[2007] UKSSCSC CIS_4423_2006 (24 May 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Newcastle Upon Tyne on 24 October 2006 is erroneous upon a point of law.  I set it aside.  I make the decision I consider appropriate.  It is to the same effect as that of the tribunal namely that the appeal against the decision of the Secretary of State issued on 24 February 2006 is disallowed and that the decision of the Secretary of State is confirmed.

2.	The history of this case is that on 16 February 2006, the Secretary of State issued the following decision in relation to the claimant’s award of income support:

“I have superseded all relevant decisions of the decision maker awarding Income Support to [the claimant].  
This is because I am satisfied ther [sic] has been a relevant change in circumstance since the decisions were given.
The relevant change is that [the claimant’s wife], commenced part time work on 2/1/01 receiving her first fortnightly wage on 19/10/01.  However, since we only hold evidence of Income Support payments from 24/10/01, his IS overpayment period commences 24/10/01 with partners part time wages being taken into account subject to £20.00 disregard.
Her wages then changed from being paid fortnightly to weekly on 30/10/03 when her place of work was taken over by new owners.
From 8/11/04 her hours of work increased to over 24hrs per week therefore [the claimant] is not entitled to Income Support from 8/11/04 to 4/11/05 when IS ceased.

As a result of this change [the claimant] has been overpaid Income Support for period 24/10/01 to 7/11/04 due to partners part time earnings and from 8/11/04 to 4/11/05 due to partner bing [sic] in full time remunerative work.”

3.	That decision was not appealed by the claimant and accordingly was a final decision under and in terms of Section 17 of the Social Security Act 1998.

4.	On 24 February 2006, the Secretary of State made the following further decision.  It was in these terms:

“As a result of the decision(s) dated 16/02/2006 an overpayment of Income Support has been made from 24/10/2001 to 04/11/2005 (both dates included) amounting to £15,775.97 as shown on the attached schedule.

On 24/10/2001, or as soon as practicable after, [the claimant] failed to disclose the material fact that partner receiving earnings from Top Ten Bingo.

As a consequence, Income Support amounting to £15,775.97 from 24/10/2001 to 04/11/2005 (both dates included) was paid which would not have been paid but for the failure to disclose.

Accordingly, that amount is recoverable from [the claimant].

THE LAW USED TO MAKE THIS DECISION

The Social Security Administration Act 1992 Sections 71 (1), (2), (3), (5A), (6) and (11).”

5.	The claimant appealed against that decision to a tribunal.  The tribunal heard the claimant’s appeal on 24 October 2006 and disallowed it.  The decision of 24 February 2006 was confirmed.  The grounds of appeal are in the following terms:

“1.	The tribunal did not adequately deal with the specific contentions raised in respect of the section 71(5A) argument as raised in the written submissions at pages 102 to 106.

2.	In the alternative if it is felt that the tribunal did adequately deal with the specific contentions then it is submitted that the reasons for rejecting the contentions are inadequate and factually incorrect because:

(a)	The tribunal found that ‘the decision maker despite using the phrase “superseded all relevant decisions of the decision maker awarding income support to [the claimant]”, did in fact identify the decisions giving rise to the overpayment.’  There is no evidence of this.  The decision at page 85 did not identify all the decisions. The decision at page 85 ‘white washed out’ section 71(5A) in a way which was rejected by in CIS/170/2003 (see page 105 para 13).

(b)	The tribunal failed to deal with the specific argument (see page 103 para 7 & page 104 para 8) that the entitlement decision failed to quantify the amount of the revised entitlement and why the subsequent recoverability decision schedule could not cure the earlier breach.

3.	In respect of the separate household argument that tribunal merely states a conclusion without adequate reasons this is despite very specific points being made at pages 106 to 108 (para 16 to 23).

In light of the above we request that leave to appeal is granted or the decision of the tribunal is set aside under section 13(2) of The Social Security Act 1998.”

6.	The Secretary of State supported the appeal to the extent set out in his submission.  He said:

“8.  Written submissions were made on behalf of the claimant to the effect, inter alia, that s.71(5A) SSAA 1992 was not complied with because: all operative decisions had not been identified; and the altered amounts of benefit were not quantified in the entitlement decision notwithstanding the Schedule with the overpayment determination.  An unreported Commissioner’s decision was cited.  It appears that this submission was faxed to the Tribunals Service on 16 October 2006 with a request that it be issued to all parties (page 101).

9. I submit that the tribunal erroneously assumed jurisdiction over the “entitlement decision” of 16 February 2006.  No appeal against that decision had been made.  This may have been a tactic by the claimant’s representative to avoid this decision coming into scope on appeal in order to avoid the possibility that the tribunal would correct it.

10.	I also submit that the late appeals against the decision of 7 November 2005 was a red herring.  This decision only covered three days which were not included in the overpayment determination.  There was nothing to prevent the claimant from raising the separate household defence against the determination of 24 February 2006.  If that defence had been accepted there could not have been a failure by the claimant to disclose his wife’s earnings.

11.	The grounds of appeal to the effect that all operative decisions had not been identified and revised or superseded as appropriate appear to have some force.  The decision maker should have identified the decision in effect before the relevant change of circumstances occurred and then identify any later decision required to be revised on the grounds that they were given in ignorance of some material fact.

12.	I therefore agree that the tribunal did not deal adequately with this point and that the decision of the tribunal should be set aside.  However, it appears doubtful that the DWP was provided adequate opportunity to rebut the allegation.  For example it may not be possible to identify precisely the decision to be superseded, and there may not have been any decisions made thereafter falling to be revised.  I therefore request a remit to another tribunal.

13.	I also agree that the tribunal did not deal adequately with the question as to whether the claimant and his wife maintained separate households because the tribunal only made findings of fact in relation to financial arrangements.

14.	The tribunal or Chairman may direct that a Presenting Officer attend an appeal hearing.  The Secretary of State had given an undertaking that such directions will be complied with.  I submit that the absence of any of the parties to an appeal make it more difficult for the tribunal to determine the appeal.  It may also lessen the chances of success of the absent party.  But it need not prevent a rehearing or a fair hearing (see R(IS) 17/04).

15.	It may also be helpful for the Secretary of State to investigate in the normal way the question of whether the claimant and his wife maintained separate households and the evidence and conclusions presented to the new appeal tribunal.”

The Secretary of State then went onto submit:
	
“16.	I do not agree with the other grounds of appeal in respect of the lack of quantification in the “entitlement decision” in this case.  It may be arguable that the decision making process was not complete until the claimant was notified of the effect, in full, of the decision.  Further, that the decision could not have effect until this was rectified.  (Although notice may have been effective in terms of regulation 28(1)(b) Decisions and Appeals Regulations).  However in this case any deficiency was effectively put right when the Schedule was issued with the appeal submission, assuming that it had not been issued earlier.  If it is true that this case cannot be distinguished from CIS/3228/03, I would disagree that a decision which is incomplete is necessarily ‘inchoate’ if that is to be taken to mean that the decision should be regarded as not having been made at all.”

He then dealt with the separate household argument.

7.	The claimant’s representative responded to that submission as follows:

“1.	The appellant concurs with the respondent in respect of paragraph 11 of his submission.

2.	The appellant opposes the respondent in respect of paragraph 16 of his submission for the following reasons:

(a)	Mr Commissioner Bano’s decision CIS/3228/03 in respect of quantification of entitlement is on all fours with this case.  The issuing of the schedule does not rescue the decision.  The appellant continues to rely on paragraph 7 & 8 of the skeleton argument (pages 103 to 105) which are repeated for ease of reference:

‘(7)	Further in this case the entitlement decision (page 85) fails to quantify that amount of income support that would have been payable.  This in light of Mr Commissioner Bano’s decision on file CIS/3228/2003 (see page 56 of Vol III Social Security Legislation 2006) is fatal because the Commissioner held at paragraph 20.

“The second reason why the decision … did not comply with section 71(5A) is that it did not did not set out the revised amounts of benefit to which the claimant was entitled in each benefit period.  I consider that a decision awarding a claimant benefit of a stated amount can only be effectively revised if it is replaced by a new decision which also specifies the amount of benefit (if any) to which the claimant is entitled, in the light of the fact which was not taken into account when the original decision was made.  A revision decision to the effect that an earlier decision awarding benefit of a specified amount has been ‘revised’, but which does not state the amount of the revised entitlement is, in my judgment inchoate.  If a revision (or supersession) decision resulting in an overpayment is made separately  from a recovery decision, it will therefore be necessary for the claimant’s revised benefit entitlement to be calculated as part of the revision decision before a valid overpayment recoverability decision can be made under section 71(1).”

(8)	Further the fact that the overpayment decision stated the purported revised amount does not rectify the failure to include the revised amount in the supersession decision because:

(a) 	In the Bano (CIS/3228/2003) decision the Commissioner found that section 71(5A) was not satisfied despite the overpayment decision including a revised entitlement schedule.

(b).		This may well be because the overpayment decision is not done at the same time as the supersession decision and that a valid supersession is a pre condition to a  recoverability decision.’

…

	3.	The appellant remains neutral in respect of the other points raised by the respondent but feels that the Commissioner could give the decision that the tribunal ought to have given namely that the overpayment was not recoverable because section 71(5A) of the Social Security Administration Act 1992 had not been satisfied.’”

8.	I am satisfied that the Secretary of State is correct to concede that the tribunal erred in law in respect that they did not adequately deal with the argument which was put to them by the claimant’s representative in the written submission to them at pages 101 to 105.  I also agree with the Secretary of State’s submission in paragraph 9 that the tribunal erred in law with assuming jurisdiction on the decision of 16 February 2006 as that decision was not appealed and it accordingly stood.  The appeal to the tribunal required to be approached on that basis.  In these circumstances, I set the decision of the tribunal aside.  The issues raised by the claimant in his second and third grounds of appeal and response to the Secretary of State’s submissions are dealt with when I set out my disposal of the appeal below.

9.	However, notwithstanding the different submissions as to disposal made by the claimant and the Secretary of State, I consider that the appropriate disposal of the appeal is to make the decision I consider to be appropriate, which is to confirm the decision of the Secretary of State.

10.	As indictated in paragraph 8, I agree what is said by the Secretary of State in paragraph 9 of his submission to the Commissioner.   As the claimant saw fit not to appeal against the decision of 16 February 2006, there is, as I pointed out in paragraph 3,  a final decision which amended his entitlement to income support from 24 October 2001.  That decision sets out clearly the basis upon which entitlement had been amended and also provides the basis upon which the calculation of the amended entitlement would fall to be made.  I do not accept that the merits of an entitlement decision following supersession, which is not appealed, can be challenged in an appeal against an overpayment decision following thereon.  That, for the avoidance of doubt, includes objections in respect of the identification of the awarding decision which was superseded and the issue raised by the claimant in respect of separate households.  

11.	Section 71(5A) of the Social Security Administration Act 1992 provides:

“(5A) Except where regulations otherwise provide, an amount shall not be recoverable under sub-section (1) above unless the determination and 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”.

The substance of the decision of 16 February 2006 was to carry out a supersession in respect of the existing entitlement which, on the face of it, amended that entitlement from 24 October 2001.  That is sufficient, in the absence of challenge for the purpose of section 71(5A), to found a decision for a recoverable overpayment under section 71.  

12.	In the second ground of appeal the claimant has placed reliance upon CIS/3228/2003.  It is necessary for me in my disposal of the appeal to make observations on this authority.  It would appear in that case that the decision superseding the award and amending entitlement was held on computer and that some time after the event it was regenerated into narrative form.  Mr Commissioner Bano said in respect of it:

“13.	By paragraph 1 of Schedule 13 of the Social Security Act 1998, a certified record of a decision signed by an authorised person is conclusive evidence of the decision.  I therefore propose to deal with the section 71(5A) issues on the basis that the certified record of the decision signed by the presenting officer correctly records a decision made on 11 December 2001 altering the rate of benefit payable to the claimant as from the date of the first decision awarding benefit, even though, for the reasons given below, I consider it most unlikely that such a decision was in fact made.”

13.	I confess to failing to understand why he proceeded in the manner in which he did when he considered that it was unlikely that the decision he referred to was ever made.

14.	It seems to me in these circumstances that this is not a reliable authority for the proposition it makes in paragraph 20 of his decision, as quoted in the representative’s response to the Secretary of State’s submission.  If the supersession decision amending entitlement did not exist, then section 71(5A) could not have been satisfied to generate an overpayment decision.

15.	As I have indicated in this case, there was a supersession decision made on 16 February 2006 which amended the claimant’s entitlement.  The substance of the unappealed decision identified the factors upon which the amended amount of income support fell to be calculated. This was able to be done in the overpayment calculation appealed to in the decision against the tribunal.  That calculation, itself reflected as a matter of fact the effect of the decision of 16 February 2006.  It was not challenged in the grounds of appeal.  It follows that I do not accept what was said by Mr Commissioner Bano in paragraph 20 of his decision, that it is, as he put it, “necessary for the claimant’s record of benefit entitlement to be calculated as part of the revision before a valid overpayment recoverability decision can be made under s.71(1)”

16.	The argument in the third ground of appeal was one that related to the substance of entitlement, namely whether the claimant and his wife had separate households.  That was an issue which, if it was to be raised, should have been done by an appeal against the decision of 16 February 2006.  As it was a final decision, it was not possible to go behind the substance of it in an appeal on an overpayment decision.  The claimant’s representative simply cannot leave the decision of the decision maker on entitlement unchallenged and then seek to challenge it within the context of an appeal against the overpayment decision.

17.	For the sake of completeness, it is not necessary for me to deal with the issues raised in paragraph 12 of the Secretary of State’s submission and in paragraph 2 of the response to the Secretary of State’s submission, due to the manner in which I have disposed of the appeal.

18.	The appeal succeeds but that success is of no benefit to the claimant.

					(signed)
					D J MAY QC
					Commissioner
					Date:  24 May 2007