File No:  CIB/2126/2002

1.	This is an appeal by the claimant with the leave of a commissioner from a decision of the St. Helens Appeal Tribunal given on 18 January 2002.  No oral hearing has been sought for this appeal by either party and I am satisfied that I can decide the points of law which arise without such a hearing.  For the reasons set out below this appeal is allowed, I set aside the decision of the tribunal.  I substitute my own decision setting aside the decision of the decision maker dated 2 July 2001 which is the subject of this appeal.  I find that no sum is repayable by the claimant on the facts of this case.

2.	The claimant was a self-employed taxi driver.  In 1994 he became incapable of work due to multiple injuries sustained in an attack.  According to the summary on behalf of the secretary of state at p.1B of the file, from that time onwards he was in receipt of sickness, invalidity and incapacity benefit.  He had been subject to the personal capability assessment and had passed the test.  The relevant decision by virtue of which he was entitled to benefit, however, is not on the file and there is no record of its date or contents.

3.	By a decision dated 4 June 2001, a decision maker found that the claimant worked for the period from and including 9 April 2001 and this work did not fall into an exempt category.  Therefore, the decision maker found, the claimant was not entitled to receive incapacity benefit for the period from 9 April 2001 as he was to be treated as capable of work.  This decision is described on its face as a decision and not as a supersession, and no earlier decision is referred to, although it must have been obvious to the decision maker and to the claimant that what it was doing was bringing to an end the earlier award of incapacity benefit.

4.	By a further decision dated 2 July 2001, it was determined that as a result of the decision of 4 June 2001 an overpayment of incapacity benefit had occurred for the period 9 April 2001 to 30 April 2001 totalling £496.63, that this was because the claimant failed to disclose until 30 April 2001 that he had commenced employment as a taxi driver on 9 April 2001 and that the overpayment was recoverable from him.

5.	On appeal to the tribunal, it was accepted by the secretary of state that the amount of the overpayment before the claimant disclosed that he was working was in fact only £383.38, and on 18 January 2002 the tribunal held that it was this sum which was repayable by the claimant.  It rejected the claimant’s contention that no sum was repayable.

6.	The commissioner granting leave to appeal raised for the first time the question whether the decision of 4 June was a decision which fell within s.71(5A) of the Social Security Administration Act 1992.  That provides, as now amended, as follows –

“Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.”

7.	As this is a case where the secretary of state is seeking to recover an overpayment under sub-section (1) of s.71, and there are no regulations which provide otherwise, it is necessary to see if sub-section (5) is satisfied.  This can only be the case if the decision of 4 June 2001 is in fact a supersession of an earlier determination awarding benefit.  On its face, it does not purport to be a supersession, and no earlier decision is identified.  However, it must, I believe, have been apparent to the decision maker that there was an earlier determination awarding benefit, and that the effect of the new decision was to bring that award to an end.  It must also have been clear to the claimant that that was the effect of the decision of 4 June 2001.  In those circumstances, it seems to me that despite the failure of the decision maker to identify the earlier determination in the decision, the decision was in reality a supersession of the earlier determination, so that s.71(5A) was satisfied.

8.	As I consider that there are other grounds for setting aside the repayment decision of 2 July 2001, however, I do not need to decide the point.

9.	The essence of the claimant’s case has at all times been that he decided to try to do a little part-time taxi driving in effect as a form of therapy.  He wanted to find out the effect this would have on his benefit entitlement, and, before he started work, he telephoned the Benefit Enquiry Line for people with disabilities using the number given in his benefits book.  He did this before he started work.  In his letter of 26 July 2001 he stated that he explained his circumstances and what benefits he received, that is disability living allowance and incapacity benefit.  He was advised to apply for Disabled Persons Tax Credit, but was advised that before he could apply he would have to work for a couple of weeks and keep accounts of his work and then get back in touch with them and they would send him a DPTC claims pack.  The lady advising him did not mention that he should inform those dealing with his incapacity benefit that he was starting work.

10.	Two weeks later, when he telephoned the Benefits Enquiry Line again, he was told that the lady in question was no longer there and that he had been ill-advised by her.  He was then told to phone those dealing with his incapacity benefit and that he should not have been working.  He did so immediately, and explained everything.  He was then interviewed by them a week later on 30 April.  He was not requested to return his benefits book either on the phone or at the interview on 30 April.  It would seem that initially it was thought that the claimant could do a limited amount of therapeutic work without it affecting his incapacity benefit, but that it eventually became plain that this was not the case in that the work was not being done on medical advice.

11.	The overpayment of £383.38 is said by the secretary of state to be as to £66.28 for the 3 days 9 to 11 April 2001 and as to £317.10 for the two weeks from 12 April to 25 April 2001.  There is no evidence as to when these payments were made, and while I am prepared to accept that the two full weekly payments were made in the normal way weekly in advance, applying the same presumption to the first 3 days, it would follow that that payment was made before the claimant started work, and very possibly on the facts of this case before he had made up his mind definitely that he would work.  In those circumstances, it seems to me that the tribunal erred in law in finding that the £66.38 in question had been paid as a result of any non-disclosure by the claimant.

12.	More significantly, it appears to me that the tribunal erred in law in failing to identify the agency responsible for the advice given on or shortly before 9 April 2001, or whom he then notified of his intention to commence work, and also erred in concluding that the bad advice he was given did not change his requirement to notify the paying office of his starting work.  The claimant’s evidence throughout appears to have been that he contacted the Benefit Enquiry Line for people with disabilities at the number in his payment book, and the secretary of state’s representative, in making written representations on the appeal to the tribunal, appears to have had no doubt as to the number contacted (p.1D).

13.	In my judgment, the Benefit Enquiry Line was held out in the payment book as the number for claimants to ring for information.  It is by no means uncommon for claimants to have difficulties understanding from written documentation what it is they are supposed to do, and the purpose of the enquiry line was clearly so that they could have matters explained to them.  A claimant who telephones the enquiry line and is given advice is entitled to rely on that advice and to act on it, unless he or she knows (or possibly in some circumstances if they suspect) that the advice is wrong or incomplete.

14.	It is submitted on behalf of the secretary of state on this appeal that a reasonable person would have been alerted to the fact that the notes within the claimant’s order book contradicted the advice given by the Benefit Enquiry Line and would have remedied any contradiction in advice by making further enquiry with the incapacity benefits section of the benefit paying office concerned.  I would agree that if the claimant becomes conscious of a conflict between the advice given and what is written in the order book, then a reasonable claimant ought to check this, although in my view it would be sufficient to do so on the Benefit Enquiry Line.  However, many claimants either have great difficulty reading and comprehending any written document, or prefer to seek help from the benefits agency.  While they cannot blindly ignore what is written in their order books, they are encouraged to seek advice from the Benefit Enquiry Line, and if they are given advice by the Benefits Agency on that line, they will normally be entitled to rely on that advice.

15.	I can find no evidence that the claimant here was aware that the advice he had been given might be wrong, and I do not consider that he can be criticised for relying on the advice rather than trying to find from his order book what he could or could not do.

16.	The repayment decision was made purely on the basis of non-disclosure.  As has repeatedly been pointed out in commissioners’ decisions, non-disclosure necessarily imports the concept of some breach of obligation, moral or legal.  Disclosure must at the least be something that in all the circumstances is reasonably to be expected of a claimant.  In my judgment, where a proper explanation of the situation is given by a claimant on the Benefit Enquiry Line number given by the Benefits Agency for the purpose of enabling claimants to receive advice as to what they should do, and the response is such as to lead a claimant reasonably to believe that disclosure to the local office is not expected, then the secretary of state cannot reasonably expect that the claimant ought still to give disclosure.  Nor, in those circumstances, can the claimant be under any moral or legal obligation to do so.

17.	No misrepresentation is relied on in this case, and while I would doubt that the secretary of state could rely on a misrepresentation made to the local office as a result of advice given by the Benefit Enquiry Line, it is not necessary for me to determine the point.  The appeal is allowed and I make the decision set out in paragraph 1 above.

(signed)	Michael Mark
		Deputy Commissioner

		30 October 2002