THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIS/1340/1999

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	Mr C. Turnbull

1.	This was an appeal by the Claimant against a decision of the Hounslow Social Security Appeal Tribunal made on 9 March 1999. My decision is set out in paragraph 21 below. 

2.	The Tribunal’s decision was to dismiss the Claimant’s appeal against the decision of an adjudication officer that overpayments to the Claimant of income support totalling £11,035.35 in respect of the period between 3 April 1992 and 13 February 1995 were recoverable from the Claimant on the grounds that she had failed to disclose the fact that her husband was claiming income support in respect of her and that the overpayments would not have been made but for such failure to disclose.

3.	The Claimant was represented before the Tribunal by Ms. Rana from the Hounslow Law Centre, and Ms. Rana prepared the grounds for seeking leave to appeal against the Tribunal’s decision. 

4.	On 25 August 1999 the adjudication officer made a short submission supporting the grounds of appeal and submitting that the Tribunal’s decision should be set aside and a rehearing directed. On 13 April 2000 a Commissioner ruled, accepting a submission made by Ms. Rana, that the appeal was not suitable for summary disposal under s.14(7) of the Social Security Act 1998. 

5.	On 24 May 2000 the Secretary of State made a detailed submission in support of the appeal, again suggesting that the Tribunal’s decision should be set aside and the case remitted to a new tribunal. On 23 June 2000 observations in reply were made by the Hounslow Law Centre.

6.	On 19 October 2000 a Legal Officer to the Commissioners directed that further consideration of the appeal be postponed pending the decision of a Tribunal of Commissioners in CG/4494/99 and linked cases.

7.	With a letter to this Office dated 14 December 2000 Ms. Rana enclosed a copy of a letter from the Claimant’s husband stating that the Claimant had died, and asking her to “inform the Court of the situation.” Ms. Rana’s letter concluded: “We would be obliged if you could advise the Nominated Officer for the Benefits Agency. We trust that the case will be discontinued.”

8.	On 21 December 2000 this Office wrote to Ms. Rana stating that the appeal could only proceed if either a grant of probate or letters of administration to the Claimant’s estate were made, or a person was appointed by the Secretary of State for the purposes of the appeal under Reg. 30 of the Social Security (Claims and Payments) Regulations 1987, and enclosing a form for such an appointment.

9.	The decisions of the Tribunal of Commissioners in the cases referred to in para. 6 above were made on 19 December 2000, and on 1 March 2001 the Secretary of State made a short submission to the effect that those decisions did not alter his previous submissions. The Secretary of State does not, however, appear to have been aware by that stage that the Claimant had died. 

10.	On 9 April 2001 the Senior Legal Officer to the Commissioners spoke to Ms. Rana by telephone in an attempt to ascertain the position. Ms. Rana said that she had had no reply to letters to the Claimant’s husband. 

11.	 On 10 April 2001 this Office wrote to the Claimant’s husband at his last known address, stating that if no-one was appointed to continue the appeal it may be abated, which would mean that the appeal would not be decided and that the Tribunal’s decision would stand and the Secretary of State might seek to enforce it. 

12.	There has been no reply to that letter, and on 29 May Ms. Rana wrote to this Office confirming that she had had no reply to her letters to the Claimant’s husband, and that the telephone number which she had for him appeared not to be recognised when dialled. She said: “currently we have no further instructions from [the Claimant’s husband] and as such we will have to withdraw from the case.”

13.	 As I see it there is at present no-one with standing to pursue this appeal. It was said in R(I) 2/83, and affirmed in R(SB) 25/84, that in general it is preferable in such circumstances merely to declare that the appeal is abated, rather than to dismiss it. In para. 5 of the former case Mr. Commissioner Monroe said:

“I have reached the conclusion that it is better not to dismiss such an appeal in circumstances such as the present but merely to declare it abated. In my judgment when in such circumstances an appeal is declared abated by the Commissioner ……… the matter can for practical purposes be regarded as closed. It is true that there remains a faint possibility of its being revived; but, even if the appeal were dismissed in the absence of anyone to represent the claimant, there would remain the possibility of an application to have the dismissal set aside.”

14.	Mr. Commissioner Monroe differentiated the circumstances of his case (which was the normal one of an appeal by the claimant against a refusal of benefit) from those in the earlier decision in R(S) 7/56, which was (like the present) an appeal against a decision that overpaid benefit be repaid. In R(S) 7/56 the Commissioner dismissed the appeal on an assurance by the insurance officer that no attempt would be made to enforce payment. Mr. Commissioner Monroe pointed out that that assurance had made it virtually certain that no one would ever seek to have the decision dismissing the appeal set aside. 

15.	In the commentary on Reg. 30 of the Social Security (Claims and Payments) Regulations 1987 in Vol. 3 of Social Security Legislation 2000, p.405, the authors state, with reference to the practice of declaring an appeal abated, that 

“in overpayment cases, care should be taken to ensure that the Benefits Agency has given an assurance that it will not seek recovery from the estate before treating an appeal as abated, since abatement  of a claimant’s appeal without such an assurance would not preclude recovery against the estate.” 

16.	However, I do not think that that proposition follows from the cases. What was said in R(I) 2/83 was merely that, where such an assurance is available in an overpayment case, it may be appropriate to dismiss the appeal rather than merely to declare it abated.

17.	 Nor do I see why in principle any such assurance should be sought. The position as I see it is that there is at present no-one who has standing to proceed with this appeal. In those circumstances the options would appear to be (i) to strike out  the appeal for want of prosecution under the express power now contained in Reg. 5(3) of the Social Security Commissioners (Procedure) Regulations 1999 or (ii) to declare that the appeal has abated. 

18.	Either course would leave open the possibility of the appeal being reinstated. Reg. 5(5) of the 1999 Regulations makes express provision for this in the case of striking out for want of prosecution. 

19.	Even it were technically possible for me still to decide the appeal despite the Claimant’s death and the lack of either a personal representative or an appointee under Reg. 30 of the 1987 Regulations, the indications at present are that there would be no practical purpose in doing so. The most likely explanation for the absence of a personal representative or appointee is that the Claimant had no significant estate from which the overpayments could now be recovered. 

20.	But I see no reason why, before declaring the appeal abated or indeed striking it out, I should require an assurance to be sought from the Secretary of State that recovery of the overpayment will not be pursued. So long as the original decision of the adjudication officer stands the Secretary of State should be entitled to attempt to recover the overpayment. If he does so and there is anyone who has an interest in ensuring that it is not recovered, that person will be able to take steps to have the appeal reinstated.

21.	I think that it is likely to make little practical difference whether I strike out the appeal for want of prosecution or simply treat it as abated. In those circumstances I propose to follow what appears to be the settled practice of declaring the appeal abated.

                     (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                               18 June 2001