CIS/3486/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  For the reasons given below, this appeal is dismissed.  The claimant has not sought an oral hearing of this appeal, and I consider that I can determine the issues of law which arise without such a hearing.

2.	  The appeal is brought by the claimant, with the leave of a commissioner, from a decision of the Darlington Appeal Tribunal given on 7 August 2007 disallowing the appeal of the claimant and confirming the decision of the Secretary of State issued on 29 September 2006.  That decision was that (1) as a result of “the decision(s)” dated 17 October 2005 there had been an overpayment of income support from 15 October 2004 to 20 October 2005 (both dates included) amounting to £2376.40; (2) on 20 October 2004 or as soon as practicable thereafter the claimant failed to disclose the material fact that his award of the middle rate of the care component of disability living allowance had ceased, meaning that he was no longer entitled to severe disability premium; and (3) as a consequence the claimant had been overpaid income support in the sum of £2376.40 between those dates which would not have been paid but for the failure to disclose.

3.	  The essential point made on this appeal (file, p.119) is that the secretary of state has failed to show that the claimant was aware that he had to disclose the fact that his award of middle rate care had ceased or any other basis for a duty to disclose that change.  

4.	  The tribunal relied on computer print-outs from the DWP showing that on 22 January 2004 and on 20 January 2005 income support uprating letters were issued to the claimant together with form INF4 and that its copy of form INF4 stated that the claimant had to advise the income support office if, inter alia, he started getting a different amount of benefit or stopped getting a benefit or other money.  The claimant gave evidence that he did not remember getting uprating letters or INF4 leaflets and said that his post could get mixed up with the post of another person at a similar address in another village.  He also stated that he did not know that his income support had increased because of the award of the middle rate care component.  The income support payments went directly into his bank and he did not know how much he was getting.

5.	  The tribunal found that the claimant did, on the balance of probabilities, get the INF4 leaflets shortly after the dates shown on the computer records.  He was clearly aware of the reduction in his DLA as he was trying to pursue an appeal against it.  He should have disclosed it to the income support office.

6.	  In this case the claimant had been on income support since 1998.  He was awarded the middle rate of the care component of disability living allowance only from 30 August 1999, and thus only became entitled to the severe disability premium from that date.  The award was made by a tribunal and is dated 11 October 2000, and it appears to have been communicated to the income support office by the claimant with a note dated 22 March 2001 signed by him (pp.11-12), which appears to have led to the income support unit checking with the DLA unit by telephone on 23 March 2001 (p.13).  I am bound to say that I find it very difficult to see how the claimant could not have been aware at around that time that his income support increased significantly as a result of the award of the middle rate of the care component.   

7.	  Under regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987, claimants are required to “furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require for determining whether a decision on the award of benefit should be” revised or superseded.  Regulation 32(1B) also provides that the claimant should notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect the continuance of entitlement to benefit or the payment of benefit as soon as reasonably practicable by giving notice to of the change to the appropriate office.

8.	  It appears to me that the claimant could reasonably be expected to know that he was in receipt of additional income support as a result of his award of middle rate care, and that it follows that he could reasonably be expected to know that the loss of that care component award might affect the continuance of his entitlement to that additional income support.  It follows that in my judgment, regardless of the receipt of any form INF4, the claimant ought promptly to have notified the income support office of that change of circumstances.  In evidence, the claimant, who suffers from mental health problems and alcohol abuse, accepted that he should have notified the income support office of the cessation of the middle rate care component, but he did not understand this at the time.  The claimant’s failure, or even inability, to appreciate that fact is irrelevant (R(IS) 9/06).

9.	  The sending of the uprating letters and INF04 is evidenced only by a computer screen print generated on 21 October 2005 (p.74).  An INF4 leaflet headed “Amendment 18 November 2003” was produced by the tribunal at the hearing, and the record of proceedings indicated that the claimant’s representative did not wish to have time to consider it.  Her submissions on this appeal, relying on R(IS) 2/96, are that the computer printout is not evidence that the documents were actually sent, and that there was no evidence of even a specimen of the documents sent. 

10.	In R(IS) 2/96, the question was whether there had been a review of a decision awarding benefit, which is a necessary precondition to an overpayment decision under section 71(5) of the 1992 Act.  The commissioner held that the computer documentation produced in that case was, by itself, not intelligible (paragraph 10 of that decision).  He went on to hold that the tribunal in that case had failed adequately to explain why it had concluded that a notice had been sent and that neither the terms or the putative terms of the notice had been recorded (paragraph 11) and that there was no evidence of the terms of the review that was recorded as having taken place which was necessary to show that the review was a proper foundation for the revisal in that case (paragraph 12).

11.	In this case the computer screen print is headed “Letter Type” and each of the relevant entries reads “Uprating, COC’s (INF1, 4)”.  The date on the same line is stated on the record to be the date on which the documents in question were issued.  The tribunal did not find this entry unintelligible.  It found that the computer was showing that on 20 January 2004 and on 20 January 2005, income support uprating letters were issued together with forms INF 1 and INF4.  In my judgment, that was a finding that the tribunal was entitled to make.

12.	It does not follow from that finding that this information that was uploaded onto the computer was necessarily correct.  It is possible that for some reason the documents never were posted.  It is also possible that for some reason they were posted but not received.  However, the tribunal was entitled, once it was satisfied as to the meaning of the computer entries, to find that in the ordinary course of events they would have been posted and would have been delivered.  If there was evidence, for example, that a particular office was in a chaotic state or that its computer records were unreliable, then a tribunal may conclude that the computer records did not establish that what was said to have been posted was in fact posted.  So too, the tribunal would need to take into account evidence that the documents had not arrived at the supposed destination.

13.	In the present case, the evidence of the claimant was that he did not recall receiving the letters or INF4 leaflets, and that some of his post was misdelivered, but he accepted that he had received letters at some point from the income support office, and he was clearly receiving letters from the DLA office.  Given his mental condition and all the evidence, which the tribunal took into account, it was entitled to conclude that on the balance of probabilities he had received the uprating letters and accompanying leaflets.

14.	There is a copy of the INF4 leaflet in the file (pp.99-101).  In view of the fact that the record of proceedings shows that the claimant’s representative was offered time to consider it, and there was no presenting officer, it appears likely that it was produced by the tribunal rather than by the secretary of state.  It would have been open to the representative of the claimant to ask for time and even for an adjournment, to enable her to check if the requirement in that leaflet to tell the income support office if the claimant stopped getting any benefit or other money had appeared in any earlier version of INF4 which might have been sent to the claimant in January 2004 rather than the November 2003 update.  She did not do so, and in my judgment it was reasonable for the tribunal to conclude on the balance of probabilities that the leaflet enclosed with the letter in January 2004 was the November 2005 version.

15.	I consider that this case is distinguishable from R(IS) 2/96 in that it was an intelligible computer record of a standard form leaflet being sent to the claimant.  It is improbable in the extreme that anybody would have any recollection a year later of posting the letter and leaflets, but it appears to me that the computer record is as much evidence of posting, or rather that in the ordinary course of events the documents would have been posted, as a copy retained on file would have been.  While it does not identify the version of INF4 that was sent, the version is irrelevant unless there is evidence that a version may well have been used that did not require the claimant to tell the income support office if he stopped getting any benefit or other money.  The position is different from that where there is a review or supersession decision, which would have to be a specific document generated in relation to the specific case and the terms of which ought to be available to prove that the precondition for the overpayment decision had been properly complied with.

16.	I therefore consider that the tribunal came to a conclusion on a question of fact to which it was entitled to come on the evidence before it, and that it was not in error of law.  For the reasons given, in any event, I also consider that the claimant ought reasonably to have disclosed to the income support office that he was no longer in receipt of the middle rate care component even if he had not received any INF4.  For these reasons, I do not consider that R(A) 2/06, which was relied on by the claimant, is of any assistance to him.

17.	I do not read the contentions of the claimant on this appeal as including a contention that there was a prior revision or supersession sufficient to satisfy the pre-condition in section 71(5) of the Social Security Administration Act 1992 for an overpayment decision to be made.  However, the representative of the secretary of state has addressed this issue, bearing in mind that there is no copy of the supersession decision made in October 2005 with the file.  I am satisfied that there was ample evidence from which the tribunal was entitled to conclude, and indeed bound to conclude, that there was such a decision.  The computer print out (p.74) shows a change of circumstances letter to have been issued on 21 October 2005.  On 25 October 2005 a signed overpayment referral form was issued, which is copied in full at p.75 of the file.  This identifies the date of change of circumstances as 20 October 2004, the date the changes were “received” by the DWP as 17 October 2005 and the date the changes were “actioned” as 17 October 2005.  The overpayment decision specifically refers to a decision dated 17 October 2005 (p.79).  There has never been any issue raised by the claimant that he did not receive notice of a supersession decision at this time, and there was also an application, I am not clear at whose instigation, for a reconsideration of that decision although the date of the decision is given as 21 October 2005, the date the notice of it was stated on the computer to have been issued (pp.86-87).

18.	In any event, this issue was not raised in the notice of appeal to the tribunal or in any submissions made to the tribunal.  Under section 12(8)(a) of the Social Security act 1998, the tribunal does not have to take into account any issue not raised by the appeal.  It should still take account of issues which come to its attention and obviously merit consideration, but there was no argument or evidence put forward by the claimant that he had not received notice of the decision in October 2005, and given the other evidence in the file, no reason to suppose that a proper decision may not have been made or communicated.

19.	The appeal is therefore dismissed.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		3 April 2008