DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that there is no appeal before me under section 14 of the Social Security Act 1998. There should now be a hearing of the claimant's appeal against the decision dated 1 March 2001.

2.	This is an overpayment case. The decision on behalf of the Secretary of State on 1 March 2001 (as reproduced on pages 3 to 5) started as follows:

	"We have looked at the decision dated 10 June 1994 awarding Income Support from and including 24 May 1994. 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 for the period 24/05/94 to 20/08/00 (both dates included) [the claimant] is not entitled to, or is entitled to a reduced rate of Income Support on the grounds that he was in receipt of an Occupational pension and was in receipt of capital over £10,000.00 which increased to over £16,000.00"

The decision went on to identify an overpayment of £16,345.85 which was found to be recoverable from the claimant because of misrepresentation relating to the receipt of the occupational pension and failure to disclose the existence of capital. The list of the law used to make the decision included section 9 of the Social Security Act 1998. Various other dates have been given for the decision in different places.

3.	An appeal was made on behalf of the claimant and his appointee. There was a hearing on 12 September 2001, when the claimant was represented by Mr Steve Hodgson of Hull Welfare Rights Service. He submitted that, since the decision of 1 March 2001 referred only to the initial decision on the claim for income support, the Secretary of State had not proved that there had been reviews of intervening decisions to take account of changes of circumstances (of which there was some evidence in the print out on page 21). He submitted that the appeal tribunal should declare that there was no valid overpayment decision. The presenting officer submitted that all the intervening decisions would have been superseded, through an automatic process on the computer. He said that he would need an adjournment to establish the full details of any significant changes of circumstances within the period of the alleged overpayment. Mr Hodgson objected to any adjournment, saying that the Department had had plenty of time to put forward the necessary evidence.

4.	The appeal tribunal did adjourn. The following directions were made on the decision notice:

	"(1)	The Department to produce evidence that all change of circumstance decisions since 10.6.94 have been reviewed.
	 (2)	For [the claimant] to produce as to his capital as at 24 May 1994 and continuously thereafter up to and including 8 May 1997 (when he disclosed excess capital).
	 (3)	[The claimant] to produce such evidence as be required concerning his state of health as at 24 May 1994 and as at review 30 May 1996 and in particular as to his mental capacity on these dates.
	Case to be relisted as soon as possible after 6 weeks from today."

At the bottom of the decision section of the printed form was the following printed statement:

	"* Failure to comply with this direction within the time stipulated may result in your appeal being struck out under Regulation 46(1)(c) Social Security and Child Support (Decisions and Appeals) Regulations 1999."

There was the instruction at the bottom of the form, "* Delete as appropriate". The warning above had not been deleted, but none of the specific directions had been marked with an asterisk either.

5.	A statement of reasons for decision was produced. This explained directions (2) and (3). Evidence of capital had been taken into account from the earliest date on which it was known that investments had been made, but there was at least the possibility that the claimant's capital could have been in excess of the relevant amount throughout the period of the award of income support. And the question of the claimant's mental capacity to complete documents from 1994 onwards was in question.

6.	Mr Hodgson applied for leave to appeal on the claimant's behalf. Leave was granted by a district chairman, who referred to a pending Commissioner's decision expected on whether decisions to adjourn could be appealed. The written submission on behalf of the Secretary of State, dated 21 January 2002, referred to that decision, CDLA/557/2001, and submitted that the Commissioner had no jurisdiction to hear any appeal, as the appeal tribunal's decision was not a final one. Mr Hodgson's request for an oral hearing of the appeal was granted by Mr Commissioner Angus.

7.	The hearing took place at Doncaster County Court on 4 April 2002. The claimant was represented by Mr Hodgson. The Secretary of State was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both of them for their helpful submissions.

8.	Despite all that Mr Hodgson said, I have no doubt that the decision of the appeal tribunal on 12 September 2001 was not a decision which could be appealed to a Commissioner under section 14 of the Social Security Act 1998. There is no dispute that only final decisions can be appealed. That is plainly shown by Mr Commissioner Angus' decision in CDLA/557/2001 and the cases cited there. It also seems to me right that in general there should be no right of appeal against decisions to adjourn or the directions made on adjournments. Arguments of law can be made against the final decision when it is made. What is in dispute is when a decision to adjourn could come within the category of a final decision. Mr Hodgson accepted Mr Commissioner Angus' formulation that for these purposes a final decision is one which:

	"disposes of all the substantive points which were before the tribunal, or makes some interim disposal of the case which either makes it more than likely that the case will be disposed of finally in a particular way or leaves one of the parties with no means of ensuring that there will be a final disposal of the case, or leaves one of the parties at the risk of an injustice."

He then submitted that one or more of those conditions was satisfied. I do not have to decide whether that formulation is too wide in its acceptance of what is a final decision for the purposes of section 14 (as it is debateable how far the cases about statutory rights of appeal against judgments or orders can be applied to a statutory right of appeal against decisions). That is because I find none of the conditions satisfied.

9.	Mr Hodgson first pointed to the warning that the claimant's appeal might be struck out if the directions were not complied with. He submitted that if directions on an adjournment raised a risk that the case would not be determined by an appeal tribunal, there ought to be a right of appeal to challenge the directions.

10.	The warning printed on the decision notice referred to regulation 46(1)(c) of the Decisions and Appeals Regulations:

	"(1) Subject to paragraphs (2) and (3), an appeal may be struck out by the clerk to the appeal tribunal--
	 ...
	 (c)	subject to regulation 39(4), for failure of the appellant to comply with a direction given under these Regulations where the appellant has been notified that failure to comply with the direction could result in the appeal being struck out."

Under regulation 46(3) a possible striking-out can be referred to a legally qualified panel member. There is nothing in regulation 51 of the Decisions and Appeals Regulations on adjournments, or anywhere else in the Regulations, to give an appeal tribunal specific powers to give directions on an adjournment. However, a legally qualified panel member may under regulation 38(2) give such directions as considered necessary or desirable for the just, effective and efficient conduct of the proceedings and may direct any party to the proceedings to provide such particulars or produce such documents as may be reasonably required.

11.	It is plainly sensible for directions to be given on an adjournment, whether that is under some general implied power in the appeal tribunal or under the specific powers given to the legally qualified panel member. The difference may be important in some circumstances (especially as there can be no appeal against actions of legally qualified panel members as such, as distinct from appeal tribunals), but for the moment I assume that directions are given under the Decisions and Appeals Regulations. I have some doubt whether, even though the printed warning was on its face applied to the directions in this case, it was consistent with their terms. In particular, there was a direction for re-listing after six weeks, which carried the clear assumption that there would be rehearing. That might have made any striking out completely inappropriate. However, I consider that regulation 46(1)(c) was simply not applicable. It is expressly subject to regulation 39(4), which provides that, where a party to the proceedings has notified the clerk that he wishes to have an oral hearing, the appeal tribunal shall hold an oral hearing. In the present case, there had been such a notification by the claimant's appointee (the questionnaire is in the Appeals Service file). It seems to me that, once the obligation to have an oral hearing arises under regulation 39(4), there simply cannot be any striking out under regulation 46(1)(c). There could be a striking out under the other provisions in regulation 46(1), for instance for want of prosecution, but not under regulation 46(1)(c).

12.	Accordingly, there is no possibility in law in the present case of a striking out under regulation 46(1)(c) in the event of a failure by the claimant to comply with the directions given on 12 September 2001. Nor is there any practical possibility of a striking out for want of prosecution. Given the direction for relisting, the appeal must be heard and all the issues of substance in the case decided whether or not the terms of the other directions have been met. There is therefore no support for Mr Hodgson's first point.

13.	His second point was that the directions given by the appeal tribunal created an impression of bias such as to make it more than likely that the case would after the adjournment be decided against the claimant or at the least leave him at the risk of an injustice. He particularly objected to the direction for evidence to be produced on behalf of the claimant as to his capital from and including 24 May 1994. He characterised this as forcing the claimant to gather evidence for the Benefits Agency, with the likelihood of a penalty if he failed to do so, and reversing the proper burden of proof.

14.	I do not accept that characterisation. It ignores the principles set out in Commissioner's decision R(SB) 34/83. There Mr Commissioner Rice drew attention to the principle that where a party to proceedings is in possession of relevant evidence and declines to disclose it, adverse inferences may be drawn against that party. In the context of an overpayment case where a sum suddenly appears in the claimant's bank account or some other capital asset is acquired, enquiries could be made of a claimant who was alive and fully competent about the origin of the sum of money involved. If no proper explanation was given, adverse inferences could be drawn, which Mr Commissioner Rice held could be sufficient to discharge the burden of proof on the benefit officer (now the Secretary of State) to prove that an overpayment had been made. He then held in paragraph 9 that the position was the same where the claimant had died. The personal representative of the claimant's estate had a responsibility to make every reasonable enquiry as to the origin of the sum in question and to give evidence of those enquiries and their results. But, importantly, in paragraph 10 the Commissioner held that if after every reasonable effort the personal representative was unable to discover anything that resolved the matter, the burden of proof on the benefit officer would not have been made out prior to the date on which the capital was already known to have come into existence.

15.	Those principles must also apply where a claimant is not capable of dealing with social security matters and has an appointee. In the present case the overpayment had been calculated by the Secretary of State on the basis that the claimant had had capital since the buying of two unit trust investments on 4 December 1995, with a total cost of £12,000. It was entirely in accordance with the principles of R(SB) 34/83 and with the proper inquisitorial approach of appeal tribunals for there to be an adjournment for the claimant's appointee to produce further evidence of the claimant's capital and of her efforts to investigate the matter. The question of where the £12,000, and other elements of capital, came from is an obvious one. And it was reasonable for the appeal tribunal of 12 September 2001 to take the view that time should be allowed for the claimant's appointee to provide the evidence mentioned.

16.	In the light of a full and proper understanding of the principles of R(SB) 34/83, an adjournment on those grounds created no bias against the claimant and no probability that the case would be decided against him. Applying the principles to the circumstances of a claimant who needs an appointee, if the claimant's appointee shows that she has made all reasonable efforts to find out what capital the claimant had before 4 December 1995 and has not been able to discover anything to resolve the matter, then in accordance with paragraph 10 of R(SB) 34/83, no adverse inferences can be drawn and the case must be determined on the evidence put forward by the Secretary of State. It remains entirely open for the appeal tribunal which eventually hears the appeal to assess whatever evidence the claimant's appointee has been able to produce and to decide whether any adverse inferences can be drawn. The burden of proof remains on the Secretary of State. It also remains open for Mr Hodgson at the hearing to make submissions about those matters. 

17.	Mr Hodgson also submitted that it was unfair and wrong to allow the Secretary of State time to try to tidy up and complete his case, by supplying evidence of the supersession of all the relevant decisions. He said that, by giving the opportunity in direction (1), the appeal tribunal of 12 September 2001 had closed off the argument for the claimant that a decision should be given that there was no valid overpayment decision. This is a case in which the decision under appeal combines both the supersession of earlier decision(s) leading to an overpayment and the decision that the overpayment is recoverable from the claimant. If an appeal tribunal considers that a supersession decision is defective, it may normally correct the deficiencies if it has the evidence to do so. It is true, as I said in decision CIB/3899/1997, that presenting officers, who have access to all the legal resources of the Secretary of State, cannot expect to be treated too tenderly if a wrong legal approach has been taken to a case. However, I consider it within the scope of the judgment of an appeal tribunal in a case like the present whether to proceed or whether to give the Secretary of State an opportunity to provide more information.

18.	Nor do I consider that there has been a closing off of the argument mentioned above. It seems unlikely, in the face of the record of the decision of 1 March 2001 on pages 3 to 5, that the Secretary of State will be able to show that there had, prior to 1 March 2001, been decisions superseding intervening operative decisions on income support, while the decision superseding the initial decision awarding income support from and including 24 May 1994 was not made until 1 March 2001. In that case, a question for the appeal tribunal which conducts the final hearing will be whether it can and should correct the deficiencies in the supersession decision of 1 March 2001 so as to create a valid basis for an overpayment recoverability decision. I consider that Mr Hodgson will be able to make the substance of his arguments on that issue, and on whether in law a correction by an appeal tribunal of the deficiencies in a supersession decision is permissible in an overpayments case, before that appeal tribunal. I therefore find that there is no risk of injustice on this particular issue, nor, in conjunction with what has been said above, the creation of a situation making it more than likely that the case as a whole will finally be decided against the claimant.

19.	Accordingly, I conclude that none of the conditions suggested by Mr Commissioner Angus in CDLA/557/2001 for regarding an adjournment as a final decision is met. Therefore there is no appeal under section 14 of the Social Security Act 1998 before me, and my decision can only be to record that lack of jurisdiction.

20.	The claimant's appeal against the decision of 1 March 2001 must now be heard by an appeal tribunal. I can give no directions to that appeal tribunal, which must make its own independent determinations on all relevant questions of fact and law. However, my decision should be part of the papers put before it the appeal tribunal, as it may contain a few helpful reminders on the correct legal approach.

	(Signed)   J Mesher    
	Commissioner

	Date:       8 May 2002