[2008] NISSCSC C3_07_08(IS) (14 February 2008) 

Decision No:  C3/07-08(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 14 February 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I have taken into account the submissions made by the Department dated 24 August 2007 and 24 January 2008 and the submission made by the appellant on 16 October 2007.

2.	I am satisfied that I can make a decision without an oral hearing.

3.	The Department’s appeal is allowed and the decision of the tribunal is set aside for the reasons set out below.  I can make the decision in this appeal as no further findings of fact need to be made.  The overpayment is not recoverable from the claimant as the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 are not satisfied.  Although I have made this decision, the claimant should be aware that there are no time limits on the recovery of overpaid benefit and the Department may rectify the defects I have identified and initiate further recovery proceedings.

	Facts of the Appeal

4.	The appellant claimed income support (IS) in 1996 as a lone parent.  Following an investigation by the Department, she was interviewed on 24 January 2001 when it was alleged that she was living with a partner as husband and wife.  The claimant explained her circumstances, but insisted that she did not have a partner who lived with her as a husband.  Benefit payments continued and the claimant was again interviewed on 26 April 2001.  She continued to insist that although she had a relationship with the individual identified and that he was the father of her youngest daughter, she did not live with him and they were not a couple.  Benefit payments continued until 5 June 2001 when a letter was sent to the claimant advising her that her circumstances had changed and that she was not entitled to benefit from 12 January 2001.  She was asked to return her order book which she did.

5.	On 8 June a handwritten letter was sent to the claimant advising her that she was not entitled to IS from 4 September 2000 as she was treated as living as a couple and her alleged partner was in full-time work.  The appellant denies that she received this letter.

6.	The appellant did not take any action following these communications.

7.	An overpayment decision was made on 19 December 2002 raising an overpayment from 4 September 2000 to 7 June 2001 amounting to £5670.77.  It was notified to the claimant on 6 January 2003 and she appealed.  There have been further overpayment decisions since, but there have been no further decisions on the claimant’s entitlement to benefit since the communications in June 2001.

8.	There have been two tribunal decisions.  The first was set aside as it was accepted by the tribunal that its decision was erroneous in law.  The second tribunal made a decision allowing the appeal on 14 February 2007 and reasons for the decision were issued on 27 March 2007.

9.	The Department applied for leave to appeal to the Commissioner on 30 April 2007.  There were three grounds:

Whether the tribunal was correct to decide that the decision of 5 June 2001 was ineffective?

Whether the tribunal had jurisdiction to consider the issue of whether the claimant was living with a partner as husband and wife?

Whether the tribunal was entitled to confine the issues dealt with in the appeal?

	The tribunal granted leave to appeal on 18 July 2007. 

	Reasons for the Decision

10.	The main issue in this appeal is the correct form of decision making under Articles 9 to 11 of the Social Security Order (Northern Ireland) 1998 and compliance with regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 which specifies the Department’s decision notification responsibilities.

11.	In the application of leave, the Department argues that, as the decision of 5 June 2001 was not under appeal, it was not within the tribunal’s remit to consider its accuracy.  Section 69(5A) of the Social Security Administration Act (Northern Ireland) 1992 provides that benefit shall not be recoverable under the section unless the decision awarding benefit has been reversed or varied on appeal or revised or superseded.  It is therefore a precondition that the officer making the recovery decision satisfies himself that the subsection is satisfied.  The tribunal therefore has jurisdiction to consider the existence and validity of the supersession decision on which recovery is based.  In CIS/362/2002 the Commissioner decided that the tribunal can correct some defective decisions, but not defects of substance.  There is such an issue in this appeal.  The Department relies on the decision of Commissioner May in CSG/741/2006.  In that appeal, there was a detailed supersession decision made by an officer of the Department and it was not appealed.  The Commissioner decided that the tribunal in a subsequent overpayment appeal could not reopen the validity of that supersession decision.  The issue of validity was in respect of the date of the supersession.  The facts of the current appeal are rather different and I note that in the case relied upon there was also a dispute about the notification of the decision and this issue was not resolved.  It was accepted by the Commissioner that for the decision to be effective, there had to be an effective notification under regulation 28 of the Decisions and Appeals Regulations.

12.	The Department has argued that the decisions in this case were taken on computer and that it was partly due to limitations in the computer programme that the decision making process became confused.  However, it is argued that taken together, the documents produced by the Department comply with the requirements of section 69(5A) of the Administration Act.  I reject this argument for the following reasons.

13.	There is no doubt that computers have made administrative processes more efficient and cost-effective.  Computerised decision making has been in existence for many years and there is now a statutory provision for the use of computers in Article 4 of the Social Security (Northern Ireland) Order 1998.  That Article provides that:

	“Any decision … falling to be made … by the Department … may be made … not only by an officer of the Department acting under its authority but also -

(a)	by a computer for whose operation such an officer is responsible ….”

14.	This provision must be read in conjunction with Articles 9 to 11 of the 1998 Order on decision making together with the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  The computer is a servant of the Departmental Official and cannot be used in isolation.  It is essential that the decision made must be clear and unequivocal.  It should detail whether it is a decision on a claim, a revision or a supersession.  I see no reason in principle why a computer cannot be programmed to produce a full text decision rather than a series of abbreviations which then require interpretation by those unfamiliar with the computer programme.

15.	In addition to decision making, computers are also used to generate correspondence.  There is therefore a distinction between the decision itself and the communication of that decision to the claimant.

16.	In this appeal, the first document relied upon as a decision, or part of a decision, is a letter dated 5 June 2001 addressed to the claimant.  It is to say the least a puzzling document.  It states at the beginning that the claimant’s IS will change, implying that the change will be a future event.  It then explains that benefit ceases from an earlier date, 12 January, due to a change of circumstances.

17.	The claimant is asked to return her order book and is then given some advice as to what she should do next.  Is this document a decision or a notification of a decision? On its face it is not a decision.  It has the appearance merely of a notification of a decision and indeed it is stated in the submission that the decision was made on a computer.  If it is a notification of a decision, then it must comply with regulation 28 of the Decisions and Appeals Regulations:

	“Regulation 28(1)

	A person with a right of appeal under the Order or these Regulations against any decision of the Department shall -

(a)	be given written notice of the decision against which an appeal lies;

(b)	be informed that, in a case where that written notice does not include a statement of the reasons for that decision, he may , within one month of the date of the notification of that decision, request that the Department provide him with a written statement of the reasons for that decision; and

(c)	be given written notice of his right of appeal against that decision.

	(2) Where a written statement of the reasons for the decision is not included in the written notice of the decision and is requested under paragraph (1)(b), the Department shall provide that statement within 14 days of receipt of the request.”

18.	A question arises as to how this requirement should be complied with.  Its purpose is to make claimants aware of the details of the decision about their benefit entitlement and thus enable them to request the reasons for the decision and to exercise appeal rights.  In my view, there should be a distinction made between the decision itself and the notification of the decision.  Therefore, the decision should be attached to the notice.  In cases where the decision is made by an officer of the Department without the aid of a computer, then a copy of the narrative decision can be provided.  Where the decision is made on a computer under the supervision of such an officer, as provided in Article 4, then the supervising officer should provide a narrative of the details of the decision extracted from the computer.  I note that the Commissioner considered computerised decision making in R(IS) 2/96.  He referred to unintelligible printouts and emphasised that there had to be some human intervention with the computer as Article 4 provides.  It is of no interest to claimants, or indeed to tribunals, what use is made of computers in administration or decision making.  The essential point is that the decision making requirements of the 1998 Social Security Order and the Decisions and Appeals Regulations 1999 must be complied with and an official should be able to produce the narrative of a decision, whether it is made with the aid of a computer or not.
 
19.	What then should the narrative contain? It must distinguish between decisions on claims as provided in Article 9 and between revision decisions and supersessions as provided in Articles 10 and 11.  These distinctions are crucial as there are different rules applicable to each.  The Department has adopted non-statutory language in some of its communications about decisions such as “reconsider” and “look at again”.  Whilst such language may assist in communications with claimants, the correct statutory language should be used in the narrative of a decision.

20.	It is also essential to include the date of the decision, the date the decision takes effect and the date of any decision which is revised or superseded.

21.	If reasons are included, then they should be clear and relevant.

22.	The notification of the decision as required by regulation 28 should explain the effect of the decision attached and then give details of the right to request the reasons for the decision and appeal rights.  It should be explained that the Department is required to provide reasons within 14 days of a request as required by regulation 28(2).  Appeal rights are strictly circumscribed and therefore it is essential to include a reference to the time limit for appealing, the requirement to use an appeal form, where it can be obtained and where the appeal should be sent.

23.	Taking into account the above guidance, what decisions were taken in this appeal and were the statutory requirements complied with?

24.	The letter of 5 June 2001 addressed to the claimant does not have a decision attached to it.  It does not explain if it refers to a supersession or a revision decision.  It does not give the date of the decision itself or the date of the decision which it changes.  It does not explain why the decision has been taken.  In the note attached, it merely poses the question, “What should I do if I want to know more about this decision or I think it is wrong”.  It does not specifically state that the claimant is entitled to request reasons for the decision.

25.	In my view, the letter does not comply with the requirements of regulation 28 as it is not made sufficiently clear that the claimant is entitled to request reasons for the decision.  It is also unsatisfactory that a narrative of the decision is not attached.

26.	The handwritten letter dated 8 June 2001, receipt of which is disputed, must have cast a doubt on the validity of the letter of 5 June.  It makes no reference to it.  It does not explain if it is a revision or supersession, or the date of the decision or the date of the decision it purports to change.  I assume it is intended to be a regulation 28 notification of a decision since it is clearly not a decision itself.  It does not contain full details of appeal rights, merely stating that the claimant has a right of appeal.  Again, that is not sufficient to comply with regulation 28.

27.	The Department has argued that the letter of 5 June and the handwritten letter of 8 June should be read together and in this way the supersession decision is sufficiently described and the requirements of regulation 28 complied with.  There is no reference in the handwritten letter of 8 June to an earlier letter.  There is no suggestion in the second letter that one decision is referred to in both communications.  Nor is any explanation given about the computer problems which are said to have given rise to the second letter.  I therefore reject the Department’s submission and as neither communication complies with regulation 28, they are both ineffective.  For this reason, the condition in section 69(5A) is not satisfied.

28.	As I have concluded that the overpayment is not recoverable, that disposes of the appeal.  However, there are two further issues raised by the Department.  I am satisfied that the tribunal erred in law in refusing to consider the evidence of co-habitation and whether throughout the period under consideration the claimant was one of a couple.  The finding of fact by the decision-maker is not binding on the tribunal in overpayment proceedings.  I accept the reasoning of the Commissioners in CIS/1330/2002 and CIS/1263/1997.  It is for this reason that I have set the tribunal decision aside.

29.	The final argument is in relation to the ruling by the tribunal that it would limit the issues to be considered following an Article 14 referral.  It is not necessary to deal with this argument in this appeal as an error of law by the tribunal has already been identified.

(signed):  C MacLynn

Deputy Commissioner

14 February 2008