[2005] NISSCSC C3_05_06(IS) (16 June 2005) 

Decision No: C3/05-06(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 18 October 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 18 October 2001 of an appeal tribunal sitting at Belfast.  That Tribunal disallowed the claimant’s appeal and found that she had been overpaid the sum of £1,735.20 in respect of income support (IS) for the period 1 November 2000 to 20 February 2001 and that this sum was recoverable by the Department.

2.	The proceedings before me have been protracted because a decision of the House of Lords in the case of Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 was awaited.  That decision had relevance to this appeal.

3.	The background facts of this case, so far as relevant, are that the claimant had been in receipt of and entitled to IS up to and including 30 October 2001 on the basis that she was pursuing an appeal against an incapacity benefit (IB) disallowance.  She was told (correctly) to claim IS by her local office and issued with an order book.  She lost her IB appeal on 31 October 2000 and on the same day was notified by post of the outcome of that appeal that she had been found not incapable of work.  However, she did not inform IS section about the result of the IB appeal and therefore continued to receive IS to which she was not entitled until 22 February 2001 when the fact that she had lost her IB appeal was discovered during a random benefit check.

4.	As a result the claimant was overpaid IS in the sum of £1,735.20 for the period 1 November 2000 to 20 February 2001.  On 22 May 2001 the Department issued a decision to that effect and to the effect also that the said sum of £1,735.20 was recoverable.  The claimant appealed to a Tribunal which issued the decision mentioned above.  The claimant appealed to me on an OSSC1 form received in the Commissioners’ Office on 4 January 2002.  The ground of appeal indicated was that the Tribunal did not consider all the evidence but acted on one point of law.  This appears to be based on a letter dated 13 November 2001 from the claimant’s Member of Parliament and representative Mr Martin Smyth which acknowledged that “strict law was actually applied” by the Tribunal but submitted that the claimant could not apply for jobseekers allowance (JSA) because of her back problem, would have difficulty repaying the money, that the tribunal ignored guidance given to the claimant and had ignored also the fact that the money going into the home would, without IS, have been much less than the official subsistence level.

5.	The Department opposed the appeal.  In letters dated 6 November 2002 and 25 March 2005 it submitted that the Tribunal had to deal with the matter according to law, that the claimant’s duty was to report the losing of her IB appeal to the office dealing with IS as instructed in her order book, that the actual recovery of benefit was a matter for the Department, that other benefits to which the claimant might have been entitled had she claimed them could not be offset.  The Department did submit that the Tribunal had erred in that it had not established a proper evidential basis for the conclusion that the order book instructions submitted by the Department to have been in use at the time were actually so in use.  Those instructions indicated that a person claiming IB on the basis of being sick should tell IS section if -

“An appeal tribunal has decided that you are no longer incapable of work.”

The Department submitted, however, that this error did not, vitiate the decision it having been established on later investigation that the relevant order book instructions were, in fact, in use at the relevant time.  The claimant has not disputed this last fact and I accept it.

6.	I do consider that this was an error on the part of the Tribunal as indicated by the Department but in the circumstances that error did not vitiate the decision.  

7.	The claimant was late in seeking reasons for the decision of the Tribunal and none were issued.  From a perusal of the papers before me, the claimant’s grounds of appeal do not appear to have any merit.  The Tribunal was obliged to apply the law in the case and it did not ignore guidance given to the claimant.  In fact the guidance contained in the order book was before the Tribunal as is clear from the papers which it considered.  The instructions made it clear that the claimant should report to IS section the fact that an appeal tribunal had found her no longer incapable of work, she did not do so.  It appears obvious that the Tribunal therefore concluded that there was a failure to disclose the material fact that the claimant had lost that IB appeal and  been found no longer incapable of work by the Tribunal and that the overpayment was made as a result.

8.	The judgment of the House of Lords in the Hinchy case does not assist the claimant.  Essentially the House of Lords (by a majority) decided that the claimant’s duty (under regulation 32 of the Social Security (Claims and Payments) Regulations 1987 or implied by section 7 of the Social Security Administration Act 1992) was to comply with the “simple instruction” in the order book, which was to make disclosure of the fact that she had been found fit for work to the person or office identified to the claimant as the decision maker and that there could be a failure to disclose if this was not done even if another section of the Department knew the relevant material fact.

9.	The claimant has submitted, correctly, that she was instructed to claim IS.  That is correct but she was also instructed in her order book to inform the IS section if she was found no  longer incapable of work by the IB tribunal.  She did not follow this instruction.  The legislation in Northern Ireland (regulation  32) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and section 69 of the Social Security Administration (Northern Ireland) Act 1992) is in identical terms to the provisions in the GB legislation mentioned above.  Therefore, the claimant’s duty was to make disclosure to the appropriate section.  She was not entitled (as she mentioned in her letter of 18 May 2005) to assume that one section of the Department would tell the other.  The Tribunal was entitled to conclude that the claimant did not follow the order book instructions and therefore had failed to disclose a material fact.  There is a failure to disclose where there is non-disclosure in circumstances where a reasonable person would make disclosure.  I find no merit in the grounds relating to the Tribunal’s application of the law or consideration of guidance given.

10.	I also find no merit in the grounds relating to possible entitlement to other unclaimed benefits.  As the Department submits, the only offset possible from the overpayment under the legislation was under regulation 13(b) of the Social Security (Payments on account, Overpayments & Recovery) Regulations (Northern Ireland) 1987.  The structure of that regulation is that possible additional entitlements can be deducted from the overpayment only if they 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 should be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.”

	The claimant did not claim any benefit other than IB and IS.  She was disallowed IB so there was no entitlement under that claim.  Her IS was correctly awarded and then correctly terminated from 1 November 2001 and as no other benefit was claimed there could be no other deduction from the overpayment.  There is no merit in this ground.

11.	As regards the claimant’s ability to repay this is not a matter which the Tribunal, or indeed a Commissioner, can take into account.  All that the Tribunal decided was that the Department was entitled to recover the money overpaid if it wished to do so.  It is a matter for the Department whether or not it does so.  Neither the Tribunal nor a Commissioner has any jurisdiction in relation to that.  There is no merit in the grounds of appeal in relation to that.

12.	However, it does appear to me very likely that, had it been claimed there would have been entitlement to jobseekers allowance for the claimant.  It also appears there was no intention to deceive.  That being so the Department may wish to give consideration to recovering nothing or rather less than it is entitled to do.  That is, however, a matter for the Department, I have no jurisdiction over the matter.  While, therefore, I have sympathy for the claimant and accept that she acted innocently, I dismiss the appeal.

(Signed):  Moya F Brown

Commissioner

16 June 2005