[2006] UKSSCSC CIS_3605_2005 (25 August 2006)

CIS/3605/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. This appeal by the claimant does not succeed. I confirm (although on slightly different grounds) the decision made by the Newcastle tribunal on 1st July 2005 (under reference U/44/224/2003/00743) to the effect that there has been an overpayment of £991.81 income support to the claimant in respect of the period 3rd January 2002 to 31st July 2002 and that this overpayment is recoverable from her. 

Background and Procedure

2. The claimant is a woman who was born on 23rd March 1944. She lived with her husband and her daughter (who was born on 17th May 1985) and for some time had been receiving income support in respect of this family. Income support in respect of the daughter was dependent on the claimant’s entitlement to child benefit in respect of her. As from 7th January 2002 entitlement to child benefit ceased. The office dealing with income support was not aware of this until the claimant replied to a letter that had been sent to her on 3rd July 2002. Although a prepaid envelope was supplied, with a simple form to complete, the claimant did not reply until 13th August 2002. She stated on the form that she was no longer receiving child benefit for the daughter. 

3. On 14th August 2002 the Secretary of State decided that, 2002 because there had been no entitlement to child benefit, there had been entitlement to a reduced amount of income support from the week of 3rd January. There has been no appeal against this decision. On 30th January 2003 The Secretary of State also decided that from that week until 14th August 2002 (when the information was received) there had been a recoverable overpayment of £1059.71 income support. This decision is reproduced on page 17 of the file and is the decision under appeal. On 7th February 2003 the claimant appealed to the tribunal against the decision made by the Secretary of State on 30th January 2003.

4. It was then discovered that child benefit had in fact been reinstated for the periods 5th August to 8th September 2002 and 4th November 2002 to 5th January 2003. The Secretary of State accepts that for these periods there is entitlement to a higher rate of income support than was decided on 14th August 2002. There had also been a slight error in the calculation for the first part of the overpayment period such that the overpayment amount was stated to be £1.30 more than it actually was. The Secretary of State did not revise or supersede that decision of 14th August 2002 but prepared a fresh calculation, showing the overpayment to be £991.81. This is reproduced on page 23 of the file. The tribunal was invited to substitute this calculation for that in the original decision. Had the Secretary of State revised the original decision himself, the appeal would have lapsed (section 9(6) of the Social Security Act 1998) and the claimant would have had to lodge a new appeal.

5. The tribunal considered the matter on 14th August 2003. The claimant did not attend but was represented. The hearing was adjourned pending developments in the case of Hinchy. The matter was finally heard on 1st July 2005. The tribunal purported to confirm the decision of the Secretary of State but in fact it allowed the appeal to the very limited extent of substituting the new recoverable amount. The record shows that the tribunal consisted of the chairman and a medical member. This is inaccurate. The medical member was still in the room after being involved in a previous case but I am satisfied that this member took no part in the hearing or decision. On 4th October 2005 the chairman of the tribunal granted the claimant leave to appeal to the Commissioner against the decision of the tribunal. 

Statutory Provisions

6. So far as is relevant, section 71 of the Social Security Administration Act 1992 provides:

71(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure-

(a)	a payment has been made in respect of a benefit to which this section applies; or
(b)	…

the Secretary of State shall be entitled to recover the amount of any payment which he would have not made … but for the misrepresentation or failure to disclose.

71(5A) … an amount shall not be recoverable … unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.

71(11) This section applies to the following benefits-
	(a) …
	(b) income support

The Arguments of the Parties

7. The claimant accepted the new dates in relation to entitlement to child benefit and that there had been a failure to disclose, and the new calculations were not disputed. It was argued on her behalf that the entitlement decision of 14th August 2002 had been made in ignorance of the true position on the dates for which child benefit had been awarded, and was therefore not a valid decision. The tribunal rejected this. The reasoning is not easy to follow but the decision seems to be based on the tribunal’s conclusion that child benefit was not payable for the period to 14th August 2002 “for the purposes of calculation of income support”.

8. The representative maintains the argument before the Commissioner. He does not refer to section 71(5A) but I think that the argument is that because the decision of 14th August 2002 was incorrect, it was not a valid revision or supersession for the purposes of that provision and therefore any overpayment is not recoverable. He refers to the decision of the Tribunal of Commissioner in R(IB) 2/04 (CIB 4751 2002), but that does not really assist him because in that case the decision being impugned was actually under appeal.

9. The Secretary of State argues that in effect the tribunal revised both the income support entitlement decision and the overpayment decision. I cannot really read the tribunal decision as having revised the entitlement decision but in view of my decision that is of little practical consequence.

Conclusions

10. It seems to me that the claimant’s argument confuses the concepts of correctness and validity. The Secretary of State had statutory power to make the decision of 14th August 2002, even if it was based on an inaccurate understanding of the facts. It was subject to supersession, revision, and appeal, but until one of those events took place it was, in law, a valid decision, and satisfied the requirements of section 71(5A) for the purposes of a recoverability decision.

11. This approach is consistent with the jurisprudence of the House of Lords in administrative law. Thus, a decision which might traditionally have been regarded as void is nevertheless to be treated as having legal effect until a court has decided that it is void (Re Racal Communications Ltd [1980] 2 All ER 634) and an order may be void for one purpose and valid for another (Calvin v Carr [1980] AC 574; R v Wicks [1998] AC 92).

12. The tribunal found that the Secretary of State was only entitled to recover the overpayment that was actually made (thereby in reality substituting its own decision for that of 30th January 2003, not revising that decision, as the Secretary of State suggested it had done). It did not find that the Secretary of State was entitled to recover the whole amount encompassed by the decision of 14th August 2002, but I see no difficulty with this. Section 71(5A) imposes a restriction on the circumstances in which a recoverability decision can be made. It does not authorise a recoverability decision or recovery. Section 71(1) limits recoverability to those payments which would not have been made but for the misrepresentation of failure to disclose. This means that, in the circumstances which arose in the present case, the tribunal was quite right (and, indeed, obliged) to find that the Secretary of State was entitled to recover a lesser amount than that which the uncorrected the entitlement decision indicated might be recoverable.

13. For the above reasons, this appeal by the claimant does not succeed.

H. Levenson
Commissioner

25th August 2006