CIS 5048 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 Liverpool appeal tribunal on 7 October 2002 under reference U 06 079 2002 01197.

3	For the reasons below, the decision of the tribunal is set aside. I substitute for that decision my own decision. This is: 

Appeal allowed. The decision of the Secretary of State on 12. 3. 2002 that income support amounting to £595.45 overpaid to the appellant from 24. 7. 2001 to 15. 10. 2001 (both dates included) is recoverable from the appellant under section 74(4) of the Social Security Administration Act 1992) is erroneous in law and is set aside. 
The case is referred back to the Secretary of State.  

Background to this appeal 

4	The claimant had been receiving income support for herself and her husband for some years. The papers do not make clear the capacity in which the claimant was receiving income support for her husband. The solicitors acting for the claimant state that their client and her husband have been living apart but under the same roof. Those facts are not clear so far as they relate to the period relevant for this appeal. 

5	Without reference to the claimant, the claimant’s husband, who had serious mental health problems, separately claimed on 17 October 2001 and was awarded incapacity benefit from 27 July 2001. The claimant only found out about her husband’s claim when she was asked to hand back her own order book. 

6	The Secretary of State decided that as a result the claimant had been overpaid income support from 24 July 2001 to 15 October 2001, totalling £595.45, and that this amount was recoverable from the claimant. She protested that decision, contending that the overpayment was entirely due to an error by the Secretary of State in not checking her husband’s position before making the incapacity benefit award. The decision maker acting for the Secretary of State refused to revise the overpayment decision, basing it not on section 71 of the Social Security Administration Act 1992 (as the claimant’s solicitor assumed) but on section 74(4) of that Act.  The claimant’s solicitors formally appealed both against the amount of the overpayment and against its recoverability from the claimant. 

7	The submission for the Secretary of State to the tribunal stated that the Secretary of State had failed to recover the overpayment under section 74(2) from the husband, but could now do so under section 74(4) from the claimant, adding :

The tribunal is respectfully reminded that this right to recover is absolute and does not depend on any failure to disclose or misrepresentation of a material fact by the claimant.  

The tribunal confirmed the decision of the Secretary of State, its decision echoing the words of that submission. 

8	After an initial submission that there was nothing wrong with the decision of the tribunal, the secretary of state's representative now supports the appeal and resiles from the submission made to the tribunal. The secretary of state's representative invited me to set aside the decision of the tribunal, substitute my own decision that the decision of the Secretary of State was also wrong in law, and refer the matter back to the Secretary of State. The secretary of state's representative reserved the right for the Secretary of State to reconsider the matter and take a new decision about recoverability against the husband.  

Section 74

9	Section 74 is entitled “income support and other payments”. It sets out a series of provisions under which income support (and, since 1996, also income-based jobseeker's allowance) can be abated by reference to the payment of other benefits. The policy of the section, in the words of Rowland and White in Social Security Legislation 2002, vol III, p73, is “to prevent a claimant from getting a double payment when other sources of income are not paid on time”. The question in this case is whether some of those provisions apply to allow recovery from income support paid to the claimant for amounts, including backdated amounts, of incapacity benefit paid to her husband for the same period. 

10	Two subsections of section 74 were invoked in the submission to the tribunal, subsections (2) and (4). Subsection (2) allows, on the facts of this case, an abatement of the incapacity benefit paid to the husband. It does not authorise any deduction from the claimant. There is nothing in the subsection that allows recovery from “the other” member of a married or unmarried couple (other than joint claimants). For the record, I indicated in a direction that I do not see how section 74(3) could be applied here either, and the secretary of state's representative has not disputed this. As I noted in those directions, there is in any event no mention of subsection (3) anywhere in the papers. Subsection (4) applies where an abatement could have been made under subsection (2) or subsection (3) but has not been made. As applied with subsection (2) it allows recovery from the person from whom the abatement could have been retained – the husband, not the claimant. So neither of the preconditions for subsection (4) to be applicable to the claimant are present. The decision of the tribunal therefore cannot stand. Equally, neither can the decision of the Secretary of State. 

11	I have not considered whether section 74(1) could apply to the claimant because it has not been put in issue. The secretary of state's representative makes the suggestion, which I agree is the best way forward in this case, that the appropriate action is for me to set aside the decision of the Secretary of State and refer the matter back to the Secretary of State. That I do.  The Secretary of State can make further decisions about overpayment if he so decides, and those decisions will have their own rights of appeal. He will note the comments of the solicitors about the inapplicability of section 71 to the claimant. 

									David Williams
										Commissioner

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