[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> GL-v-Department for Social Development (IS) [2012] NICom 328 (25 September 2012) URL: http://www.bailii.org/nie/cases/NISSCSC/2012/328.html Cite as: [2012] NICom 328

[New search] [Printable RTF version] [Help]

 


GL-v-Department for Social Development (IS) [2012] NICom 328

Decision No: C6/12-13(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCOME SUPPORT 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 28 February 2011 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 28 February 2011.
2. An oral hearing of the application has been requested. However, the application has been made in the form of detailed written submissions which deal with the issues comprehensively. Equally comprehensive observations have been made by the Department in response. Having considered the written submissions, I am satisfied that the application can properly be considered without a hearing.
3. I consider that it is arguable that the tribunal decision contained an error of law and I grant leave to appeal on that basis. However, for the reasons I give below, I do not consider that there was any material error of law in the decision of the appeal tribunal and I disallow the appeal.
REASONS

Background

4. The applicant claimed income support (IS) from 20 July 2004 for himself and his wife. The applicant's wife was employed as a part-time classroom assistant for children with special needs. She worked only during school term time and was paid a retainer, at a rate significantly lower than her normal rate of pay, during school holidays. Therefore the couple's income fluctuated. It was lower when the applicant's wife was paid in respect of school holiday periods than when she was paid in respect of term time.
5. Income from the applicant's wife's employment was calculated by the Department on a four weekly cycle. During certain periods, including those when the applicant's wife was paid at the lower rate in respect of school holiday periods, the couple's income was below their IS applicable amount. On the basis of an assessment of income on a four weekly basis, a decision awarding IS to the applicant from 20 July 2004 was made on 3 August 2004 ("the first decision").
6. However, on 7 December 2004 an officer in the Department decided to calculate the income of the applicant's wife in a different way. Her income was recalculated on the basis of her average earnings over the 11 month period from 11 December 2003 to 11 November 2004. This resulted in a decision to the effect that the applicant's entitlement to IS was generally reduced from and including 9 December 2004 ("the second decision").
7. The applicant appealed to a tribunal, who disallowed his appeal. The subsequent appeal to a Social Security Commissioner was allowed by former Chief Commissioner Martin in C7/07-08(IS) on 20 November 2007. The former Chief Commissioner accepted that there were no grounds on which to supersede the applicant's entitlement to IS and that the second decision was erroneous in law. He set aside the decision of the tribunal and made a decision effectively restoring the first decision (see C7/07-08(IS), paragraph 32). He left it open to the decision-maker to supersede the decision on appropriate grounds. The applicant's entitlement to IS from 7 December 2004 should properly have been paid at a weekly rate derived from the first decision, which was greater than the weekly rate which he had been actually paid.
8. However, in and around March 2007, the applicant's wife's circumstances had changed when she began receiving statutory sick pay (SSP). On 13 September 2007 the Department had made a supersession decision effective from 26 April 2007 ("the third decision"). This was to the effect that the applicant was no longer entitled to IS, because his wife was in receipt of SSP with the result that his income exceeded his applicable amount. I pause to observe that this decision was premised on the basis of calculation adopted in the second decision being correct, as the Chief Commissioner had not yet promulgated his decision. It should also be noted that the applicant had already been paid IS for the period from 26 April 2007 to 12 September 2007. The applicant duly appealed the third decision on 18 October 2007.
9. Following the decision of the Chief Commissioner in C7/07-08(IS), given on 20 November 2007, the Department made a further decision on 13 December 2007 ("the fourth decision"). This was done in order to restore the calculation of the applicant's wife's income based on the four weekly cycle adopted in the first decision, but taking into account the change of circumstances in March 2007. This led to a decision superseding the rate of the applicant's IS entitlement from 9 December 2004 and subsequently recalculating entitlement on the basis of his wife's award of SSP. The calculations of entitlement were set out in pro forma A14 documents. The applicant was advised that his appeal against the decision of 13 September 2007 would be treated as an appeal against this new decision of 13 December 2007.
10. In the meantime the Department made a further supersession decision on 9 April 2008 ("the fifth decision"). This was made because the Department had incorrectly calculated the amount of IS to which the applicant was entitled from 14 September 2006 to 11 October 2006. As far as I understand it, this related to an adjustment to the amount of IS payable to the applicant which was as little as 92 pence in his favour.
11. On 18 September 2008, according to correspondence from the Appeals Service, the applicant withdrew his appeal against the decision of 13 September 2007 as revised. There is no mechanism to apply to have a withdrawn appeal re-instated. Thereafter, however, he sought to bring a new appeal against the decision out of time. This application was refused on 12 February 2010. The applicant disputes that he withdrew his appeal. However, that is not a matter over which I have any jurisdiction.
12. The Department then made a decision on 16 November 2009 ("the sixth decision"). This is the subject-matter of the present proceedings. The decision included the following:

"Of £3,728.97 already paid to (the claimant) as Income Support from 9 December 2004 to 12 September 2007 (both dates included) £3,396.32 is to be offset against the arrears of Income Support now due from 9 December 2004 to 28 February 2007.

As a result of the decisions dated 13 December 2007 and 9 April 2008 an overpayment of Income Support has been made from 9 December 2004 to 12 September 2007 (both dates included) amounting to £332.65.

Because (the claimant) did not fail to disclose or misrepresent any material fact the overpayment of Income Support from 9 December 2004 to 12 September 2007 (both dates included) is not recoverable from (the claimant)".

13. The decision referred to section 69 of the Social Security Administration (NI) Act 1992 ("the 1992 Act"), Schedule 3 to the Social Security (NI) Order 1998 ("the 1998 Order"), and regulations 5 and 13 of the Social Security (Payments on account, Overpayments and Recovery) Regulations (NI) 1988 ("the POR Regulations"). The decision was notified to the applicant on 16 November 2009. The applicant appealed.
14. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone on 28 February 2011. The tribunal disallowed the appeal. On 8 March 2011 the applicant requested a statement of reasons for the tribunal decision. This was issued to him on 1 July 2011. Essentially the tribunal considered the voluminous submissions made regarding the legal issues in the case. It appeared to the tribunal that the point being made by the applicant was that the proper processes of benefit adjudication needed to be observed. The tribunal decided that, since the calculation of overpaid benefit was not disputed and as the Department was not seeking to recover the overpaid benefit, the issues in the appeal were entirely moot.
15. To the LQM the applicant submitted that the tribunal had erred in law as follows:

(i) he was not validly notified of his appeal rights;

(ii) the tribunal therefore may have had no jurisdiction to hear his appeal and should have ruled on this point;

(iii) relevant Departmental guidance was not followed to suspend decision-making pending CPAG v DWP;

(iv) as a consequence a decision was made in his case when it should not have been made;

(v) the decision was unlawful as it contained no reference to section 69(5A) of the Social Security Administration (NI) Act 1992 ("the 1992 Act");

(vi) overpayments due to official error were not lawfully recoverable;

(vii) the tribunal did not give consideration to R(DLA)2/04;

(viii) the decision appealed was not preceded by a valid supersession under section 69(5A) of the 1992 Act and the tribunal should have given proper consideration to that;

(ix) the tribunal should have corrected or perfected the relevant decision;

(x) the tribunal did not correctly distinguish the concepts of determination and decision;

(xi) he was not notified of his written right to a statement of reasons for the decision made on reconsideration;

(xii) the tribunal did not deal with the matter of the Department changing the date of the decision under appeal from 14 September 2007 to 13 September 2007;

(xiii) the tribunal did not investigate whether the Department, by changing the relevant date, intended to mislead the tribunal;

(xiv) the tribunal did not take an inquisitorial approach to the proceedings and erred in law by not establishing the facts and circumstances of the decision on appeal;

(xv) the tribunal failed to have proper regard to the documentation in the case.

16. The applicant submitted that leave to appeal to a Commissioner should lie on the issue of whether the Department notified an outcome decision (with appeal rights) or a determination (with appeal rights) taking into account the defects in the decision narrative. The LQM refused leave to appeal on 15 August 2011 and the applicant was sent notification of this on 25 August 2011.
17. On 20 September 2011 the applicant made his application for leave to appeal to a Social Security Commissioner. In this he submits:

(i) the onus falls on the Department to show that the right of appeal was properly notified to a claimant;

(ii) the relevant decision-maker "failed to attribute to the decision narrative [to] the relevant sub section of Schedule 3 under Article 13(1)(b) of the NI Order 1998";

(iii) no reasonable tribunal could have possibly overlooked so many defects in one decision so as to determine that my rights of appeal against the disputed decision were disallowed;

(iv) he received the decision only eight months after it was made and in a form contrary to the guidance of Deputy Commissioner MacLynn in C3/07-08(IS);

(v) the tribunal did not adopt an inquisitorial role and thereby discover that the disputed decision was not validly notified as he was not validly notified of his right of appeal;

(vi) the tribunal erred by placing over-reliance on an addendum submission by the Department;

(vii) the error was compounded as the applicant was not notified of his right to a statement of reasons for the reconsideration decision;

(vii) the Department changed the date of the supersession decision, on the basis of accidental error, from 14 September 2007 to 13 September 2007 without notifying appeal rights;

(viii) the tribunal erred by not determining the existence and/or validity of the legislation relied upon in each of the decisions and allowed the Department to proceed on appeal without establishing if his appeal rights against each decision were validly notified;

(ix) the Department should know that an offset decision under regulation 5 of the Social Security (Payments on account, Overpayment and Recovery) Regulations (NI) 1988 cannot be considered until there has been a valid supersession decision and overpayment decision and an award decision;

(x) the tribunal did not consider whether the decision was validly communicated;

(xi) the tribunal did not afford him a fair hearing on all his submissions;

(xii) while the Department is not seeking to recover any overpayment from him, the decision governs the offset portion only – yet the Department had no statutory authority to confine the non-recoverability to the offset element only;

(xiiI) the Department ignored DWP guidance to the effect that overpayment decisions due to official error were to be suspended pending CPAG v SSWP;

(xiv) where a decision is not validly notified it may deprive the decision of legal effect or force;

(xv) the applicant urges the Chief Commissioner to convene a Tribunal of Commissioners and sets out a number of exam-style questions for determination by that body.

18. In a subsequent communication received on 26 September 2011 the applicant makes a point about tribunal time limits relating to a decision of 27 December 2007, which was not before the tribunal. In a further communication received in the same date, the applicant makes the point that the record of proceedings was inadequate.
19. On 24 October 2011, the Department was invited to make observations on the applicant's grounds of application for leave to appeal. On 17 November 2011 Mr Donnan replied for the Department. He did not support the application for leave to appeal.
20. Mr Donnan submits that the evidence showed that the applicant's account of the facts was inaccurate – namely the submission that he did not receive the decision of 16 November 2009 until August 2010. He submitted that this inaccuracy was evidenced by the response to the applicant's request for reconsideration of the decision of 16 November 2009 which was dated 9 December 2009 and by the applicant's appeal from the decision dated 14 December 2009.
21. Mr Donnan submits that the applicant's decision notice contained sufficient information to comply with the requirements of regulation 28 of the Social Security (Decisions and Appeals) Regulations (NI) 1999. Nevertheless, Mr Donnan accepts that certain errors were made by the Department. For example, the decision-maker did not record what had caused the overpayment in the present case and why the decision-maker had decided it was not recoverable. The decision incorrectly referred to section 69 of the Social Security Administration (NI) Act 1992. There was no right of appeal from a decision that an overpayment is not recoverable, only from an offset decision under regulation 5 of the POR Regulations. Mr Donnan offered an apology to the applicant because of the misleading nature of the decision letter.
22. Mr Donnan submitted that the jurisprudence relied upon by the applicant – namely, Kerr v DSD [2004] UKHL 23, Hamilton [2010] NICA 46, Anufrijeva [2003] UKHL 36, Hinchy [2005] UKHL 16 and CPAG v SSWP [2010] UKSC 54 - had no bearing on the circumstances of the present application and that the principles of R(DLA)2/07 were correctly applied. He further submitted that the appeal withdrawn by the applicant against a decision of 13 September 2007 was not before the tribunal.
23. In response, the applicant rehearses the historical background to his appeal, challenges a minor factual issue relating to whether he received IS in 2003 and reiterates his arguments. He submits that "the Department did not satisfy the conditions of offset under regulation 5" of the POR Regulations. Mr Donnan responds that he cannot establish the correctness of the factual assertion as to the applicant's IS entitlement in 2003 as the relevant documents have been weeded by the Department.
24. On 5 March 2012 the Chief Commissioner determined that the matter could properly be considered without an oral hearing, but gave the applicant an opportunity to make further submissions. He submitted that the Department had placed an unfair burden on him by failing to notify him of his appeal rights against an offset decision rather than an overpayment decision and this fact was not mitigated by the Department's apology. He reiterated that the tribunal had erred by failing to consider R(DLA)2/07 and reiterated his general arguments. He submits that the Department should pay the arrears of entitlement awarded by the Department on 13 December 2007 and superseded by 9 April 2008 as the conditions of offset under regulation 5 of the POR Regulations were not met.
25. On 20 April 2012 Mr Donnan made a further response. He submitted that the applicant's circumstances were not analogous to those in R(DLA)2/07 and that the principle applied in that case was not relevant to the applicant's circumstances. On 26 April 2012 the applicant made a further response. He reiterated arguments relying on Hamilton and Hinchy. He submits that the Department misunderstands R(DLA)2/07. On 15 May 2012 Mr Donnan submitted that there were no arrears due to the applicant. Finally on 24 July 2012 the applicant made a further response and reiterated his argument concerning the relevance of R(DLA)2/07.

Relevant legislation

26. The most relevant legislative provisions in the present case are regulation 5(1) and 5(2) of the Social Security (Payment on account, Overpayments and Recovery) Regulations (NI) 1988 ("the POR Regulations"). This reads:

'Offsetting prior payment against subsequent award

5.—(1) Subject to paragraph (6) and regulation 6 (exception from offset of recoverable overpayment), any sum paid in respect of a period covered by a subsequent determination in any of the cases set out in paragraph (2) shall be offset against arrears of entitlement under the subsequent determination and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them.

(2) Paragraph (1) applies in the following cases—

Case 1: Payment pursuant to a decision which is revised, superseded or overturned on appeal

Where a person has been paid a sum by way of benefit or by way of a shared additional pension under section 55A of the Contributions and Benefits Act pursuant to a decision which is subsequently revised under Article 10 of the 1998 Order, superseded under Article 11 of that Order or overturned on appeal.

Case 2: Not relevant…

Case 3: Not relevant…

Case 4: Not relevant…

Case 5: Not relevant…

(3) Where an amount has been deducted under regulation 13(b) (sums to be deducted in calculating recoverable amounts) an equivalent sum shall be offset against any arrears of entitlement of that person under a subsequent award of income support, state pension credit, income-based jobseeker's allowance or income-related employment and support allowance for the period to which the deducted amount relates.

(4) Not relevant…

(5) Not relevant…

(6) Not relevant…'

Regulation 6 provides as follows:

'Exception from offset of recoverable overpayment

6. No amount may be offset under regulation 5(1) which has been determined to be a recoverable overpayment for the purposes of Article 54(1) of the Order.'

The above reference to Article 54(1) of the Social Security (NI) Order 1986 must now be read as a reference to section 69 of the Social Security Administration (NI) Act 1992.

The applicant also refers to the following procedural regulation:

'Notice of decision against which appeal lies

28.—(1) A person with a right of appeal under the Order or these Regulations against any decision of the Department shall—

(a) be given written notice of the decision against which the appeal lies;

(b) be informed that, in a case where that written notice does not include a statement of the reasons for that decision, he may, within one month of the date of notification of that decision, request that the Department provide him with a written statement of the reasons for that decision; and

(c) be given written notice of his right of appeal against that decision.

(2) Where a written statement of the reasons for the decision is not included in the written notice of the decision and is requested under paragraph (1)(b), the Department shall provide that statement within 14 days of receipt of the request or as soon as practicable afterwards.'

Assessment

27. I accept that the applicant brings arguable submissions before me and I grant leave to appeal for that reason. For the reasons given above I do not consider that it is necessary to hold an oral hearing of the appeal.
28. The applicant's principal ground concerns appeal rights. His basic submission is that the appeal tribunal erred in law because it did not rule that the Department's decision was invalid for failing to notify the applicant of his right of appeal to the appeal tribunal. He submits that the decision of 16 November 2009 and its notification are legally flawed since they do not comply with the requirements of regulation 28 of the Social Security (Decisions and Appeals) Regulations (NI) 1999 as they do not give him written notice of his right of appeal.
29. The applicant refers to C3/07-08(IS) – a decision of Deputy Commissioner MacLynn – in support of his argument. That case was decided on the basis that a lack of a reference to grounds for supersession (under section 69(5A) of the Social Security Administration (NI) Act 1992) was fatal to an overpayment recoverability decision. There was a procedural failing relating to the requirements of regulation 28 of the Decisions and Appeals Regulations. However, that was not the primary consideration in the case.
30. Here the decision is not made under section 69 of the Administration Act and there is no requirement to observe the requirements of section 69(5A). Nevertheless, it is premised on there having been a prior supersession of a decision establishing entitlement to IS. While it is arguable that there are failings in the present case in terms of the lack of compliance with the formalities required of a decision, it is plain that these have not impeded the applicant in asserting his appeal rights in any way.
31. It does not necessarily follow that a failure to comply with a procedural requirement will render a decision a nullity (see, for example, R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354). The approach of the Upper Tribunal (Immigration and Asylum Chamber) to a failure to comply with the Immigration Notices Regulations 2003 is relevant and instructive. The Immigration Notices Regulations provide that a notice of an immigration decision that is appealable must contain certain details including a statement of the right of appeal and how it can be exercised. However, it can be seen from LO(Nigeria) [2009] UKAIT 00034, a decision of Deputy President Ockleton, that, where an appeal is brought from a deficient decision, the appellant is deemed to have waived the failure to have advised him of his right of appeal. That seems to me to be a practical and sensible approach. Where the applicant has in fact brought his appeal, as here, and can therefore show no detriment from the Department's failure to comply with a procedural requirement, I do not consider that any material error of law arises on the basis of procedural failings alone. The decision at Tab 11 and its notification at Tab 12 are in clear terms. The applicant cannot appeal and at the same time argue that the decisions are inherently flawed for the procedural failing of not advising him of his right to appeal.
32. I agree with Mr Donnan that the jurisprudence relied upon by the applicant – namely, Kerr v DSD [2004] UKHL 23, Hamilton [2010] NICA 46, Anufrijeva [2003] UKHL 36, Hinchy [2005] UKHL 16 and CPAG v SSWP [2010] UKSC 54 - has no bearing on the circumstances of the present application.
33. The applicant further relies upon R(DLA)2/07 in order to argue that the decision under regulation 5 of the POR Regulations was unlawful. In R(DLA)2/07 an award of disability living allowance (DLA) had been made to a claimant who spent some time in residential accommodation, with the consequence that care component was not payable for some periods during the year. His DLA was suspended pending investigation of the circumstances. It remained suspended for a period when he was home from residential accommodation in circumstances where it was properly payable. The Department superseded his past entitlement, with a resulting overpayment which was not recoverable. It then offset arrears of DLA which should have been paid under the previous award, together with the amount unpaid due to suspension of the award, against the overpayment. The Court of Appeal in England and Wales held that the terms of regulation 5 of the POR Regulations did not enable arrears due to an individual resulting from suspension of a benefit claim to be offset, as opposed to sums already paid by way of benefit.
34. Here the applicant, by the second decision, was paid a sum of IS amounting to £3,728.97 for the period from 9 December 2004 to 12 September 2007. (The calculations which led to the figure of £3728.97 are set out at Tab 11 of the tribunal papers and I do not propose to set them out in detail in this decision.) By the third decision he was found not to be entitled to IS from 1 March 2007 to 12 September 2007 and was therefore overpaid IS for this period.
35. On 7 November 2007 the applicant's appeal to the Social Security Commissioner was successful. The fourth decision was made in consequence. The fourth decision, broadly speaking, increased the amount of IS which should have been paid from 9 December 2004 to 28 February 2007. However, it also took into account the change of circumstances from 1 March 2007 which resulted in no entitlement to IS from 1 March 2007 to 12 September 2007. During the period from 9 December 2004 to 12 September 2007 the applicant was properly entitled to £3,396.32, whereas he had actually been paid £3,728.97. The balance was an overpayment of £332.65.
36. The circumstances of the present application case fall squarely within the parameters of Case 1 set out in regulation 5(1) of the POR Regulations. Case 1 includes the situation where a person has been paid a sum by way of benefit pursuant to a decision which is … "subsequently revised … , superseded …, or overturned on appeal". In the present case the applicant had been paid benefit on foot of the second decision. The second decision was superseded by the fourth decision.
37. Unlike R(DLA)2/07, there was no decision made which suspended the applicant's entitlement to IS. This remained in payment right up to the supersession decision of 13 September 2007. I consider that R(DLA)2/07 has no relevance to the present application.
38. The decision which is the subject of the appeal, and of the present application, is the decision to offset the entitlement to £3,396.32 arrears against the figure of £3,728.28 already paid to the applicant. It is made under regulation 5 of the POR Regulations. This enables "any sum paid" – i.e. the £3,728.97 – "in respect of a period covered by a subsequent determination" – i.e. the 144 week period from 9 December 2004 to 12 September 2007 which is covered by the fourth decision – to be offset against entitlement to arrears under the subsequent determination (i.e. the £3,396.32 for the period from 9 December 2004 to 28 February 2007) and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them. The result was that £3,396.32 fell to be treated as properly paid on account of arrears.
39. However, the balance of these figures resulted in an overpayment of IS amounting to £332.65 in favour of the applicant. In the circumstances of the case, it was held not to be a recoverable overpayment by the Department. Mr Donnan submits that a decision that an amount is not recoverable is not appealable by virtue of paragraph 5 of Schedule 3 to the Social Security (NI) Order 1998. The question of whether an amount is not recoverable would certainly be a moot point, to use the expression of the tribunal, and I tend to accept Mr Donnan's submission.
40. There is no detriment to the applicant arising from the decision of 16 November 2009. This is a situation which clearly falls within the ambit of regulation 5 of the POR Regulations. Essentially the underpayment of IS from 9 December 2004 to 28 February 2007 has been balanced against the overpayment of IS from 1 March 2007 to 13 September 2007. The net overpayment in his favour has been deemed not to be recoverable. Therefore, if anything, the decision he appeals is to his advantage.
41. Having considered these grounds and all other grounds submitted by the applicant I consider that no error of law is evident in the decision of the appeal tribunal and I disallow the appeal accordingly.

(signed): O Stockman

Commissioner

25 September 2012