[2005] NISSCSC C1_04_05(HB) (16 May 2005)

Decision No:  C1/04-05(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 12 June 2003

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the Department against a decision dated 12 June 2003 of an appeal tribunal sitting at Armagh.  The Tribunal had allowed the claimant’s appeal against a decision of the Northern Ireland Housing Executive (NIHE) dated 2 July 2002 to the effect that 

(a)	the claimant had been overpaid Housing Benefit in the sum of £11,191.87 for the period 23 October 1995 – 24 June 2002;
(b)	 that this sum was recoverable;
(c)	 that it was recoverable from the claimant.

2.	No issue was raised as to the fact that the claimant had been overpaid housing benefit in the above sum and that the overpayment related to the above period.  The issue before the Tribunal was whether or not the overpaid sum of £11,191.87 (£11,224.89 less a credit of £33.02) was recoverable from the claimant.

3.	The NIHE’s case was that the claimant had failed to disclose that he was in receipt of an occupational pension, that he had the mental capacity to be aware of this, that he did not disclose it to the NIHE, that disclosure was reasonably to be expected, that there was therefore a failure to disclose this material fact, that the overpayment had occurred as a result of this failure to disclose and that it was recoverable.

4.	The claimant’s evidence to the Tribunal is summarised by the Tribunal in its reasons for decision as is the evidence of the NIHE officials who also attended the hearing:-
“The evidential issues before the appeal tribunal

The appellant gave evidence, firstly, that while he can read and write, he has some difficulty with the completion of official forms.

Secondly, the appellant gave evidence that on the first occasion on which he wished to claim Housing Benefit, that is in and around 19th October 1995, he attended the local office of the Northern Ireland Housing Executive to make enquiries, and in order that the relevant claim form to Housing Benefit might be completed.  The appellant gave evidence that during the process of the completion of the initial claim form to Housing Benefit, he was asked whether he had any social security benefit books.  He replied in the affirmative, and handed over his Incapacity Benefit book.  He states that this book was taken away for photocopying, and was returned to him.  The appellant gave evidence that he was not asked, during the completion of the relevant form, whether he was in receipt of any other income.  The appellant gave evidence that he did not complete the contents of the initial Housing Benefit application for, [sic] but simply signed this when it was completed and handed to him.

Thirdly, the appellant gave evidence that for the purposes of subsequent claims to Housing Benefit, he again attended at his local office where he was given assistance with the completion of his Housing benefit application forms.  He states that on at least one occasion he completed part of the relevant form himself, but that the usual pattern was that the form was completed by an officer of the Northern Ireland Housing Executive, and that he signed the form, once completed.  Further, on each occasion he was asked about his Incapacity Benefit, but not about any other income.

As was noted above, two officers from the Northern Ireland Housing Executive attended the appeal tribunal hearing, in order to give evidence about the general procedures adopted for assisting claimants to Housing Benefit to complete the relevant benefit application forms, and as to the actual procedures adopted in the present case.  One officer gave evidence that she was the officer who assisted the appellant in the completion of the initial claim form to Housing Benefit, and to certain of the subsequent application forms.  She gave evidence that she would have sought information about all of the issues raised by the form.  In relation to Part 6 of the form, which is headed ‘Income’ she gave evidence that she asked questions about all of the categories of income outlined in that section.  Further, she gave evidence that she would have expected a claimant with additional sources of income to declare these in response to the questions asked, particularly about income.  The officer also gave evidence that she would have photocopied the appellant’s Incapacity Benefit book, if this had been available.  Another officer gave evidence that the appellant’s Incapacity Benefit book had, in fact, been photocopied.  The first officer gave evidence that the same procedures would have been adopted for the completion of the subsequent applications to Housing Benefit, and, in so doing, refuted any suggestion that there was a presumption that the appellant’s sole source of income was Incapacity Benefit.”

5.	The Tribunal had before it the relevant application forms.  On each form is a section headed income.  It is headed:

“If you or your partner receive any of the benefits, pensions or allowances listed here, please enter the allowance or pension book number and the amount you receive each week.”

	Below this sentence is a list of pensions, benefits and allowances including:

“Occupational (Works) Pension”.

	On none of the forms is there anything marked in the boxes opposite this pension.  The only income entered is in the box opposite Invalidity Benefit/Incapacity Benefit.

	At the back of each of the application forms is a declaration form which the claimant has signed.  The format of this declaration varies somewhat.  On the earlier forms – dated 19.10.95 and 12.2.96 the declaration states:

“I declare that to the best of my knowledge the information given on this form is correct and also that it refers to the place at which I normally reside.  I understand that if I give information that is incorrect or incomplete action may be taken against me.  I authorise the Housing Executive to obtain any information from any source relevant to the determination of my claim.  I will undertake to advise the Housing Executive at once in writing of any changes in the details I have entered on this form.”

6.	The forms from 5.3.97 onwards have declarations in various forms but all declaring that the information given on the form is correct and complete either to the best of the claimant’s knowledge or without that qualification.

7.	The Tribunal accepted the claimant’s evidence finding him to be an honest and credible witness and recorded its conclusions on the evidential issues before it as follows:-

“Having heard from and seen the appellant, the appeal tribunal finds him to be an honest and credible witness.  Accordingly, the appeal tribunal has no reason to doubt his account of the circumstances under which the initial claim form to Housing Benefit, and subsequent claim forms to Housing Benefit, came to be completed.  As such, the appeal tribunal finds that the appellant relied upon the officer of the Department of the Northern Ireland Housing Executive, for the content and accuracy of the initial, and subsequent claim forms.  Certainly, the fact that the appellant was not responsible for the physical completion of the relevant forms, is confirmed both by the clear evidence that the hand-writing on the form(s) is not that of the appellant, and by the admission by one of the officers of Northern Ireland Housing Executive that she had completed the initial, and certain of the subsequent claim forms.

The appeal tribunal finds that the appellant reasonably believed that he had disclosed all information, particularly about his income, that was required for his application to Housing Benefit to be determined, and that, if a question was not asked about particular sources of income, then a reply was not required.  The appeal tribunal finds, on balance, that the relevant section of the initial claim form to Housing Benefit, marked ‘Income’ was completed after the appellant was asked whether he was in receipt of any social security benefits.  The appeal tribunal finds that, on balance, when the response to this question was ‘yes’ and details of the Incapacity Benefit were revealed, that was the end of the information-gathering concerning income.  Some support for this conclusion is derived from the fact that the appellant’s Incapacity Benefit book was photocopied as part of the application form completion process.  The appeal tribunal finds that the appellant reasonably believed that he had imparted all of the required information concerning his income.

The appeal tribunal finds that, on balance, the claim forms to Housing Benefit completed subsequently to the initial claim form, were completed in similar circumstances to the initial form, with one important exception.  The appeal tribunal finds that the appellant again relied on the officers of the Northern Ireland Housing Executive for the accuracy and content of these forms, and reasonably believed that he had imparted all of the information, particularly in relation to his income, required for the determination of his applications.  The appeal tribunal also finds that, on balance, that the subsequent application forms were completed on the assumption that the appellant’s sole source of income was his Incapacity Benefit.  Once again, the fact that the appellant was not responsible for the physical completion of the relevant forms, is confirmed both by the clear evidence that the hand-writing on the form(s) is not that of the appellant, and by the admission by one of the officers of Northern Ireland Housing Executive that she had completed certain of the subsequent claim forms.

The appeal tribunal’s overall conclusions

The appeal tribunal concludes and finds that:

(i)	the appellant knew the material fact that he was in receipt of an occupational pension;
(ii)	the appellant did not inform the Northern Ireland Housing Executive;
(iii)	that disclosure of the material fact that he was in receipt of an occupational pension was not reasonably to be expected; and
(iv)	that, if the overpayment of Housing Benefit which has occurred, is sought to be recovered on that basis, then it is not so recoverable.”

	The decision notice recorded:-

“Appeal Allowed.

An overpayment of Housing Benefit amounting to £11,191.87 for the period from 23/10/95 to 24/6/02 has been made which is not recoverable from the appellant.”

8.	The NIHE appealed to a Commissioner.  The grounds of appeal were:

(1)	that the fact that an officer of the Department assisted the claimant in completing             the claim did not absolve the claimant from his duty to disclose;

(2)	that there was a breach of the Tribunal’s inquisitorial role in that the Tribunal had not explored and established which parts of which application forms the claimant himself had completed and that the Tribunal had failed to adequately investigate the circumstances surrounding the signing of the declarations.

9.	I granted leave on the grounds that arguable issues arose as to four matters:-

(1)  Whether the Tribunal adequately explained its evidential assessment and in particular            whether it adequately dealt with any conflict of evidence between the claimant and the          Departmental witnesses.

(2)	  Whether, in particular in light of the declarations signed on the 1997 and subsequent       forms, the issue of possible misrepresentation of a material fact was so apparent that it    should have been explored by the Tribunal.

(3)  Whether the Tribunal adequately or at all examined the issues of whether the claimant            had, or should have, read the application forms before signing them and if not whether          there was a breach of the inquisitorial role.

(4)  Whether the Tribunal was entitled to its conclusions that the claimant “reasonably                   believed that he had imparted all of the required information concerning his income”            and had therefore not failed to disclose any material fact.

10.	I had the benefit of observations from Mr Druse of Armagh and District Citizens Advice Bureau (representing the claimant) by letters dated 3 September 2004 and 18 February 2005 and of a submission from Mr Druse contained in a letter dated 22 April 2005.

11.	The NIHE submitted a skeleton argument dated 14 April 1995 prepared by Mr Flynn of the Decision Making Services branch (DMS) of the Department for Social Development.  I held a hearing of the appeal which Mr Flynn and Mr Druse attended and which the claimant also attended.  I am grateful to both representatives for their considerable assistance.

12.	At the hearing the issue raised by decision CIS/4348/2003 (a decision of a tribunal of Commissioners in Great Britain) was raised and I mentioned that if I considered the appeal to be without merit other than in relation to issues raised by that decision I would afford the parties time to make submissions in relation to it but would probably have to await the decision of the Court of Appeal in England and Wales to which that decision had been appealed.

13.	In the event I do not need to await the decision of the Court of Appeal as I consider that the decision was in error of law on grounds unrelated to CIS/4348/2003.  I consider that the Tribunal erred in failing to give consideration to the declarations signed by the claimant at the end of each claim form and the import of those declarations.

14.	In those declarations the claimant declared that, either “to the best of [his] knowledge” or categorically, the information given in the forms was correct.  Certain declarations were also to the effect that the information in the relevant form was complete.

15.	The signed declarations are in my view sufficient to raise the issue of misrepresentation of a material fact but the Tribunal did not consider whether or not the claimant had made such a misrepresentation.  The matter was not specifically raised by the NIHE which sought recovery only on the basis of failure to disclose.

16.	Did the Tribunal breach its inquisitorial role in not considering the question of misrepresentation when it was not specifically raised?  In my view it did.  The signed declarations were before the Tribunal and they clearly raised an issue as to whether they constituted such misrepresentations.

17.	That being so I set the decision aside as in error of law for that reason.

18.	I come then to consider whether I should give the decision which the Tribunal should have given.  I have decided that it is not expedient that I do so.  This is in large measure because an issue has raised itself to me on which I have not sought submissions and which may also involve some factual investigation.  This issue is as to the applicability to this case of regulation 99(1), (2) and (3) of the Housing Benefit (General) Regulations (Northern Ireland) 1987.  These provisions indicate those overpayments which are and those which are not recoverable.  Basically, as possibly relevant to this case, a non-recoverable overpayment is one which came about because of an official error to which a claimant did not materially contribute and where a claimant could not at the time of receipt of the payment or of any notice relating to it have been reasonably expected to realise that the relevant overpayment was an overpayment.

19.	I debated obtaining submissions and deciding the matter myself but have decided against so doing as there may also be evidential issues to be explored.  I therefore remit this matter to a differently constituted tribunal for re-hearing and re-determination.  It seems that it should be possible for the regulation 99(1), (2) and (3) issues to be determined without awaiting the said Court of Appeal decision in CIS/4348/2003 but that is a matter for the tribunal and the representatives.

20.	I direct the NIHE to prepare for the tribunal its submission on the question of misrepresentation of a material fact.

21.	I direct both representatives to be in a position to address the tribunal as to whether or not, pursuant to the said regulation 99(1), (2) and (3) the overpayment in this case is a recoverable overpayment.  It should be remembered that unless the overpayment is within regulation 99(2) it is recoverable, the question from whom it is recoverable being a different question.

22.	The NIHE wins its appeal.

(Signed):  

Moya F Brown
Commissioner

		 	                        (Dated):				      16 May 2005

C10405HB.MB