MD-v-Department for Communities (CA) [2017] NICom 47

Decision No:  C2/17-18(CA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

CARERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 4 February 2016 is in error of law.  The error of law identified will be explained in more detail below. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access.  Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination. 

3.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

4.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Carer’s Allowance (CA), for a particular period, remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.  

	Background

5.	On 2 September 2014 a decision maker of the Department superseded an earlier decision of the Department dated 9 May 1994 and decided that the appellant was not entitled to CA for the periods from 4 July 2005 to 31 July 2005, 31 July 2006 to 1 October 2006, 30 October 2006 to 4 February 2007 and 2 April 2007 to 5 August 2007.

6.	On 31 January 2015 a decision maker of the Department decided that an overpayment of CA amounting to £2136.65, for the period from 4 July 2005 to 5 August 2007 had occurred, which was recoverable from the appellant. 

7.	An appeal was received in the Department on 10 April 2015. On 28 July 2015 another decision maker superseded and changed the decision dated 2 September 2014 and decided that the appellant was gainfully employed with earnings in excess of the stipulated earnings limit from 30 April 2007 to 5 August 2007 but not for other periods previously stated. 

8.	An appeal was received in the Department on 14 August 2015.

9.	The appeal tribunal hearing took place on 4 February 2016.  The appeal was present and was represented by Mr O’Farrell of the Citizens’ Advice organisation.  There was a Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 28 July 2015.

10.	On 17 May 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 31 May 2016 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

	Proceedings before the Social Security Commissioner

11.	On 17 June 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 29 June 2016 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 18 August 2016, Mr Smith, for DMS, supported the application for leave to appeal.  Written observations were shared with the appellant and Mr O’Farrell on 24 August 2016.  Written observations in reply were received from Mr O’Farrell on 5 September 2016 which were shared with Mr Smith on 8 September 2016.  A further submission was received from Mr Smith on 15 September 2016.  This was, in turn, shared with the appellant and Mr O’Farrell on 19 September 2016.

12.	On 13 April 2017 I granted leave to appeal.  On the same date I directed an oral hearing of the appeal.  The oral hearing was listed for 1 June 2017.  In advance of that date, and after reviewing the contents of the file, including the detailed and helpful Case Summaries prepared by Mr O’Farrell and Mr Smith, I determined that an oral hearing would not be required. Both parties were in agreement with that determination.

	Errors of law

 13.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. What is an error of law?

14.	In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	The error of law in the instant case

15.	In his constructive and analytical written observations on the application for leave to appeal, Mr Smith made the following submissions:
 
‘It is incumbent on a Tribunal to ensure that the decision under appeal was properly made.  In this case the decision under appeal is the decision of the Department dated 28.07.15 which purports to supersede the decision of the Department dated 02.09.14. 

The decision dated 02.09.14 superseded the decision of the Department awarding CA to (the appellant) from 06.12.93 and removed entitlement for the periods 04.07.05 to 31.07.05; 31.07.06 to 01.10.06; 30.10.06 to 04.02.07 and 02.04.07 to 05.08.07 as he was gainfully employed. 

The decision dated 28.07.15 purports to supersede the decision dated 02.09.14 and reinstate entitlement to CA for the periods 04.07.05 to 31.07.05; 31.07.06 to 01.10.06; 30.10.06 to 04.02.07 and 02.04.07 to 29.04.07. This decision reinstated entitlement to CA for the periods which were removed by the decision dated 02.09.14 except for the period 30.04.07 to 05.08.07.  In effect the decision dated 28.07.15, which took effect from the same date as the decision dated 02.09.14, actually revised the decision dated 02.09.14.

Therefore I submit that the decision dated 28.07.15 is not a valid decision.  It is without legal authority because it should have revised the decision of 02.09.14 rather than supersede it.  There is no indication in the Reasons for Decision that the Tribunal considered whether the decision under appeal was properly made and for this reason I submit the Tribunal has erred in law.’

16.	I am in agreement with Mr Smith’s observations and for the reasons which have been outlined by him agree that the decision of the appeal tribunal is in error of law.  I would add to that analysis paragraphs 29 to 52 of my decision in DJ-v-Department for Social Development (IB)([2010] NICom 100, C17/10-11(IB)) as follows:

	‘29.	Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992 provides that:

		(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998

	30.	In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded.  Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

	31.	The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS).  At paragraph 4 he stated:

‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision.  In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable.  Put like that, the sequence of decisions is logical.  The two decisions can be contained in a single document provided that the sequence is apparent.  Section 69(5A) is an important safeguard.  Tribunals, rightly, are alert to see that it has been complied with.  Nothing I am going to say casts doubt on their vigilance.  A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner.  Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken.’

	32.	In essence, the appeal tribunal will have to identify two decisions.  The first is a decision which alters previous decision(s) awarding entitlement to benefit – that can be described as the entitlement or section 69(5A) decision.  The second is a decision that overpaid benefit is recoverable – that can be described as the recovery or section 69(1) decision.  At paragraph 10 of C10/07-08(IS), Commissioner Powell stated:

‘It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”.  The latter being based on the former.  I use the word “distinct” deliberately.  Since the recoverability decision is based on the entitlement decision it must be proceeded by it.  Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first.’’

17.	The failure by the appeal tribunal to consider the validity of the entitlement decision is material as the decision dated 28 July 2015 was clearly invalid.  Accordingly the decision of the appeal tribunal to confirm it is an error.

	Disposal

18.	The decision of the appeal tribunal dated 4 February 2016 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against and refer the case to a differently constituted appeal tribunal for re-determination.

19.	In his further submission of 15 September 2016, Mr Smith made the following observations:

‘ … should the Commissioner accept, in relation to the entitlement issue, that the decision dated 28.07.15 does not satisfy Section 69(5A) of the Social Security Administration (NI) Act 1992 and as a consequence the recoverability decision dated 06.08.15 is not a valid decision and sets the decisions of the Tribunal aside, I submit the decisions in force would be the entitlement decision of the Department dated 02.09.14 and the recoverability decision dated 31.01.15. 

Subsequently, the Department will have the opportunity to make the decisions it should have made in the first instance i.e. revise the decision dated 02.09.14 to take account of expenses to which (the appellant) is entitled and reinstate entitlement to CA for the relevant periods and then make a recoverability decision seeking recovery of overpaid CA as appropriate.’

20.	I have set aside the decision of the appeal tribunal by determining that the Departmental decision of 28 July 2015 does not satisfy section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992. Accordingly the Department is provided with the opportunity to undertake the further decision-making outlined by Mr Smith above.   

(signed) K Mullan

Chief Commissioner

3 October 2017