[2007] UKSSCSC CIS_1243_2007 (21 September 2007)

CIS/1243/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Introduction

1.	This is an appeal by the claimant against the decision of the Leeds Appeal Tribunal given on 1 February 2007. By his decision the tribunal dismissed the claimant’s appeal and decided that there had been an overpayment of income support to the claimant in the period 1 July 2002 to 29 September 2005 and that the amount overpaid was recoverable from the claimant.

2.	The Secretary of State agrees that the tribunal erred in law and that his decision must be set aside, but invites me to substitute a decision of my own to similar effect (although it is not entirely clear whether the Secretary of State submits that the period of the overpayment is that found by the tribunal).

3.	For the reasons set out below, I also take the view that the tribunal erred in law and his decision must be set aside. I do not, however, agree that I am able to substitute a decision of my own. The case must therefore be remitted to a new tribunal to be constituted, differently from the previous tribunal, under Part I of the Social Security Act 1998.

Procedural difficulties

(i)	Income support

4.	The background to the case is simple. The claimant was in receipt of income support for some time. At 1 December 2001 her entitlement was calculated on the footing that she was a lone parent living with three children and was based on a decision made on 7 March 2001. On 26 December 2001 she gave birth to a daughter (“the daughter”). She made a review claim for income support on 20 February 2002, presumably in the light of the birth of the daughter, which I take it led to an increase in the sum payable to her, but not to a new entitlement decision. As a person entitled to income support, she was also entitled to housing benefit and council tax benefit. On 5 August 2005 an allegation was made to the local council that the daughter’s father (“the father”) was living with the claimant and had been living with her for four and a half years. It was also said that the father was in full time work and that the claimant had received £20,000 the previous Christmas.

5.	The council carried out an investigation which included two interviews under caution with both the claimant and the father. It was asserted by both of them that the father had moved in with the claimant on 8 September 2005, an event precipitated by his being made the subject of a curfew order, for which a fixed address was required. It was strongly denied that he had moved in at an earlier date. It was not disputed that the father was and had been, at all material times, in full time work.

6.	It is not clear precisely what communications took place between the council and the Department of Work and Pensions, but what is clear is that there was ultimately a substantial body of evidence available to the Department. This included a letter from the West Yorkshire NHS Central Services Agency stating that the father was registered with a local GP and his address since 1 December 2001 had been that of the claimant. On the basis of the evidence a specialist decision maker concluded on 20 January 2006 that the claimant had been living together as husband and wife with the father. The decision maker went on to say (see page 8) that benefit had been overpaid from 1 December 2001 as the claimant had no qualifying conditions because her partner was in full time employment.  

7.	The decision maker went on to deal with the alleged receipt of £20,000, which turned out to have been an inheritance from the claimant’s father’s estate of a total of £17,618.95. It was determined that the claimant had deprived herself of notional capital of £14,614 and there was a sum of £2,169.95 unaccounted for which must be treated as actual capital.  As I shall explain below, the issues to which that part of the decision gives rise are not material to this appeal.

8.	Following that decision, there was a further decision on 15 February 2006 headed “Entitlement Decision” to the effect that the claimant was not entitled to income support as a lone parent from 1 December 2001 to 29 September 2005 (the date of the claimant’s first interview) because she was to be treated as part of a couple with the father, who was in full time employment (page 14). It is accompanied by a detailed list of information received and the dates of receipt, and it is clear that an overpayment claim was in contemplation. It is also clear that that was a decision which superseded the decision of 7 March 2001 on the ground of a relevant change of circumstances in accordance with section 10 of the Social Security Act 1998, although it does not say so on its face.   

9.	That decision was followed by an overpayment decision on 21 February 2006, to the effect that the claimant was liable to repay the overpaid benefit, amounting to £34,329.94, because she had failed from and after 1 December 2001 to disclose the material fact that she was living with the father (page 5).

10.	The claimant’s appeal was brought by appeal notice received on 16 March 2006. In it she said that she was appealing against the decision notified to her in a letter dated 27 February 2006. There is no copy of that letter in the file and I do not know whether on its face it was notifying the claimant of the overpayment decision alone or whether it also constituted notification to her of the entitlement decision. What is clear is that the substance of the appeal was primarily a challenge to the finding of fact that the claimant had been living together with the father as husband and wife. As she put it:

“The reason for me disagreeing to the decision is that [the father] has never lived at this address in the dates that are stated in the letter that I received from the DWP,” 

and:

“I am disgusted that [you are] expecting me to pay back the ridiculous amount of £34,329.94 of income support of which I was entitled to in the first place.” 

It was therefore primarily an appeal against the entitlement decision, although it may well also have been an appeal against the overpayment decision.  

11.	I labour this point because the submissions on behalf of the Secretary of State, both to the tribunal and to me, suggest that it has not been clearly recognised. Entitlement and overpayment decisions are separate, as is clear from section 71(5A) of the Social Security Administration Act 1992, providing that in general no sum is recoverable as an overpayment unless the determination pursuant to which it was paid has been reversed or varied on appeal or revised or superseded under the 1998 Act. Nevertheless, the submissions and the tribunal himself proceeded on the basis that there was an issue whether or not the claimant and the father were living together as husband and wife before 8 September 2005, so there has been no practical prejudice to the claimant. The new tribunal which will rehear the matter ought, however, to be clear on the legal position.

(ii)	Housing benefit and council tax benefit

12.	The consequence of the decision made on 15 February 2007 removing the claimant’s entitlement to income support from 1 December 2001 was of course that she also lost her automatic right to housing benefit and council tax benefit. She appealed against the loss of those benefits also, although very sensibly the appeals were heard together, with both the Department and the local council being represented.

13.	The file does not contain a copy of the housing benefit and council tax benefit decision, but it is clear from the tribunal’s statement of reasons that the outcome of that appeal was regarded as entirely dependent on the outcome of the income support appeal. The claimant, however, does not appear to have appealed against that decision. I do not know whether she may be entitled to those benefits by any means other than passporting through her income support entitlement. It will be necessary to ensure, however, that the position as respects this appeal is clear to the local council.

The merits

14.	At the hearing before the tribunal there was a substantial body of documentary evidence and the tribunal also heard oral evidence from the claimant, the father and the father’s stepfather, with whom the father was said to have been living for part of the relevant period. As the tribunal put it in the statement of reasons:

“Some of the evidence obtained indicates that [the father] was living with [the claimant] but some of it does not.”

He went on, very helpfully, to summarise the evidence in the two categories. It is not necessary for me to deal with the evidence extensively, but it is to be noted that included in the second category were the following documents which were material to his decision:

(1)	a letter from the father’s employers for the period May 2001 to July 2002 confirming that his address was an address other than the claimant’s. (It was in fact the address where his mother was then living and to which his stepfather moved after her death in June 2002);

(2)	the daughter’s birth certificate, which showed that the birth was registered on 18 January 2002 and gave different addresses for the two parents;

(3)	a letter from the Child Support Agency dated 8 May 2002 about support for the daughter, addressed to the father at his mother’s address.

The documents also included a letter dated 31 July 2006 from the father’s GP stating that he had been registered as living at the claimant’s address since 14 January 2004 (rather than 1 December 2001).

15.	In the crucial part of the statement of reasons, the tribunal first accepted that the father lived at his mother’s address until the middle of 2002. He based that on the three documents which I have listed in the preceding paragraph. The only evidence to the contrary was in fact the letter saying that his GP had registered him as living at the claimant’s address from 1 December 2001.

16.	The tribunal went on, however, to find that in all probability the father had moved in with the claimant by 1 July 2002. His principal reason for that finding, as I read the statement, was that the Child Support Agency had not followed up the letter dated 8 May 2002 and in his view it was more likely that the explanation was that the father had moved in with the claimant so that there was no absent parent and no possibility of pursuing him than that the Agency had simply failed to follow up the letter. The tribunal also drew attention to the fact that the father had gone on holiday with the claimant and her children in 2003 and had given her address as his on a number of occasions from 2003 onwards.

17.	The tribunal dealt specifically with the letters about the address with which the father was registered at his GP’s surgery, saying that “something has obviously gone wrong,” but referring to the second letter as “insufficient to disturb the substantial weight of evidence” indicating that the father was living with the claimant.

18.	Having come to that conclusion, the tribunal found that the claimant had failed to disclose the fact and that it was reasonable to expect her to have done so, because she accepted that she had received a form INF4 requiring her to do so each year and that she knew she would have to report such circumstances. He decided that the overpayment was therefore recoverable.

19.	The claimant’s application for leave to appeal was refused by the district chairman but granted by Mr Commissioner Pacey on 18 June 2007. In her grounds of appeal the claimant identified as crucial the tribunal’s remarks about the Child Support Agency. She contended that when a parent with care is in receipt of benefit the Agency has a statutory duty to pursue maintenance which could not be terminated at the request of the parent with care. This is something of an oversimplification of the position, although certainly the parent with care is not free to refuse to co-operate or, following amendment of the relevant provisions, to request the Secretary of State not to act without facing the possibility of a reduction in benefit. In any event, it is not clear that the tribunal assumed that such a request was made.

20.	This ground of appeal does, however, rightly underline the significance of the tribunal’s reliance on the letter dated 8 May 2002 and the apparent failure to follow it up. A tribunal must explain adequately the reasons for its decision and failure to do so amounts to an error of law. This has been well recognised in the field of social security appeals at least since the decision in R(SB)11/83. I regret to say that I have formed the view that the tribunal did not give an adequate explanation of his reasons in this respect.

21.	What seems to be implied in what the tribunal has said is that he has concluded that the Child Support Agency would have followed up the letter if someone had not informed the Agency that the father had moved to live with the mother. The claimant must have been aware of the connection between being on income support and the involvement of the Child Support Agency since there is a statutory connection, as the grounds of appeal recognise, and she had no doubt been caught up in the machinery, which in all probability led to the letter of 8 May 2002. Her evidence, which the tribunal relied on in relation to overpayment, was that she was aware that if she was living with someone she would or might lose her income support. It is therefore not clear why either she or the father should have taken the risk of informing the Child Support Agency if they were not intending to tell the Department. Moreover, one would have supposed that if they had done so, they would have mentioned that when the investigation took place as further evidence of their bona fides. If they were prepared to take the risk, however, in order to dissuade the Agency from pursuing the father, it is not clear why it would have been necessary for them to be telling the truth in saying that the father was living with the mother.

22.	In giving leave to appeal, Mr. Commissioner Pacey asked whether it was not the case that if the Child Support Agency had become aware that the father was living with the claimant it would have passed that information back to those responsible for income support. The Secretary of State in his submission before me dated 16 July 2007 says, having inquired about the position, that there would be no reason for the Agency to tell income support if maintenance was not paid on a case on which it had never been paid. This does not directly answer the question, which was whether the Agency would tell those responsible for income support that a claimant in receipt of income support might well not be entitled to that benefit. I find it surprising if the Agency does not, or did not, have any system for passing on information about such an obviously relevant change of circumstances, but I do not seek to go behind what is stated in the submission.

23.	It remains the case that in my view it is, in the absence of further reasoning, a step too far to conclude from the absence of further signs of activity by the Child Support Agency that the father moved in with the mother by 1 July 2002 and that for some reason which is not spelt out in terms that led the Child Support Agency not to pursue the maintenance claim. In this respect, then, I decide that the tribunal erred in law. 

24.	As I understand the Secretary of State’s submission on the point, it is not that the tribunal adequately explained his reasons for his conclusion, but that the tribunal determined the date on which the claimant and the father started living together from other evidence. That is not how I read the tribunal’s statement of reasons. Having concluded that the claimant and the father began living together in July 2002 he mentioned other evidence that showed a settled pattern of living together as husband and wife thereafter.

25.	If I am wrong about the tribunal’s reliance on other material, then a different error occurred. The earliest documentary evidence of a nature clearly to suggest that the claimant and the father were living together as husband and wife is the evidence of the joint bank account opened in March 2003. Mr. Commissioner Pacey drew attention to the address for the father known to Yorkshire Bank (National Australia Group), which employed him from June 2002 to January 2005. That is recorded as the claimant’s address (page 42). What is not clear from the bank’s letter, which is dated 17 August 2005, is whether the records show that that was his address throughout the period of his employment or whether there might have been a change. In those circumstances, if the tribunal did not reach his conclusion on the basis of the Child Support Agency’s inaction, as I think he did, he failed to give adequate reasons for finding a start date of 1 July 2002.

26.	In the light of that conclusion, it is not necessary for me to go in detail through the other grounds of appeal. There are, however, some comments I should make.

27.	First, it is said that the tribunal did not take account of the father’s relationship with another woman during 2003. As Mr Commissioner Pacey pointed out, the tribunal did refer to it. He gave reasons for not being persuaded that the evidence was true. I see no error of law here.

28.	Then it is said that no weight was given to evidence from a friend of the father’s that the father had been living with him during a substantial part of the period in question. There is no reference to that evidence in the statement of reason, although it did corroborate a case the father, and, indeed, the claimant, had been making from early in the investigation. I think, although it is not stated expressly, that in this respect the Secretary of State agrees that there was an error of law. Given the way in which the tribunal structured his decision, there is a strong impression that the evidence was simply overlooked. If not, it ought, in the circumstances, to have been dealt with in some way. The claimant has been left in the dark about what view the tribunal formed, if any, and why. I agree that that is also an error of law.

29.	The third ground is that the tribunal paid insufficient regard to the letter from the father’s GP’s surgery. I have already quoted in paragraph 17 what the tribunal said about the two letters. I do not see that he could have taken the matter any further on the information in front of him. He plainly did not regard the first letter as sufficient to support the start date of living together for which the Department was contending. I point out, however, that the claimant and the father do not appear to have offered any explanation for why the GP should have had the father registered as living at the claimant’s address as early as January 2004.

30.	Finally, it is said that in the statement of reasons the tribunal used language which did not accurately reflect the evidence given. On this I agree with Mr. Commissioner Pacey. The tribunal addressed the real issue very carefully and thoroughly.

31.	There remains the Secretary of State’s submission that I should substitute a decision of my own. I understand this to be on the basis that the tribunal chose 1 July 2002 as the start date for reasons other than the inaction by the Child Support Agency and on the footing that the friend’s evidence was not sufficiently weighty to support the conclusion that the father was not living with the claimant at any point during the relevant period.

32.	I do not accede to that invitation for the following reasons. First, this is a case in which the view which the tribunal forms of the witnesses when hearing their oral evidence will be very important. Secondly, both parties may wish to bring further evidence if possible to clarify some of the darker factual areas noted above. Thirdly, given the procedural situation I have outlined earlier, it seems to me that it may be easier to keep all the aspects of the claimant’s entitlement to benefits in order if the case goes back to a tribunal.

33.	I therefore set aside the decision of the tribunal and remit the case to be heard by a new tribunal as already indicated. The new tribunal should have regard to the matters discussed above in reaching their decision.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           21 September 2007