Decision No: C18/02-03(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 31 May 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified panel member (LQPM) against a decision dated 31 May 2002 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal against a Departmental decision to the effect that the claimant had been overpaid income support (IS) for the period 3 November 1995 to 5 August 1999 amounting to £4,092.85.  The Department further decided that on 6 November 1995 or as soon as possible thereafter the claimant had failed to disclose the material fact that disability living allowance (DLA) in respect of her son had ended on that date and as a result she was no longer entitled to an increase in her IS by way of disabled child premium (DPC).  The Department also decided that on 9 November 1995 and on subsequent order book declarations up to and including 5 August 1999 the claimant misrepresented the material fact that she had correctly reported any changes that could affect the amount of her IS.  As a consequence the Department decided that the sum of £4,092.85 had been overpaid by way of IS and was recoverable from the claimant.  Before me and before the Tribunal it was agreed that the claimant had been overpaid the sum of £4,092.85.  It was also agreed that once the DLA award ceased, entitlement to the DPC also ceased.  My decision is given in the final paragraph.

2.	As I consider and as both parties are agreed that the Tribunal erred in law, I do not set out the arguments and correspondence at length, save as regards my reason for setting the decision aside.  The matter in issue before me related to the recoverability of the overpayment.  The claimant’s appeal to me submitted that the Tribunal had erred in 11 ways.  While there may have been errors in some of the matters submitted by the claimant’s solicitors in my view there is a very fundamental error which is connected to certain of those grounds but perhaps not directly on point as regards them.  The Department has, in its letter of 29 May 2003 very properly conceded that the Tribunal did err in law.  

3.	The Tribunal accepted the claimant’s evidence that she had visited Carrickfergus Social Security office at some time in the first half of November 1995 and had informed that office of the cessation of her son’s DLA award.  This, as the Department agrees, the Tribunal was entitled to do.  The Tribunal also decided that the claimant had a continuing obligation to disclose the removal of the DLA award and that she should have been alerted to the ineffectiveness of her communication with the Social Security office when she continued to receive payment of IS at the existing rate.  The Department submitted, and I agree with it, that in light of decisions R(SB)54/83 and R(SB)15/87 and the Tribunal’s findings, the Tribunal erred in concluding that there was any further obligation on the claimant to disclose the fact of the removal of her son’s DLA award.  Once the claimant had made disclosure to the office handling her claim in terms that made sufficient reference to the claim to enable the matter disclosed to be referred to the proper person, she had fulfilled her duty of disclosure and had no further reason to disclose.  The authority for this is in paragraph 16 of R(SB)54/83 and paragraph 28 of R(SB)15/87.  I agree with that decision and with the Department’s submission that there was no further obligation on the claimant to disclose the fact of the removal of her son’s DLA award.  The Tribunal erred in concluding that R(SB)54/83 paragraph 18 is authority for the proposition that, once a disclosure is made to a member of staff in the correct office in circumstances which enabled the matter disclosed to be referred to the proper person, there was any continuing obligation to repeat the disclosure.  As paragraph 28 of R(SB)15/87 makes clear, paragraph 18 of R(SB)54/83 was referring to a situation where disclosure had been made elsewhere than to the correct office.  In this case the Tribunal found that proper disclosure was made to the proper office.  Once that is done no further disclosure can be required.

4.	As regards the misrepresentation, the claimant had represented that she had correctly reported any facts which could affect entitlement to benefit.  In light of the Tribunal’s findings it appears that the claimant did correctly report the relevant fact.  That being so there could be no continuing obligation on her to further report the said fact.  

5.	I set the Tribunal’s decision aside for the above reasons.  I consider that this is a case where I can give the decision which the Tribunal should have given.  Proper disclosure having been made, the overpayment of IS for the period 3 November 1995 to 5 August 1999 amounting to £4,092.85 is not recoverable from the claimant.  The appeal is allowed.

(Signed): M F Brown

Commissioner

29 July 2003