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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> AK-v-Department for Social Development (DLA) [2012] NICom 260 (1 March 2012) URL: https://www.bailii.org/nie/cases/NISSCSC/2012/260.html Cite as: [2012] NICom 260 |
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AK-v-Department for Social Development (DLA) [2012] NICom 260
Decision No: C56/11-12(DLA)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING 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 25 January 2010
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal. The decision of the appeal tribunal dated 25 January 2010 is in error of law. The error of law identified will be explained in more detail below. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
2. For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access. Further, there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings. Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.
3. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.
4. It is imperative that the
appellant notes that while the decision of the appeal tribunal has been set
aside, the issue of whether there has been an overpayment
of disability living
allowance (DLA), the amount of such an
overpayment,
the period over which it
was paid and whether it is recoverable from her, remains to be determined by
another appeal tribunal. In accordance with the guidance set out below, the
newly constituted appeal tribunal will be undertaking its own determination of
the legal and factual issues which arise in the appeal.
Background
5. This appeal has a detailed and complicated background. The appeal is also linked to another appeal which is before the Social Security Commissioners and which has the reference C57/11-12(DLA).
Original decision-making in the Department
6. On 14 January 2004 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from 25 March 2004 until 24 March 2006. Following investigations and observations conducted by officers from Benefit and Investigation Services and the conducting of interviews under caution with the appellant, another decision-maker, on 15 February 2005 decided that there were grounds to supersede the decision dated 14 January 2004 and which removed entitlement from and including 12 July 2004. I shall refer to the decision dated 15 February 2005 as the ‘entitlement’ decision. A letter of appeal against the decision dated 15 February 2005 was received in the Department on 11 March 2005. That decision is the subject of the proceedings which are before the Social Security Commissioners in the appeal with the reference C57/11-12(DLA). The relevance and context of that decision to the present appeal will be noted below.
7. On 23 February 2005, another
decision-maker of the Department decided that an overpayment
of DLA, amounting
to £2492.40, for the period from 14 July 2004 to 15 February 2005, had been
made and which was recoverable from the appellant. I shall refer to the
decision dated 23 February 2005 as the ‘
overpayment’
decision.
An
appeal against the ‘overpayment’
decision dated 23 February 2005?
8. On 11 March 2005 faxed copies of a letter from the appellant’s Member of Parliament and her appeal against the entitlement decision dated 15 February 2005 were received in the Department.
9. On 14 March 2005 the appellant’s general practitioner (GP) wrote to the Department in support of the appeal. In his letter the GP stated that the appellant was at her wits end; was suffering extreme hardship; may have to sell her house as she would not be able to keep up repayments and would be unable to repay the money demanded by the Department.
10. On 16 March 2005 a letter was
received in the Department from Councillor Johnny McLaughlin on behalf of the
appellant advising that the decision to recover the overpayment
of DLA had been
appealed against.
11. I would note, at this stage, that Mr Smith, for Decision Making Services (DMS), in his written observations on the application for leave to appeal, had submitted that:
‘Having examined the overpayment
appeal submission I
cannot find a copy of any correspondence from the Appellant or her
representative giving details of her grounds for appeal against the
overpayment
decision. There is a copy of the appeal letter dated 19/02/05 against the
entitlement decision; a letter from her doctor stating “(the claimant) will be
unable to pay the money you are demanding” which infers that (the claimant)
intended to appeal against the
overpayment
decision; and a letter dated
16/03/05 from her councillor acting on her behalf that advised “This is to
inform you that the
overpayment
of £2492.40 has been appealed by the said lady
on the 19/02/05”. It would appear that the Department and subsequently The
Appeal Service have accepted the letter dated 16/03/05 as a valid appeal
against the
overpayment
decision and allowed the appeal to proceed.’
A further claim to DLA
12. I would also note that on 25 May 2005 another decision-maker of the Department decided that the appellant should satisfy the conditions of entitlement to the middle rate of the care component of DLA from 2 March 2005 to 2 March 2007 on the basis of a further claim to that benefit.
The first appeal tribunal hearing in connection with the ‘entitlement’ decision dated 15 February 2005
13. An appeal tribunal hearing took place on 6 November 2007. The delay in hearing and finally determining the appeal was caused by a series of adjournments, primarily to permit criminal proceedings to be taken. For the purposes of the oral hearing of the appeal, the Department had prepared an additional submission which alluded to the decision dated 25 May 2005 which had made a further award for a fixed period from 2 March 2005 to 2 March 2007. Further the additional submission contended that as a result of the decision dated 25 May 2005 the appeal tribunal was confined to considering the period from 12 July 2004 to 2 March 2005.
14. The appeal tribunal disallowed the appeal but substituted its own decision for that of the Department.
The
appeal in connection with the ‘overpayment’
decision
15. On 3 March 2008, and following
an earlier postponement, an appeal against the decision dated 23 February 2005,
the ‘overpayment’
decision, was listed for oral hearing. The appeal was
adjourned as it was noted that an application for leave to appeal to the Social
Security Commissioner against the decision of the appeal tribunal’s decision in
connection with the ‘entitlement’ decision had been lodged with the
Commissioner. The legally qualified panel member (LQPM), in the terms of the
adjournment noted that should the Social Security Commissioner grant leave,
allow the appeal and remit the ‘entitlement’ decision for re-hearing, the
re-hearing should be listed together with the hearing of the appeal in
connection with the ‘
overpayment’
decision.
The first proceedings before the Social Security Commissioner in connection with the ‘entitlement’ decision
16. An application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal dated 6 November 2007 was successful. My decision (C16/08-09 (DLA)) was to remit the case back to a fresh tribunal for re-determination.
The appeal tribunal hearing
in connection with the ‘overpayment’
decision
17. The oral hearing of the appeal
in connection with the, as yet, undetermined ‘overpayment’
decision took place
on 25 January 2010. In line with the terms of adjournment of the oral hearing
which took place on 3 March 2008, the oral hearing in connection with the
‘
overpayment’
decision was listed together with the oral hearing of the
remitted appeal against the ‘entitlement’ decision.
18. In connection with the
‘overpayment’
decision, the appeal tribunal disallowed the appeal and issued a
decision notice as follows:
‘Appeal disallowed
An overpayment
of Disability
Living Allowance amounting to £2492.40 received by the appellant in respect of
the period 14.7.04 to 15.2.05 is recoverable from her.
19. On 20 April 2010 a letter of appeal against the decision of the appeal tribunal dated 25 January 2010 was received in the Appeals Service (TAS). On 7 May 2010 the application for leave to appeal was rejected by the LQPM as he considered that leave to make an application for leave to appeal out of time under regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, should be refused.
Proceedings before the Social Security Commissioner
20. On 17 June 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 13 December 2010, and following a requirement to seek further clarification from TAS and the LQPM concerning the LQPM’s decisions in connection with the applications for leave to appeal, I accepted the late application for special reasons. Also on 13 December 2010 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 12 January 2011. In these written observations, Mr Smith, for DMS, opposed the application on the grounds cited by the appellant but supported the application on another submitted ground. The written observations were shared with the appellant on 27 January 2011. On 28 February 2011, written observations in reply were received from the appellant’s representative which were shared with Mr Smith on 10 March 2011. On 30 March 2011 a further reply was received from Mr Smith which was shared with the appellant and her representative on 11 April 2011.
Errors of law
22. 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?
The submissions of the parties
23. The appellant’s representative
made a single composite application for leave to appeal against the appeal
tribunal’s decisions in respect of both the ‘entitlement’ and ‘overpayment’
decisions. In summary, the appellant’s representative submitted that the
decision of the appeal tribunal was in error of law on the basis that the Department’s
presenting officer indicated to the appellant, her niece and her legal
representative at the oral hearing of the appeal, on 9 December 2009, that the
Department would not be seeking recovery of the overpaid DLA. At the
subsequent hearing on 25 January 2010, however, the appeal tribunal members had
no record of this concession and decided to continue with the hearing. This
had three separate consequences, as follows:
(i) Firstly, the indication by the Department to the applicant, her niece and legal representative that it would not be seeking recovery of the DLA overpaid was enough to create within the appellant, a legitimate expectation that the Department would no longer be seeking any repayment.
(ii)
The second issue was whether it
necessarily followed that if the decision to supersede was valid then the
Department would be entitled to recovery for overpayment.
Given that the
decision to supersede was correct, the appeal tribunal could still have
increased the appellant’s entitlement to DLA to include the highest rate of the
care component for the period then it ‘… clearly does not follow.’
(iii)
The final issue was whether or
not the tribunal had adequately investigated the appellant’s assertion that the
Department had indicated that it would not be seeking recovery for the
overpayment.
The appellant’s representative submitted that it was worth noting
that the record of proceedings for appeal tribunal hearing held on 9 December 2009
was not consulted. In addition no evidence was adduced from the applicant, her
niece or her representative. Finally the Department’s representative was not
contacted. Consequently, it was highly arguable that the tribunal had not
adequately investigated the applicant’s assertion and in failing to do so, the
tribunal was in breach of Article 6 of European Convention on Human Rights
and/or the decision to proceed with the hearing amounted to an abuse of
process.
24. The appellant’s representative also submitted that she had proceeded with her appeals despite suffering from a number of stress related conditions and felt it was not in her best interests to delay the appeal any longer. The representative also contended that in light of the decisions that were taken it was now arguable that both appeals should have been dealt with separately by two different tribunals.
25. Finally, the appellant’s representative submitted that it was arguable that the appeal tribunal had failed to explain its conclusions that the Department, on 15 February 2005 had grounds to supersede the decision dated 14 January 2004 and remove entitlement from and including 12 July 2004. Additionally, the appeal tribunal had failed to address all of the medical evidence which was before it.
26. As was noted above, in his written observations on the application for leave to appeal, Mr Smith, for DMS, opposed the application on the grounds cited by the appellant’s representative but supported the application on another submitted ground. The further ground was that the Department, in the written submission prepared for the oral hearing of the appeal, had failed to identify the appellant’s grounds of appeal. Additionally, the appeal tribunal had failed to exercise its inquisitorial role to ascertain whether the appellant had misrepresented or failed to disclose a relevant change of circumstances.
Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992
27. Section 69(5A) of the Act provides that:
(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.
28. In summary, this paragraph says
that there can be no recoverable overpayment
of social security benefit, unless
the original decision which gave rise to the award of benefit, now deemed to
have been overpaid, is revised or superseded. Without an alteration or change
in the decision giving rise to the entitlement to the particular benefit, there
can be no recovery of it.
29. The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS). At paragraph 4 he stated:
‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision. In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable. Put like that, the sequence of decisions is logical. The two decisions can be contained in a single document provided that the sequence is apparent. Section 69(5A) is an important safeguard. Tribunals, rightly, are alert to see that it has been complied with. Nothing I am going to say casts doubt on their vigilance. A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner. Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken.’
‘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.’
31. Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a section 69(5A) decision, to a claimant, and set out the consequences where no such proper notification had been made.
32. In the present case, the Department has submitted that the decision dated 15 February 2005 is the decision which could be classified as a section 69(5A) entitlement decision. In my decision in the parallel appeal C57/11-12(DLA) I have set out my reasons as to why I have concluded that the appeal tribunal did not err in law in its decision in connection with the appeal against the decision dated 15 February 2005. Accordingly, I am satisfied that the appeal tribunal has concluded, and provided sufficient and adequate reasons for that conclusion, that the requirements of section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended, were satisfied.
Failure to disclose
33. I have indicated in a number of decisions that there is in place a legislative mechanism for the recovery of all social security benefits which have been overpaid. Section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended provides that:
‘(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 the section applies;
(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.’
34. In B v Secretary of State for
Work & Pensions (reported as R(IS)9/06), the Court of Appeal for
England & Wales upheld the decision of the Tribunal of Commissioners in
Great Britain in R(IS)9/06. In that latter decision, the Tribunal of
Commissioners had considered, in depth, the nature of the legal test in respect
of failure to disclose, by analysing the relationship between section 71 of the
Social Security Administration Act 1992
(the Great Britain equivalent to
section 69 of the Social Security Administration (Northern Ireland) Act 1992)
and regulation 32 of the Social Security (Claims and Payments) Regulations 1987
(which has an equivalence in regulation 32 of the Social Security (Claims and
Payments) Regulations (Northern Ireland) 1987).
35. In summary, the Tribunal of Commissioners found that:
‘1. Section 71 does not purport to impose a duty to disclose, but rather presupposes such a duty, the actual duty in this case being in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, which provides for (a) a duty to furnish information and evidence pursuant to a request from the Secretary of State, and (b) a duty to notify the Secretary of State of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit.
2. In relation to the duty to
furnish information and evidence pursuant to a request, whilst there is no duty
to disclose that which one does not know, if a claimant was aware of a matter
which he was required to disclose, there was a breach of that duty even if,
because of mental incapacity, he was unaware of the materiality or relevance of
the matter to his entitlement to benefit, and did not understand an unambiguous
request for information, and a failure to respond to such a request triggered
an entitlement to recovery under section 71 of any resulting overpayment.
3. Insofar as R(SB) 21/82 imported words from regulation 32 into the construction of section 71 in stating that the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected, that decision and subsequent decisions that have relied on it were wrongly decided.
4. The form INF4 supplied to
claimants contained an unambiguous request by the Secretary of State to be
informed if a claimant’s children went into care and by not disclosing the fact
to the Department, the claimant was in breach of her obligation under
regulation 32, so that the Secretary of State was entitled under section 71 to
recover the overpayment
resulting.’
36. In C6/08-09(IB), I said the following, at paragraphs 40 to 42:
‘40. Firstly, as was noted above,
the practical outcome of the cases referred to above is that an appeal
tribunal, when determining whether an overpayment
of a social security benefit
is recoverable on the basis of a failure to disclose, will have to consider
where the requirement to provide the relevant information came from. This will
necessitate identifying whether the case comes within the first or second duty
in regulation 32.
41. In the case of the first duty, it will also require the provision of proof by the Department that the requirement to provide information was made to the claimant. That proof may be in the form of receipt of an information leaflet such as Form INF4 or instructions in an order book. It will not be enough, however, for the information leaflet or order book to be produced. The wording of the relevant instructions will have to be looked at in close detail to ensure that the instructions to disclose were clear and unambiguous.
42. In the case of the second duty, the requirement is that the change of circumstances is which the claimant might reasonably be expected to know would affect his entitlement to benefit.’
37. In the instant case, the appeal
submission sets out in commendable detail, at paragraphs 27 to 49, the legal
and evidential basis upon which the Department, on 23 February 2005, decided
that an overpayment
of DLA, amounting to £2492.40, for the period from 14 July
2004 to 15 February 2005, had been made and which was recoverable from the
appellant.
38. In the decision notice for the appeal tribunal’s decision, the LQPM has recorded that:
‘Appeal disallowed
An overpayment
of Disability Living Allowance
amounting to £2492.40 received by the appellant in respect of the period
14.7.04 to 15.2.05 is recoverable from her.’
39. The LQPM produced a single
composite statement of reasons setting out the appeal tribunal’s reasons for
its decisions in connection with the appeals against both the ‘entitlement’ and
‘overpayment’
decision. The vast majority of the content of that composite
statement of reasons is taken up with the appeal tribunal’s conclusions with
respect to the ‘entitlement’ appeal. As I have noted in my decision in
C57/11-12(DLA) I find no fault with the appeal tribunal’s conclusions with
respect to the ‘entitlement’ decision. The composite statement of reasons, at
the conclusion of the large section dealing with the ‘entitlement’ decision,
concludes with the following:
‘The Tribunal having decided as above, it follows
that an overpayment
of benefit received by the Appellant during the period
under consideration by the Tribunal is recoverable from her. That amount is
£2,492.40.’
40. The appeal tribunal’s reasoning
appears to be that because there was no entitlement to the benefit during the
period under consideration, and that the Department had grounds to supersede
the ‘entitlement’ decision, it automatically followed that the overpaid benefit
was recoverable from the appellant. That is not reflective of the legislative
provision with respect to the recovery of overpaid social security benefits. As
was noted above, section 69(1) of the Social Security Administration (Northern
Ireland) Act 1992, as amended, permits overpaid social security benefits to be
recovered from the claimants to whom they were overpaid, but only where it has
been determined that, whether fraudulently or otherwise, the claimant has
misrepresented, or failed to disclose, any material fact and in consequence of
the misrepresentation or failure, there has been an overpayment
of the relevant
benefit.
41. In the instant case, the
Department’s case was that the appellant had failed to disclose a material fact
and that it was as a consequence of this failure that the overpayment
of DLA,
for the relevant period, had occurred. The duties of an appeal tribunal when
faced with an appeal against an ‘
overpayment’
or ‘recoverability’ decision have
been set out above. The statement of reasons for the appeal tribunal’s
decision makes no reference to the legal and evidential source of the duty on
the appellant to disclose a change of circumstances and failed to address the
legal and evidential source of the duty on the appellant to disclose a material
fact. It is my view that the appellant was entitled to know, through the
statement of reasons for the appeal tribunal’s decision, the legal and
evidential basis on which it was confirmed that there had been an
overpayment
of DLA which was recoverable from her.
42. The failure to address the legal and evidential source of the duty on either the appellant or claimant to disclose a change of circumstances by the appeal tribunal renders its decision on that aspect of the appeal erroneous in law and it must, accordingly, be set aside.
The appellant’s grounds for appealing
43. Having found that the decision of the appeal tribunal is in error of law for the reasons set out above, I do not have to consider the appellant’s grounds for appealing in detail. I would note, however, that I would not have found the decision of the appeal tribunal to be in error of law on the basis of the grounds cited by the appellant. In this regard, I would add the following specific comments.
44. The appellant’s representative,
in the application for leave to appeal, has alluded to an ‘agreement’ or
‘concession’ made at an earlier adjourned oral hearing of the appeal against
the ‘overpayment’
decision, held on 9 December 2009. The concession was made
by a Departmental presenting officer to the appellant, her niece, and her legal
representative and was to the effect that the Department would not be pursuing
the recovery of the overpaid DLA which was the subject of the ‘
overpayment’
decision. The appellant’s representative has submitted that this matter was
raised at the substantive oral hearing of the appeal on 25 January 2010. As
was noted above, the appellant’s representative has submitted that the agreed
‘concession’ had a number of consequences for the appellant, including the
creation of a legitimate expectation and the denial of a fair trial.
45. I deal, firstly, with the appeal
tribunal’s handling of this issue. It is difficult to know how the appeal
tribunal could have managed this issue any better or dealt with it in any more
effective way. The record of proceedings for the substantive oral hearing
records the concern raised by the appellant’s representative in connection with
whether the overpayment
was to be pursued. The appeal tribunal clarified the
matter with the presenting officer from the Department who was present at the
oral hearing of the appeal and who confirmed that
overpayment
would, in fact,
be pursued. Further, the LQPM made reference to the record of proceedings for
the adjourned oral hearing held on 9 December 2009 and could find no reference
to any concession. The appellant was represented by an experienced legal
representative, who could easily have sought an adjournment of the appeal should
further clarification have been required. In any event, the appeal tribunal’s
duty was to ascertain whether the decision under appeal to the appeal tribunal
was correct. Whether there is actual pursuit of recovery of any social
security benefit, found in law to have been overpaid, is not a matter for the
appeal tribunal. Such enforcement is a matter for the Department. Any remedy
which the appellant seeks should be against the Department rather than the
appeal tribunal. I conclude, therefore, that any argument concerning the
absence of a right to a fair trial should not succeed. The proceedings of the
appeal tribunal were conducted in accordance with the principles of natural
justice, and its decision is reflective of an apposite consideration of, and
adherence to, such principles.
46. In respect of the appellant’s submission on the issue of legitimate expectation, I refer to the written observations on the application for leave to appeal where Mr Smith for DMS, responded, as follows:
‘Mr Colhoun submitted that following the ‘concession’
made by the Presenting Officer, (the claimant) had a ‘legitimate expectation’
that the overpayment
would not be pursued. However, as stated above the
tribunal was satisfied that no such concession was made. In any event, at
paragraph 11 of a GB Upper Tribunal decision, Judge Gamble held “Like
Commissioner Rice, I hold that I am “not bound by any concession made by either
party” adding whether made before the Upper Tribunal or, as here, before the
Appeal Tribunal (the statutory predecessor of the First Tier Tribunal). The
concessions made by the presenting officer at the appeal tribunal hearing do
not therefore preclude the Secretary of State from submitting before me that
the tribunal decision should be set aside as affected by a mistake of law”.
At paragraph 12 Judge Gamble continued “In regard to the issue of legitimate expectation…I hold that, in this case, no question of legitimate expectation arises which prevents the Secretary of State from resiling before me from the concessions made before the tribunal below. I accept Miss Haldane’s submission to that effect. I do not consider that the making of the concessions by the presenting officer amounted to an undertaking that the Secretary of State would not exercise his statutory right to seek permission to appeal against the tribunal’s decision, or in the event that such permission was granted that he would not seek to argue before the Upper Tribunal that the tribunal’s decision was incorrect in law. At the very least the concessions were not clear and unambiguous representations to that effect.”
It is arguable that no concession was made but in the event that the previous presenting officer did make such a concession, I submit that there is nothing in legislation to prevent the Department from continuing to pursue recovery at a later date, namely during the appeal hearing on 25/01/10.’
47. I agree with the observations of Mr Smith, and for the reasons set out therein, conclude that any argument based on the principles of legitimate expectation should not succeed.
48. Finally I have considered the submissions put forward by the appellant’s representative concerning the appeal tribunal’s management of the supersession question and its assessment of the evidence which was before it. These are matters which are more relevant to my decision in connection with the appeal tribunal’s consideration of the ‘entitlement’ decision and are set out in more detail in that decision.
Was
there an appeal against the ‘overpayment’
decision?
49. As was noted above, Mr Smith, for DMS, in his written observations on the application for leave to appeal, had submitted that:
‘Having examined the overpayment
appeal submission I
cannot find a copy of any correspondence from the Appellant or her
representative giving details of her grounds for appeal against the
overpayment
decision. There is a copy of the appeal letter dated 19/02/05 against the
entitlement decision; a letter from her doctor stating “(the claimant) will be
unable to pay the money you are demanding” which infers that (the claimant)
intended to appeal against the
overpayment
decision; and a letter dated
16/03/05 from her councillor acting on her behalf that advised “This is to
inform you that the
overpayment
of £2492.40 has been appealed by the said lady
on the 19/02/05”. It would appear that the Department and subsequently The
Appeal Service have accepted the letter dated 16/03/05 as a valid appeal
against the
overpayment
decision and allowed the appeal to proceed.’
50. I would agree that everyone has
accepted that the letter dated 16 March 2005 should be accepted as an appeal
against the ‘overpayment’
decision dated 23 February 2005.
Disposal
51. The decision of the appeal tribunal dated 25 January 2010 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
52. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:
(i)
The decision under appeal is a
decision of the Department dated 23 February 2005, another decision-maker of
the Department decided that an overpayment of DLA, amounting to £2492.40, for
the period from 14 July 2004 to 15 February 2005, had been made and which was
recoverable from the appellant.
(ii) The Department is directed to produce a further submission for the appeal tribunal hearing which addresses the legal and evidential basis upon which the Department submits that there has been a failure to disclose on the part of the appellant giving rise to a decision which satisfies section 69(1) of the Social Security Administration (Northern Ireland) Act 1992, as amended.
(iii) 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. The appeal tribunal should note, however, that there is in place a decision which satisfies section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended. It is the decision dated 15 February 2005 in which a decision-maker decided that there were grounds to supersede the decision dated 14 January 2004 and which removed entitlement from and including 12 July 2004. As my decision in C57/11-12(DLA) makes clear, the validity of that decision is not in dispute.
(signed): K Mullan
Chief Commissioner
1 March 2012