CIS/498/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, brought by my leave, against the decision of the appeal tribunal held on 9 October 2007.  I set aside the decision of the tribunal for error of law but consider this to be an appropriate case in which to substitute my own decision, pursuant to section 14(8) of the Social Security Act 1998.  My decision is that an overpayment of income support arose during the period from 6 November 2003 to 25 April 2006.  The amount, to be quantified, is recoverable from the claimant.  

2.	The claimant appealed to a tribunal from a decision, made on 8 August 2006, that an overpayment of income support had been made in the sum of £5,678.86 for the period from 6 November 2003 to 30 May 2006.  It was said by the decision maker that the overpayment arose from the claimant’s misrepresentation of her son’s savings.  The decision maker went on to decide that the overpayment which was recoverable from the claimant, in consequence of the misrepresentation, was £5,380.16, (for the period 6 November 2003 to 25 April 2006), the balance (£298.70) not being recoverable as it did not arise as a consequence of the misrepresentation.  

3.	The tribunal dismissed the appeal, finding that when she claimed benefit she ticked the box in the claim form to indicate that her son had no savings and signed a declaration that the contents of the claim form were accurate when, in fact, at all material times there were savings in the son’s name in excess of £8,000.  The tribunal held on those facts that there was a basis to revise the award of income support and that even an innocent misrepresentation still founded liability to repay.  

4.	The claimant does not dispute the misrepresentation or that it led to an overpayment.  The tribunal, for the reasons which it put forward, was entitled to find that there was an overpayment, notwithstanding the innocent misrepresentation, and (rightly in my view) went on to reason that there were no provisions in regulation 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 to offset entitlement to tax credits against the overpayment in issue. 

5.	As I indicated in the grant of leave the claimant’s grounds of appeal disclose no arguable error of law.  Leave was, however, granted on the basis that it might have been arguable that the tribunal erred in failing to apply the diminishing capital rule to the overpayment.  That is the thrust of the argument advanced by the claimant, who has now obtained representation.  

6.	Regulation 14 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 provides for diminution of capital resources.  The Secretary of State’s representative has, helpfully, drawn to my attention CIS/3611/2007.  This decision, promulgated on 23 April 2008, effectively holds that a child’s capital should be subject to the diminishing capital rules.  In summary, the Commissioner held that despite the words of regulation 14 apparently being restricted to cases of misrepresentation or failure to disclose a claimant’s capital, not the capital of a child, nonetheless “a claimant” in regulation 14 has the meaning given in the second part of regulation 23(1) of the Income Support Regulations and, then, includes children and young persons who are members of the family of the person claiming income support.  

7.	I make no criticism of the tribunal.  The decision of the Commissioner to which I have referred was not extant at the time of their decision (although it clarifies what the law is and always has been) and there was no specific issue in relation to diminishing capital before the tribunal.  Nonetheless it is clear from the decision of the Commissioner, with which I agree, that the calculation of the undisputed overpayment should have taken into account the diminishing capital rule and, then, I set aside the decision of the tribunal.  

8.	There is, however, as I have indicated, no dispute as to the fact of the overpayment or that it arose in the period identified by the decision maker at paragraph 2 of 1B, the decision maker’s submission to the tribunal.  The only live issue is now the recalculation of the overpayment and the parties appear agreed on this.  Accordingly I remit that recalculation to the decision maker.  If there is any subsequent dispute between the parties about the resulting amount of the overpayment that issue can be remitted to me for determination.  

				(Signed on the Original)	S J Pacey
								Commissioner 

								12 August 2008