CF/5505/2002

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Bedford tribunal of 23rd July 2002 (reference U/42/132/2002/00785). I substitute my own decision. This is to the effect that, in respect of the payments of child benefit from 18th June 2001 to 6th January 2002, or thereabouts, there is no recoverable overpayment. The Secretary of State has not established the conditions of recoverability.

2. The claimant was born on 10th July 1959. She has a daughter, C, who was born on 28th December 1985. In due course the claimant was awarded child benefit in respect of C. On 22nd or 23rd April 2001 C went into local authority care and from 14th January 2002 started living independently in accommodation provided by the local authority. The Secretary of State was unaware of these changes until the Child Benefit Centre received a telephone call on 7th January 2002 explaining what had happened. Meanwhile, the claimant continued to receive payments of child benefit up to and including 16th December 2001.

3. On 8th April 2002, the Secretary of State decided that from and including 18th June 2001 the claimant had no longer been entitled to child benefit (because C had been in the care of the local authority) and that there had been a recoverable overpayment of £269.10 from that date. Recoverability was based on the claimant’s failure to disclose the true situation to the Secretary of State. On 29th April 2002 the claimant appealed to the tribunal against this decision. 

4. The claimant did not dispute the calculations but argued that she was still contributing financially. She had paid £150 for a course of cognitive therapy, £50 for meals and toiletries during contact meetings, over £100 for school meals, £24 for the cost of a school uniform and other amounts.
 
5. On 23rd July 2002 the tribunal confirmed the decision, at a hearing held in the absence of the parties. On 1st November 2002 the District Chairman of the tribunal refused the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. The claimant now appeals by my leave granted on 20th January 2003. The Secretary of State opposes the claimant’s appeal and supports the decision of the tribunal.

6. I agree that there was an overpayment of child support. The relevant law is as set out paragraphs 1 to 15 of Section 5 of the original submission to the tribunal from the Secretary of State. In brief, there is no entitlement to child benefit in respect of a child who has been in local authority care for at least 8 weeks, or who is living independently.

7. However, section 71 of the Social Security Administration Act 1992 provides for the recovery of overpaid benefit “where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact” and the overpayment has made in consequence of that misrepresentation or failure. In the present case it has not been alleged that there was any misrepresentation. In order to establish a right to recovery, the Secretary of State must show that disclosure by the claimant was reasonably to be expected. This is made clear by the decision in R(SB) 54/83, which is summarised in paragraph 19 of Section 5 of the original submission to the tribunal from the Secretary of State.

8. In the present case the tribunal totally failed to consider whether disclosure by the claimant was reasonably to be expected. Such failure is an error of law. In refusing leave to appeal the District Chairman relied on the provisions of section 12(8) of the Social Security Act 1998. This provides that a tribunal need not consider any issue not raised in the appeal. However, in an overpayment case the burden of proof is on the Secretary of State, and this issue of reasonableness is inherent in any appeal against a recoverability decision based on failure to disclose.

9. There is adequate evidence on the file for me to substitute my own decision. In her appeal to the Commissioner the claimant has added that she believed that the responsibility was on the local authority to notify the Secretary of State and also that,

“ During this very stressful and distressing time I was under my doctor for depression and sincerely hoped and expected my daughter to return home and all conflicts to be resolved within a short time”.

10. In all of the circumstances of this particular case, including the fact that the local authority clearly knew the situation, I do not find that it was reasonable to expect earlier or further disclosure. For this and the above reasons this appeal by the claimant succeeds.

     
H. Levenson
Commissioner

21st March 2003