RM-v-Department for Communities (JSA) [2017] NICom 18

Decision No:  C8/16-17(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 2 February 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Enniskillen on 2 February 2016.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal and I set aside the decision of the appeal tribunal under Article 15(8)(a) of the Social Security (NI) Order 1998.  I make findings of fact and I decide the appeal as follows.

3.	I find that the appellant notified the employment officer of a relevant change of circumstances on 6 November 2014, namely that his partner had commenced part-time work (Tab 4 refers).

4.	I find that the appellant’s partner had commenced work on 27 October 2014 (Tab 6 refers).  I further find that the appellant’s partner worked 30 hours in the week from 27 October 2014 to 5 November 2014 (Tab 7 refers) and had received wages of £143 on 5 November 2014 (Tab 8 refers).

5.	On the basis of the evidence, I find that the appellant was not entitled to JSA for the week from 30 October 2014 to 5 November 2014, as his partner was working for more than 30 hours in that week.

6.	In consequence I find that he is not entitled to the sum of £113.70 in respect of the week from 30 October 2014 to 5 November 2014 and that benefit has been overpaid to him in respect of that period in the sum of £113.70.

7.	I find that, prior to 6 November 2014, the appellant failed to disclose the material fact that his partner was working.  Accordingly, I find that the sum of £113.70 is recoverable from him in respect of the week from 30 October 2014 to 5 November 2014, as this amount would not have been paid to him but for the fact that he failed to disclose the material fact that his partner was working.

REASONS

	Background

8.	The appellant claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) from a date on or around 28 August 2014.  On 6 November 2014 the appellant notified his Department of Employment and Learning (DEL) adviser that he was commencing part-time work as a mechanic.  At the same interview he indicated that his partner had commenced work in a hotel.  On 26 January 2015 the Department considered all the evidence and made a decision superseding and reducing the appellant’s award of JSA.  The Department subsequently determined that the appellant had been overpaid £600 of JSA in respect of the period from 30 October 2014 to 10 December 2014.  It decided that this was recoverable from him, as he had “failed to disclose the material fact that his partner was in receipt of part-time earnings” from the hotel.  The appellant appealed.  A reconsideration decision maintained that a recoverable overpayment had arisen as the appellant had failed to disclose that his partner “had started part-time [work]”.

9.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal disallowed the appeal.  The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 26 April 2016.  The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was refused by a determination issued on 2 June 2016.  On 29 June 2016 the appellant applied for leave to appeal from a Social Security Commissioner.

	Grounds

10.	The appellant submitted that the tribunal has erred in law on the basis that he had reported the fact that his partner was in part-time employment to his employment adviser.  He submitted that the employment adviser did not tell him to disclose this information to anyone else.  He said that, if she did, he had a basic understanding of English and was not advised clearly in a way he could understand.

11.	The Department was invited to make observations on the appellant’s grounds.  Ms O’Connor of Decision Making Services (DMS) responded on behalf of the Department.  She submitted that the tribunal had not erred in law and indicated that the Department did not support the application.

	The tribunal’s decision

12.	The tribunal has provided a statement of reasons for its decision.  From this I see that it had a submission from the Department, which included screen prints of computer-recorded details of the appellant’s employment review of 6 November 2014, and a further Departmental submission relying on the case of Hinchy v Secretary of State for Work and Pensions (reported as R(IS)7/05).  The appellant was represented at the tribunal hearing, and he gave evidence through a Lithuanian interpreter.

13.	The tribunal found that on 6 November 2016 the appellant told his DEL adviser that he was about to start part-time work.  The tribunal also found that he informed the DEL adviser that his partner was working part-time.  It found that he did not inform the Jobseekers Allowance customer enquiry team of his partner’s part-time work and that, as a result, he was overpaid £600 for the period from 30 October 2014 to 10 December 2014.

14.	The tribunal found that the appellant was given a JS40 booklet in August 2014 which informed him that he must “tell us straight away if you or your partner also have any paid or unpaid or voluntary work”.  The tribunal rejected the appellant’s submission that he had made sufficient disclosure by notifying the DEL adviser.  The tribunal did not accept that the appellant’s command of English would prevent him understanding the need to report a change of circumstances or prevent him from giving the correct information to “Jobseekers”.

15.	The tribunal did not accept the submission that, because the DEL adviser and those administering JSA were in the same building, the principles of Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 did not apply.  It was satisfied that the obligation was on the appellant to inform JSA of his partner’s change of circumstances and that he was overpaid £600 as a result, which was recoverable from him.

	Relevant legislation

16.	The legislation governing recoverability of overpaid benefit appears principally at section 69(1) of the Social Security Administration (NI) Act 1992, which provides:

69.—(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—

	(a) a payment has been made in respect of a benefit to which this section applies; or

	(b) any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

17.	In the case of most benefits, the provisions of regulation 32(1) and (1B) of the Social Security (Claims and Payments) Regulations (NI) 1987 have relevance and are the acknowledged source of the obligation to disclose changes of circumstances to the Department.  However, they do not apply to JSA.  Rather, in the case of JSA, relevant provisions are to be found in regulation 24 of the Jobseeker’s Allowance Regulations (NI) 1996 (the JSA Regulations).  This provides, as far as relevant:

“24(2) A claimant shall furnish such other information in connection with the claim, or any question arising out of it, as may be required by the Department.

…

(6) A claimant shall, if the Department requires him to do so, provide a signed declaration to the effect that—

	(a) since making a claim for a jobseeker’s allowance or since he last provided a declaration in accordance with this paragraph he has either been available for employment or satisfied the circumstances to be treated as available for employment, save as he has otherwise notified the Department or an employment officer, as the case may be;

	(b) since making a claim for a jobseeker’s allowance or since he last provided a declaration in accordance with this paragraph he has either been actively seeking employment to the extent necessary to give him his best prospects of securing employment or he has satisfied the circumstances to be treated as actively seeking employment, save as he has otherwise notified the Department or an employment officer, as the case may be, and

	(c) since making a claim for a jobseeker’s allowance or since he last provided a declaration in accordance with this paragraph there has been no change to his circumstances which might affect his entitlement to a jobseeker’s allowance or the amount of such an allowance, save as he has notified the Department or an employment officer, as the case may be.

(7) A claimant shall notify the Department or an employment officer, as the case may be—

	(a) of any change of circumstances which has occurred which he might reasonably be expected to know might affect his entitlement to a jobseeker’s allowance or, in the case of a joint-claim couple, the entitlement of the couple to a joint-claim jobseeker’s allowance or the payability or amount of such an allowance, and

	(b) of any such change of circumstances which he is aware is likely so to occur, and shall do so as soon as reasonably practicable after its occurrence or, as the case may be, after he becomes so aware, by giving notice of the change—

	(i) in writing or by telephone (unless the Department determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone), or

	(ii) in writing if in any class of case it requires written notice (unless it determines in any particular case to accept notice otherwise than in writing), to an office of the Department specified by it.

… 

(11) In this regulation, references to the “Department” include a reference to persons designated as employment officers by an order made by the Department under Article 10(3) of the Order.”

	Hearing

18.	I held an oral hearing of the application.  The appellant attended in person.  He made submissions with the assistance of a Lithuanian interpreter, Ms D..........  The Department was represented by Ms O’Connor and Mr Smith of DMS.

19.	Ms O’Connor advised me that, from May 2016, the Department and DEL have been merged within the Department for Communities.  Formerly the Department’s staff would have been involved in processing the benefit claim, whereas the DEL staff members were involved in assisting the claimant back to work.  The period I am concerned with pre-dates that change.

20.	The appellant made the case that he had attended an interview with his DEL employment adviser on 6 November 2014.  In the course of that interview he had informed her that he was starting work as a part-time self-employed mechanic and that his partner had commenced work in a hotel.  The fact that he notified the employment adviser was not in dispute.  It was evidenced by a screen print of a computer record of the “client contact history” for the appellant at Tab 4 of the papers before the tribunal.

21.	The appellant understood that the tribunal had decided that this disclosure was insufficient for the purposes of his duty to disclose, as he had not made direct communication with an officer of the Department.  However, he submitted that the employment adviser was based in the same office as the Department, with no way to distinguish between the separate statutory functions.  His English, while better now, was poor at the time and he had not understood that he had been advised to make a further disclosure to the Customer Enquiry Team (CET).  He submitted that he had made an effective disclosure of the change in his and his wife’s circumstances.

22.	Ms O’Connor for the Department pointed to a JS40 leaflet, which would have been given to the appellant by the DEL adviser.  This indicated that he should tell “us” of any changes without specifying who was meant by “us”.  She accepted that this was confusing in a situation where the Department and the DEL staff were housed in the same building.  It was accepted by the Department that the appellant had made disclosure of the fact that his wife had started work, but it was submitted that he had failed to disclose when she had received her earnings from that employment.

23.	Ms O’Connor submitted that the obligation to disclose in the present case derived from regulation 24(6)(c) and regulation 24(7) of the JSA Regulations.  The DEL adviser, she accepted, was an “employment officer” within the terms of the legislation.  While she accepted that disclosure had been made to an employment officer as required by regulation 24(7), she submitted that there was a continuing duty of disclosure arising from the facts of the case.  The DEL adviser had directed the appellant to appropriate officials of the Department who were administering the financial aspects of the appellant’s JSA claim.  She submitted that this had given rise to a fresh obligation of disclosure, that the employment officer had referred the appellant to the CET and that he had not gone to CET.

24.	When he notified the employment officer that he was starting part-time self-employment, the appellant had been asked to complete B7 forms disclosing his earnings.  However, no B7 forms were issued in respect of his partner.  Ms O’Connor similarly submitted that there was a continuing obligation to disclose the fact that wages were actually received.  The fact that a B7 form had been given to appellant for himself but not for his partner should have caused him to wonder why he had to complete the form but not his partner.  It was submitted that he had not taken reasonable steps to understand his obligations in the circumstances.

25.	Additionally, Mr Smith submitted that there were fortnightly declarations on forms signed by the appellant after 6 November 2014.  These were to the effect that, since last signing a declaration, there had been no change in his circumstances.  He submitted that his partner’s receipt of earnings would have been a change in circumstances.  He accepted that this would be a misrepresentation as opposed to failure to disclose.

26.	Alternatively, Ms O’Connor relied on R(SB)15/87 – the decision of a Great Britain Tribunal of Commissioners - and R(SB)54/83, to submit that there was a continuing duty to disclose, notwithstanding the original disclosure, once it became clear that the initial disclosure had become ineffective.  She submitted that the appellant had discharged part of his responsibility when notifying the employment officer that his partner was working, but that he had not then disclosed the details of her income.  She submitted that the Department can modify its instructions depending on the circumstances of the case.

	Assessment

27.	The appellant’s first language is not English.  I accept that he had some language difficulties at the relevant period in issue in this case.  However, I consider that nothing turns in this case on the ability of the appellant to understand English or otherwise.

28.	The key issue is whether the tribunal correctly applied the law relating to the recoverability of overpaid benefit – and specifically the law as it applies to JSA.  In Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, Lord Hoffmann at paragraph 32 and Baroness Hale at paragraph 54 held that the source of the duty to disclose a material fact in that particular case arose from regulation 32 of the Social Security (Claims and Payments) Regulations 1987.  At paragraph 54, Baroness Hale said:

“54. What is the source and content of that duty?  One obvious source (although there may be others to which our attention has not been drawn) are the regulations under which claimants and others may be required to furnish information to the Secretary of State.  The vires for such regulations are contained in section 5 of the 1992 Act (quoted by my noble and learned friend, Lord Hoffmann, in paragraph 17 earlier).  The relevant regulation at the time was regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 (quoted by Lord Hoffmann, in paragraph 19).  The beneficiary "shall furnish in such manner and at such times as the Secretary of State…may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State…may require…, and in particular shall notify the Secretary of State…of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, . . ."”.

29.	This principle has been applied in this jurisdiction in relation to the direct equivalent of the GB regulations.  Thus, most recently in TT v DSD [2016] NI Com 38 I said,

“17. It is settled law that the question of failure to disclose, for the purpose of section 69 of the 1992 Act, is linked to the obligations placed on a claimant by regulation 32 of the Claims and Payments Regulations.  These include an obligation to furnish information or evidence which the Department might require for determining whether a decision should be revised or superseded (arising from regulation 32(1)), an obligation to furnish information or evidence as the Department may require in connection with payment of the benefit claimed or awarded (arising from regulation 32(1A)) and a distinct obligation to notify the Department of any change of circumstances which the claimant might reasonably be expected to know might affect the continuance of entitlement to benefit (arising from regulation 32(1B)) (see Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 at paragraphs 32, 40 and 54).  In terms of how disclosure should be made, a Tribunal of Great Britain Social Security Commissioners in R(SB)15/87 at paragraph 28 has said that a claimant's duty is "best fulfilled by disclosure to the local office where his claim is being handled.  In Hinchy, it was said by Lord Hoffman at paragraph 23,

"Disclosure, then, must be made to the relevant official and not to the Secretary of State as an abstract entity.  What assumptions can be made about what the relevant official already knows?  The Commissioners have on the whole resisted arguments that the relevant official must be assumed to know, or that the claimant is entitled to assume that he knows, anything about his other benefit entitlements which cannot be described as common knowledge.  It is not for the claimant to form views about what may go on behind the scenes in the Social Security or other benefit offices. His duty is to comply with the instructions in the Order Book.  A disclosure which would be thought necessary only by a literal-minded pedant (see, for example, CSB/1246/1986) need not be made, but the safest course is to resolve doubts in favour of disclosure".

18. Lord Hoffman reiterated at paragraph 32 that "the claimant is not entitled to make any assumptions about the internal administrative arrangements of the Department.  In particular he is not entitled to assume the existence of infallible channels of communication between one office and another".

30.	Hinchy involved the issue of whether a claimant, whose award of disability living allowance had been superseded by the Department, had failed to disclose a material fact by not communicating this fact to the particular Departmental staff administering her income support award.  The questions considered involved issues of internal communication within the Department.  The duty to disclose was linked directly to the written instructions given to an individual claimant by the Department.

31.	However, the benefit awarded in the present case is JSA.  In a case involving JSA, a significant part of regulation 32 of the Claims and Payments Regulations has no direct application.  Specifically, regulation 32(1), which gives rise to the duty to furnish the Department with such information or evidence as it may require, and regulation 32(1B), which gives rise to the claimant’s duty to notify the Department of any change of circumstances which he might reasonably be expected to know might affect the continuance of entitlement to, or the payment of, benefit, do not apply in the case of JSA.

32.	I consider that an alternative duty arises in the case of JSA, from regulation 24(2) and regulation 24(7) of the JSA Regulations.  In particular, regulation 24(2) appears to me to be equivalent to regulation 32(1) of the Claims and Payments Regulations, and regulation 24(7) appears to me to be equivalent to regulation 32(1B).  The obvious difference is that, whereas the duty to disclose arising from regulation 32(1) is to the Department, and whereas the duty under regulation 24(2) is also to the Department, the effect of regulation 24(11) is that a reference to the Department includes persons designated as employment officers.  Similarly, whereas the duty to disclose arising from regulation 32(1B) is to “the Department”, the duty to disclose arising from regulation 26(7) is to “the Department or an employment officer”.

33.	I consider that the principles arising from Hinchy apply equally in the present case with appropriate modification.  As it is a case involving JSA, the obligation which falls on the appellant derives from the JSA Regulations.  The correct question, therefore, in determining the recoverability of overpaid benefit is whether the appellant failed to disclose a material fact in terms of his duties under the JSA Regulations to provide information and to notify any change of circumstances either to the Department or to an employment officer.

34.	As was submitted by the Department, the obligation falling on the appellant was explained in a JS40 leaflet issued to him which instructed him to notify “us” of any changes which might affect his benefit.  What was meant by “us” was not explained in the leaflet.  In particular, it did not indicate that there was a distinction between those staff having an operational role for the Department and those having an operational role for the DEL.  The employment officers and the Department’s staff were housed in the same building on the same floor without any clear demarcation between them to suggest that they worked for different government Departments.  It was accepted that the JS40 would have been given to the appellant by an employment officer.  I consider that the JS40 represented the instructions to the appellant to furnish information relevant to his claim or to notify relevant changes in circumstances.

35.	At the hearing before me, the Department did not probe the reasoning of the tribunal or address any possible flaws in its reasoning.  Rather, the Department’s argument focussed on presenting alternative routes for arriving at the same outcome as the tribunal.  It seems to me that the first question for determination is whether the tribunal has erred in law.  If so, it might then be appropriate to consider whether such errors were material, in the sense that the same outcome should nevertheless have been reached on a different basis.

36.	On my own consideration of the tribunal’s statement of reasons, it seems plain to me that the tribunal proceeded on an erroneous understanding of the law.  The basis of the tribunal’s decision would appear to be that, whereas the appellant had disclosed the material fact that his partner was working to an employment officer, this did not discharge his obligation to disclose.  It said in the statement of reasons that “the obligation was on the appellant to inform Jobseekers of his wife’s change in circumstances which he did not do”.  By “Jobseekers” I assume that the tribunal meant the Department.  However, this is a misdirection of law, since the obligation on the claimant arising from relevant legislation was to inform the Department or an employment officer.

37.	Furthermore, the tribunal refers to the question of whether the appellant was competent to be aware of the distinction between the DEL adviser and “the Jobseekers Department” for benefit purposes.  The tribunal appears to have regarded the communication with the employment officer to have been ineffective, or akin to notifying the wrong branch of the Department.  However, notifying the wrong branch of the Department is not an analogous situation.  By notifying the employment officer of the relevant change of circumstances, the appellant had discharged his legal obligation arising from the JSA Regulations.  It seems clearly arguable that the tribunal has erred in law and I grant leave to appeal on this basis.

38.	The Department sought to persuade me that the outcome of the appeal should have been the same had the law been applied correctly by the tribunal.  In further argument, which was different to the Department’s submissions to the tribunal and therefore not addressed by it, the Department submits that the error of law was not material, as the tribunal arrived at the correct conclusion.

39.	Four main submissions were advanced to me, namely that:

	a)	The employment officer had given oral instructions to the appellant which modified the statutory duty to report and gave rise to a new obligation;

	b)	The disclosure to the employment officer that his partner was working was insufficient, since a new duty to make disclosure arose once the appellant’s partner received wages and he had failed to notify the Department of the receipt of her wages;

	c)	The appellant in any event had misrepresented material facts when he continued to make declarations upon signing for benefit that his circumstances had not changed.

	d)	The appellant had a continuing duty to disclose the fact that his partner had started working, relying on R(SB)15/87 and R(SB)54/83.

40.	It was firstly submitted that the employment officer, by advising the appellant to communicate information to the Department, in the form of the CET, was placing a further duty on him, which he had not discharged.  By this argument, the Department accepts that the appellant may well have met his statutory obligation to disclose his change in circumstances to an employment officer.  However, it submits that the employment officer – when directing the appellant to the CET – modified his duty on him to notify the Department.  It submits that a recoverable overpayment arose from that.

41.	No authority to me for the proposition that a Departmental officer could extend the statutory obligation on a claimant was cited to me.  Having sought relevant authority myself, it seems to me that, whereas R(A)2/06 may be authority for the proposition that the duty to disclose may be modified by an oral representation by an officer of the Department, that was a case where the obligation to disclose was narrowed (paragraph 14).  I am not aware of any authority which holds that oral instructions can widen the statutory reporting obligation.

42.	In the present case any modification of the duty was, on the Department’s submission, arising from an oral instruction given by an officer of DEL.  In Hinchy, the House of Lords clearly linked the recoverability of overpaid benefit to the obligation arising from regulations.  By regulation 24(2) of the Jobseeker’s Regulations, a claimant shall furnish such other information in connection with the claim, or any question arising out of it, as may be required by the Department.  By regulation 24(11), references to the “Department” include a reference to persons designated as employment officers by an order made by the Department under Article 10(3) of the Order.  Therefore, on the face of it, an employment officer has a power to require a claimant to furnish information.  As indicated above, it was accepted that the JS40 instruction booklet telling the appellant to notify “us” of any change in circumstances was given by an employment officer. However, does this enable the employment officer to require information, once furnished, to be furnished again to a different statutory officer?

43.	The JSA Regulations place an obligation on the claimant to notify the Department or an employment officer.  Once the appellant had furnished the information that his partner had started work to an employment officer, his duty to disclose would have been met.  A breach of that duty would have serious consequences for a claimant, giving the Department the right to recover any overpaid benefit from him.  I consider that the scope of the duty must be construed strictly in such circumstances.  The gist of the Department’s submission is that the employment officer could modify the statutory duty on a claimant on an ad hoc basis on his or her own initiative, thereby transforming the statutory duty from an obligation to notify the Department or an employment officer into an obligation to notify the Department and an employment officer.  I cannot accept that submission.

44.	In this particular context, I further note that the tribunal did not make an express finding of fact as to whether the employment officer advised the appellant to make a further disclosure to the CET.  It is clear to me that it did not determine the appeal on the basis that the employment officer had placed a new obligation on the appellant by way of her oral instructions to him.

45.	The Department’s second argument was addressed to the question of whether there was a continuing obligation to disclose the fact that the appellant’s partner received wages.  This relates to the scope of the disclosure required of the appellant.  Ms O’Connor submitted that the disclosure of the fact that the appellant’s partner had started work was insufficient to meet the statutory obligation.  She submitted that as soon as she was paid wages, a fresh obligation arose to notify the Department of that fact.  She submitted that the appellant had not done so, and that a failure to disclose arose from that circumstance.

46.	I observe that the JS40 booklet gives instructions to the claimant to:

“Tell us straightaway if

•	you or your partner (if you have one)

-	do any paid, unpaid or voluntary work
-	get a job or become self-employed
-	get a place on a training scheme
-	start education or are re-sitting exams
-	apply for another benefit
-	get a personal pension or one form a previous employer
-	get money from somewhere else
-	claim Child Tax Credit
-	are involved in a trade dispute

		… ”

47.	I note that the language of the two decisions of the Department in this case is at variance.  In the decision of 10 April 2015 the decision maker finds that the appellant “failed to disclose the material fact that his partner … was in receipt of part-time earnings …”.  In the reconsideration decision of 15 May 2015 the decision maker finds that the appellant “failed to disclose a material fact that [his partner] had started part-time [work]”.  It does not particularly surprise me that the language of the two decisions is different, as the fact that someone has started work and that he is in receipt of wages are virtually interchangeable.

48.	Regulation 24(7) requires a claimant to notify any change of circumstances which has occurred which he might reasonably be expected to know might affect his entitlement to JSA.  The fact of his partner starting work is such a circumstance.  A highly probable result of such a circumstance is that his partner would receive wages.  As the appellant was in receipt of income-related JSA, the level of wages received would most probably affect the rate of JSA which might be payable.  The submission that, although the appellant reported the fact that his partner started work, he was nevertheless in breach of his reporting obligation because he did not report the fact that she was receiving wages, seems to me to be a pedantic one.

49.	As stated in Kerr v Department for Social Development [2004] UKHL 23, the process of benefits adjudication is inquisitorial rather than adversarial.  In determining entitlement to benefit, both the claimant and the Department must play their part.  The Department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  I observe that the Department issued B7 forms to the appellant when he notified the DEL adviser that he had commenced part-time self-employment in order to ascertain his level of income.  This is to be expected in an inquisitorial benefits adjudication system.  Once he had reported the fact that his partner was working, it would have been reasonable to expect the Department to issue similar forms to his partner.  However, the Department’s failure to take action cannot be attributed to the appellant.  I consider that, once the Department had been placed on notice that the appellant’s partner was working, it was for it to seek the appropriate information about her earnings.  The appellant, who had made appropriate disclosure in compliance with his statutory obligations, cannot be blamed for the operational failings of the Department.

50.	A variation on this argument was that the appellant had not complied with his duty arising from the JS40 to “tell us straight away if you or your partner … get money from somewhere else”.  However, I consider that this clearly refers to receipt of money other than from paid work or from a job or being self-employed.

51.	I further observe that the issue of whether the appellant failed to notify the specific information that his partner was receiving wages was not one which was raised before the tribunal.  The tribunal made no express findings of fact on whether the appellant did or did not report the receipt of wages.

52.	The Department’s third submission was that a recoverable overpayment arose on an alternative basis.  Mr Smith submitted that, having disclosed the material fact that his wife was working, when the appellant next signed on for JSA he had misrepresented a material fact that his circumstances had not changed.

53.	This was not part of the Department’s case to the tribunal and was not previously raised in written submissions in advance of the hearing.  No evidence of the appellant having made a false declaration was apparent in the papers before the tribunal, and no application for evidence of that nature to be introduced was made to me.  While in principle it would be open to the Department to change the basis on which it sought to argue the case, I do not consider that it was appropriate to do so in the absence of supporting evidence.

54.	Finally, Ms O’Connor sought to rely on R(SB)15/87 and R(SB)54/83, to submit that there was a continuing duty to disclose, notwithstanding the original disclosure, once it became clear that the original disclosure had become ineffective.  That case concerned a communication by a claimant to the unemployment benefit section of a local social security office about a circumstance that would affect his entitlement to supplementary benefit.  The unemployment section had accepted information in circumstances where the claimant was initially entitled to expect that it would be conveyed to the correct section.  However, once time passed and it became evident to the claimant that the information had not been passed on or acted upon, a continuing duty was held to arise to communicate the information to the correct section.

55.	That background is clearly distinguishable from the present case.  There the communication was not to the “right” person in terms of complying with the statutory obligation.  Here, it was.  I do not accept that the principle of these cases has application to the present case.

56.	In any event, the time frame in the present case was a narrow one.  The appellant had reported on 6 November 2014 that his partner had started work, and that he had commenced self-employment.  He had been sent and had completed a B7 form asking about his earnings on 10 December 2014.  The appellant’s JSA award was suspended on 17 December 2014.  Against a background of the Department’s enquiries to him and the suspension action, I am not satisfied that the facts support an argument that the cases on continuing obligation to disclose have relevance.  The evidence suggests that there were changes to the appellant’s JSA which may well have given him to understand that action was being taken in consequence of the disclosure he had made.  However, I again observe that this was not an argument presented to the tribunal and that relevant findings of fact were not made by the tribunal.

57.	For the reasons I have given, I conclude that the tribunal has misdirected itself in law.  I allow the appeal.  I set aside the decision of the appeal tribunal.  I consider that I am in a position to decide the appeal myself and that it is appropriate for me to do so.  I make the findings of fact which are set out at pages 1-2 above and I decide the appeal accordingly.

(signed):  O Stockman

Commissioner

5 April 2017