[2005] UKSSCSC CSIS_73_2005 (16 May 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIS/73/05

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Oral Hearing

Appellant:  				          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of a tribunal sitting in Glasgow (the tribunal) on 15 October 2004 is wrong in law.  Accordingly, I set its decision aside.  However, although technically the claimant’s appeal succeeds, that is of no benefit to her because I consider it appropriate to substitute my own decision as the one which the tribunal ought to have given and it is to the effect that:

(a)	the decision dated 21 March 2001 awarding the claimant income support (IS) from and including 24 October 2000 and any subsequent decisions which may have been made authorising the payment of IS in the period down to 26 May 2003 fall, insofar as such decisions were prior to 23 April 2001, to be superseded on the ground of a relevant change of circumstances, namely that the claimant began work, and after that date such decisions fall to be revised on the ground that they were made in ignorance of the same material fact and in all cases were more advantageous to the claimant than they would otherwise have been; 

(b)	the decision of 21 March 2001 and any subsequent decisions as superseded or revised as appropriate are that the claimant either is not entitled to IS (because in the relevant weeks she worked for at least 16 hours per week) or is entitled to IS at a reduced rate (because although in those weeks she worked fewer than 16 hours her earnings were then to be taken into account as a resource) for the periods shown in the schedule setting out the calculation of the resultant overpayment (the schedule) at pages 26 and 27 of the appeal documents, with the addition of an excess of £254.40 covering the period from 16 July 2001 to 30 July 2001, and that an overpayment of IS amounting to £10,182.76 was accordingly made in the period from 7 May 2001 to 26 May 2003 (both dates included);

(c)	the said overpayment of IS set out above is recoverable from the claimant under section 71 of the Social Security Administration Act 1992 as it would not have been made but for the claimant’s failure to disclose that she was working, the hours she was working and her earnings from such work, in all the relevant weeks.

The issue

2.	In overpayment cases, under section 71(5A) of the Social Security Administration Act 1992 (the 1992 Act), an amount is not to be recoverable unless the determination in pursuance of which it was paid has either been altered on appeal, or revised under section 9 or superseded under section 10 of the Social Security Act 1998; therefore, all awarding decisions authorising such payment within the overpayment period must be changed, and not simply the first such award as is a DM’s usual practice and which occurred in the present case. The point then arising is whether an appeal tribunal may carry out those necessary revisions or supersessions or must a tribunal simply say that the DM’s whole decision on recoverability of the overpayment was invalid?
The tribunal decision

3.	The tribunal held, applying the reasoning of the Tribunal of Commissioners in R(IB) 2/04, that it could carry out the supersessions or revisions within the relevant overpayment period which were necessary to underpin the total sums recoverable under section 71(5A).  However, although in its statement it identified another later awarding decision which required such change, in addition to the first operative decision dated 21 March 2001 to which the DM specifically referred, in its decision notice the tribunal merely confirmed the adverse decision under appeal.

Appeal to the Commissioner

4.	The claimant appealed to the Commissioner.  I granted leave and directed an oral hearing which took place on 12 May 2005.  The appellant was represented, as she has been throughout the proceedings, by Mr Steven Craig, a welfare rights officer with the Queen’s Cross Housing Association Limited and the Secretary of State was represented by Mr David Bartos, Advocate, instructed by Mr Stephen Crilly, Solicitor, of the Office of the Solicitor to the Advocate General.  I am grateful to them all for their helpful submissions.

5.	Mr Bartos supported the appeal in submitting that error of law lay in the mismatch between the tribunal’s decision notice and its statement and, further, that a period between 16 July 2001 to 30 July 2001 had been incorrectly omitted from the overpayment schedule despite evidence of earnings.  I agree with that support so that the tribunal’s decision inevitably falls.  However it is the extent of the tribunal’s powers, whether it can rectify the DM’s failure to alter all the awarding decisions which underpin the calculation of how much benefit has been paid in excess of entitlement in the relevant period, which remains the real dispute between the parties.

My conclusion and reasons

Jurisdiction

6.	Mr Craig submits that only the overpayment determination was before the tribunal so that it had no jurisdiction to alter any awarding decision, either the initial decision of 21 March 2001 addressed by the DM or, still less so, any subsequent awarding decisions on which the DM had not even acted.

7.	However, the terms of the appeal to the tribunal expressly put in issue whether there had been “a valid decision to terminate or to vary the operative decision”; but even had they not done so, this is not an instance of an overpayment recoverability decision taken separately and appealed on its own but one where the decision under appeal combines a supersession with a determination on the recoverability of the overpayment.

8.	The DM’s decision has three constituent parts: firstly, there is an alteration to prior entitlement; secondly, there is set out the quantified overpayment to which that change in entitlement leads; and thirdly, there is the determination on the statutory ground for recoverability i.e. misrepresentation or failure to disclose.  These are all matters which must be addressed under s.71 of the 1992 Act, so that if carried out together they are all necessarily subject to the appeal made against the decision.  
9.	Moreover, as the DM’s decision included the purported exercise of what was required under s.71(5A), whether he erred with respect to the operative decisions so altered is an inherent aspect of the overall decision under appeal.  Indeed, this seems to me to be the case whenever the propriety of a recoverable overpayment decision is before a tribunal: it has jurisdiction to determine whether all the constituents for a recoverable overpayment under s.71 can actually be satisfied and to carry out any required action itself.  In principle, it makes no difference how grave are the defects in what the DM has done unless that process is so legally incoherent that it does not amount to any kind of decision which can be subject to appeal.

10.	As was said by the Tribunal of Commissioners (the Tribunal) at paragraph 24 of R(IB) 2/04:

“… As a matter of principle, on such an appeal the tribunal may make any decision which the officer below could have made on the legal questions properly before that officer. That principle encompasses dealing with new questions so as to reach the right result on an appeal, within the limit that the appeal tribunal has no jurisdiction (in the absence of express legislation to that effect) to determine questions which fall outside the scope of that which the officer below could have done on the proper legal view of the issues before him, by way of a claim or an application or otherwise”.

The tribunal accordingly had jurisdiction to provide a complete rehearing in fact and in law on all relevant points arising from the DM’s decision under s.71 of the 1992 Act.  The matter is the opposite side of the coin relating to a tribunal’s powers, to which I now turn.

A tribunal’s powers

11.	It is Mr Craig’s submission that a tribunal has no power to undertake a particular revision or a supersession where neither had previously been carried out: altering a specific awarding decision from scratch is quite different to correcting an existing but defective process.

12.	He argues that the Tribunal was not considering an overpayment case.  It certainly held that a tribunal may carry out a supersession to replace a revision and vice versa; but it gives no support to a suggestion that a tribunal can itself carry out revisions or supersessions not hitherto mentioned of awards and even where the outcome decision is a recoverable overpayment.

13.	Mr Bartos does not accept that the ambit of R(IB) 2/04 is thus limited and I agree with him; the proper principles for appeal tribunals were fully set out by the Tribunal and include the following:

“…
26.	… [I]n CDLA/5196/2001, Mr Commissioner Rowland recorded the Secretary of State as submitting that “notwithstanding the fact that the Secretary of State had not given the correct decision or decisions, the tribunal were entitled to give whatever decisions should have been given by the Secretary of State” (paragraph 14). We consider that the approach advocated by the Secretary of State in those cases is correct.
…Section 12(8)(a) of the Social Security Act 1998
31.	We consider our conclusion as to the nature of an appeal to an appeal tribunal is reinforced by section 12(8)(a) of the 1998 Act, which provides that “in deciding an appeal under this section, an appeal tribunal ... need not consider any issue that is not raised by the appeal”. It is implicit in this provision that an appeal tribunal is not limited to considering issues actually raised by the parties. A tribunal may, although is not necessarily obliged to, consider issues not raised by the parties.
32.	Appeal tribunals are part of the adjudication system which is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). There is a legitimate public interest in ensuring such a result. The jurisdiction has thus been described as inquisitorial or investigatory (see, in particular, R(IS) 5/93 and the authorities cited in paragraph 14 of that Commissioner’s decision). Such a jurisdiction generally extended to include a duty on the tribunal to consider and determine questions which are necessary to ascertain the claimant’s proper entitlement, whether or not they have been raised by the parties to an appeal (R(SB) 2/83). In our judgment, in the light of the above and the reasons given by Mr Commissioner Jacobs in paragraphs 17 and 18 of decision CH/1229/2002, “raised by the appeal” in section 12(8)(a) is to be interpreted as meaning actually raised at or before the hearing by at least one of the parties to the proceedings. section (sic) 12(8)(a) therefore does not limit the overall jurisdiction of an appeal tribunal, but grants it a discretion as to the extent to which it exercises this inquisitorial role. 
…
90.	… In providing in section 12(8)(a) that a tribunal need not consider issues not raised by the appeal (and therefore necessarily that it had the power to do so), Parliament was implicitly providing that tribunals could consider whether to make a decision less favourable to the claimant than did the Secretary of State. As pointed out in paragraph 32 above, appeal tribunals are part of the adjudication system designed to ensure that claimants receive neither more nor less than the amount of social security benefits to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). …”.

14.	It is noteworthy that the last cited paragraph above was in support of the Tribunal’s conclusion that, in disability living allowance cases, the appeal tribunal’s investigatory powers allowed it to consider whether there was a ground for supersession which would lead to a lower award than that either requested by the claimant or suggested by the Secretary of State.  It would be remarkable, standing the approach thus endorsed, if a tribunal nevertheless did not have the power to carry out technical revisions or supersessions albeit that the ground justifying such is not disputed, is the same ground as was applied to the initial decision by the DM which has remained constant throughout the period, and the resultant changes to entitlement amounts are fully set out in a schedule.

15.	There are several Commissioners’ decisions since R(IB) 2/04, none of which have questioned the potential applicability to overpayment cases of what was set out by the Tribunal.  Particularly important is that of Mr Commissioner Mesher in CIS/48/2004, a case with circumstances remarkably similar to that of the present appeal.  Mr Craig has cited CSIS/459/03 and CSIS/635/03, in both of which the DM’s defective decision making was remitted back to its source.  The former was decided before the decision of the Tribunal was issued but in any event there were there two separate DM’s decisions “on the same date, relating to different decisions that could not be vouched and on a different statutory basis”.  The latter decision is also one where it appears that there were two decisions of the same date, each changing a different earlier decision yet each also incorporating a resultant overpayment decision of exactly the same amount.  The present case is quite different.  I accept that in CSIS/635/03 Mr Commissioner May QC expressly held that it was not appropriate to substitute his own decision, but the compressed nature of his reasoning makes it difficult precisely to determine why he considered that was so.  

16.	I prefer, with respect, the approach of Mr Commissioner Mesher in CIS/48/2004 at paragraph 23:

	“… I must first deal with some technical points.  There may well have been decisions made subsequent to that of 8 November 1996 which gave authority for the payment of income support through the period down to November 2000.  A lot of changes, eg in standard benefit rates, would take effect automatically, but others would need review or supersession decisions.  All the operative decisions need to be altered to form the basis for a calculation of the amount of benefit paid in excess of entitlement in the period in issue.  I do not need to identify all those decisions with any precision as they and the initial decision of 8 November 1996 were all made in ignorance of the material fact that the claimant was in receipt of an occupational pension at the rates later confirmed by the City of Edinburgh Council.  The decision maker within the income support office who made the relevant decision or decisions was ignorant of that fact… .  As the result of that ignorance the decision was more advantageous to the claimant than it otherwise would have been.  That is a ground for revision, rather than supersession, and the revision takes effect from 9 May 1996 and from the effective date of any other decisions which fall to be revised.  I am satisfied that the revised decision on entitlement is that the claimant’s entitlement is only to the amounts shown as payable in the schedule …”.

Mr Commissioner Mesher in a substituted decision then carried out the required revisions but without any further specification of their subject other than a description of them as, in effect, decisions subsequent to the initial one pursuant to which payment was made of the relevant benefit in the identified overpayment period.

17.	As pointed out by Mr Commissioner Howell QC in CIS/2042/2004 (at paragraph 12), the social security repayment rules are “less harsh than the general common law rule that all money paid by mistake is recoverable”.  Any claimant is appropriately protected by the structure of section 71 of the Social Security Administration Act 1992; this ensures that, if he or she has been overpaid, there is only recovery if the statutory propriety of an adverse alteration of the award is first shown, then what is the resultant overpayment, and finally that such overpayment is due to a relevant misrepresentation or failure to disclose.  The burden of proof at all three stages lies on the Secretary of State.  Moreover, the first stage has two parts: the DM must show both statutory grounds for change and further that, on the merits, the award should then be reduced.  Given that the tribunal stands in the shoes of the Secretary of State, then there is nothing wrong with the tribunal filling in the gaps provided that it is satisfied that it is more probable than not from the evidence that such gaps are rightly filled.

18.	There is no reason in principle why what was said by the Tribunal at paragraph 24 of R(IB) 2/04, (“… the tribunal may make any decision which the officer below could have made on the legal questions properly before that officer”), does not equally apply where an overpayment recovery is in issue.  The logic of making a distinction is difficult to support.  As I have commented before, it is imperative that a proper statutory alteration of benefit is carried out whether it does or does not lead to an overpayment.  “The full hearing on the law and the merits before the tribunal must provide that guarantee if the first tier adjudication is insufficient” (see paragraph 41 of the combined cases of CSIS/399/01 and CSIS/400/01).  

19.	The present claimant is one who does not dispute that she has been overpaid, nor the amount, nor that she failed to disclose.  The relevant change of circumstances has remained constant throughout viz that she was working and that this was a resource kept unknown to the Department albeit she was claiming a means tested benefit.  Fortuitously, in her case, so it is said, because for example a child left the assessment unit within the overpayment period so that an unrelated supersession was made at that stage, one which makes no difference to the overpayments set out in the schedule, nevertheless because such supersession itself technically requires further change on account of the then unknown fact that she was working at the relevant time, this has the consequence that a tribunal must rule that no overpayment is recoverable because only the DM can carry out that further alteration.  Another claimant with circumstances identical to that of the appellant, except that no child left the assessment unit (which is totally irrelevant to the substance of the recoverable overpayment), could have no defence.  I regret that I regard that argument as without merit.  

20.	I note, for completeness, that Mr Craig concedes that changes in the rates of IS, or of other benefits already counting as income, are given effect automatically and do not require revision or supersession.

Summary

21.	For the above reasons, the appeal succeeds but with no benefit to the claimant and my substituted decision is as set out at paragraph 1 above.

						(Signed)
						L T PARKER
						Commissioner
						Date:  16 May 2005