DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the decision and refer the case for rehearing before a differently constituted tribunal.

2.	This is a Secretary of State’s appeal, brought with my leave,  against the decision of the tribunal given on 18 December 2000,  allowing the claimant’s appeal against a decision made on 9 November 1999 that a sum of £41,569.00 was recoverable under section 71 of the Social Security Administration Act 1992 in respect of  widowed mother’s allowance overpaid from 4 January 1983 to 7 July 1997.  I held an oral hearing of the appeal on 18 June 2002 at which the Secretary of State was represented by Ms V Bergmann, of the Department of Work and Pensions Solicitor’s Department, and the claimant was represented by Mr  R de Mello, of Counsel.

3.	The claimant had been in receipt of widowed mother’s allowance since 14 August 1979.  In a letter received on 16 July 1997, she informed the Benefits Agency that she was getting married on 12 July 1997, and enclosed her order book cashed up to and including 9 July 1997.  The claimant had, in fact, been living with her husband since January 1983 and she was interviewed by a visiting officer in October 1997.  However, no record of the interview was retained.  On 7 January 1998 a search was made of the claimant’s husband’s benefit records, revealing records of industrial accidents, but not of any  income support claims.

4.	No further action was taken until 2 February 1999, when both the claimant and her husband were again interviewed.  The claimant made the following written statement:

“When (the claimant’s husband) moved in with me in 1983, we went down to the DSS at Gosford St. to hand in my WMA.  (My husband) was claiming benefit for himself We were advised that we would have to claim benefits as a couple but that I could keep my WMA, as we were not married, and this would be deducted from my partner’s benefit.

I was visited by (the first interviewing officer) about eighteen months ago and explained this to her.  She said that it was an obviously an error on the part of the department.

I cannot remember very much about the interview at Gosford Street except that it was a woman (elderly with glasses) and I believe it took place on the second floor.”

The claimant’s husband’s statement said:

“I can confirm my wife’s statement.  She thought she should not continue to receive WMA once we were living together.  I was unemployed at the time.  So we went down to the DSS at Gosford St.  She explained the situation to the clerk who took the book, took down the number and gave it to (the claimant).  (The claimant)  queried this and the clerk said that she could keep it as log as we weren’t married.  She also said that (the claimant) would have to keep me.  My benefit was then reduced to just over £5.00 per week as (the claimant’s) WMA was being taken into account.“

5.	By subsection (3) of section 25 of the Social Security Act 1975, under which the award of widowed mother’s allowance was originally made, benefit is not payable “for any period after the widow’s remarriage or for any period during which she is cohabiting with a man as his wife”.  On 9 November 1999 the decision maker therefore superseded the award, on the ground that there had been a change of circumstances when cohabitation commenced.  The decision maker also determined that the amount of benefit found to have been overpaid in consequence of the supersession decision was recoverable from the claimant under section 71 of the Administration Act, because of the claimant’s failure to disclose the change of circumstances.

6.	The submission to the tribunal stated that the following matters had been taken into account in rejecting the claimant’s case that she had disclosed the relevant change of circumstances in 1983:

“(a)  Records show that (the claimant’s husband) claimed Unemployment Benefit from         August 1982 to June 1983

(b)  (The claimant’s husband) qualified for Unemployment Benefit based on his employment record which was not affected by other income at that time.

(c)  In 1982/1983 the Unemployment Benefit Offices were based at Park Court and Cheylesmore not Gosford Street and (the claimant’s husband) would have been required to sign on for benefit.  An increase of benefit could only be paid for a wife not a partner.

(d)  There is no evidence of a claim to Supplementary benefit by either (the claimant’s husband) or (the claimant).  Even if the casepapers had subsequently been destroyed the index card showing claim dates is retained indefinitely.

(e)  Had there been a claim for Supplementary Benefit, the counter staff and assessment officers were aware that receipt of Widows benefit was incompatible with a co-habitation arrangement and would not have calculated Supplementary Benfit entitlement on that basis.

(f)  The instruction pages in (the claimant’s order book clearly state that no more orders must be cashed if you commence living with a man as his wife.”

7.	The claimant appealed against the recoverability decision after  it was confirmed on reconsideration, and at the hearing of the appeal both the claimant and the Secretary of State were represented.  The claimant and her husband gave evidence, which accorded  with their earlier statements, in each other’s absence, and were questioned by the presenting officer.  The note of evidence records this evidence by the claimant’s husband (I think in answer to the chairman):

“£11.50 per fortnight-not surprised at reduction.  Only (illegible) lady.  Signed on at Park Court but told at Gosford Street they would do it”.

8.	The tribunal allowed the appeal, giving the following reasons for doing so:

“(The presenting officer) made it clear in her closing statement that the case ultimately turned on whether or not the tribunal accepted the evidence of the appellant and (her husband), as if they did and disclosure of the change of circumstances had been made at the outset, there would be no basis for the repayment claim.  Because of this the oral evidence was very carefully considered and tested carefully in further questioning as summarised below, and it has to be said that apart from the question of consistency the tribunal also got the impression  that the evidence was being given frankly and truthfully to the best of their recollection.  Both witnesses gave very similar accounts, which as (the claimant’s representative) pointed out had been consistent throughout.  They tell of a visit to Gosford Street Office of the benefits Agency to report the fact that they had commenced living together, as they were directed to do in the notes at the back of the order book.  One of the credibility factors in their evidence is that it contained details which one could hardly have invented because they were irrelevant to the facts of the particular case before us.  They both confirmed that the Widow’s benefit Order book was handed over to a clerk on that occasion, who made some notes which appear to be calculations, and was then handed back.  They were told that the appellant’s benefit would not be affected unless they were married, but that (the claimant’s husband’s) would be affected considerably.  (The presenting officer) made the point that that as the appellant was in receipt of what was then Unemployment Benefit, which was contributory, it would not be affected, but he was in fact getting what presumably was Income Support to cover rent of private accommodation.  He was quite adamant throughout that following this interview his benefit was reduced to the sum of £11.50 per fortnight.  The point was made by (the presenting officer) that his benefit matters would not have been dealt with at Gosford Street and that the evidence must therefore be wrong, but he insisted that although he signed on at Park Court he was told by the clerk at Gosford Street (a lady in her 50s) that she would notify them, and that she clearly did because of the consequent reduction in his benefit.  All this is, of course, merely peripheral as the appeal is concerned with the appellant’s benefit, which was quite properly dealt with at Gosford Street, where they attended.

Further common ground establishes that the appellant and (the claimant’s husband) were married on 12 July 1997, and they duly registered the marriage certificate with the benefits Agency in September 1997, which presumably prompted the call by the visiting officer in October.  Because of the missing visiting officer’s report it is impossible to check, but the evidence of the appellant and The claimant’s husband) was that they were told there would be no claim as it was clearly a departmental error.  This might be more difficult to believe if it were not for the further long delay which at least suggests that no recovery action could have been the decision at the time in view of the failure to do anything about it, even after searching the benefit records relating to (the claimant’s husband) as noted at paragraphs 4.5 and 4.6 of the submission.

The onus is on the Decision Maker to establish that misrepresentation caused or substantially contributed to the overpayment, though on balance of probabilities only, but consideration of the evidence in the light of the comments made above on each specific element, tips the scales of probability in the tribunal’s view firmly in favour of the appellant, misrepresentation has not been established, and despite the size of the overpayment it must be regarded in consequence as irrecoverable.”

9.	The Secretary of State sought leave to appeal on the ground, among others, that the tribunal had given insufficient reasons for accepting oral evidence which was inconsistent with the documentary evidence indicating that the claimant’s husband had been entitled to unemployment benefit, which would not have been liable to reduction by virtue of the claimant’s award of widowed mother’s allowance, and had at no time been in receipt of either supplementary benefit or income support.  After directing further particulars, I granted leave to appeal on 19 November 2001.  In submissions opposing the appeal dated 5 April and 16 December 2001, the claimant’s representative submitted that the tribunal had made clear and unequivocal findings of fact on the basis of what they found to be credible evidence and that, accordingly, those findings should not be lightly disturbed on appeal. The claimant’s representative also submitted that proceedings relating to events which took place 18 years previously and the delay from October 1987 to November 1999 in making a recoverability decision resulted in a breach of the right to a fair trial accorded to the claimant by Article 6 of the European Convention on Human Rights.

10.	At the oral hearing, Ms Bergmann  accepted that the claimant’s evidence reflected her honest belief, but submitted that the tribunal had erred in law by failing to carry out a proper evaluation of the evidence as a whole.  Ms Bergmann submitted that acceptance of the claimant’s case required a finding that three separate errors had been made by two benefit offices:  first, that the claimant and her partner had been wrongly advised that cohabitation did not affect her entitlement to widowed mother’s allowance, secondly, that they had also been wrongly advised that she and her partner could claim benefit as a couple and, thirdly, that they had been further wrongly advised that the claimant’s widowed mother’s allowance would be deducted from her partner’s benefit.  Ms Bergmann also submitted that the tribunal did not pay proper regard to the documentary evidence which indicated that the claimant’s husband’s National Insurance contributions entitled him to unemployment benefit and  had not at any time been in receipt of any income related benefit liable to reduction by the amount of the claimant’s widowed mother’s allowance.  Finally, Ms Bergmann submitted that the tribunal was in error in taking into account the delay in making the recovery claim.

11.	Mr de Mello submitted that the tribunal had correctly identified the issues of law and fact arising in the case, and had made findings of fact which were open to them on the basis that the claimant and her husband were credible witnesses.  The suggestion that the claimant’s partner had been in receipt of unemployment benefit had originated with the Department, rather than the claimant’s husband, and the issue of delay was relevant to rebut the submission of the presenting officer that it should be assumed that correct procedures were followed.

12.	I have come to the conclusion that I must accept Ms Bergmann’s submissions.  When granting leave to appeal, I was in some doubt as to whether the final paragraph of the Statement of Reasons meant that the tribunal had accepted the whole of the evidence of the claimant and her husband.  However, the tribunal stated that they had considered the evidence “in the light of the comments made above on each specific element”, which can only mean that the tribunal accepted the whole of that evidence  for the reasons contained in their comments. 

13.	In my view, it would have been open to the tribunal to have accepted the evidence of the claimant and her husband on the basis that they were credible witnesses if that merely involved a finding that  they had been given mistaken advice at the Gosford Street office.  However, the evidence of the claimant’s husband went further, in that he said that his benefit had actually reduced to £11.50 per fortnight.  The tribunal could have found that the claimant’s husband was mistaken on that aspect of his evidence (which would hardly have been surprising after 18 years).  However, they accepted that evidence on the basis that the claimant’s husband “was in fact getting what presumably was Income Support to cover rent of private accommodation”.

14.	I agree with Ms Bergmann that the tribunal did not explain adequately how they reached that conclusion on the basis of the evidence before them.  Despite Mr de Mello’s submission that the suggestion that the claimant’s husband was in receipt of unemployment benefit had come from the Department, the claimant’s husband gave evidence that he went fortnightly to an office which was an unemployment benefit office, and there would appear to be no reason for him not to claim unemployment benefit if he was entitled to do so.  The tribunal’s reference to “Income Support” was clearly mistaken, since that benefit was not introduced until 1987, but the tribunal did not deal with the point that there is no indication that the claimant’s husband was at any time in receipt of any income related benefit.  Even if  he did receive supplementary benefit in addition to unemployment benefit, the claimant’s husband’s total benefits could not have reduced to £11.50 in the way that he described.

15.	I therefore consider that the tribunal’s decision was erroneous in point of law.  So far as the Article 6 point is concerned, I consider that there was no determination of a civil right or obligation (“contestation”) within the scope of  Article 6 until the claimant challenged the recoverability decision by appealing to the tribunal-see para.25 of the judgment in Feldbrugge v The Netherlands (1986) 8 E.H.R.R. 425.  The general rule in civil cases is that for the purposes of the Article time runs from the initiation of proceedings-see e.g. Guincho v Portugal (1984) 7 E.H.R.R. 223 and Ausiello v Italy (1996) 24 E.H.R.R.  The claimant’s appeal was made on 12 April 2000, the appeal was heard on 18 December 2000 and the statement of reasons was issued on 21 February 2001.  I do not consider that the period of approximately 10 months to determine the claimant’s appeal was unreasonable.  The events of some 18 years previously were relied on by the claimant in defence of the recoverability claim, and I do not see how it can be said that it was unfair for them to be considered by the tribunal.

16.	I therefore allow the appeal and set aside the tribunal’s decision.  Although I was willing to decide the overpayment question myself if I allowed the appeal, Mr de Mello asked that the case be referred for rehearing by a new tribunal.  Ms Bergmann did not object to that course and, accordingly, I refer the case for rehearing by a differently constituted tribunal.  Nothing in this decision should be taken as indicating any  view on the merits of the appeal.

(Signed)	E A L Bano
		Commissioner

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		13 September 2002