CDLA 3768 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The claimant and appellant is appealing with my permission against the decision of the Newcastle on Tyne appeal tribunal on 8 May 2002 under reference U 0 44 232 201 00288.

3	For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision (Social Security Act 1998, section 14(8) and (9).  The attention of the district chairman and listing officer is drawn to the fact that this case involves points about misrepresentation that are the subject of appeal to the higher courts in the case of Hinchy v Secretary of State for Work and Pensions, EWCA [2003] Civ. 138.  

4	I allowed permission to appeal in this case reluctantly but because of the way the tribunal formulated one of its reasons for dismissing the appeal before it. In paragraph 18 of its reasons, the tribunal dismissed an argument put forward by the representative for the claimant because “we find that argument overtechnical”. As I commented in granting permission to appeal that is not an adequate reason for dismissing any point of law in a field so highly technical as social security law.  It is for that reason I set aside, with the consent of both parties, the decision of the tribunal. I must now address the issue that the representative raised. I do not therefore need to deal with the other grounds of appeal raised save in so far as they relate to this issue. 

Background to this appeal 

5	The appeal concerns a decision of the Secretary of State that the claimant had been overpaid disability living allowance for the period from May 1998 to November 2001. This was based on the fact that the claimant was working during that period.  The overpayment was calculated at £4,992.50.

6	In its decision the tribunal first considered the claimant’s entitlement to both the care and mobility components of disability living allowance during the relevant period. It concluded that there was no doubt that the claimant had improved from her previous state of health such that she was not entitled to disability living allowance from and including May 1998. 

7	It then went on to consider recoverability of the overpayment under section 71 of the Social Security Administration Act 1992.  That raises points that are before the Court of Appeal, and may be before the House of Lords, in Hinchy v Secretary of State. I therefore make the direction set out above and do not deal with that aspect of the case. The tribunal may need either to stay this case or invite a further submission from the secretary of state's representative on this point.

8	Finally, the tribunal dismissed the claimant’s last point. This was that the representative relied on regulation 13(1) of the Social Security (Payments on Account, Overpayments and Recoveries) Regulations 1988. 

Regulation 13 of the Social Security (Payments on Account, Overpayments and Recoveries) Regulations 1988   

9	The representative’s ground of appeal against this aspect of the appeal is as follows:
 “Nowhere in the appeal papers have the Benefits Agency demonstrated that they have considered this [regulation 13]. Regulation 13 is part and parcel of the process the Benefits Agency must perform in order to discharge the burden of proof that an amount of benefit is owed by a claimant. The Benefits Agency therefore failed to discharge their burden of proof and the tribunal erred in law by stated that the Benefit Agency’s decision was correctly carried out. I expressly rely on paragraph 8 of R(SB) 25/98 for this point.     

10	Regulation 13 deals with sums to be deducted in calculating recoverable amounts. It is now in very outdated form, but it provides for a deduction against a sum to be recovered under section 71 of any sum payable by way of income support or jobseeker's allowance on the basis set out in the regulation. The decision quoted as R(IS) 25/98 is in fact R(IS) 9/96. It is not relevant to this issue. It is not clear to what decision the representative was referring. I looked at regulation 13 recently in my decision, after oral hearing, in CIS 2291 2001. This decision referred to decisions for other Commissioners in CP 5257 1888 and CIS 1777 2000

11	The key issue raised by the representative is summarised as follows in his response to the submissions of the secretary of state's representative:

“I repeatedly put the above argument that the DWP were the ones (due to their access to information and being under a burden of proof) to establish clearly whether or not a claim had been made. This was not up to my client. Without establishing any claims, the DWP had not done their job under regulation 13 and had not therefore overcome the burden of proof that there was an overpayment”

12	The tribunal was wrong to dismiss this as an overtechnical argument, and not merely because that is not an adequate answer to any appeal in this field. Regulation 13 is unavoidably a technical issue, not least because of its bad drafting and its combination of partial updating amendments with obsolescent language. But it is an important one when it is put in issue, and cannot be ducked as this tribunal ducked it. It is for that reason that I set aside the decision of the tribunal. What should it have done?

13	As the claimant rightly points out, it is for the Secretary of State, and specifically for the person representing the Secretary of State at the tribunal hearing, to establish that there is an overpayment of benefit and the amount of the overpayment. That is a separate question to recoverability, but it is also governed by section 71 of the Social Security Administration Act 1992. Consistently with that, regulation 13 of the Social Security (Payments on Account, Overpayments and Recoveries) Regulations 1988 is a mandatory part of the process of calculating the overpayment (“the adjudicating authority shall deduct…”) where it is relevant.  Applying regulation 13 is therefore part of the task of the Secretary of State in establishing that there is an overpayment in those cases. The key question is whether regulation 13 is relevant. 

14	On this issue I consider that the representative overstates his case.  As far as a tribunal is concerned, regulation 13 becomes relevant in the technical sense when it is put in issue, or when the tribunal considers it should be put in issue. That follows from section 12(8) of the Social Security Act 1998. In many cases it will not be in issue, but it was in issue in this case, if not before, then by reason of the decision of the tribunal when it adjourned on 17 October 2001. 

15	If it is in issue it must then be seen whether it is relevant in the substantive sense. What is then required? This question clearly puzzled the officer charged with making a new submission to the tribunal as directed by that tribunal when adjourning. The decision maker did not consider regulation 13 in any way. I do not know whether that reflects an absence of instructions to decision makers on the point, but it is clear to me that the tribunal were directing attention to that point.  That being so, the decision maker acting for the Secretary of State and the tribunal should first consider whether any amount has been offset under Part III (regulations 5 and 6) of the Social Security (Payments on Account, Overpayments and Recoveries) Regulations 1988. This may call for further enquiry, bearing in mind always that it is for the Secretary of State to meet any problems arising from conflicts of evidence or absence of proof of any relevant issue. But there is no suggestion that the point arises in this case.

16	The other issue that regulation 13(1) requires the decision maker and tribunal to identify and deduct is:

“any additional amount of income support or income-based jobseeker's allowance which was not payable under the original or any other determination, but which should have been determined to be payable on the basis of the claim as presented to the adjudicating authority or on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination”.

I have removed the punctuation for the reasons given in CIS 2291 2001. Regulation 13(1) then emphasises that no other deduction shall be made for any other actual or hypothetical entitlement. 

17	Regulation 13 deals with offsets between income support and similar claims.  An example is R(IS) 5/92. But this is a case of an overpayment of disability living allowance. The decision giving rise to the overpayment was a decision to stop payment of disability living allowance because of an improvement in the claimant’s disablements. This was identified when it was found that she was regularly working. The overpayment was calculated, based on a new decision following the change of circumstances. The representative is attempting to resist the overpayment decision because the Secretary of State has not dealt with regulation 13. As the claimant puts it in the grounds of appeal, “they have not considered whether any underpayment of income support has ever happened in my benefit history.” But it is irrelevant to the award of disability living allowance that the claimant may or may not have claimed, and may or may not have been entitled to, income support or the other income-related benefits. Regulation 13 does not in any way make it relevant. There is no basis in extant law for any offset of these different benefits against each other in the case of the overpayment of one even if the underpayment of the other is established. So the possibility of an underpayment need not be considered.  As regulation 13 is irrelevant in substance, the decision of the Secretary of State cannot be held to be at fault for failure to mention it.  Whether or not, therefore, the decisions of the Secretary of State or tribunal were wrong on other issues, the decision of the Secretary of State was not wrong in failing to deal with regulation 13. 

My decision 

18	While, therefore, I must set aside the decision of the tribunal for the way it handled regulation 13, it did not, in my view, reach the wrong decision because of that issue. Were that the only issue in the appeal, I would reinstate the tribunal decision with this different explanation. But the case has now been overtaken by Hinchy. I therefore decide the matter on the regulation 13 point but refer it back to a tribunal to consider the overpayment decision of the Secretary of State in the light of Hinchy. This may require the matter to be stayed if Hinchy is proceeding to the House of Lords. 

								David Williams
								Commissioner

								07 April 2003
[Signed on the original on the date shown]