DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I hold the tribunal erred in law. I give the decision that the tribunal ought to have given.  I hold that the claimant was entitled to the benefit of the set off provided for in regulation 13(1)(b) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 SI 1988/664. 

2.	I remit to the Secretary of State to determine what set off, if any, should be applied to the decision made that £2,503.87 of income support was recoverable from the claimant.

Background

3.	The facts of this case are not in dispute.  The claimant had claimed income support from 1999 on the basis of being alone parent.  She began living with a partner from 12th December 2004, but did not tell the benefit’s office of her change in circumstances.  Income support continued to be paid on the basis that she was a lone parent until she was visited by an office of the local borough council on 3 June 2005 when it came to light that she was living with her partner.  On 6 June 2005 the partner made a claim for income support for himself, the claimant and child.  On 9 September 2005 the claimant was notified of a decision that she was no longer in the prescribed category of lone parent and therefore was not entitled to income support.  An overpayment decision was made on 28 February 2007.  Following a request for reconsideration of the overpayment decision which was reconsidered along with the income support decision both were not revised.  The claimant appealed to the tribunal.

Tribunal’s decision

4.	On 26 November 2007 the tribunal refused the appeal and later issued a Statement of Reasons.  The tribunal found that there was no question of fraud in the present case.  The material parts of the decision which are now subject to appeal is set out in the Statement of Reasons:

“It was indicated on behalf of [the claimant] that CIS/2291/2001 related to Jobseekers Allowance, and Regulation 13 should be applied in the instant case to allow the couple deduction to the overpayment.  But Commissioner Williams also indicated that Regulation 13 did not contain any discretion.  In effect, [the claimant] was not entitled to income support on the basis of being a lone parent and no other deduction can be made.”

The tribunal also rejected an argument under Article 8 of the Convention saying:

“I therefore found it difficult to accept that the exercise of the duty contained in the legislation, showed a lack of respect for [the claimant’s] family life”.

Appeal to the commissioner

5.	Leave to appeal to the commissioner was granted by the chairman.  The two ground of appeal were that “the tribunal has made an error in law in its interpretation of Regulation 13 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 SI 1988/664 and of Commissioner’s Decision CIS/2291/2001” and that the decision was in breach of Article 8 of the convention in “that this would be tantamount to removing from her and her family all source of income over the relevant period.  Total deprivation of income from a family with children, places the family at risk and is a potential breach of Article 8.”

6.	The Secretary of State does not support the appeal.  The Secretary of State submitted in relation to Regulation 13 that for the regulation to apply there has to be in existence a claim and that regulation 13 made “no legal provision for the reduction of a recoverable amount of overpaid benefit by a notional amount of any other benefit that might have been awarded had it been claimed” and referred to CIS/718/93 and CIS/577/94.  It was for the Secretary of State’s discretion whether or not to recover the overpayment where there was a notional entitlement to another benefit.  In relation to the Article 8 argument the Secretary of State submitted that the article imposed a negative obligation on a public authority and did not impose a positive obligation to provide benefit.  Article 8 might only be engaged in circumstances where the suffering from having no money would reach the Article 3 threshold.  Reference was made to Petrovic v Austria [2001] 33 EHRR; Chester [2002] EWHC 2648 (Admin) and Anufrijeva v Southwark [2003] EWCA Civ 1406; [2004] 1 QB 1124.  It was also argued that even if the claimant came within the ambit of Article 8 then section 6 of the Human Rights Act 1998 provided a defence; Hooper v Secretary of State for Work & Pensions [2005] UKHL 29; Times May 6, 2005.

7.	The claimant’s representative responded that:

“The purpose of POA Regs Reg 13 is to offset overpayment of income support by any additional amount of income support which should have been determined as payable had the claimant disclosed their circumstances at the time they changed … the use of the term “should have been” denotes a hypothetical situation which would have existed had the claimant made a full and timely disclosure.

The circumstances of the claimant in this case are exactly those envisaged by the drafters of the legislation; had she disclosed her partner was now living in her household they would have been treated as a couple and received a higher amount of income support. …”

It was submitted that CIS/718/1993 and CIS/557/1994 were not relevant as they concerned notional entitlement to another benefit whereas this case concerned exclusively entitlement to income support.  Therefore Regulation 13 should be applied thus offsetting additional income support which could have been paid to the couple from the alleged overpayment.

Discussion

Regulation 13

8.	Regulation 13 provides:

13.—(1) Subject to paragraph (2), in calculating the amounts recoverable under [71(1) of the Social Security Administration Act 1992] or regulation 11, where there has been an overpayment of benefit, the adjudicating authority shall deduct–
(a) any amount which has been offset under Part III;
(b) any additional amount of income support or state pension credit, or income-based jobseeker’s allowance which was not payable under the original, or any other, determination, but which should have been determined to be payable –
(i) on the basis of the claim as presented to the adjudicating authority, or
(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;
but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

9.	Read short, the relevant provision is:

“… where there has been an overpayment of benefit, the adjudicating authority shall deduct … (b) any additional amount of income support … which was not payable under the original, determination, but … which should have been determined to be payable… (ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination …

10.	Regulation 13 has been subject of much criticism in CP/5257/1999 where was described as “a masterpiece of obscurity” and CIS/2291/2001 where reference was made to “the tortured language of regulation 13”.  However, those cases were dealing with rather different factual circumstances.

11.	I consider that in the facts of the present case, the claimant is entitled to the benefit of Regulation 13, because at the relevant time she had made a claim for income support.  In CP/5257/1999 Mr Commissioner Meshner held at paragraph 41 that regulation 13 could operate in circumstances where the relevant misrepresentation or failure to disclose arose during the currency of the payment of a benefit.  This is what happened in the present case where the claimant failed to report that her partner had moved in to live with her, while she was getting paid income support as a single parent.  If she had disclosed that at the material time she and her partner could have elected that she should make the claim for income support as a couple – Regulation 4(3) of the Social Security (Claims and Payments) Regulation 1987.  I therefore consider that it can be said that if the non disclosure had been remedied at the time that the claimant’s partner moved in, then the claimant’s claim at that date would have appeared as a joint claim made by her for income support for the “couple”.  As she had an ongoing claim I consider it can be deemed that she would have elected to make the proper claim at the material time. 

12.	I agree with the claimant’s representative that the “which should have been determined” refers to a hypothetical situation which would have existed if a proper disclosure had been made.  I do not accept that there should have been in existence an actual claim, in the sense of an actual claim made by the couple.  However, I do consider that there has to be an actual claim for income support by the claimant in existence at the time, albeit on the wrong basis, and that the claimant was capable, in law, of making a correct claim for income support at the time that the non disclosure arose for there to be a right to apply regulation 13.  The regulation would not work if there has to be an actual claim for the benefit on the correct basis, before there can be a set off under regulation 13 in circumstances where that correct claim was not made because of a failure to disclose or a misrepresentation.

13.	I therefore agree that the tribunal misconstrued Mr Commissioner William’s decision in CIS/2291/2001 as applying to the present facts.  That decision related to whether or not a claim for income support, where there was no entitlement, could be set off against jobseekers allowance for which no claim had been made.  Mr Williams, following CIS/1777/2000, held that in those circumstances there could be no set off, because there was no claim for jobseekers allowance.  In the present case there was a claim for income support, but the right information had not been provided at the right time, so that the new claim as a couple could be made for income support. 

14.	The Secretary of State’s submission that a recoverable amount of overpaid benefit cannot be set off against a notional amount of a different benefit may be right, and I express no opinion, but that is not the material issue here.  For the reasons given in paragraph 11, what required to be addressed is the situation where there was a claim for income support and there was the hypothetical right to make a claim for the same benefit at the time when the disclosure ought to have been made.

Article 8 of convention

15.	In light of my decision that regulation 13 applies, this ground of appeal does not arise.  In any event, I do not consider that it would have been a relevant consideration for me, except under section 3 of the Human Rights Act 1998 as an aid to the construction of regulation 13, if I had had to try to construe it in a manner consistent with a convention right.  If regulation 13 was not compatible, then it would be a matter for the High Court or the Court of Appeal to grant a declarator of incompatibility under section 4 if so advised.  I do not consider regulation 13 to be incompatible.

16.	I agree with the Secretary of State that the obligation on a state to provide financial support only arises were the failure to provide financial support amounted to a deprivation that established an infringement of Article 3.  As the Lord Chief Justice said in Anufrijeva v Southwark [2003] EWCA Civ 1406; [2004] 1 QB 1124 at [35]:

“… There is a stage at which the dictates of humanity require the State to intervene to prevent any person within its territory suffering dire consequences as a result of deprivation of sustenance.  If support is necessary to prevent a person in this country reaching the point of Article 3 degradation, then that support should be provided.  We refer to paragraphs 59 and 60 of the judgment in Q in relation to the degree of deprivation necessary to establish infringement of Article 3.”

17.	I do not accept that the mere right to recover benefits that ought not to have been paid of itself can give right to a breach of Articles 3 and/or 8 of the convention.  The enforcement of that right, if it amounted to a deprivation that established an infringement of Article 3, might give rise to a breach.  However, the department does have a threshold below which it will not reduce benefit, when recovering an overpayment.  The claimant has received income support in the past and the couple continued to receive income support.  Unless the recovery of overpaid benefit was done in a matter that breached Article 3, I do not consider that the convention would be engaged.  In any event it would not be within my jurisdiction as a Deputy Commissioner to determine such an issue.

18.	I would therefore have refused this ground of appeal.

(signed)
Sir Crispin Agnew of Lochnaw Bt QC
Deputy Commissioner
Date: 1 September 2008