File no:  CG 3049 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The appellant is appealing with permission of the chairman against  the decision of the Cardiff appeal tribunal on 4 April 2002 under reference number U 03 201 2001 01607.

3	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside.  I refer it to a new tribunal for rehearing under Social Security Act 1998 section 14(8) and (9).

Background to this appeal 

4 	This case concerns an appeal against a decision dated 5 June 2001 that the claimant was not entitled to widow’s benefit from and including 26. 8. 1997 and that the consequent overpayment of £8092.23 was repayable by the claimant to the Secretary of State. This was because the claimant had failed to disclose that she was living with a man as husband and wife. The overpayment came to light when the claimant informed the Benefits Agency that she had remarried on 2. 11. 2000.

5	The claimant does not dispute that she was living with someone as husband and wife since before the date of death of her late husband, or that she remained living with him until they were later married. I must admit that I find it slightly curious that the claimant  accepts this without questions even though she was handling all her late husband’s personal affairs (including receiving his benefit and dealing with his finances) and had been looking after him – as he needed full time care because of dementia, but yet was not living together with him. No one appears to have considered whether the social security rules about “living together” were properly applied to this case in the particular circumstances of the claimant and her husband. But that is not directly in issue before me and is not the basis on which I decide this case.  Nonetheless, as I am allowing the appeal for other reasons, I suggest that this matter be considered on the rehearing. 

6	The claimant did dispute that she was liable to repay the overpayment. Her grounds of appeal were that she had informed the Department of her situation when she applied for widow’s benefit. It may be relevant to this that the issue of the meaning and application of the  “living together” test does not seem to have been explored so far.  In the circumstances, there is no issue about misrepresentation, so the question was whether the claimant failed to disclose the material fact that she was living together with someone other than her late husband as husband and wife when her late husband died. 

7	The claimant was ably represented at the tribunal. As a result, a first tribunal hearing was adjourned so that the Department could look for the claimant’s claim form. It could not be found.  The representative put the case to the tribunal on the basis that his client was not likely to have failed to disclose her relationship with the man with whom she was living if that is what the form required. The secretary of state's representative put the case to the tribunal on the basis that the claimant would have been told to disclose that relationship and, had she done so, she would not have received the benefit.

8	The tribunal chairman took as the starting point R(IS) 11/92. The point drawn from that decision was that the documents in this case would have been destroyed as a mater of routine, not deliberately. On that basis, the tribunal took the view that the case had to be decided on the available evidence. 

9	R(IS) 11/92 also involved a decision about whether a couple were living together as husband and wife. In that case, the appeal concerned an attempt by the claimant to get an earlier decision about living together reviewed after a later decision that the couple were not living together in the social security sense. 
But the main thrust of that decision is that the tribunal should do its best to reconstruct the missing document if it can.  On that the Commissioner stated at paragraph 38:

	(d) 	No reasonable person would have supposed that the documents with
	which this particular case is concerned would ever be required again.
(e) 	In consequence, no presumptions as to the contents of those documents falls to be made (in either party’s favour).
(f)	Secondary evidence, whether written or oral, is admissible as to what the original documents contained.
(g)	Such secondary evidence fall to be evaluated upon the principles applicable to evidence in general.

10	R(IS) 11/92 concerned the issue whether there was enough material to establish a ground for review of a previous decision under the then laws about review. The Commissioner accepts the submissions for the Secretary of State on this as follows (paragraph 41):

And in this context “establishing” means “establishing”. Certainly, conceded (the secretary of state's representative) the adjudicating authorities are entitled to draw inferences where such can be supported by the balance of probabilities. But from what is in this case can any probabilities be identified? A proper understanding and application of the rules of evidence (including the Ophelia ) inhibits the operation of any presumptions. That leaves us in a total vacuum. With such a dearth of factual information, speculation cannot be informed; it can amount to nothing more than guesswork. To put it another way: if the missing documents are to be reconstructed, where is the material for such reconstruction?

The Commissioner decided that the decisions could not be reconstructed, so they could not be reviewed. Or:

To change the metaphor: the tree must remain lying where it fell so many years ago.

11	In this case the tribunal seems to have relied on R(IS) 11/92 in part – namely the issue of the missing claim form – without following the rest of the guidance given by the Commissioner in that decision. The tribunal should have tried to reconstruct the claim form. For a start, it should have ensured that it knew what the claim form actually asked. It probably should have looked rather further into the situation in which the claimant found herself on the facts when her husband died. What did the claim form actually ask her to say, and how did it apply to her? This is one of those cases where there is a very short record of proceedings and a very long statement. It is not at all clear from the record as a whole that the tribunal actually looked at the secondary evidence about  the claim and the claim form in the way indicated in R(IS) 11/92.  

12	It also appears from the grounds of appeal that the tribunal did not put the legal issues in R(IS) 11/92 to the parties for comment. If it had, I would have expected a competent representative to argue that the tree should lie where it had fallen. That, in essence, was the decision in R(IS) 11/92. But the tribunal seems to have used the case to come to an opposite conclusion.  My conclusion is that the decision of the tribunal was inadequate both in its approach to R(IS) 11/92 and in its approach to the evidence. I must therefore set the decision aside.

Directions to the new tribunal 

13	This is an important case for the claimant. She is asked to pay back over £8000. If she did fail to disclose what she should have disclosed, then of course she should repay the sum. But if she did not fail to do so, then she does not have to repay. There is no power to settle for part of the sum as the claimant suggests. So the tribunal has to be sure of its ground.  The tribunal should first consider whether this is truly a living together case. The only basis for the decision of the Secretary of State is the bald statement by the claimant about the (now) husband that “we have lived continuous to-gether since 1995”. There is no indication of any supporting evidence behind this statement, or what the claimant meant by it. It is not fully consistent with other evidence on the file about the continuing relationship between the claimant and her late husband before his death. The tribunal should consider that matter. It is important because it is part of the background to the claim made by the claimant in 1997. 

14	As the whole case then depends on what that claim form did or did not say, the tribunal should do its best, following R(IS) 11/92, to reconstruct the form. That might, for example, involve taking evidence on oath or affirmation from the claimant about the full circumstances of the claim, and also seeing and putting to her a copy of the claim form that would have been used in 1997. And the tribunal must also bear in mind that if there is no evidence, it should not guess.  The critical question is: are the submissions and assertions of either party just guesswork, or are they something more than that? In weighing the evidence and the lack of it, the tribunal must have the principle of equality of arms in mind (under article 6 of the European Convention on Human Rights). It should not make assumptions that the Department is less likely to have made a mistake than the claimant unless it has evidence for that. If the tribunal cannot establish what was in the claim form then, to repeat the words of Commissioner Mitchell, it should leave the tree lying where it fell.  

								David Williams
								Commissioner
								22 October 2002
[Signed on the original on the date shown]