PLH                                                                             Commissioner's File: CSB 4970/01

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Supplementary Benefit (Overpayment)
Appeal Tribunal:  	Basildon
Tribunal Case Ref:  	U/42/131/00/01131
Tribunal date:	22 February 2001
Reasons issued:	5 September 2001

1.	This claimant’s appeal is dismissed, as in my judgment there was no error of law in the decision of the tribunal chairman sitting alone at Basildon on 22 February 2001.  In it he confirmed the decision of an adjudication officer given on 7 April 1998, that there were no grounds under section 25 Social Security Administration Act 1992 for reviewing or altering the decision of an earlier adjudication officer, comprised in a notice issued to the claimant and dated 7 September 1987, that he was liable to repay to the Secretary of State a total of £5,673.69 supplementary benefit he had wrongly been drawing over a period going back to 7 June 1985 as a result of failing to disclose material information to the Secretary of State about the amount of his mortgage interest. 
2.	The dates given in the last paragraph are not misprints.  This case thus concerns events going back now over 17 years, and there was even the most extraordinary (and so far as the appeal papers before me go, wholly unexplained) delay of over 2½ years in the progress of the claimant’s appeal at the tribunal level.  His appeal against the adjudication officer’s decision of 7 April 1998 is recorded as having been lodged on 16 June 1998, but it only came before the tribunal chairman for hearing on 22 February 2001.  There was then a further delay of over six months before the tribunal chairman’s reasons for his decision were issued to the parties, and although that statement begins with a graceful apology for the time it has taken to prepare it, there is again no explanation of the extent to which the blame for this lies with the chairman himself, or with the tribunal’s administrative arrangements.  Finally after yet another two months, a different tribunal chairman granted the claimant leave to appeal to the Commissioner against his colleague’s decision, though without any point of law that was considered to justify this course under section 14(10)(a) Social Security Act 1998 being identified.
3.	The appeal has now come before me for determination, earlier procedural directions having been given by another Commissioner. The Secretary of State’s representative and the claimant have both confirmed in their written observations that they do not require an oral hearing of the appeal and a previous direction for such a hearing has as I understand it been rescinded with the agreement of all parties.  
4.	An appeal to a Commissioner under what is now section 14 Social Security Act 1998 can be brought only if there is some error of law in the tribunal’s decision or the way it was arrived at.  There is no power for the Commissioner to interfere with the tribunal’s judgment on issues of fact, or the weight or credibility to be accorded to evidence given to it, since under the regulations approved by Parliament those are matters for the tribunal and not the Commissioner to determine.  
5.	As will already be apparent the history of this matter goes back a long way, but the salient facts from the findings of the tribunal and the documentary evidence in the appeal file appear to be as follows.  From June 1985 to February 1987 the claimant was continuously drawing supplementary benefit which included substantial amounts for housing costs in the form of mortgage interest.  Some time in mid-1987 it came to light that the information on which the department had been basing its calculations of these amounts was mistaken or had become out of date, and a recalculation was carried out.  This revealed that a total of £5,673.69 had been overpaid to the claimant in excess of his actual entitlement to supplementary benefit over the period going back to 7 June 1985.  
6.	His entitlement for the different parts of that period under successive awards made at various dates from 25 June 1985 to 17 October 1986 is recorded as having been reviewed and recalculated, and a determination was made by an adjudication officer on 31 July 1987, though not it appears actually proceeded with until it was issued to the claimant in the form of a formal notice and a letter dated 7-8 September 1987 (see pages 7-8, 27-28 of the appeal file).  This was to the effect that as the claimant had failed to disclose on 25 June 1985 or thereafter the material fact that he was paying only a fixed amount of interest on his mortgage, the extra amount of supplementary benefit which the department had mistakenly paid while unaware of this was recoverable from him accordingly, under what was then section 53 Social Security Act 1986 (now section 71 Social Security Administration Act 1992).  
7.	In September and/or November 1987 the claimant wrote to the department disputing the figures in the recalculation, and asserting that he had given the correct details of his mortgage when first applying for benefit and subsequently.  However he does not appear to have pursued these points as far as an appeal against the adjudication officer’s decisions that (a) he had in fact been overpaid the amount shown in the calculations, and (b) this was recoverable from him, because it has been caused by his failure to disclose the correct information when he should have done. 
8.	The decisions notified to him to that effect thus became final and conclusive under the statutory provisions at that time in section 117 Social Security Act 1975 and subsequently in section 60 Social Security Administration Act 1992.  The only way in which their legal effect could be altered so as to relieve the claimant of his liability to repay the overpaid amount as a debt legally due from him was if any ground was identified, such as a material mistake of fact or of law, that could have justified their being reconsidered, by way of what at that time was called a “review” under section 25 Social Security Administration Act 1992; the burden of establishing that a case for such a review had arisen being on the person seeking it.  
9.	The claimant did not however seek to invoke those provisions at the time, or for many years afterwards.  Instead he seems to have acquiesced in an arrangement, which appears to have been made not by him directly but by his wife, for periodical payments on account of the debt legally due from him to be made out of their joint banking account.  Subsequently he became an income support claimant and again appears to have acquiesced, over a period of some years from 25 September 1991 to 4 July 1996, in the making of periodic weekly deductions from his income support benefit on account of his debt, until by the latter date it had been reduced to £1,977.85: see the details given in the Secretary of State’s submission to the tribunal at page 1B.  
10.	During none of this time does he appear to have pursued any contention at all that the amount due from him had been incorrectly calculated, or that he was not legally liable to repay it on the basis of his past failure to disclose the information required of him back in 1985-1987 and wrongfully continuing to overdraw benefit.
11.	It was only after a delay of a further 20 months after July 1996 that the claimant first made the request for review dated 1 March 1998 which has led to the present appeal: see his letter of that date at pages 3-4 of the appeal file.  In that letter he asserted that the decision of the adjudication officer issued to him in September 1987 had been mistaken about the facts of the case, and contended that he had not been overpaid any supplementary benefit, and that any overpayment he had had was not recoverable from him, referring again to the letters he had written in September and November 1987 and saying “It seems to me these points are as valid now as they were then and ought to lead to a review of the original decision.”   That he was well aware of the effect of invoking the review and appeal procedure on the department’s attempts to recover the final £1,900-odd of his debt from him is apparent from the final sentence of that letter where he said, “I would be grateful if you can confirm no recovery action will be taken against me until the outcome of this review, together with any subsequent appeal, are known.”  
12.	The adjudication officer’s decision dated 7 April 1998 (that there were no grounds under section 25 Social Security Administration Act 1992 for reviewing the decision dated 7 September 1987, because he had not been satisfied that decision was given in ignorance of, or based on a mistake as to, a material fact, or that there had been any relevant change of circumstances, or that the decision had been given in error of law) was made and issued promptly enough, but the appeal process the claimant invoked after that seems to have been allowed to be run into the sand, for what as I have said was a quite extraordinary period of time until it finally came before the tribunal chairman for hearing on 22 February 2001.
13.	At that hearing the claimant appeared and addressed the tribunal himself, though with the assistance of a three-page written submission prepared for him by the welfare rights department of a firm of solicitors he had consulted.  This acknowledged that in order to review the original decision of 7 September 1987 grounds for such a review must be established; and the contention relied on by the claimant was that there had been a mistake as to a material fact.  In support of this the submission, and the claimant’s oral contentions to the tribunal, consisted of a repetition of his previous assertions that he had provided all relevant details regarding his mortgage at the time of his original claim and that these had then been verified by a departmental official, so that there had been no relevant failure of disclosure on his part to justify recovery of any overpayment from him.
14.	The tribunal chairman’s decision, recorded in the decision notice issued on the day of the hearing and his later statement of reasons, was to confirm that of the adjudication officer some three years previously that no grounds for a review under section 25 Social Security Administration Act 1992 had been established.  As the statement of reasons at pages 37a-37b shows, the chairman went in detail in the course of the hearing through the claimant’s assertions that there had been a mistake of fact, and rejected them because his conclusion was that he did not believe the claimant’s evidence.  As he recorded, 
“It is for the person or agency asking for a review to establish the grounds of it on the balance of probabilities before any decision can be revised.  The grounds are set out in section 25 of the Social Security Administration Act 1992.  The only two grounds in that section appropriate to this case are that the original decision was given in ignorance of or was based on a mistake as to some material fact or that there had been a mistake of law.  The fact in question pointed out by the appellant was that he had notified the BA of changes in circumstances whereas the decision under appeal said he had not.  The appellant failed to discharge the burden of proof.”
15.	In the first three sentences of that passage the tribunal chairman appears to me to have directed himself entirely correctly as to the relevant law and the questions he had to consider.  Whether or not the claimant had established grounds for a review, on the basis of a mistake of fact made at the time of the original decision as he asserted, was itself a pure question of fact for the tribunal chairman to determine; and in my judgment there was no arguable error of law in the conclusion he reached that it had not been so established on the balance of probabilities.  
16.	The fact that had to be established was that the claimant had actually been making full disclosure of all the relevant amounts and changes in the mortgage interest he was actually having to pay all along from June 1985 onwards, and that the department had for some reason perversely ignored this correct information when calculating his benefit over a prolonged period.  The tribunal chairman rightly pointed to inconsistencies in the claimant’s account given so long after the event, and to his failure to explain his apparent acquiescence in the arrangements made for the reduction of his debt over the previous years until the final attempt to recover the outstanding balance of £1,900-odd directly from him.  It seems to me that the tribunal chairman was entirely justified in rejecting what the claimant said as not credible.  Apart from anything else, his assertions about having told the benefits agency about mortgage rate changes each time they occurred were in direct conflict with the assertion made in paragraph 4.3 of the written submission, prepared on his behalf and no doubt on his express instructions, that all relevant details had already been provided at the time of the original claim, and that there were “no subsequent changes of circumstances” to be notified.
17.	The claimant’s grounds of appeal dated 29 September 2001 take issue with the findings and conclusions of the chairman on the issues of fact in the case, but fail in my judgment to identify any arguable error of law to warrant an appeal.  The letter repeats assertions made in the original letter of 8 September 1987 that there had been full disclosure all along, but this is simply an attempt to reargue the crucial issue of fact which has been fully considered and determined by the tribunal chairman; and as that letter was of course before him and taken into account along with all the other evidence I cannot see that the renewed reference to it assists the claimant at all.  
18.	A second issue of fact sought to be reopened is the effect of the repayment arrangements, agreed apparently by the claimant’s wife in 1988 and subsequently implemented out of the joint bank account over a substantial period.  Again however this was a matter fully ventilated in the evidence before the tribunal; and I cannot see that anything said in the letter of 29 September 2001 invalidates the tribunal chairman’s decision or makes it wrong for him to have taken into account the undisputable fact that over so many years the claimant failed to pursue any attempt to dispute the validity of the debt due from him, or the arrangements made for its repayment.  These of course included as well as the period of repayment out of the joint bank account with the agreement of his wife, a significantly longer period of nearly five years between 1991 and 1996 when the reductions were being applied to his own income support claim, so that he was personally and directly involved.  
19.	Finally he says he finds it offensive to have the chairman conclude that his evidence was not credible and he must be a liar, and that it is impossible for anyone to recall accurately events taking place over fourteen years ago and very unfair to expect him to do so.  As I have said the credibility of the claimant’s evidence was a matter for the tribunal chairman to judge, and he was entitled to reach the conclusion he did.  The burden of establishing the decision taken back in 1987 had been based on a factual mistake was beyond doubt on the claimant; and beyond doubt he failed to discharge it. The difficulty of recollection and establishing credibility after such a long time may in part explain the fact that he failed to do so, but does not alter that fact.
20.	In my judgment the tribunal chairman was not only right in law in his approach, but he reached the only conclusion any reasonable tribunal could have done on the facts of the case as presented to him.  Accordingly I dismiss this appeal, and it is high time the claimant now finished off repaying the money he was found wrongly to have been overdrawing over an extended period so many years ago.

(Signed)
P L Howell
Commissioner
16 July 2002