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Northern Ireland - Social Security and Child Support Commissioners' Decisions |
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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2003] NISSCSC C4/02-03(IS) (3 January 2003) URL: http://www.bailii.org/nie/cases/NISSCSC/2003/C4_02-03(IS).html Cite as: [2003] NISSCSC C4/02-03(IS), [2003] NISSCSC C4/2-3(IS) |
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[2003] NISSCSC C4/02-03(IS) (3 January 2003)
Decision No: C4/02-03(IS)
"(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.
(2) Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Department or a tribunal, and may in the case of a Commissioner or a court –
(a) determine whether any, and if so what, amount is recoverable under that subsection by the Department; and
(b) specify the period during which that amount was paid to the person concerned.
(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it. …"
"Disallow appeal. An overpayment of £3,165.49 income support was made for the period 28/08/97 – 12/07/00."
"The claimant's case was that there was no knowledge of a material fact until the claimant received back payment of IDB, on her evidence, in January 1998. The fact of overpayment was conceded.
The Presenting Officer argued that from the date of notification the claimant had knowledge of a material fact (17.9.97) if not at the time of the successful appeal (2/9/97) so predating the overpayment record of 28.8.97 – 12.7.00, based on date of claim of 28.8.97.
The claimant's representative argued that since the Adjudication Officer had requested reasons for the IDB appeal, an appeal to the Commissioner has contemplated so no payment would have been made, despite notification of the award; and that receipt of benefit post-dated 15.12.97 when reasons received and it was decided not to pursue appeal. He also argued that there was not sufficient proof of notification or of receipt of benefit.
Although it was accepted that under SF2 automatic recovery was possible if period of overpayment reduced, I hold important to decide issue on particular facts. It was decided that at the date of successful appeal 2.9.97 at which claimant presents a material fact of new entitlement to IDB existed.
She failed to disclose this. Although she may not have understood detail of implications of decision must have known that she won the appeal and was entitlement to benefit. It was reasonable to expect her to disclose this fact. She failed to do so, resulting in the overpayment of benefit documented."
"Representative
Refers to Department's submission on paragraph 5.
Chairman
Issue is what is material fact?
Representative
Until gets money, not clear getting benefit.
Chairman
Issue is when it is a fact that notification from Department that considering leave for apply to Commission. Presenting Officer arrived at 10.08. Claimant and representative had no objection to continuing.
Presenting Officer
Misrepresented the fact that she was receiving benefit. By the time she received the first payment of income support she received notification and first payment.
Chairman
What was date of new statement of IDB?
Presenting Officer
17 September payment was authenticated and issued.
Representative
There was authorisation and notification, but not actual payment.
There is no payment usually pending consideration of an appeal.
Representative
Claimant's understanding was that payment was not until sometime in 1998.
Representative
Arguing that no clear date of payment proven.
[The claimant] was working in 1994.
Presenting Officer
Don't have access to IDB computer records, but reply to 19 July letter was based on records. Once payment authorised, issue for payment. Only Finance Branch had date of issue. In usual course of events it is issued.
[The claimant] – first got money at beginning of 1998.
Representative
Even if authorisation, need not be payment if considering appeal to Commissioner.
Presenting Officer
Assumption based on Tab B that request for papers meant that appeal to Commissioner pending. Assuming also there was no payment in the meantime to claimant and no payment until 1998. No report until discovered in 2000.
Presenting Officer records of paid order book only kept for 12 months.
Claimant
Thought had filled in form correctly. Confused.
Representative – January 98 is the date of calculation.
Presenting Officer – even if late on date – would use SF2."
"(a) Did [the claimant] misrepresent the material fact in question?
(b) Has an overpayment occurred due to this misrepresentation and if so is it recoverable from [the claimant]?"
The representative, Mr Brady, then argued that as the IIDB was not actually in payment when the claim form for Income Support was completed, it was not clear to the claimant that she was getting benefit. Miss Murray submits that in light of this it appears that the claimant and her representative were arguing that, as it was not clear to the claimant that she was getting benefit, she could not have made a misrepresentation by not mentioning her claim for IIDB on her Income Support claim form. Miss Murray also pointed out that the presenting officer for the Department had argued that the claimant had misrepresented the fact that she was receiving benefit and by the time she received the first payment of Income Support she had received notification that she had been awarded IIDB and had also received her first payment of this. Miss Murray also pointed out that towards the end of the record of proceedings the claimant is recorded as stating that she thought she had filled in the Income Support claim form correctly. This would again have been relevant to whether or not there had been any misrepresentation made by the claimant on the claim form (SP1).
1. the Secretary of State (the Department in Northern Ireland) seeking to recover expenditure must be the Secretary of State who incurred it;
2. the person from whom it is sought to recover the expenditure must know the material fact;
3. the disclosure by the person in question must be reasonably to be expected;
4. there must be a failure to be disclosed;
5. the failure must relate to a material fact; and
6. the expenditure by the relevant Secretary of State must be incurred "in consequence of the failure".
The Tribunal, in my view dealt with tests (2) to (6) whilst test (1) was not in dispute as the fact of the overpayment was conceded.
(Signed): J A H MARTIN QC
CHIEF COMMISSIONER
(Dated): 3 JANUARY 2003