[2005] UKSSCSC CJSA_2633_2004 (25 July 2005)

CJSA 2633 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. The appeal is to be heard again in accordance with the directions below.

2	Unusually for a decision on jobseeker’s allowance (“JSA”), there are three parties to the appeal before me. The Appellant is the JSA claimant, and I refer to her as B. The First Respondent is the Secretary of State, responsible for the Jobcentre involved in the appeal. The Second Respondent is B’s partner, and I refer to him as  P. P was joined as a party because it appeared that B and P had made a joint claim for JSA.

3	DIRECTIONS FOR THE NEW HEARING

A	The rehearing will be at an oral hearing. 
B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
C	The claimant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal. 
D	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 
E	The Secretary of State is directed to make a new or additional submission to the tribunal correcting the errors and omissions to the previous submission. The case is not to be relisted for hearing until the claimant and representative have had one month to consider the new submission and make any written submission to the new tribunal, or to produce any further evidence they wish to produce to that tribunal.
 
These directions are subject to any later direction by a district chairman. 

The claim and decision

4	B and P live together with their 2 children at all relevant times for this appeal. B and P claimed JSA in a claim form signed by both B and P in May 2002. The claim was made as a joint claim.  The claim was for both of them and both the children.  The award was apparently made to B rather than P (though nothing in the papers formally confirms this). I note this because previously P had been the claimant. 

5	 In May 2003 what appears to be a random check was run against the names of both B and P through the Generalised Matching Service. This picked up the fact that P had been paid significant amounts of interest by two buildings societies over the previous year. There was no indication in the GMS report that B was involved in this. The details were sent to the local Jobcentre. B was asked to come in for an interview. This was done because neither B nor P had indicated any significant amount of savings in the claim.

6	There is a full transcript of the interview, though unfortunately the letter sent to B before the interview has not been supplied. I do not therefore know if B was aware before the interview of the allegation that she had not disclosed capital. It appears from the terms of the interview that B was told of the capital held by P during that interview, and that this information took her by surprise. The terms of the interview also make it clear that the interviewer thought that the written statement was to be “along the lines of you know he’s got some accounts” (the taped words of the interviewer), which it was. I note that point because in the later interview with P it was suggested to P that B’s statement showed that she did know about the accounts before her interview. I see no factual basis for that on the evidence before me. 

7	P responded to B’s interview within two days, authorising the Department to check his accounts. They were checked, and it was clear that there were two accounts in P’s sole name including capital of over £16,000. P was eventually interviewed some months later, and gave the Jobcentre details of the accounts. That interview suggests that P had already sent details about the savings accounts to the Jobcentre, although again there are no details in the papers. He explained that the money was held for a (named) brother in law in the USA, and why.  It was indicated to him that this explanation was not going to be accepted, and it was not. The result was that the JSA award was terminated and a decision for the recovery of an overpayment of £6,378 was made against B. 

The appeal 

8	P attended the tribunal with a representative. B did not.  Having heard from P and the representative, the tribunal dismissed the appeal. It did so on the basis of the findings that it did not accept P’s evidence. It did this because  (a) P was secretive about his accounts, and B said she knew nothing of them; (b) P’s evidence was vague; (c) P’s evidence was inconsistent; (d) P failed to produce evidence from any third party; (e) the tribunal’s reservations about P’s credibility were strengthened by the lack of any corroboration.

9	The tribunal found that there had been an overpayment. It confirmed that the overpayment was recoverable although it did not consider in any detail the link between overpayment and recoverability. Nor is there any justification in the formal submission to the tribunal of the link between the decision that P owned the capital and the decision that B should repay it. 

10	The grounds of appeal from B’s representative against this decision included a detailed criticism of the reasoning of the tribunal. I did not find them persuasive on the basis of the evidence put before the tribunal. Nor did I consider that there was an error of law in any views taken about relevant evidence that could have been, but was not, put before the tribunal.  But as the appeal is to be reheard, I comment no further. 

11	I invited a submission on this appeal because of two interlinked issues: (a) this appeared at that time to be a joint claim, but the decision was only against one of the claimants, and (b) I was not clear how section 71 of the Social Security Administration Act 1992 was to apply to a joint claim between unmarried partners, where one partner failed to disclose or misrepresented and the other partner was the only addressee of a decision to repay. As a result of the submission made in reply by the secretary of state's representative, I joined P as a party to the appeal. P’s representative then made a persuasive submission that the claim was not a joint claim. This is an important issue and I therefore invited further submissions to clarify the point. But I did not consider, nor did the parties, that an oral hearing was necessary. I set out my conclusions below, and thank the representatives for all parties for their assistance. 

Was this a joint claim?

12	The claim was signed by both B and P, and they stated on the form that it was joint. The form used for the claim was the standard JSA1. This is set out so that it can be used both for joint claims and single claimant claims. And it also sets out when a joint claim has to be made.  Immediately after the question whether someone is making a claim for JSA, the form asks:

Are you and your partner making a joint claim?    No/Yes
Some people must make a joint claim. Read Notes 2 to find out if this applies to you and your partner.

If you are not making a joint claim, does your partner agree to your making this claim? No/Yes
If No, still tell us as much as you can about your partner.

The Notes explain this. Under the tests to be used to show whether a claim has to be joint, the form includes the following text:

NO. If you answer NO to any of these questions, you and your partner do not have to make a joint claim. You do not have to fill in the parts of the form that say  
		More about Your partner if this is a joint claim.

B and P ticked Yes to the first question and did not answer the second question. 

13	In my view, the notes and questions on this form are misleading. If the claim is one that is not required to be a joint claim, then I agree with P’s representative that it cannot be a joint claim. The implication that the claimants can choose to make it a joint claim is wrong in law.  Therefore B and P filled in this form on the wrong basis. 

14	Joint claims have been required for some income-based JSA claims since 2001 under the amendments made to the Jobseekers Act 1995 by the Welfare Reform and Pensions Act 1999. Section 1 was amended so that if the claimant is a member of a “joint-claim couple” then the claim must be made jointly (section 1(2B)). Otherwise the claim is to be made by the claimant alone.

15	“Joint-claim couple” is defined by section 1(4) (as amended) as:

	a married or unmarried couple who –
(a) are not members of any family whose members include a person in respect of whom a member of the couple is entitled to child benefit, and
(b) are of a prescribed description.

The “prescribed description” is set out in regulation 3A of the Jobseeker's Allowance Regulations 1996.  This requires one of the partners to be over 18 and born after 28 October 1957, with certain exceptions not relevant here.

16	P’s representative pointed out that – as the claim form states – B is getting child benefit for their children. B and P therefore cannot be a joint-claim couple. It follows that their claim cannot be a joint claim. That being so, P cannot be required to sign the form, although he did so.

Handling the overpayment issue

17	This must be treated as a single person’s claim. It has been treated as a claim made by B, not P. Why? P was the previous claimant. In this case the partners filled in the form in alphabetical order of names. Did that make B the claimant? If not, when was the matter decided? Assuming that B is the claimant, there are still a number of other problems. I did not hear argument about them, but note them as they may arise later.  

18	One issue arises whether or not the claim was joint. Was it right for the Jobcentre staff to tell B about P’s tax affairs without P’s consent? There is a strong tradition of secrecy about individual taxpayers’ tax affairs. That prevents tax officials telling one member of a married couple of the other member’s tax affairs. Is this an exception to that secrecy? I assume that the Inland Revenue (now Her Majesty’s Revenue and Customs) had power to tell the Department for Work and Pensions about P’s taxable income under section 182 of the Finance Act 1989. Does section 122 of the Social Security Administration Act 1992 then entitle a DWP official to tell B without P’s consent? It is not information provided to the Department by P. (It will have been provided to the then Inland revenue by the building society). No point was taken on how these difficult sections apply, but I am not clear that the Jobcentre official had the right to tell B that the Department knew that P had taxable savings income. If P did not tell B, and the Department had no authority to tell her, how was she to know about P’s taxable income? These provisions are of wider scope than is generally appreciated and are not in the usual social security reference books. I set out the relevant sections as an annex to this decision. The Commissioner in CIS 619 1997 considered that there were problems in releasing this kind of information as between members of a married couple.  That must be so in this case also. Unmarried couples have fewer rights as against each other both to obtain information and to protect their own positions within their relationship.        

19	The problems continue, rather than disappear, if the matter comes before an appeal tribunal on an appeal against a decision against one partner only, when only the other partner knows the relevant information. In this case P appeared before the tribunal to give evidence for B, so the tribunal did not have to consider the point. Nor was any point taken by B and P about the release of the information (though they may not have considered the formal legal position). This also stepped round the point that P was not, and could not be, a party to an appeal about a decision made only against B.  A decision could have been made against P if it were felt that the section applied directly to him. But the only decision is that against B. 

Applying section 71

20		It therefore needs to be shown that B either failed to disclose or misrepresented the position about P’s savings for the decision about recovery of the overpayment to be made against her. For failure to disclose, the terms of the long-established decision R(SB) 54/83 must be met.  It must be shown (in the terms of point (b) from that report) that “the person from whom it is sought to recover the expenditure knew the material fact.” B could argue that she did not know. 

21	Instead, the decision against B was made in terms of misrepresentation.  It is well established that this can be “innocent” and so without any fraud or deliberate action on a claimant’s part save that of not stating something that should have been stated.  But it is not clear as an issue of fact that B did misrepresent anything. There are uncertainties about the application of section 71 and the terms of the usual JSA1 declaration as applied to joint claims.  B declared that the “information I have given on this form is correct and complete”. Does that apply to all the information on the form, or only the information B gave?  There is the additional complication here that both the partners and the Secretary of State seem to have thought this was a joint claim, and that was the basis on which she made her statements, but that was the wrong basis in law. 

22	There is a question whether the interview with B was properly conducted if it gave B information about P’s tax affairs without his consent or prior notification. There are also issues about whether the decision to recover the overpayment was properly made against B. While I accept that the points were not taken before the tribunal, they were not considered in the submission to the tribunal either.  The formal submission asserts a misrepresentation by B, but states that the question in the appeal is whether B and P misrepresented the fact. It also asserts that the claim was a joint claim, and that both are equally liable to the sum to be recovered. The latter assertion is wrong in law and the former relies on facts that have not been established. The tribunal assumed them to be correct, and did not consider them. As a result, there are a number of undetermined factual issues in the appeal.  The appeal ought to be allowed so that the matter can be reconsidered on the proper basis of a single person’s claim with the necessary findings being made to explore any link between the overpayment and the decision to recover against B alone. If the link cannot be established, then the decision is not valid. 

A decision against P?

23	The secretary of state's representative invited me to make findings and a decision against P. This gives rise to another problem. The decision under appeal is against B. As this is not a joint claim, P is not a party to it, notwithstanding that he appeared before the tribunal. The tribunal has no power to make him a party. I can only take the decision that a tribunal could have taken. As the tribunal could not make P a party, it could not make a decision against him. Therefore I cannot do so. 

My decision

24	I refer the matter back to the tribunal. I put it and the parties on notice that the submission to the tribunal is clearly inadequate for the issues that the decision against B raise, and that therefore a new submission is required. It must be on the basis that the claim cannot be a joint claim, but that, following the wording of the JSA1 form, it was completed on the basis that it was a joint claim. The tribunal will also have first to reconsider on the evidence whether the overpayment decision was correct, before it considers whether B did misrepresent or fail to disclose anything. 

25	I refer the Secretary of State to my concerns about the wording of the JSA1 form and the disclosure by his officials of the tax affairs of P to B without P’s consent. 

								David Williams
								Commissioner

								25 July 2005
[Signed on the original on the date shown]
 Finance Act 1989
 Section 182	Disclosure of information

(1) A person who discloses any information which he holds or has held in the exercise of tax functions, tax credit functions or social security functions is guilty of an offence if it is information about any matter relevant, for the purposes of any of those functions--

(a) to tax or duty in the case of any identifiable person,

(aa) to a tax credit in respect of any identifiable person,

(b) to contributions payable by or in respect of any identifiable person, or

(c) to statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay in respect of any identifiable person.

(2) In this section "tax functions" means functions relating to tax or duty--

(a) of the Commissioners, the Board and their officers,

(b) of any person carrying out the administrative work of any tribunal mentioned in subsection (3) below, and

(c) of any other person providing, or employed in the provision of, services to any person mentioned in paragraph (a) or (b) above.

(2ZA) In this section "tax credit functions" means the functions relating to tax credits--

(a) of the Board,

(b) of any person carrying out the administrative work of the General Commissioners or the Special Commissioners, and

(c) of any other person providing, or employed in the provision of, services to the Board or to any person mentioned in paragraph (b) above.

(2A) In this section "social security functions" means --

(a) the functions relating to contributions, child benefit, guardian's allowance, statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay--
(i) of the Board and their officers,
(ii) of any person carrying out the administrative work of the General Commissioners or the Special Commissioners, and
(iii) of any other person providing, or employed in the provision of, services to any person mentioned in sub-paragraph (i) or (ii) above, and

(b) the functions under Part III of the Pension Schemes Act 1993 or Part III of the Pension Schemes (Northern Ireland) Act 1993 of the Board and their officers and any other person providing, or employed in the provision of, services to the Board or their officers.

(3) The tribunals referred to in subsection (2)(b) above are--

(a) the General Commissioners and the Special Commissioners,

(b) any value added tax tribunal,[ and}
   [...]

(d) any tribunal established under section 463 of the Taxes Act 1970 or section 706 of the Taxes Act 1988.

(4) A person who discloses any information which--

(a) he holds or has held in the exercise of functions--
(i) of the Comptroller and Auditor General and any member of the staff of the National Audit Office,
(ii) of the Parliamentary Commissioner for Administration and his officers,
(iii) of the Auditor General for Wales and any member of his staff,
(iv) of the Welsh Administration Ombudsman and any member of his staff, or
(v) of the Scottish Public Services Ombudsman and any member of his staff,

(b) is, or is derived from, information which was held by any person in the exercise of tax functions, tax credit functions or social security functions, and

(c) is information about any matter relevant, for the purposes of tax functions, tax credit functions or social security functions--
(i) to tax or duty in the case of any identifiable person,
(ia) to a tax credit in respect of any identifiable person,
(ii) to contributions payable by or in respect of any identifiable person, or
(iii) to child benefit, guardian's allowance, statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay in respect of any identifiable person.

is guilty of an offence.

(5) Subsections (1) and (4) above do not apply to any disclosure of information--

(a) with lawful authority,

(b) with the consent of any person in whose case the information is about a matter relevant to tax or duty or to a tax credit or to contributions, statutory sick pay, statutory maternity pay, statutory paternity pay or statutory adoption pay, or

(c) which has been lawfully made available to the public before the disclosure is made.

(6) For the purposes of this section a disclosure of any information is made with lawful authority if, and only if, it is made--

(a) by a Crown servant in accordance with his official duty,

(b) by any other person for the purposes of the function in the exercise of which he holds the information and without contravening any restriction duly imposed by the person responsible,

(c) to, or in accordance with an authorisation duly given by, the person responsible,

(d) in pursuance of any enactment or of any order of a court, or

(e) in connection with the institution of or otherwise for the purposes of any proceedings relating to any matter within the general responsibility of the Commissioners or, as the case requires, the Board,

and in this subsection "the person responsible" means the Commissioners, the Board, the Comptroller , the Parliamentary Commissioner, the Auditor General for Wales, the Welsh Administration Ombudsman or the Scottish Public Services Ombudsman, as the case requires.

(7) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence—

(a) he believed that he had lawful authority to make the disclosure in question and had not reasonable cause to believe otherwise, or

(b) he believed that the information in question had been lawfully made available to the public before the disclosure was made and had no reasonable cause to believe otherwise.

(8) A person guilty of an offence under this section is liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both, and

(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(9) No prosecution for an offence under this section shall be instituted in England and Wales or in Northern Ireland except--

(a) by the Commissioners or the Board, as the case requires, or

(b) by or with the consent of the Director of Public Prosecutions or, in Northern Ireland, the Director of Public Prosecutions for Northern Ireland.

(10) In this section--
"the Board" means the Commissioners of Inland Revenue,
"the Commissioners" means the Commissioners of Customs and Excise,
"contributions" means contributions under Part I of the Social Security Contributions and Benefits Act 1992 or Part I of the Social Security Contributions and Benefits (Northern Ireland) Act 1992;
"Crown servant" has the same meaning as in the Official Secrets Act 1989;
"tax credit" means a tax credit under the Tax Credits Act 2002, and
"tax or duty" means any tax or duty within the general responsibility of the Commissioners or the Board.

(11) In this section--

(a) references to the Comptroller and Auditor General include the Comptroller and Auditor General for Northern Ireland,

(b) references to the National Audit Office include the Northern Ireland Audit Office, and

(c) references to the Parliamentary Commissioner for Administration include the Health Service Commissioner for England, the Health Service Commissioner for Wales, the Northern Ireland Parliamentary Commissioner for Administration and the Northern Ireland Commissioner for Complaints.

(11A) In this section, references to statutory paternity pay or statutory adoption pay include statutory pay under Northern Ireland legislation corresponding to Part 12ZA or Part 12ZB of the Social Security Contributions and Benefits Act 1992 (c. 4).

(12) This section shall come into force on the repeal of section 2 of the Official Secrets Act 1911.

Social Security Administration Act 1992 
Section 122	Supply of information held by tax authorities for fraud prevention and        verification

(1) This section applies--

(a) to information which is held--
(i) by the Inland Revenue, or
(ii) by a person providing services to the Inland Revenue, in connection with the provision of those services,
but is not information to which section 121E above or paragraph 4 of Schedule 5 to the Tax Credits Act 2002 applies, and

(b) to information which is held--
(i) by the Commissioners of Customs and Excise, or
(ii) by a person providing services to the Commissioners of Customs and Excise, in connection with the provision of those services.

(2) Information to which this section applies may, with the authority of the Commissioners concerned, be supplied to, or to a person providing services to, the Secretary of State or the Northern Ireland Department—

(a) for use in the prevention, detection, investigation or prosecution of offences relating to social security;

(aa) for use in the prevention, detection, investigation or prosecution of offences relating to payments under section 2 of the Employment and Training Act 1973 (c. 50) or other payments by or to the Secretary of State for any purposes connected with employment or training;

(b) for use in checking the accuracy of information relating to benefits, or national insurance numbers or to any other matter relating to social security and (where appropriate) amending or supplementing such information.

(c) for use in checking the accuracy of information relating to employment or training and (where appropriate) amending or supplementing such information.

(3) Information supplied under subsection (2) above shall not be supplied by the recipient to any other person or body unless--

(a) it could be supplied to that person or body under that subsection;

(b) it is supplied for the purposes of any civil or criminal proceedings relating to the Contributions and Benefits Act, the Jobseekers Act 1995 or this Act or to any provision of Northern Ireland legislation corresponding to any of them; or

(c) it is supplied under section 122C below;

and shall not be so supplied in those circumstances without the authority of the Commissioners concerned.

(4) But where information supplied under subsection (2) above has been used (in accordance with paragraph (b) [or (c) ] of that subsection) in amending or supplementing other information, it is lawful for it to be--

(a) supplied to any person or body to whom that other information could be supplied; or

(b) used for any purpose for which that other information could be used.

(5) This section does not limit the circumstances in which information may be supplied apart from this section.