DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Sunderland on 6 June 2004 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.  

2.	The Secretary of State has appealed to the Commissioner against the decision of the tribunal which is recorded at page 513 of the bundle.  I held an oral hearing of the appeal on 9 July 2008.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Miss McCurry of the Office of the Solicitor to the Advocate General.  The claimant was given notice of the hearing.  She did not respond to the notice of the oral hearing which was dated 6 June 2008 and did not attend. In accordance with regulation 24(4) of the Social Security Commissioners (Procedure) Regulations 1999, I proceeded with the case in the claimant’s absence.  

3.	On 4 November 2004, a decision of the decision maker dated 12 January 1994, awarding the claimant Income Support from and including 28 December 1993, and all relevant subsequent decisions up to 4 February 2004, were superseded by virtue of a relevant change of circumstances.  That change of circumstances was identified upon the basis that the claimant and the named man were living together as husband and wife from and including 25 November 1994.  The decision maker found that as a result, the claimant no longer satisfied the conditions of entitlement and was not entitled to Income Support from and including 29 November 1994.  The claimant appealed against that decision.  Her appeal was heard by a tribunal on 12 May 2005.  It confirmed the decision maker’s decision and found that the claimant had been residing with the named man as man and wife since 25 November 1994.  

4.	On 15 November 2004, a decision maker made a decision recorded at page 240, finding that as a result of the decision of 4 November 2004, an overpayment of Income Support had been made from 29 November 1994 to 19 February 2004 amounting to £48,082.50.  The decision maker found that the amount was recoverable because the claimant had failed to disclose the material fact that she was living with a man and that in consequence of the failure to disclose, benefit was paid which should not have been paid but for such failure, the claimant appealed against the decision.  It was revised on 14 February 2005.  This reduced the amount of the recoverable overpayment to £48,049.50  The decision of 15 November 2004, as revised by the decision of 14 February 2005 was appealed to a tribunal.

5.	The decision of the tribunal was in the following terms:

	“The appeal is allowed.

	The decision of the Secretary of State issued on 14/2/2005 is revised.

[The claimant] and [named man] were not living together as man and wife for the purposes of her Income Support claim and there was accordingly no change of circumstances which she could report to the DWP.”

6.	The Secretary of State’s grounds of appeal were in essence that the tribunal had failed to give adequate reasons for their decision that the claimant and the named man were not living together as man and wife.  Mr Bartos, in his submission, reiterated the points made in paragraphs 4 to 7 of the Secretary of State’s grounds of appeal.  I am persuaded by the Secretary of State’s submission in the absence of a contradictor and hold that the decision of the tribunal errs in law and must be set aside.  The tribunal, in my view, did not deal adequately with the evidence referred to by the Secretary of State which was material to the question of whether the claimant and the named man lived together in the same household.  It is to be noted that Mr Bartos did not seek to advance the separate argument relating to want of jurisdiction, due to an asserted lapsing of the appeal, contained in the Secretary of State’s written submission of 7 May 2008.  As he did not insist on this ground orally, I have not dealt with it.   

7.	I am also satisfied that what is contained in paragraph 3 of the statement of reasons for the decision is in error in law.  Mr Bartos accepted that the tribunal had no jurisdiction to purportedly interfere with the decision of entitlement of 4 November 2004 which was confirmed by a different tribunal on 12 May 2005.  The first sentence of that paragraph is also erroneous in law, having regard to regulation 7(2)(c)(v) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  

8.	I directed an oral hearing of this appeal as I wished to explore another issue with the Secretary of State.  As indicated above, there have been two tribunal hearings in relation to the claimant’s award of Income Support.  The first was that of 12 May 2005, where the tribunal held in relation to the supersession of the award of entitlement, that the claimant has been residing with the named man as man and wife since 25 November 1994.  The tribunal in the instant case, which was hearing an appeal against a recoverable overpayment decision, came to exactly the opposite conclusion in relation to the same factual issue.  I raised the question with the Secretary of State as to whether the tribunal in the instant case had jurisdiction to make a determination in relation to a matter of fact on the same issue which was crucial for the determination of both appeals.  Mr Bartos submitted that the tribunal in the instant case did have jurisdiction to entertain evidence and submissions in relation to the fact which had already been determined by the earlier tribunal in relation to entitlement.  In that connection, he referred me to section 17 of the Social Security Act 1998 which is headed “Finality of decisions”.  That section provides: 

“17. – (1) subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final;  and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.  

(2) if and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of –

(a)	further such decisions; …..”

Mr Bartos informed me that there had been no regulations made in accordance with the powers given by section 17.  The consequence of that, he submitted, was that while, in relation to the determination of fact in relation to whether the claimant and the named man were living together as man and wife, was final and conclusive for the purposes of entitlement, it was not so in relation to the issue of the disclosure of a material fact for the purposes of the overpayment decision made under section 71(5A) of the Social Security Administration Act 1992.  In that connection, he referred me to two decisions by Mr Commissioner Mesher in CIS/1330/2002, paragraph 19 and CIS/2208/2003.  With considerable reluctance, I have been persuaded that Mr Bartos’ submission on this issue is correct.  It seems to me absurd that the same issue of fact should be capable of being determined by two separate tribunals in a manner which is contradictory.  However, that is what the law appears to provide and this will result in the freshly constituted tribunal to whom I have referred the case for a rehearing having to determine for the purposes of the recoverability of the overpayment, the same issue of fact as was determined by the tribunal of 12 May 2005.

9.	The freshly constituted tribunal will require to deal along with the other evidence of the case when determining the crucial question of fact, the evidence which the Secretary of 
State has drawn attention to in the course of this appeal.

10.	The appeal succeeds.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  10 July 2008