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[2003] UKSSCSC CIS_2278_2003 (22 September 2003)

 


Commissioners' case no: CIS 2278 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal by the claimant.
2. The appeal is against the decision of the Manchester appeal tribunal on 20 September 2002 under reference U 40 72 2002 02277. It was brought with my permission.
3. I set aside the decision of the tribunal. It is expedient that I take the decision that the tribunal should have taken. This is:

Appeal allowed. The Secretary of State has not established that the requirements of section 71(5A) of the Social Security Administration Act 1992 are met. The overpayment of income support is not recoverable.

Background to the appeal

4. There has been an undisputed overpayment of income support to the claimant. It started when the claimant first received income support in February 2001 and was equal to the full amount paid. The submission to the tribunal was that the overpayment was discovered in October 2001 and that on 15/10/2001 the Secretary of State superseded the decision awarding income support from the start of the claim. Subsequently it was decided that the overpayment was recoverable. Behind this lay awards of and decisions about housing benefit and council tax benefit. The claimant contends that proper procedures to recover the overpayment have not been followed.
5. The tribunal was told that both review and overpayment decisions were made. The submission writer appears to have had doubts as the submission contains a lengthy submission about computer-made decisions. The context is: " use of computer decisions has become increasingly frequent in the cause of the efficient management of Social Security Benefits. The use of computer decisions was legislated for by Schedule 2 Paragraph 8 of the Social Security Act 1992 …". That should have alerted the tribunal that something was amiss. There is social security legislation about computers, but this is not it. The legislation is in section 2 of the 1998 Act.

Social Security Administration Act 1992, Schedule 2 paragraph 8

6. Paragraph 2 of Schedule 8 (of the Social Security Administration Act 1992) is about certifying copies of decisions. It is derived from section 17 of the Social Security Act 1980. It provides:

Certificates of decisions

8. A document bearing a certificate which –

(a) is signed by a person authorised in that behalf by the Secretary of State; and

(b) states that the document, apart from the certificate, is a record of a decision-

(i) of a Commissioner;

(ii) of a social security appeal tribunal;

(iii) of a disability appeal tribunal; or

(iv) of an adjudication officer,

shall be conclusive evidence of the decision; and a certificate purporting to be so signed shall be deemed to be so signed unless the contrary is proved.

That is the unamended form provision. Schedule 5 paragraph 3 to the Social Security 1998 Act allows regulations to make provision for the "circumstances in which any official record or certificate is to be sufficient or conclusive evidence". But the usual reference books on social security law either omit paragraph 8 or indicate no amendments or modifications of it to date, and do not indicate any specific regulations made under the 1998 power. Nonetheless, I assume for current purposes that the paragraph applies to decisions of the Secretary of State in place of adjudication officers.

7. Paragraph 2 is a limited but useful provision common to many areas of administration. It stops arguments about whether a photocopy is a genuine copy of a genuine document, and whether a printout from a computer shows the electronic records in it. It does not allow officials to invent decisions that are not there or to turn meaningless documents into something else, and then prevent this being questioned by tribunals. Nor does it dispense with the need to comply with regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. A person with a right of appeal against a decision must be given written notice of it.
8. Page 15 of the papers in this appeal is a photocopy of a computer printout with manuscript additions. The relevant lines of the printout read:

15/10/01 [User ID] COC's EOC(INF1,2,4) 03710

27/09/01 [same ID] COC's EOC(INF1,2,4) 03710

24/09/01 [same ID] Recall OB (env) 03710

This is certified to be a record of a decision made on 15/10/01 that was notified to the customer on that date.

9. That certificate goes beyond the powers of Schedule 2, paragraph 8. The paragraph does not authorise certification of the notification of a document – only of the record of the decision itself. If the Secretary of State wishes to certify notification, then a copy of the notification document must be produced and certified. Nor does the paragraph authorise the certification of things not in the document, such as an explanation. If the Secretary of State wishes the document to be understood, a separate explanation should be added.
10. The Secretary of State's representative noted that the use of certification as a practical way out of the problem of defective decision recording was accepted in the decision of a deputy Commissioner in CSJSA 558 2001, but rightly adds: "Of course, once the officer has constructed the narrative, the certificate may conclusively prove the decision in question to be defective and invalid". I agree with that comment. It certifies the record, not its validity. CSJSA 558 2001 has gone, or is taken, too far if it is taken to authorise the use of paragraph 2 to certify things that are not in the certified documents. Read narrowly, paragraph 2 approves the practice of endorsing a certificate on a document (so that it "bears" it), not adding explanatory documents of the certifier's and certifying them. Even if the certificate is on an accompanying document, rather than as an endorsement, it must relate only to the originals being certified.
11. Section 2 of the Social Security Act 1998 does not alter this. It allows a "decision falling to be made or certificate falling to be issued" by the Secretary of State to be made or issued not only by an officer but also by "a computer for whose operations such an officer is responsible". Again, that is a limited power. To use the section, the officer (not the Secretary of State or someone else) must be responsible for the operation of the computer.

The tribunal decision

12. The papers also contain a photocopy (at pages 17 and 18) purporting to be a signed decision dated 3/10/2001. This states that the claimant's award of income support has been revised to stop it and then decides the overpayment is recoverable. But if the certificate (at page 16) is valid and conclusive, does it not suggest that the copy decision at page 17 is invalid? This point was taken by the claimant's representative.
13. According to the record of proceedings, the presenting officer told the tribunal that a review decision was carried out on 27/09/01. This was shown by the second line of the computer printout (above), not the top line. This was before the overpayment decision of 3/10/01. The decisions had been made in the right order to comply with section 71(5A) of the 1992 Act, and had been notified. Notification was also challenged by the claimant's representative, who pointed out that the submission did not show notification in September 2001. The presenting officer responded that no copies of such records existed, but the computer record showed what had been done. In reply to a question from the chairman, the presenting officer added that it was impossible to supply a copy of the blank form of notification letter used.
14. The tribunal reserved its decision. Its conclusions on the disputed points were:

The tribunal accepted that the computer print-outs supplied by the Benefits Agency showed quite clearly that such review (of the original decision) had originally taken place on 27 September 2002 (sic) following a recall of the appellant's order book and she had been formally notified accordingly.

The tribunal … decided that the Decision Maker … and the presenting officer … had supplied sufficient proof that a proper review of the appellant's claim had been made, she had indeed been notified that the original decision awarding her income support had been superseded, and all the relevant statutory regulations and requirements has been complied with by the Benefits Agency.

Grounds of appeal and submissions

15. Both parties agree that the tribunal was wrong in law. The appellant's representative argues that it conflicts both with the submission to the tribunal and with the conclusive certificate. These show that the operative review decision was that of 15/10/01, after the recoverability decision. The secretary of state's representative submits that the tribunal decision was inadequate. There was nothing before the tribunal to show that section 71(5A) of the Social Security Administration Act 1992 had been properly complied with. In addition, the tribunal records a supersession from the date of the original decision on unstated grounds. That cannot be done.
16. The Secretary of State's representative's submission is a lengthy document, part of which states:

The document copied at pages 17 and 18 is a record of what purports to be a composite decision of 3/10/01 comprising the above revision and a determination of the consequent overpayment and its recoverability under the provisions of section 71 of the Administration Act.

On the face of it, this must be the decision against which the claimant appealed, as it is the only one in the bundle which would contain an overpayment determination. However, the ISCS screen print raises the question of whether the decision of 3.10.01 is a valid decision.

Data is entered into, and is viewable in ISCS via a number of "dialogue" screens. Unfortunately, while I have practical experience of administering income support cases on and reading the records from ISCS, the "letters issued" print is not sufficient on its own for me, or in my opinion any officer, to be very precise about what else has happened in this case.

I have requested a complete record of the claimant's ISCS account, from which I might be able to further enlighten the Commissioner, perhaps sufficiently for a final disposal of the case, but it appears some technical difficulty arose concerning which of successor agencies to the unified benefits agency could provide it, and it has not so far arrived. The presenting officer was wrong about the decision notices. However, I cannot reconstruct the content of the decision notices without seeing the above records.

…

A further frustration is that ISCS can only record an outcome decision, problematic when the only mechanism for altering awards was review, more so now the request is to identify whether a decision is revised or superseded, and why. This often has to be deduced from secondary evidence, context, and reliance on the maxim "Omnia praesumuntur rite et solemniter esse acta" (all acts are presumed to have been done rightly and regularly), where the law presumes that where administrative processes are conducted things are done correctly unless it is proven other wise – see CS 27 1987.

My decision

17. I accept that approach. The certificate of conclusive evidence points the tribunal and the Commissioner to the decision of 15/10/01. The computer record, if the certificate is ignored, points to a decision to the same effect on 27/09/01. But there is no specific evidence or record of notification of the September decision, and evidence that it was not notified. The computer record points to supersession decisions based on a change of circumstances. Nothing points to a decision to revise being taken on or before 3/10/01. Something is seriously wrong with the papers put to the tribunal. Either the computer record is wrong (including the part conclusively certified to be genuine) or the decision of 3/10/01 is wrong. The computer record is itself problematic and the conclusive certificate appears to suggest that the wrong decision be ignored.
18. What can be established? The certified decision is:

15/10/01 COC's EOC (INF1,2,4) 03710*

* On 15.10.01 the decision maker superseded the award of income support from 27. 2. 01 to remove entitlement.

[The first part is a photocopied computer printout. The asterisk and the second part against the asterisk are handwritten.]

The certificate reads:

"This is to certify that document E (the label on the computer record) is a decision made on 15.10.01 which was notified to the customer on 15.10.01."

Document E is not certifiable to include the handwritten note added to it. That is not a "record" of a decision. It can be certified as stating that on 15/01/01 an officer (whose ID also appears in the record) identified a change of circumstances (COCs) that caused triggered an "end of claim" (EOC), and that information leaflets 1, 2 and 4 were to be issued to the claimant from local office 03710. That is all.

19. There are two key points in the computer record. The first is the "COC" and the second is the "EOC". They are not enough to meet the full requirements in this case. The computer record does not indicate any date from which the decision took effect, so that cannot be certified by the Secretary of State from the computer record alone. Nor does the record explicitly state whether the decision was a revision or supersession, merely EOC. We do know that the "EOC" was because of a change of circumstances ("COC"). That means that the decision must be a supersession decision, not a revision of the original decision. So it cannot operate from the original date of the awarding decision. The document does not indicate the specific change of circumstances on which it was made, or that the decision was notified. Notification was put in issue here and has not been shown. It is not validly covered by the certificate.
20. "EOC" also suggests that the Department's standard computer recording procedure takes no account of section 8 of the Social Security Act 1998. The claim now ends when the original decision was taken. It is the award that is ended later. Further, an award can be ended in one of two ways (under sections 9 and 10). The recording procedure does not discriminate between them.
21. In the light of the above, any decision about recoverability based only on these records cannot stand. The Secretary of State has not established that the proper procedure under section 71(5A) of the Social Security Administration Act 1992 was followed. Presumptions of correctness, even in Latin, cannot rescue this.
22. This does not alter the fact that there was an undisputed overpayment. The underlying issue is still that the claimant has received public funds to which she was not entitled. But that does not mean that she is currently obliged to repay them. The present decisions do not authorise recoverability. As the point is raised by the claimant, I also draw attention to the fact that this decision may have a consequent effect on the position with regard to both housing benefit and council tax benefit.

David Williams

Commissioner

22 September 2003

[Signed on the original on the date shown]