AM-v-Department for Social Development (HB) [2012] NICom 318

Decision No:  C2/10-11(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 2 July 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 2 July 2010 is in error of law.  The error of law will be explained in more detail below.  Accordingly the appeal to the Social Security Commissioner succeeds.

2.	Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.

3.	Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I am unable to give the decision which I consider the appeal tribunal should have given.  One of the reasons why I directed an oral hearing of the appeal was that I might be in a position, if the decision of the appeal tribunal was found to be in error of law, to make fresh or further findings of fact which might permit me to give the decision which I considered the appeal tribunal should have given or give such a decision as I thought appropriate.  The claimant, at an early stage in the proceedings, indicated that she would attend an oral hearing of the appeal.  At a later stage, however, she indicated that she was not then able to attend the oral hearing.

4.	It is clear that there are further issues which need to be addressed and there are further findings of fact which require to be made.  The appeal tribunal allowed the appeal on the basis that the decision giving rise to the appeal and notification of that decision were defective.  It did not, therefore, address the substantive issues in the appeal.  The appellant has challenged the calculations of the value of the capital which the Northern Ireland Housing Executive (NIHE) submits that she held.  That and other issues relating to the appeal require to be explored.  Accordingly, I refer the appeal to a differently constituted appeal tribunal for its determination.

	Background

5.	The claimant claimed and was awarded housing benefit (HB) in respect of rates only, from and including 14 August 2006.  On 9 November 2006 the claimant’s claim to HB was re-assessed and she was awarded full entitlement to HB in respect of rates from and including 14 August 2006.

6.	Following the receipt of a wide range of information and documentation, on 24 July 2009, the original decision giving rise to entitlement to HB from and including 14 August 2006, was revised.  As a consequence of the decision dated 24 July 2009, a decision was made that an overpayment of HB, for the period from 14 August 2006 to 26 April 2009, had occurred which was recoverable from the claimant.  There followed two further revision decisions dated 28 September 2009 and 21 October 2009 details of which are set out in the original appeal submission prepared for the appeal tribunal hearing.

7.	On 13 April 2010 the decision dated 21 October 2009 was further revised.  This decision revised the original decision of 9 November 2006, awarding HB from 14 August 2006, and all subsequent decisions.  Consequently a further decision was made that an overpayment occurred for the period from 14 August 2006 to 26 April 2009, which was recoverable from the claimant.  The overpayment was submitted to have arisen as the claimant had failed to disclose that she had savings and that she was also in receipt of an occupational pension.

8.	The issue of whether (i) the relevant decisions were effective (ii) there was effective notification of the relevant decisions and (iii) the extent to which the claimant appealed against the relevant decisions, are dealt with below.

9.	An appeal tribunal hearing took place on 2 July 2010.  The appellant was not present.  The circumstances surrounding her non-presence will be discussed below.  The NIHE was represented by a presenting officer.  The appeal tribunal allowed the appeal and issued a decision notice to the following effect:

‘Appeal Allowed

Revising/superseding an entitlement to Housing Benefit and raising a resulting overpayment requires two separate decisions each carrying appeal rights and needing separate notification.  Combining these documents in one (as has been done in this case) renders both ineffective’

10.	On 1 November 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 4 November 2010 the application for leave to appeal was granted by the legally qualified panel member (LQPM).  The LQPM, in granting leave to appeal, identified the following as a point of law:

‘As set out in NIHE letter of 1.11.10’

	Proceedings before the Social Security Commissioner

11.	On 21 December 2010 the appeal was received in the Office of the Social Security Commissioners.  A copy of the appeal was forwarded to the claimant on 6 January 2011.  On 21 April 2011 I directed an oral hearing of the appeal.  The oral hearing of the appeal took place on 28 June 2011.  The claimant had indicated, initially, that she would attend the oral hearing.  Unfortunately the claimant then indicated that she would not be able to attend the oral hearing.  At the oral hearing the NIHE was represented by Miss Quinn of Housing Benefit Advice.  I am grateful to Miss Quinn for her detailed and constructive observations, comments and suggestions.  There then followed a delay in the promulgation of this decision, occasioned by an initial indication that certain of the issues which arose in the present case were the subject of consideration by the Upper Tribunal and another Social Security Commissioner in other appeals.  In the event, the further appeals, both before the Upper Tribunal and the Social Security Commissioner were determined without there having to be a detailed analysis of the issues arising in the present appeal.

	Errors of law

12.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

13.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)	failing to give reasons or any adequate reasons for findings on material matters;

(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)	giving weight to immaterial matters;

(v)	making a material misdirection of law on any material matter;

(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Why was the decision of the appeal tribunal in the instant case in error of law?

	What did the appeal tribunal decide?

14.	The substantive reasoning of the appeal tribunal on the issues which were before it was as follows:

‘Changing or revising entitlement to an existing award must be done by way of revision or supersession and any decision taking this action should state briefly the resulting effect on the award eg reduced entitlement to benefit/removal of benefit/etc.  This decision is defective in that respect.  The decision (and the decision notice sent to (the claimant) on 13.4.2010 is also defective in that it does not include any statement advising (the claimant) of her right to apply for a revision of or appeal against the decision.  In the particular circumstances of this case, (the claimant) of course had made an appeal in relation to the earlier decisions.  This however does not vitiate the defects in the decision notice.

In my opinion the decision is also defective in that it in effect amalgamates two decisions, which arise from different specific and distinct circumstances, which should be treated separately, each requiring separate notification and each carrying separate revision and appeal rights.  The decision revising entitlement to Housing Benefit arises from the (alleged) failure to disclose capital affecting the award of Housing Benefit and the decision on overpayment arises out of the decision on entitlement.  The rationale behind the practice of separate notification is that a claimant might reasonably seek to revise/appeal one of these decisions but not the other and amalgamating both decisions unfairly deprives her of this right.

For the above reasons I consider the decision against which the appeal lies to be so fatally flawed as to be ineffective and the appeal therefore succeeds.  The Housing Executive may, if it chooses, take action to remedy the defects in the decision making process and (the claimant) should therefore be aware that this appeal may not end the Housing Executive’s attempt to recover the alleged overpayment.’

	The submissions from Housing Benefit Advice

15.	In the initial appeal to the Social Security Commissioner, and in her submissions at the oral hearing of the appeal, Miss Quinn submitted that the decision of the appeal tribunal was in error of law on the basis that:

	(i)	there is no reason and no legislative impairment to the making of an entitlement decision and an overpayment decision at the same time.  Accordingly the conclusion of the appeal tribunal that ‘condensing’ an entitlement decision and an overpayment decision into one document rendered both ineffective was wrong in law;

	(ii)	the appeal tribunal’s conclusion that the decision dated 13 April 2010 was defective as it did not state the resulting effect on the award in the form of reduced entitlement or removal of entitlement to benefit was incorrect;

	(iii)	the conclusion of the appeal tribunal that the decision dated 13 April 2010 and the notification of that decision were also defective in that they did not advise the claimant of her right to apply for a revision or to appeal against that decision was also incorrect.

	Analysis

16.	In C1/07-08(HB), I said the following, at paragraph 25 of that decision:

‘Provision for decision-making with respect to the raising of overpayment decisions in respect of HB, for the purposes of the periods at issue in the present appeal, are to be found in Part XIII of the Housing Benefit (General) Regulations (Northern Ireland) 1987 and Part II of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001, all as amended.  The legislative scheme is such that where an overpayment is purported to arise from an incorrect award of HB in the first place, there must be a revision or supersession of the decision(s) awarding entitlement to HB before a valid decision can be made that there has been an overpayment.  That ambit of the legislative scheme and its inherent requirements has been emphasised by the Social Security Commissioners in Great Britain in CSHC/343/03 at paragraph 4, and in CH/2302/2002 at paragraph 11.  That the term ‘revised’ in the original version of regulation 98 of the Housing Benefit (General) Regulations (Northern Ireland) 1987 had to be read as ‘revised or superseded’ was confirmed by the Social Security Commissioner in R(H) 6/04.’

17.	Those comments remain relevant today, except, of course, that Housing Benefit Regulations, including the Housing Benefit (General) Regulations (Northern Ireland) 1987 were consolidated by the Housing Benefit (General) Regulations 2006.  Subsequently, the 1987 regulations were revoked by regulation 3 and Schedule 1 of the Housing Benefit (Consequential Provisions) Regulations (Northern Ireland) 2006.

18.	Accordingly, the appeal tribunal was wholly correct to remind itself that it was required to identify two decisions – one which altered the decision giving entitlement to HB in the first place, such alteration by way of revision and supersession and a subsequent decision which raised an overpayment of HB.  The appeal tribunal found the decision-making process which took place on 13 April 2010 to be defective because the decision-maker purported to amalgamate the entitlement and overpayment decisions into one document.  According to the appeal tribunal, the defective nature of the decision-making process was compounded by the issue of a single notification rather than separate notifications of what are two distinct decisions.

19.	There is no principle in law which requires that there is separation in the decision-making process where social security benefit is submitted to have been overpaid and so that there are separate entitlement and overpayment decisions made at different times and reduced to or laid out in separate decision notices.  Equally there is no principle in law which requires separate notification of separate decisions.  In C10/07-08(IS), the Deputy Commissioner in analysing the decision-making structure in respect of overpayments in the parallel social security scheme, said the following, at paragraph 10 of his decision:

‘It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”.  The latter being based on the former.  I use the word “distinct” deliberately.  Since the recoverability decision is based on the entitlement decision it must be proceeded by it.  Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first.’

20.	The emphasis in the quotation is my own.  Earlier in his decision, at paragraph 4, he had stated that:

‘The two decisions can be contained in a single document provided that the sequence is apparent.’

21.	Although this analysis was given in the context of social security decision-making in overpayment cases, it is equally applicable to HB overpayment decision-making.

22.	If the appeal tribunal in the instant case was deciding that, as a matter of law, there was a requirement for separate entitlement and overpayment decisions, in separate decision notices and separate notification of those decisions, then its decision was not correct in that regard.

23.	That is not the end of the matter, however.  The Deputy Commissioner in C10/07-08(IS) cautioned that where an entitlement and overpayment decision were contained in a single document, that document would have to make a clear distinction between those decisions.  Clear distinction would also be required in a notification document which purports to alert a claimant as to the detail of the separate and distinct decisions which have been made.

24.	Accordingly, there will have to be close scrutiny of any composite decision and notification of that decision to ensure that the required distinctiveness is apparent.  To that extent the appeal tribunal’s close scrutiny of the decision-making process undertaken on 13 April 2010 and the subsequent notifications was warranted.

25.	I have considered the detail of the decision-making process undertaken on 13 April 2010.  At Tab 42 of the original appeal submission there is a document headed ‘Housing Benefit Decision’.  Attached to it is a schedule of revised calculations of HB.  The decision at Tab 42 purports to be a revision of a decision made on 9 November 2006 (and which awarded HB from and including 14 August 2006) and all decisions made subsequent to that.  The decision goes on to decide on the claimant’s entitlement to HB for the period from 14 August 2006 to 26 April 2009.  Further, it includes a decision that as a consequence of a revision of the decisions on the claimant’s entitlement to HB, an overpayment of HB had arisen for the period from 14 August 2006 to 26 April 2009.  It amounts to a composite entitlement/overpayment decision, which a decision-maker is permitted to make, provided, of course, that there is the requisite degree of distinction between the entitlement and overpayment decision.  Does the decision made on 13 April 2010 have the required degree of distinction?  In my view, it does.

26.	The appeal tribunal criticised the decision dated 13 April 2010 for failing to state ‘… the resulting effect on the award eg reduced entitlement to benefit/removal of benefit etc.’  The appeal tribunal found the decision dated 13 April 2010 to be defective in that regard.  With respect to the appeal tribunal I cannot agree and I conclude that the appeal tribunal is mistaken in this regard.  Taken together with the schedule of revised calculations of HB, the manner in which the claimant’s entitlement to HB, for the relevant periods, is re-calculated is clear.

27.	I turn to the notification to the claimant of the decision dated 13 April 2010.  At Tab No 44 is a copy of a letter to the appellant, also dated 13 April 2010.  Attached to that letter is what the letter writer, a HB manager, described as ‘revised calculations of housing benefit’ and an ‘overpayment schedule’.  This notification letter was criticised by the appeal tribunal on the basis that it did not advise the claimant of her right ‘… to apply for a revision of or appeal against the decision.’  I shall return to that aspect of the appeal tribunal’s decision below.  I would note, however, that, in my view, the correspondence dated 13 April 2010, could not have been more unambiguous in explaining to the claimant the decision-making process which had taken place and the net effect of the composite decision of 13 April 2010.

28.	The correspondence dated 13 April 2010 does, in fact, make reference to appeal rights.  The final paragraph of the letter reads as follows:

‘You do not have to appeal against this decision as your appeal will now be sent to The Appeal Service where an independent appeal tribunal will look at the decision again.  The Appeals Service will write to you shortly with more information about what happens next.’

29.	In the letter of appeal, Miss Quinn submits that the claimant had originally appealed against the decision dated 24 July 2009, and against a subsequent overpayment decision dated 5 August 2009, in correspondence received on 11 August 2009.  Miss Quinn submits that a number of revision decisions were made to the decision dated 24 July 2009, and that the decision dated 13 April 2010 was one such decision.  As none of those revision decisions were more advantageous to the claimant, her original appeal did not lapse under regulation 17(1) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001, as amended.  Accordingly, the HB manager was correct to inform the claimant that her appeal would continue to an independent appeal tribunal.

30.	Nonetheless, Miss Quinn has also submitted that the correspondence dated 13 April 2010 should have advised the claimant of her right, under regulation 17(4) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 to make further representations on the appeal.

31.	I am wholly satisfied that the claimant’s right, either to make representations on an extant appeal, or to make a further fresh appeal, have not been prejudiced.  On receipt of the correspondence dated 13 April 2010, the claimant wrote to the HB manager, in correspondence dated 16 April 2010.  A copy of that correspondence is in the file of papers before me.  In that correspondence, the claimant makes reference to the correspondence dated 13 April 2010.  She refers to a new decision made on that date.  She challenges the revised calculations of HB entitlement.  She also submits that her existing appeal had lapsed and that she did require to make a further appeal which she wished to exercise through that correspondence.  The claimant’s appeal progressed to an oral hearing.  Her appeal rights were not compromised, at any stage.

32.	In C1/07-08(HB) I said the following, at paragraphs 38 to 41:

‘38.	The duties of an appeal tribunal, in determining an appeal against either a revision or supersession decision, were comprehensively analysed and reviewed by a Tribunal of Social Security Commissioners in Great Britain in R(IB)2/04.  That decision is clear authority for the proposition that where an appeal tribunal identifies defects in a decision which purports to change the effect of a previous decision (eg failure to use the terms ‘revise’ or supersede’, failure to indicate that a previous decision is being revised or superseded, failure to identify the previous decision being revised or superseded, failure to specify the ground for revision or supersession or reliance on the wrong ground for revision or supersession), the appeal tribunal has the jurisdiction to remedy those defects and make the decision which the Department ought to have made.

39.	That these principles in R(IB) 2/04 apply to the decision-making and appeals provisions in respect of HB was confirmed by the decision of the Social Security Commissioner in CH/4354/2003 at paragraph 23.

40.	The power to remedy defects is limited, however, the Tribunal of Commissioners in R(IB) 2/04 recognised, at paragraph 72 that:

‘… there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions … at all.’

41.	These exceptional cases could not be subjected to the newly identified remedying powers.’

33.	In the instant case, it is clear that the appeal tribunal had formed the view that the decision-making process undertaken on 13 April 2010 was so inchoate that it was not prepared to undertake any remedying of that decision-making.  Its suggested remedy was for the NIHE, if it so chose, to undertake such remedial action.  I have established that the decision dated 13 April 2010 was not as inchoate as was determined by the appeal tribunal.  Accordingly, its decision to allow the appeal on that basis was in error of law.

34.	Finally, I have considered the fact that the claimant, in correspondence dated as received in TAS on 28 June 2010, had sought a postponement of the appeal tribunal hearing scheduled to be held on 2 July 2010.  The reason for the postponement was that the claimant was awaiting further information in connection with a subsequent claim to HB.  On 29 June 2010 the LQPM considered the request for a postponement, refused that request and indicated that any further request for an adjournment would be considered on the day of the appeal tribunal hearing.  On the day of the hearing, and as was noted above, the claimant was not present.  The appeal tribunal noted the refusal of the postponement request and indicated that it had decided to proceed in the claimant’s absence.  I am satisfied that the claimant did not suffer any prejudice as a result of the actions taken by the appeal tribunal.  Indeed, the decision of the appeal tribunal was to allow the appeal, even in the absence of the claimant.

	Disposal

35.	The decision of the appeal tribunal dated 2 July 2010 is in error of law.  Pursuant to the powers conferred on me by section 59 and paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.

36.	The Housing Benefit Advice unit is to prepare a further submission for the appeal tribunal to be conducted before a freshly constituted appeal tribunal.  That submission is to address the issue identified by Miss Quinn in these proceedings before the Social Security Commissioner, in particular, the issues identified at paragraph 19 of the letter of appeal concerning recoverability.

37.	It will be for the claimant to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal.  The claimant will wish to give close consideration to attending the further oral hearing of the appeal.

38.	It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Chief Commissioner

26 September 2012