DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decision of the Birmingham appeal tribunal dated 22 March 2002 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the decision dated 23 April 2001 (Social Security Act 1998, section 14(8)(a)(ii)). That decision is that the overpayment of income support incurred in the period from 5 June 2000 to 6 March 2001 (both dates included) is recoverable from the claimant under section 71 of the Social Security Administration Act 1992 as the overpayment was the consequence of the claimant's failure to disclose a material fact. The precise amount of the recoverable overpayment is to be calculated by the Secretary of State. If there is any disagreement about the result of that calculation, the case may be referred to me (or, if necessary, another Commissioner) for further decision. I also draw attention to what is said in paragraph 14 below.

2.	The decision under appeal to the appeal tribunal was that an overpayment of income support amounting to £4,107.35 incurred in the period from 2 February 2000 to 6 March 2001 was recoverable from the claimant under section 71 of the Social Security Administration Act 1992. The overpayment was said to been identified as the result of a decision dated 15 March 2001. The overpayment was said to have resulted from the claimant having made a misrepresentation of material fact in declaring on her claim form that she lived alone and did not have a partner living in the household. The claimant appealed. At the appeal tribunal she admitted that a Mr H, who was the father of the child who was born to her on 29 May 2000, had become a member of her household from June 2000, but said that they had not lived together before then. The appeal tribunal dismissed her appeal.

3.	I granted the claimant leave to appeal to the Commissioner on the ground that it was arguable that the appeal tribunal had taken a wrong legal approach to the question of living together as husband and wife. The appeal was supported on behalf of the Secretary of State on that ground in the brief submission dated 19 August 2002. It was said that there was insufficient evidence that the claimant and Mr H were living together in the same household prior to June 2002 and suggested that the Commissioner should substitute a decision that the overpayment was recoverable from June 2000 to 6 March 2001. The claimant's solicitors replied that would be pleased for the Commissioner to substitute a decision that the overpayment was recoverable from 5 June 2000.

4.	I was preparing such a decision when I noticed that in paragraph 5.4 of the Secretary of State's written submission to the appeal tribunal it was said that the decision of 15 March 2001 determined that the claimant was not entitled to income support from 7 March 2001. Doubt was therefore thrown on the question whether the decision dated 2 March 2000, awarding income support from 2 February 2000, had been revised under section 9 of the Social Security Act 1998 or superseded under section 10 in relation to the period of the alleged overpayment. I therefore directed that a copy of the decision of 15 March 2001 be produced by the Secretary of State, with any consequential submission.

5.	A copy of the whole printed LT54 form, the application for a revision and the resulting decision, was produced. On the first page of the LT54, dated 14 March 2001, an officer applied to a decision-maker for revision of the decision dated 2 March 2000 on the claim for income support for the period from 2 February 2000 on the question of entitlement, because of living with a partner. On the second page, in a box at the top headed "Reconsideration only", the alternative "Changed fully" was ticked. The decision was "Claim disallowed from and including 2/2/00". The printed form had alternatives for claim revised/superseded followed by an allowance of benefit, but not for claim revised/superseded followed by a disallowance. The box for "evidence and justification for decision" was filled in as follows:

	"Customer acknowledged in MF47 statement made 12/3/00 [in fact, 12/3/01] that she had been in a relationship with [Mr H] since September 1998 and that she had lived in the same household as [Mr H] from 30 September 1998, and that they are intending to marry when she is legally divorced. Therefore customer has not been a single parent throughout period of claim from 2/2/00 so is not entitled to Income Support as she is not in any prescribed category of entitlement for IS."

6.	The further submission dated 4 November 2002 on behalf of the Secretary of State did not attempt to answer the question whether that decision satisfied the condition in section 71(5A). The decision of 15 March 2001 is at best inadequate and defective. That stems mainly from the defective and misleading nature of the decision section of the LT54 form. Not only is there a failure to use the language of the relevant legislation (in the box headed reconsideration only), but the alternative decisions printed do not include a revision/supersession leading to a disallowance. Nor is there any printed question to prompt an officer to record the grounds which have been accepted to allow a revision or supersession to take place. Officers thus tend, as in the present case, to concentrate on what has become known as the outcome decision, rather than on the necessary stages which must be gone through to reach an outcome decision. Commissioners have been drawing attention on a regular and repeated basis to the defects of such forms and to the need for officers to adopt the language of and processes laid down under the Social Security Act 1998. It is high time that something was done in response.

7.	The first defect in the decision of 15 March 2001 is that the decision itself does not expressly purport to be a revision of the decision of 2 March 2000. It simply purports to disallow income support from 2 February 2000. The second defect is that it fails to identify any ground which could justify revision under regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The inadequacy of the decision is that it fails completely to explain why it was that the claimant was not entitled to income support from 2 February 2000. Do those matters show that no valid revision was carried out (see in particular Commissioner's decision R(IS) 2/96)? I have concluded after some thought that they do not. I think that the decision given on the second page of a form LT54 must be looked at in the context of the first page and of the explanation given. Here the first page clearly established that a revision was being applied for and the explanation I think acknowledged that an existing decision was being altered. Given the limited choices among the printed decisions, I conclude that the decision sufficiently established that it was given under the legislative powers to revise. It should have identified grounds under the legislation (which would have been ignorance of material fact under regulation 3(5)(b) of the Decisions and Appeals Regulations). That is a defect which might have been raised in an appeal against the decision of 15 March 2001 but does not, in my judgment, make the decision invalid so as not to support a later overpayment recoverability decision.

8.	The same applies to the failure to explain why the claimant was found not to be entitled to income support from 2 February 2000, but I need to explore that failure in a little more detail. The difficulty is that the mere fact of the claimant having Mr H as a partner does not mean that she was not entitled to income support. If a claimant personally falls within a category prescribed in Schedule 1B to the Income Support (General) Regulations 1987, there can be entitlement even though the claimant has a partner. The main exceptions are if the partner is engaged in remunerative work for 24 hours or more a week (Social Security Contributions and Benefits Act 1992, section 124(1)(c) and Income Support Regulations, regulation 5(1A)), is entitled to income-based jobseeker's allowance (section 124(1)(f)) or has income which takes the couple's income above their applicable amount. Here there were background notes of allegations that Mr H was in full-time work (see page 80), but there was no evidence at the date of the decision to that effect and no questions appear to have been asked about that in what seems to have been a very perfunctory and sloppy investigation.

9.	The claimant's claim for income support had been made on the basis that she was incapable of work. That must have been accepted for an award to be made, so that she was within paragraph 7 of Schedule 1B. Once the eleventh week before her expected week of confinement was reached, the claimant would have been within paragraph 14, and that would have continued for seven weeks after the birth of her daughter. On the expiry of that period, she could not have fallen within paragraph 1 on lone parents if she had a partner, but could have fallen within paragraph 7 again if she was incapable of work. Thus the reference in the explanation of the decision of 15 March 2001 to prescribed categories of entitlement was misleading and wrong, in the absence of evidence of Mr H work or benefit status.

10.	Where does that leave the appeal tribunal's decision? The further submission of 4 November 2002 on behalf of the Secretary of State resiled from the previous submission. It was said that while the appeal tribunal had erred in law, it had reached the only possible conclusion on the evidence, so that the Commissioner should substitute a decision to the same effect. I agree that the appeal tribunal erred in law in its approach to the meaning of living together as husband and wife and also in ignoring the factor that Mr H had another home until about 5 June 2000. It should also have explained why it concluded that the claimant was not entitled to income support. It is my view that on the findings of fact made by the appeal tribunal (that from October 1999 Mr H had been spending three or four days a week with the claimant and staying overnight, plus carrying out household chores) it could not be concluded that he and the claimant were living together as husband and wife. Leaving aside the question of whether that was an accurate reflection of Mr H's evidence, there was simply insufficient evidence of membership of the same household. Plainly, it cannot be argued that the appeal tribunal came to the only possible conclusion on the evidence. However, from 5 June 2000 membership of the same household has been admitted and I accept that living together as husband and wife has been proved from that date.

11.	I therefore set the appeal tribunal's decision aside as erroneous in point of law. I then have a number of choices of the course to take in the light of the doubt over whether the claimant was or was not entitled to income support even after she and Mr H began living together as husband and wife. I could send the case back to a new appeal tribunal for evidence to be produced as to whether Mr H was in full-time work at the time or of his income to be taken into account. I could substitute a decision on the basis that the Secretary of State had failed to come forward with positive evidence to show that the claimant was in fact not entitled to income support for any week in the period of the alleged overpayment. Or I could substitute the decision expressly agreed by the claimant's solicitors on the basis that they must have accepted and agreed that Mr H was in full-time work, so as to exclude the claimant's entitlement to income support from the date that they started living together as husband and wife.

12.	As both parties have argued for the Commissioner to substitute a decision, I have rejected the choice of referring the case to a new appeal tribunal. I have hesitated over a decision that, in a case where the burden of proof is on the Secretary of State, there has been a failure to produce evidence that any particular overpayment was made over any particular period. However, what has tipped me against that decision is the consistent assumption of the claimant's solicitors that, once the claimant and Mr H started living together as husband and wife, her entitlement to income support would cease. The most likely reason for that would be that Mr H was in full-time work. If he had not been, then solicitors would have brought that point forward. There were slight indications in the record of proceeding that Mr H was in work. On page 37, he said that was in a good job when he bought the house in 1998. On page 40, there is a note of health problems after the birth of the claimant's daughter which seem still to be part of Mr H's evidence and a note that this was affecting his work. Taking into account those indications and the remedy mentioned in paragraph 14 below, I have concluded that I should give the decision agreed by the claimant's solicitors on the basis that as from 5 June 2000 Mr H was engaged in remunerative work for at least 24 hours a week.

13.	Accordingly, it has been shown that there was an overpayment from that date down to 6 March 2001 as the claimant was not entitled to income support for that period. I am not bound to accept the decision on entitlement given on 15 March 2001 for this purpose (Commissioner's decision CIS/1330/2002) and must make my own decision as to the amount overpaid. There was a failure to disclose that Mr H had moved in full-time and that he and the claimant were living together as husband and wife. Therefore, the overpayment is recoverable and I give the decision set out in paragraph 1 above.

14.	I should draw the attention of the claimant's solicitors to the power in section 10(1)(b) of the Social Security Act 1998 and regulation 6(2)(c) of the Decisions and Appeals Regulations for the Secretary of State to supersede a decision of a Commissioner that is made in ignorance of or under a mistake as to some material fact. If the claimant's solicitors, after reading this decision, consider that I am ignorant of or have made a mistake as to some material fact (for instance, to do with Mr H's work), they may apply to the Secretary of State for a supersession. It seems to me that in an overpayment case the rule laid down in section 10(5) as to the effective date of a superseding decision is not a problem. If the superseding decision is that a smaller amount is recoverable, then that takes effect immediately, at the least so as affect the Secretary of State's future right of recovery.

	(Signed)    J Mesher    
	Commissioner

	Date: 17 December 2002