Decision No: C4/02-03(IS) 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to the Social Security Commissioner

on a question of law from the decision of the Appeal Tribunal

dated 18 May 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner granted on 23 May 2002, against the decision of a Tribunal disallowing the claimant’s appeal and confirming that an overpayment of £3,165.49 for Income Support had been made to the claimant for the period 28 August 1997 until 12 July 2000.

2.	The relevant law states that the Department is entitled to recover any overpayment of benefit, which would not have been paid but for the claimant misrepresenting a failure to disclose a material fact and the law does not require the misrepresentation or the failure to disclose to be fraudulent.  The relevant legislation is set out in section 69 of the Social Security Administration (Northern Ireland) Act 1992 and in particular the following part of the section:

“(1)  Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –

      (a)	a payment has been made in respect of a benefit to which this section applies; or

     (b)	any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered, the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

(2)	Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Department or a tribunal, and may in the case of a Commissioner or a court –

(a)	determine whether any, and if so what, amount is recoverable under that subsection by the Department; and

(b)	specify the period during which that amount was paid to the person concerned.

(3)	An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it. …”

3.	The present case concerns legal issues arising out of alleged misrepresentation and failure to disclose.

4.	The background of the case is as follows.  The claimant originally claimed Income Support by completing form SP1 on 28 August 1997.  This form was received in the local Social Security Office on 16 September 1997.  In the form the claimant was asked whether she was receiving or waiting to hear about any other benefits.  She indicated that she was in receipt of Disability Living Allowance and Severe Disablement Allowance.  On 24 September 1997 the claimant was awarded Income Support from 28 August 1997.  On 4 July 2000 information was received from the Generalised Matching Service that the claimant was in receipt of Industrial Injuries Disablement Benefit.  On 4 August 2000 the Department decided that there was an overpayment of Income Support for the period from 28 August 1997 to 12 July 2000 amounting to £3,165.49 and this was recoverable from the claimant.  The decision stated that the claimant on 28 August 1997 had misrepresented the material fact that she was receiving Industrial Injuries Disablement Benefit when she completed an Income Support claim form SP1.

5.	On appeal the Tribunal gave the following decision:

“Disallow appeal.  An overpayment of £3,165.49 income support was made for the period 28/08/97 – 12/07/00.”

6.	The Tribunal gave the following reasons for its decision:

“The claimant’s case was that there was no knowledge of a material fact until the claimant received back payment of IDB, on her evidence, in January 1998.  The fact of overpayment was conceded.

The Presenting Officer argued that from the date of notification the claimant had knowledge of a material fact (17.9.97) if not at the time of the successful appeal (2/9/97) so predating the overpayment record of 28.8.97 – 12.7.00, based on date of claim of 28.8.97.

The claimant’s representative argued that since the Adjudication Officer had requested reasons for the IDB appeal, an appeal to the Commissioner has contemplated so no payment would have been made, despite notification of the award; and that receipt of benefit post-dated 15.12.97 when reasons received and it was decided not to pursue appeal.  He also argued that there was not sufficient proof of notification or of receipt of benefit.

Although it was accepted that under SF2 automatic recovery was possible if period of overpayment reduced, I hold important to decide issue on particular facts.  It was decided that at the date of successful appeal 2.9.97 at which claimant presents a material fact of new entitlement to IDB existed.

She failed to disclose this.  Although she may not have understood detail of implications of decision must have known that she won the appeal and was entitlement to benefit.  It was reasonable to expect her to disclose this fact.  She failed to do so, resulting in the overpayment of benefit documented.”

7.	The legally qualified member (in the present case, the only member) made the following record of proceedings: -

“Representative
Refers to Department’s submission on paragraph 5.

Chairman
Issue is what is material fact?

Representative
Until gets money, not clear getting benefit.

Chairman
Issue is when it is a fact that notification from Department that considering leave for apply to Commission.  Presenting Officer arrived at 10.08.  Claimant and representative had no objection to continuing.

Presenting Officer
Misrepresented the fact that she was receiving benefit.  By the time she received the first payment of income support she received notification and first payment.

Chairman
What was date of new statement of IDB?

Presenting Officer
17 September payment was authenticated and issued.

Representative
There was authorisation and notification, but not actual payment.
There is no payment usually pending consideration of an appeal.

Representative
Claimant’s understanding was that payment was not until sometime in 1998.

Representative
Arguing that no clear date of payment proven.
[The claimant] was working in 1994.

Presenting Officer
Don’t have access to IDB computer records, but reply to 19 July letter was based on records.  Once payment authorised, issue for payment.  Only Finance Branch had date of issue.  In usual course of events it is issued.
[The claimant] – first got money at beginning of 1998.

Representative
Even if authorisation, need not be payment if considering appeal to Commissioner.

Presenting Officer
Assumption based on Tab B that request for papers meant that appeal to Commissioner pending.  Assuming also there was no payment in the meantime to claimant and no payment until 1998.  No report until discovered in 2000.
Presenting Officer records of paid order book only kept for 12 months.

Claimant
Thought had filled in form correctly.  Confused.
Representative – January 98 is the date of calculation.
Presenting Officer – even if late on date – would use SF2.”

8.	The claimant applied to the legally qualified member of the Tribunal for leave to appeal to a Commissioner but leave was refused.  However, as stated at paragraph 1 herein, leave was granted by a Commissioner on 23 May 2002.

9.	The claimant, who is represented by Mr Brady of the Welfare Rights Centre, Newry, has appealed on the grounds that (i) she does not understand the decision; (ii) there was insufficient evidence, especially as the dates of payment, for the Tribunal to have come to a decision on overpayment; and (iii) the claimant’s understanding of the benefit was only clear once the payment (the Industrial Injuries Disablement Benefit) was made.

10.	Having considered the circumstances of the case and the reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without such a hearing.

11.	In this appeal I have had the benefit of the claimant’s application for leave to appeal form and Mr Brady’s submission contained in the letter dated 29 July 2002.  I have also had the benefit of written submissions from Miss Murray on behalf of the Department set out in letters dated 12 March 2002 and 24 June 2002.

12.	In relation to the grounds of appeal it seems to me that the decision, in itself, is quite clear.  When the decision and the reasons for the decision are read together there is no doubt that the Tribunal held that the claimant had “failed to disclose”.

13.	In relation to the allegation that there was insufficient evidence before the Tribunal, especially as to dates of payment, it is correct that some dates were somewhat vague.  However, given the finding of “failure to disclose” following the Industrial Injuries Disablement Benefit (“IIDB”) appeal, the vague dates were not relevant in these proceedings.

14.	In relation to the claimant’s understanding of the benefit only becoming clear once payment was made, the Tribunal held that she did not make the appropriate disclosure once payment was made.  However, the Tribunal held that the key material fact was that the claimant had won the appeal and the Tribunal also explained why it was the key fact in its decision.  Accordingly, there appears to be no substance in this point.

15.	Miss Murray has submitted a further point which is potentially to the advantage of the claimant.  Both the Department’s decision and the submission to the Tribunal were based on misrepresentation.  In the Department’s additional written submission the Tribunal was asked to consider “failure to disclose” if it did not accept that there had been a misrepresentation.  It is noteworthy that this point was not developed in this submission.  According to the record of proceedings it is noted that the claimant’s representative specifically directed the Tribunal to paragraph 5 of the Department’s submission, which set out the following questions:

“(a)	Did [the claimant] misrepresent the material fact in question? 

 (b)	Has an overpayment occurred due to this misrepresentation and if so is it recoverable from [the claimant]?”

The representative, Mr Brady, then argued that as the IIDB was not actually in payment when the claim form for Income Support was completed, it was not clear to the claimant that she was getting benefit.  Miss Murray submits that in light of this it appears that the claimant and her representative were arguing that, as it was not clear to the claimant that she was getting benefit, she could not have made a misrepresentation by not mentioning her claim for IIDB on her Income Support claim form.  Miss Murray also pointed out that the presenting officer for the Department had argued that the claimant had misrepresented the fact that she was receiving benefit and by the time she received the first payment of Income Support she had received notification that she had been awarded IIDB and had also received her first payment of this.  Miss Murray also pointed out that towards the end of the record of proceedings the claimant is recorded as stating that she thought she had filled in the Income Support claim form correctly.  This would again have been relevant to whether or not there had been any  misrepresentation made by the claimant on the claim form (SP1).

16.	Miss Murray’s fundamental submission is that the Tribunal has considered “failure to disclose” but has appeared to have given little or no consideration to “misrepresentation”.  

17.	In dealing with the issue of “failure to disclose” it seems that the Tribunal has followed the tests set out in Great Britain decision R(SB)54/83 which stated that the relevant tests were as follows:

1.	the Secretary of State (the Department in Northern Ireland) seeking to recover expenditure must be the Secretary of State who incurred it;

2.	the person from whom it is sought to recover the expenditure must know the material fact;

3.	the disclosure by the person in question must be reasonably to be expected;

4.	there must be a failure to be disclosed;

5.	the failure must relate to a material fact; and

6.	the expenditure by the relevant Secretary of State must be incurred “in consequence of the failure”.

The Tribunal, in my view dealt with tests (2) to (6) whilst test (1) was not in dispute as the fact of the overpayment was conceded.

18.	I conclude that the Tribunal decided the case on the “failure to disclose” basis and the Tribunal did not specifically decide the issue of misrepresentation.  However, whilst misrepresentation was an issue raised in the Department’s submissions and mentioned by the parties at the Tribunal,  the Tribunal correctly in my view narrowed the issue to failure to disclose and dealt with the matter appropriately under that heading.  While it would have been more appropriate for the Tribunal to reject specifically the misrepresentation case, it does not appear to be an error in law to reject it by implication.  The claimant can be in no doubt why the Tribunal came to its decision in light of the form of the decision, the reasons for the decision and the record of proceedings.  It is also clear that the Tribunal applied the law in relation to “failure to disclose” entirely rationally and properly in accordance with the evidence.

19.	In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss this appeal.  Even though there has been support by the Department for the claimant’s appeal I would point out that Miss Murray in her letter of 12 March 2002 has pointed out that, although in her submission she has identified an error or law, she did not wish to mislead the claimant into believing that this would necessarily be to her advantage.  I presume that Miss Murray is taking into account the fact that, even if the claimant had succeeded in this appeal and if the case had been referred back to another Tribunal, the claimant’s prospects of success before such a Tribunal were not necessarily going to be good.

			(Signed):	J A H MARTIN QC
					CHIEF COMMISSIONER

			(Dated):	 3 JANUARY 2003