to appeal.  In his reasons for granting leave, the Commissioner indicated that he did not find the Secretary of State’s arguments “very persuasive” or “very attractive”.  However, he granted leave as he was concerned that the tribunal’s decision might be more fundamentally flawed.  The reason for this was that if the 12 December 2005 decision was the effective decision, then the claimant’s appeal of 17 February 2007 was out of time.  This is because there is an absolute maximum time limit of 13 months for appeals.  If that was so, then the tribunal had no jurisdiction to hear the claimant’s appeal.

21.	Both the claimant and the Secretary of State have made further submissions on the appeal.  The claimant has complained of the injustice of the situation, the anxiety it has caused him and his family, and what he describes as harassment by the DWP.  Understandably, he has not engaged with the finer legal issues in the appeal.  The Secretary of State’s representative has set out further arguments why it is said that the tribunal erred in law in the conclusion that it reached on the instructions provided to the claimant.

22.	There are two fundamental issues which I must decide in this appeal.  The first is whether the tribunal acted within its jurisdiction (or powers) in dealing with the claimant’s appeal in the first place.  If it acted outside its powers, then I have no option but to allow the Secretary of State’s appeal and quash its decision.  If, however, the tribunal acted within its jurisdiction, then I have the second question to resolve – did the tribunal err in law in its decision on the instructions given to the claimant (and so whether or not there was a failure to disclose on his part)?

The jurisdiction of the appeal tribunal

23.	I deal first with the tribunal’s jurisdiction.  The Secretary of State’s representative very fairly concedes that the computer generated decision of 15 January 2007 was ineffective.  I agree, as explained above.  I also find that the claimant was not actually notified of the recoverability element of the 5 December 2005 decision in the letter of 12 December.  I note that under regulation 28 of the Social Security (Decisions and Appeals) Regulations 1999 (SI 1999/991), a person with a right of appeal “shall be given written notice of the decision against which the appeal lies”.  

24.	As a matter of law the time limit for appealing does not start to run until there has been an effective notification of the decision (see regulation 31 of the 1999 Regulations and Commissioner’s unreported decision CDLA/3440/2003, paragraph 17).  As Mr Commissioner Williams noted in the Appendix to reported decision R(P) 1/04, “it is axiomatic as part of the decision-making process that however the decision is presented it must be properly notified” (paragraph 4).  The importance of this requirement has recently been reaffirmed in the decision of Deputy Commissioner MacLynn in Northern Ireland (C3/07-08 (IS)).  In the present case the effective notification of the 12 December 2005 decision that the overpayment was recoverable was not made until the letter of 15 January 2007, as the tribunal found.  The claimant’s February 2007 appeal was therefore in time, once it had been admitted by the tribunal chairman.

25.	I therefore conclude on the first issue that the tribunal was properly acting within its powers to hear the claimant’s appeal.  Its decision was made within its jurisdiction and so is not a nullity.  I must therefore turn to the second issue, which is the real dispute between the parties.  This is whether there was an error of law in the tribunal’s treatment of the failure to disclose point on the recoverability decision, and in particular the nature of any instructions given to the claimant.

The living together question

26.	Before turning to that issue, I should mention that the tribunal only got to this stage as it accepted the DWP’s argument that the claimant had been living together with his wife-to-be since 6 February 2005.  I have to say that my own reading of the evidence suggests that this was by means clear-cut.  I am by no means sure, given that the onus of proof was on the Secretary of State, that I would have reached the same decision as the tribunal on this matter, or at least as regards the whole of the period in question. Yet the tribunal chairman has stated the law correctly, found the facts on the basis of the evidence and fully explained why he reached the decision that he did on the living together issue.  The fact that I might have reached a different decision on the same evidence had I dealt with the appeal at first instance is neither here nor there.   That is not the role of the Social Security Commissioner on hearing an appeal from a tribunal.  As Leveson LJ observed in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746, that would mean that the Commissioner would be engaging “an attempt to reanalyse evidence (which he had not heard) from a perspective that he preferred”.

27.	In the Statement of Reasons the tribunal chairman devotes three pages of closely argued analysis to the recoverability issue.  I cannot do full justice to that decision here.  The chairman began by setting out the proper legal tests for the recoverability of overpayments, as laid down in section 71 of the Social Security Administration Act 1992 and as interpreted by the courts’ decisions in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 (R(IS) 7/05), B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 (R(IS) 9/06) and Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 (R(IB) 4/07).  These decisions make it clear that the failure to disclose must relate to a legal obligation on the claimant within regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).  Moreover, the Secretary of State has to show a clear and unambiguous requirement to supply information when relying on regulation 32(1) or 32(1A).  I call this “the Hooper test” after the case bearing that name.

28.	The Secretary of State’s representative does not take issue with those statements of principle – she argues that the tribunal did not properly apply those principles on the evidence before it.  Of course, this was a paper hearing so there was no presenting officer in attendance.  So, to understand the DWP’s case, the chairman had to rely on the written submission to the tribunal in the appeal bundle.  In the same way the chairman had to rely on the claimants’ letters in the bundle to understand his case.  The DWP submission essentially rested the claim for recoverability, and the challenge to the tribunal’s decision, on three points.

The Secretary of State’s three points on the instructions to the claimant

Point 1

29.	The first point (which I shall call Point 1) was that when the claimant made his claim for WPA in April 2001 he received a claim pack leaflet that explained that WPA was not payable if one remarried or lived together with another person as if married.  A copy of this leaflet (BB1) was included in the appeal bundle.

Point 2

30.	Point 2 was that when notified of his award of WPA in June 2001 the claimant was also sent form BB1000, which stated that there were certain changes that might affect the amount of benefit received. The appeal bundle did not contain a copy of the computer-generated BB1000.  Instead it contained a copy of the clerical version, BB1002 and the submission explained that as the claimant “was issued a system version it may be in a different format but the information provided is the same”.  The clerical form BB1002 contained the general statement “There are certain changes that you must tell us about because they might affect the amount of money that you can get”.  It did not give further details.

Point 3

31.	Point 3 was that on the annual uprating in April of each year the claimant was sent a notification which was said to state that certain changes had to be reported to the DWP and asking claimants to read the notes that they had been sent.  The bundle included a copy of an anonymised sample version of the uprating notification letter.
	
The tribunal’s reasons and parties’ submissions on Point 1

32.	The chairman gave three reasons for dismissing Point 1.  First, he said that there was no evidence that the BB1 had been sent to the claimant.  Secondly, it was in any event a leaflet addressed to those contemplating claiming WPA, and not to those who were actually benefit recipients (para. 38 of the Statement of Reasons).  Thirdly, the BB1 made it clear that prospective claimants would not qualify for WPA if they remarried or cohabited.  It did not in terms state that if a person was actually getting WPA then their entitlement would cease on remarriage or cohabitation.  It therefore also failed the Hooper test (para. 39). As the tribunal stated, echoing the official advice to decision makers in DMG 26/07, the Hooper test meant that “there should be no room for doubt in the mind of a sensible layperson as to whether the Department is imposing a mandatory requirement on them” (this in turn echoed the words of Dyson LJ at paragraph 56 of the Court of Appeal’s decision in Hooper).  

33.	As regards point 1, the Secretary of State’s representative’s argument is effectively three-fold.  First, she draws attention to the screen print in the bundle (at doc 36).  This is evidence that a BB1 form was sent to the claimant on 5 June 2001 and a BB1000 letter on 13 June 2001.  To that extent the tribunal was incorrect in stating that there was no evidence that the BB1 was sent to the claimant.  However, the tribunal can hardly be blamed for this oversight.  The DWP submission to the tribunal did not draw attention to this aspect of the screen print.  Indeed, it expressly stated that the claimant received the BB1 in April 2001 at the time of his claim.  In the light of the tribunal’s other findings on Point 1, I am not satisfied that this error amounts to an error of law on its part.

34.	Secondly, the Secretary of State’s representative contends that the wording of the BB1 leaflet made it clear that ongoing entitlement would be affected by remarriage or living together and so put the claimant on notice of the significance of such a change of circumstances.  However, the tribunal was entitled to conclude that the wording of the leaflet failed the Hooper test.  In addition, the tribunal was entitled to find on the facts that the BB1 leaflet did not amount to a clear instruction within regulation 32(1) or (1A) to report such a change after an award.  This “in the alternative” finding by the tribunal is such that the error identified above relating to the date of receipt of the BB1 is not material and so not an error of law.

35.	The Secretary of State’s representative’s third argument on Point 1 shifts to the reasonableness issue under regulation 32(1B).  I deal with that contention further below.

The tribunal’s reasons and parties’ submissions on Point 2

36.	The chairman gave two reasons for dismissing Point 2 relating to the award notification BB1000.  First, in the light of the Court of Appeal’s decision in Hooper, he explained that “I would require to see a copy of precisely what the appellant was sent together with evidence that it was sent to him and when it was sent to him before I could begin to consider whether the respondent [the DWP] had issued any requirement to provide information pursuant to r.32(1) or 32(1A)” (para. 34).  Secondly, as regards the clerical form BB1002, the chairman ruled that the general statement contained there was not a clear and unambiguous requirement to supply information within regulation 32 (para. 35).  So it too failed the Hooper test.

37.	The Secretary of State’s representative challenges these findings on Point 2.  Her argument is that the system-generated BB1000 and the clerical BB1002 were designed at the same time and so would have contained the same information.  That may or may not be so.  However, the burden of proof was on the Secretary of State and the tribunal was entitled to expect evidence rather than assertion in support of the DWP case. The Secretary of State’s representative argues further that it is unreasonable for the tribunal to expect the production of a copy of the system-generated form when the DWP computer system makes it impossible for the decision maker to produce a copy form.  With respect, that is the Department’s problem and not a matter for the tribunal.  Again, tribunals require evidence and not assertion.  In addition, the Secretary of State’s representative does not challenge the tribunal’s reasoning in the alternative that the wording on the BB1000 did not meet the Hooper test.   I can find no fault with the tribunal’s findings and reasoning on Point 2.

The tribunal’s reasons and parties’ submissions on Point 3

38.	The chairman also rejected Point 3 for two similar reasons to point 2, accurately observing that the anonymised sample letter did not actually say what it was claimed to say in the DWP submission.  First, he repeated that he would need to see a copy of precisely what the claimant had been sent and evidence that it had been sent before he could rely on regulation 32 (para. 36).  Second, he ruled that the wording in the sample letter, especially in the absence of a copy of the supporting leaflet, did not meet the Hooper test (para. 37).

39.	In relation to Point 3 and the uprating statement, the Secretary of State’s representative essentially rehearses the same points as are made in respect of Point 2.  I dismiss those arguments for the same reasons.

Reasonableness and the regulation 32(1B) point

40.	At this stage I should add that the DWP submission to the tribunal cited the text of regulation 32(1), (1A) and (1B) of the 1987 Regulations but made no attempt to differentiate the various requirements therein.  In contrast, the tribunal chairman correctly addressed himself to their differing requirements.  He noted that regulation 32(1) and 32(1A) imposed a duty to provide information pursuant to a request by the Secretary of State. It was not qualified by any requirement of reasonableness.  He correctly identified Points 1 to 3 as being relevant to regulation 32(1) and 32(1A) and concluded that there was no compelling evidence that such a duty had been imposed on the facts of this case.

41.	The chairman then went on to consider whether regulation 32(1B) applied.  This requires claimants to notify the Secretary of State of changes in circumstances that the claimant might reasonably be expected to know might affect entitlement to or payment of benefit.  He noted that the case did not appear to be put by the DWP on this basis. On the evidence he concluded that there was no reason for the claimant to realise that the change in his living arrangements might affect his benefit, at least until he remarried.

42.	I agree that the submission to the tribunal did not refer expressly to regulation 32(1B), other than to quote that provision.  However, the submission did in terms argue that it was reasonable to expect disclosure.  But the Statement of Reasons discloses no error of law by the tribunal.  It reached a decision on the regulation 32(1B) issue on the evidence that it was entitled to do and explained why it did so.  Just as I am unable to interfere with the tribunal’s decision on the living together issue, so too I am unable to interfere with its findings on regulation 32(1B) in the absence of an error of law.

Other points relating to the appeal tribunal’s decision

43.	I have considered the further observation made by Mr Commissioner Mesher in granting leave as to whether the tribunal should have granted the Secretary of State an adjournment in this case.  The Secretary of State has not made submissions on this point.  I agree with the Commissioner granting leave that this is not a very attractive argument for the reasons that he gives.  It was the Secretary of State’s responsibility to have his case in good order.  If the decision maker declines to ask for an oral hearing and send a presenting officer, then he must take the consequences.

44.	I should add for completeness that I have carefully considered the decisions of the Commissioners in CIS/1887/2002 and CIS/1960/2007, cited by the Secretary of State in the original application for leave to appeal.  In my view those decisions do not provide any support for the Secretary of State’s argument that the tribunal in the present case erred in law.

The appeal tribunal’s one error of law

45.	There is, however, one respect in which I find that the tribunal did err in law.  In its corrected Decision Notice the tribunal ruled that it was revising the Secretary of State’s decision of 5 December 2005 (rather than 15 January 2007, as stated on the original Decision Notice).  The tribunal held that although there had been an overpayment it was not recoverable as the Secretary of State had not shown that the claimant had failed to disclose a material fact.

46.	The difficulty with this corrected decision was that the Secretary of State’s original decision of 5 December 2005 on recoverability was actually two decisions.  It comprised the failure to disclose overpayment decision and (separately) the direct credit transfer overpayment decision.  The former related to £1,216.91 for the period from 8 February 2005 to 29 August 2005.  The latter related to the balance of £168.88 for the period from 30 August 2005 to 26 September 2005.  The distinction between the two is important.

47.	The reason for this is that the failure to disclose overpayment requires proof of the elements in section 71(1) of the 1992 Act as explained by the case law, including (where appropriate) the Hooper test.  The direct credit transfer overpayment is subject to a different test, as laid down by section 71(4) and (5).  This does not depend on a failure to disclose (or misrepresentation) by the claimant.

48. The tribunal, in its revised Decision Notice, ruled that the whole sum of £1,385.79 for the entire period from 8 February 2005 to 26 September 2005 was not recoverable for failure to disclose. The tribunal did not actually address the direct credit transfer overpayment decision other than in paragraph 29 of its Statement of Reasons, where it confirmed the decision (of December 2005) with regard to the total overpayment and its constituent elements of £1,216.91 and £168.88. On the basis of its findings of fact the tribunal should have found that the WPA overpayment of £1,216.91 for the period from 8 February 2005 to 29 August 2005 was not recoverable, as there had been no failure to disclose.

49.	There is therefore a plain contradiction between the tribunal’s revised Decision Notice (which states that the amount of £1,385.79 is not recoverable) and the Statement of Reasons.  The latter divides the total overpayment into the two amounts for the failure to disclose and the direct credit transfer overpayment respectively, but then goes on to deal solely with why the alleged failure to disclose overpayment is not recoverable.

50.	The tribunal should have dealt also with the direct credit transfer overpayment.  This type of overpayment is governed by different rules.  In particular it is not subject to any test involving misrepresentation or failure to disclose.  Instead, the rules are more akin to a test of strict liability.  The overpayment has to be caused by the direct credit transfer system, the standard notification must have been issued and a Secretary of State’s certificate must have been issued (as had been the case here).

51.	On the papers there seems little doubt that there was no effective defence to the Secretary of State’s claim to recover the direct credit transfer overpayment.  The appeal tribunal erred in law in not giving effect to that.  On that ground, and that ground alone, I must set aside the tribunal’s decision as erroneous in point of law (Social Security Act 1998, section 14(8)).  I do not believe that it is appropriate to send this case back for rehearing, given the care that has otherwise been taken by the tribunal chairman.  I also take into account the considerable stress and anxiety caused to the claimant by these ongoing proceedings.

52.	My decision is therefore to make the further findings of fact that the tribunal should have done, namely that the Secretary of State has established the statutory grounds for recovery of the direct credit transfer overpayment under section 71(4) and (5) of the Social Security Administration Act 1992.  I can therefore substitute my own decision for the decision that I consider that the tribunal should have made (Social Security Act 1998, section 14(8)(a)(ii)).  That decision, which has the effect of revising the decision of the Secretary of State dated 5 December 2005, is as follows:

		This appeal by the claimant to the appeal tribunal is allowed in part.

The decision of the Secretary of State dated 5 December 2005 is revised.

The claimant has been overpaid a total of £1,385.79 in widowed parent’s allowance relating to the period from 8 February 2005 to 26 September 2005 (both dates included).

The bulk of that total overpayment, the sum of £1,216.91, relates to the period from 8 February 2005 to 29 August 2005.  This sum of £1,216.91 is NOT recoverable from the claimant.  The reason for this is that the Secretary of State has failed to show that the claimant has misrepresented or failed to disclose a material fact within section 71(1) of the Social Security Administration Act 1992.

The balance of that total overpayment, the sum of £168.88, relates to the period from 30 August 2005 to 26 September 2005.  This sum of £168.88 IS recoverable from the claimant.  The reason for this is that the Secretary of State has shown that this part of the overpayment has been caused by the direct credit transfer arrangements within section 71(4) and (5) of the Social Security Administration Act 1992.

53. In plain English, the end result is not quite as advantageous to the claimant as the appeal tribunal decision.  I agree with the appeal tribunal that the Secretary of State has not demonstrated that the claimant failed to disclose a material fact.  This means the bulk of the overpayment of WPA, amounting to £1,216.91, is not recoverable from the claimant.  However, the Secretary of State has shown that £168.88 of the overpayment is due to the bank transfer arrangements and is recoverable from the claimant.

54. The arrangements for the repayment of an overpayment of benefit do not fall within the scope of the tribunal’s powers or those of the Commissioner.  However, usually the Department is willing to accept repayment by instalments, depending on the individual’s circumstances.

	(signed on the original)	 	N J Wikeley
		 	Deputy Commissioner

								19 May 2008