DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's Case No:  CIS/362/2002

1.	The claimant's appeal is allowed. The decision of the Colchester appeal tribunal dated 27 September 2001 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision which the appeal tribunal should have made on the facts it found (Social Security Act 1998, section 14(8)(a)(i)). My decision is that there was no valid revision or supersession decision or overpayment recoverability decision made by the Secretary of State on 23 February 2001, either originally or as revised on 28 March 2001. Paragraphs 16 and 17 below deal with how that leaves matters.

2.	This is an overpayment case. The claimant had been awarded income support from 19 October 1992. This was calculated on the basis that he and his wife had no income other than their state retirement pensions. In September 2000 the income support authorities discovered that the claimant had been receiving an occupational pension since January 1992. So far as the appeal tribunal knew, the first decision made in consequence was that of 23 February 2001. I need to set that decision out in full:

	"We have looked at the decision dated 26 September 2000 awarding Income Support from and including 26 September 2000. We are satisfied that the decision was given in ignorance of, or based on a mistake as to a material fact.

	Our decision is that the correct date for the award of Income Support should have been from and including 18 October 1993. Consequently [the claimant] was entitled to a reduced amount of Income Support for the period shown on the attached schedule.

	Of £4634.41 already paid to [the claimant] as Income Support from 18 October 1993 to 30 January 2000 (both dates included) £3107.01 is to be offset against the arrears of Income Support now due from 18 October 1993 to 30 January 2000 (both dates included).

	As a result, an overpayment of Income Support has been made from 18 October 1993 to 30 January 2000 (both dates included) amounting to £1527.40 as shown on the schedule.

	On 18 October 1993, or as soon as possible thereafter, [the claimant] failed to disclose the material fact that he was receiving an Occupational Pension.

	As a consequence, Income Support amounting to £1527.40 from 18 October 1993 to 30 January 2000 (both dates included), as detailed on the schedule, was paid which would not have been paid but for the failure to disclose.

	Accordingly, that amount is recoverable from [the claimant]."

3.	On being notified of the decision in a letter dated 8 March 2001, the claimant appealed, saying that the income support authorities had always known of his occupational pension. On 28 March 2001, the following decision was given:

	"On 23 February 2001, the award of Income Support for [the claimant] was looked at again and it was decided that the resulting overpayment was recoverable. We have looked again at the decision where it applies to the determination of the overpayment and its recoverability because it was made in ignorance of, or based on a mistake as to a material fact. Our decision is as follows.

	Of £4649.94 already paid to [the claimant] as Income Support from 18 October 1993 to 06 February 2000 (both dates included) £3081.41 is to be offset against the arrears of Income Support now due from 18 October 1993 to 06 February 2000 (both dates included).

	An overpayment of Income Support has been made from 18 October 1993 to 06 February 2000 (both dates included) amounting to £1568.53 as shown on the schedule.

	On 10 February 1992 [the claimant] misrepresented the material fact that on signing his SP1 form he declared that he was not in receipt of an Occupational Pension, when in fact he was in receipt of an Occupational Pension.

	On 29 May 1992 [the claimant] misrepresented the material fact that on signing his SP1 form he declared that he was not in receipt of an Occupational Pension, when in fact he was in receipt of an Occupational Pension.

	On 16 October 1992 [the claimant] misrepresented the material fact that on signing his A2 form he declared that he was not in receipt of an Occupational Pension, when in fact he was in receipt of an Occupational Pension.

	As a consequence, Income Support amounting to £1568.53 from 18 October 1993 to 06 February 2000 (both dates included), as detailed on the schedule, was paid which would not have been paid but for the misrepresentations.

	Accordingly, that amount is recoverable from [the claimant]."

4.	As that decision was not more advantageous to the claimant than that of 23 February 2001, the appeal was not treated as lapsing. The appeal tribunal on 27 September 2001 dismissed the appeal and gave a decision confirming the Secretary of State's decision issued on 8 March 2001. A postponement on the grounds that the claimant's representative, from the local branch of Age Concern, was not able to attend on the date fixed was refused. The claimant did not attend on 27 September 2001.

5.	The claimant now appeals against that decision with my leave. The appeal is supported by the representative of the Secretary of State in the detailed and comprehensive submission dated 3 April 2002. The claimant's representative has made observations in reply.

6.	I had raised a number of points when granting leave to appeal, but the Secretary of State's representative, Mr Cahill, has rightly focused on a more fundamental point. That turns on section 71(5A) of the Social Security Administration Act 1992:

	"(5A) 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."

Mr Cahill submitted that there was nothing in the decision dated 23 February 2001 that purported to supersede any decision operative during the period of the alleged overpayment. It merely purported to supersede a decision dated 26 September 2000 awarding income support from and including 26 September 2000. I agree. Although the superseding decision purported to make the date of the award 18 October 1993, there was nothing to show how such a decision could follow from supersession of the decision dated 26 September 2000 or result in an overpayment of income support. I agree that the decision dated 23 February 2001 was incoherent. It failed completely either to carry out a supersession or revision within the terms of section 71(5A) or to show that such a process had been carried out.

7.	As Mr Cahill also submitted, the decision dated 28 March 2001 if anything made things worse. Although it mentioned only section 9 of the Social Security Act 1998, it was presumably a revision, but there was nothing to suggest what material fact was not known or was mistaken as at 23 February 2001, nor to explain why the period of the overpayment alleged to be recoverable was extended or its amount increased. For good measure the ground of recoverability was altered from failure to disclose to misrepresentation, but two of the three misrepresentations relied on were on unsuccessful claims prior to that which led to the award from 19 October 1992. No overpayment could have been in consequence of those earlier misrepresentations.

8.	I accept Mr Cahill's submission that none of the decisions mentioned constituted evidence of a valid revision or supersession of the awards operative during the period of the alleged overpayment, so that the decision which the appeal tribunal should have given was that there was no valid overpayment decision. That is consistent with Commissioners' decisions R(SB) 7/91 and R(IS) 2/96. However, Mr Cahill went on to suggest that the Commissioner might be able to substitute a decision which dealt with the substance of the overpayment recoverability issue. I reject that submission.

9.	The suggestion stemmed from Mr Cahill's efforts to obtain more information from the local office, in particular about what decision had been given on 26 September 2000. Commissioners wish that other representatives of the Secretary of State when preparing submissions would take the same proper and constructive attitude. Often very little additional evidence, or a looking beyond the initial question of whether the appeal tribunal erred in law, would enable a Commissioner to give a final decision in a case or to give more practical directions to a new appeal tribunal. However in the present case it is not right to attempt either of those courses.

10.	Mr Cahill discovered that after receiving the initial information that the claimant was in receipt of an occupational pension of £25.01 per month, but before full information was received from the provider about past payments, action was taken by the local office to adjust the current amount of his income support. Paragraphs 13 and 14 of his submission are as follows:

	"13. I am advised by the local office that in the meantime, on 26.9.00, on receipt of the payment slip sent 25.9.00, an officer had given a decision which took account of the occupational pension from 26.9.00. That much of the decision is recorded on the Income Support computer system. However, the officer to whom I spoke was unable to identify the legal mechanism by which the operative award was altered or, given the earlier date on the pension slip [1 July 2000], why that later date was chosen.

	 14. I submit it is most likely the case that, as a matter of expediency, the officer was simply putting the benefit right from a present date, with a view to giving a proper decision at a later date, once the full facts were known, the operative decisions identified, and grounds for revision and/or supersession identified. (See CSIS/490/97 for how that worked in respect of review under the now revoked section 25 of the Administration Act). The terms of the 23.2.01 decision record appear consistent with an attempt to do just that."

11.	That information, though, does not rescue the decision of 23 February 2001, as revised on 28 March 2001, from its fundamental incoherence. The nature of the decision made on 26 September 2000 is problematic. If it was a decision to suspend payment of part of the claimant's income support under regulation 16(2)(a)(ii) or (iii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, then that was a proper decision against which no appeal lay. It did not then need to be revised or superseded for a decision to be given later on entitlement following revision/supersession and overpayment for a past period. If it was a decision purporting to alter entitlement after revision/supersession, things are more difficult. I am not sure that the reasoning of Mr Commissioner Mitchell QC in CSIS/490/1997, referred to by Mr Cahill, can apply when there is now a rigid framework in the Decisions and Appeals Regulations fixing the date when revised or superseding decisions on various grounds take effect. I think it better not to go into all the potential problems here. If the decision of 26 September 2000 needed to be revised or superseded in the decision of 23 February 2001, there was at least some intention expressed to do so. But on either alternative about the need to supersede the decision of 26 September 2000, the decision of 23 February 2001, as revised or unrevised, still failed to carry out any revision or supersession of any decisions relating to the period of the alleged overpayment.

12.	The Tribunal of Commissioners in decision R(IS) 2/97 held that in ordinary review cases defects of form could be corrected by an appeal tribunal on appeal, but not defects of substance which rendered the purported review invalid. It may be that there is a stricter test in overpayment cases, but even if there is not, in the present case the decision of 23 February 2001 was so defective in substance as to be invalid as a supersession in relation to the relevant period. To use a golfing term, it was a complete air shot. Thus, the only decision which could be given, even taking into account the extra information obtained by Mr Cahill, was that there was no supersession decision on which a valid overpayment decision could be based.

13.	Mr Cahill suggested that I could, if the claimant's representative set out his case on the misrepresentation issue, decide the substantive issue of recoverability and remit the "academic" questions of revision/supersession and the amount of the overpayment to the Secretary of State. I do not think that that is legally possible: it reverses the proper legal order of decision-making. Even if it were possible, I would be reluctant to decide the misrepresentation issue without having the opportunity to hear from the claimant and/or his wife in person. And since Mr Cahill also made suggestions that the amount of the overpayment in issue might properly be calculated at a larger amount than £1527.40, it is only fair that the claimant have the opportunity to meet the case knowing the full extent of his possible liability.

14.	Accordingly, I first find that the appeal tribunal of 27 September 2001 erred in law in making a decision on the recoverability of an overpayment when the condition in section 71(5A) of the Social Security Administration Act 1992 was not met. I set the appeal tribunal's decision aside for that reason. I therefore do not need to decide whether the appeal tribunal erred in law in any other way, as by failing to adjourn to allow the claimant's representative to attend. However, I record that I find paragraphs 3 to 10 of Mr Cahill's submission dated 3 April 2002 persuasive.

15.	I then substitute the decision which the appeal tribunal should have made on its findings of fact and the evidence which it had on 27 September 2001. That is that there was no valid decision either on revision/supersession or on the recoverability of any overpayment made by the Secretary of State on 23 February 2001. The Secretary of State has thus failed in the present attempt to show that the alleged overpayment is recoverable from the claimant.

16.	But I must give the claimant essentially the same warning that I gave in paragraph 9 of decision CIS/13681/1996 to the claimant concerned in that case. My decision that no valid decision was given on 23 February 2001 is not the end of the matter. The Secretary of State may, if he wishes, now make a valid decision revising or superseding the decisions operative during the period of the alleged overpayment and dealing with the issue of recoverability if an overpayment is created by the supersession. A conclusion must be reached about the nature of the decision of 26 September 2000 and whether that decision needs to be revised or superseded before the decisions operative in the period of the alleged overpayment can themselves be revised or superseded. I draw attention in passing to the important rule in regulation 6(3) of the Decisions and Appeals Regulations that a decision which may be revised cannot be superseded.

17.	If an overpayment recoverability decision is made, the principles of law which I have set out above should be applied. In addition, the points made by Mr Cahill in his submission dated 3 April 2002 will no doubt be borne carefully in mind, along with the points made on behalf of the claimant in this appeal to the Commissioner, particularly in the observations dated 17 April 2002. And if such a decision is made, the claimant will then have a fresh right of appeal to an appeal tribunal encompassing both the issues of revision/supersession and the recoverability of any overpayment. At that stage the claimant should have received a clear and full explanation of the Secretary of State's view on the amount of the overpayment said to be recoverable and of whether recoverability is said to be based on misrepresentation or failure to disclose or some combination of those grounds.

	(Signed)   J Mesher    
	Commissioner

	Date:      22 May 2002