[2007] UKSSCSC CSG_741_2006 (29 March 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Glasgow on 11 July 2006 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a re-hearing.  

2.	The Secretary of State appealed to the Commissioner against the decision of the tribunal recorded at pages 53 and 54 when it allowed an appeal against the decision of the decision maker recorded at page 40, who found that there was an overpayment of £10,015.15 which was recoverable from the claimant.  The basis for the tribunal’s decision is set out in their statement of reasons.  They said:

“7.	At the Hearing, the opening and Preliminary Submission by Mr Orr on behalf of [the claimant] was that as a claimant she was entitled to have the correct effective Decision (relied upon by the Department in the discharge of their onus) identified and produced with the Papers.  In this set of Papers, in the Submission made on behalf of the Secretary of State at Section 3: The Decision it is stated that ‘Disengagement Decision under appeal is at Doc 35 and Overpayment Decision under appeal is at Doc 40.”

8.	This Tribunal has regard first to Document 35 where, inter alia, it is stated ‘I have superseded the Decision of the Decision Maker dated 13/08/92, awarding Carer’s Allowance from 06/04/92’.  For the reasons set out in Paragraphs 2 and 3 above, the purported Decision of 13/08/92 cannot in fact be the correct Decision under supersession and accordingly this cannot be a valid supersession.  For the reasons set out in the Decision Notice, this Tribunal declined to use the powers available to the Tribunal to substitute any correct Decision date primarily because without the assistance of a PAO this Tribunal could not be certain what was the correct Decision date and could not be sure that it had an accurate copy of any such Decision.  Accordingly, this Tribunal arrived at the conclusion that proper grounds for supersession had not been made out in this case and the appeal was allowed.”

3.	The decision referred to by the tribunal in paragraphs 7 and 8 at page 35 is in the following terms:

“I have superseded the decision of the Decision Maker dated 13/08/02, awarding Carer’s Allowance from 06/04/92.  This is because there has been a relevant change since the decision took effect.  This was that you are gainfully employed.  As a result [the claimant] is not entitled to Carer’s Allowance for the period below:

You are not entitled from 13/04/98 to 01/02/05.  This is because your earnings are over the CA earnings limit.

You are not entitled from 02/02/05.  This is because you no longer care for [SM] for at least 35 hours a week.”

That decision was dated 19 March 2005.  It bears to have been a supersession.  Mr Orr accepted that it was not appealed against to a tribunal.  It was a final decision under s.17 of the Social Security Act 1998.  I accept Mr Bartos’s submission that the appeal taken by the claimant to the tribunal related to the overpayment decision of 8 November 2005 recorded at page 40 and not the supersession decision of 19 March 2005 recorded at page 35.  That is abundantly clear from the claimant’s letter of appeal at page 1 which says:

“Please accept this letter as an appeal against your decision dated 8 November alleging an overpayment of carer’s allowance.”

4.	The submission made by Mr Bartos was within short compass.  It was that the decision of 19 March 2005, was a final and unappealed decision and was one which conformed to the provisions of s.71(5A) of the Social Security Administration Act 1992 which was a necessary prerequisite for the overpayment decision of 8 November 2005.  That subsection provides:

“(5A)	Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above 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.”

The tribunal were not, in the appeal in respect of the later overpayment decision, entitled to find that the unappealed decision was an invalid supersession.  In these circumstances, in finding otherwise, as is apparent from paragraph 8 of the tribunal’s statement, they erred in law.  

5.	It was Mr Orr’s submission that the tribunal were entitled, for the purposes of determining the appeal in respect of the decision of 8 November 2005, to consider the validity of the decision of 19 March 2005, although it had not been challenged or appealed by the claimant.  In doing so, he cited R(IS)2/96 and CIS/3228/2003 in support.  In neither case was the point relied upon by Mr Bartos in his submission argued before the Commissioner.  Mr Bartos argued in response that these cases could be distinguished from the instant case.  In R(IS)2/96, he submitted there was no comprehensible decision establishing that the awarding decision had been reviewed, and in CIS/3228/2003 there had been no revision of benefit entitlement and that, accordingly, a valid overpayment recoverability decision could not be made under s.71(1).  What was said by Mr Commissioner Bano in paragraph 20 of CIS/3228/2003 was:

“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 s.71(1).”

It was Mr Bartos’s submission that in the instant case, the decision of 19 March 2005 was comprehensible and did establish that, for the reasons set out, the claimant was not entitled to Invalid Care Allowance from 13 April 1998.  

6.	I am satisfied that Mr Bartos is correct in his submission.  In this case, the decision of 19 March 2005 supersedes the award and decides that the claimant is not entitled to the benefit from 13 April 1998.  The tribunal, in my view, were not entitled, in the face of that decision, to question its validity when considering an appeal against the overpayment decision.  The decision conformed to the requirements for founding an overpayment decision in accordance with s.71(5A) and as a final and unappealed decision, could not be held to be invalid when it was not the subject of the appeal.  To hold otherwise, would undermine the principle of finality contained in s.17 of the Social Security Act 1998.  In reaching that conclusion, I do not require to reach a view as to whether I accept Mr Commissioner Bano’s views as expressed in CIS/3228/2003.  The circumstances in that case were very different since the decision was not of the type which could have founded a decision for a recoverable overpayment under s.71(5A).  

7.	Mr Orr, in his response to the submission made by Mr Bartos, made a further and different submission to the effect that the decision of 19 March 2005 does not bear to have been notified to the claimant.  He referred me to CJSA/0473/2003, in which Mr Commissioner Jacobs said:

“So, the Secretary of State decided to terminate the claimant’s award of a jobseeker’s allowance on supersession.  That decision was of no effect unless and until it was notified.  See the detailed analysis of the House of Lords in R(Anufrijeva) v Secretary of State for the Home Department, reported in The Times on 27 June 2003.  The same point was made more succinctly by Mr Commissioner Lazarus in R(I) 14/74, paragraph 14(a).  Until that decision is notified to the claimant, he remains entitled to his jobseeker’s allowance under the award that was terminated by the decision.  There is nothing in the papers that is sufficient to amount to notification.”

Mr Bartos did not dissent from what is said by Mr Commissioner Jacobs in that paragraph.  However, he referred to what was said by Lord Clyde and Denis Edwards in  “Judicial Review” in submitting at paragraph 1706 that the presumption omnia rite acta praesumuntur applied.  It was said:

“The presumption that statutory procedural formalities have been complied with can be rebutted, but the person alleging a failure in observing this must be able to identify where the alleged defect lies.”

It was Mr Bartos’s submission that, in these circumstances, it was for the claimant to demonstrate that she had not been so notified.  Mr Orr was not in a position to tell me one way or the other what the claimant’s position was as a matter of fact about notification.  He also did not seek to contradict Mr Bartos’s submission about the presumption.  I accept Mr Bartos’s submission on that.

8.	Mr Bartos submitted that, if I found in his favour, I should remit the case to a freshly constituted appeal tribunal for a rehearing.  This I do.  I direct the tribunal to follow this decision and find that the necessary conditions under s.71(5A) of the Social Security Administration Act 1992 for the foundation of a recoverable overpayment decision have been fulfilled by the decision of 19 March 2005 which was unappealed and unchallenged.  They are directed that they must accept that decision  and reject any argument as to its validity.  If the claimant seeks to argue that this decision was never notified to her in the first place, then it will be for her to seek to rebut the presumption referred to in the previous paragraph.

9.	The appeal succeeds.

					(signed)
					D J MAY QC
					Commissioner
					Date:  29 March 2007