CIS 4218 2001
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 13 December 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 4218 2001 |
| Subject Matter | Human rights law |
R(IS) 1/04
Mr J Mesher CIS/4218/2001
Commissioner
13.12.02
Human rights – recovery of overpayment – “fair and public hearing within a reasonable time” – whether proceedings criminal within Article 6 – when dispute starts for purposes of determining whether delay unreasonable
The claimant was in receipt of income support as a lone parent. In September 1994 she began a BA course and in December 1994 received the first instalment of a grant. She did not inform the income support office of the grant income. As the grant fell to be taken into account as income in the calculation of her income support, there was an overpayment of benefit. The Benefits Agency investigated the overpayment in January 1996, by which time she had abandoned the course, but no action was taken on the information obtained until October 2000, when a decision-maker superseded the decision awarding benefit prior to September 1994 and decided that there had been a recoverable overpayment from September 1994 to September 1995. On appeal a tribunal confirmed the decision. In her appeal to the Commissioner the claimant argued that, because of the Secretary of State’s delay, there had been a breach of her right to a fair trial under Article 6 of the European Convention on Human Rights
Held, allowing the appeal in part, that
1. the imposition of a liability to repay overpaid benefit was not a penalty by way of punishment, and accordingly did not attract the protections afforded by Article 6(3) to persons charged with criminal offences (paragraphs 13 to 18);
2. the claimant was entitled under Article 6(1) to a fair hearing within a reasonable time, but the time to be considered started with the supersession decision in October 2000, which was the first legal step in the process of recovery of the overpayment, and there was no unreasonable delay between that date and the hearing of her appeal in May 2001 (paragraphs 19 to 22);
3. on the facts the claimant was not significantly disadvantaged in pursuing her case by the lapse of time, and so there was no breach of the principles of natural justice or equality of arms. Even if there had been such a breach, there was no proportionate remedy within the power of a tribunal or Commissioner (paragraphs 23 and 24);
4. there was no breach of Article 1 of Protocol 1 as no legitimate expectation that repayment would not be required had been created (paragraph 25);
5. the tribunal had erred in failing to investigate the facts and adjust the period of the recoverable overpayment accordingly (paragraphs 27 to 35).
The Commissioner substituted his own decision reducing the amount of recoverable overpayment.
Note: See also R(IS) 2/04.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant’s appeal is allowed. The decision of the Portsmouth appeal tribunal dated 14 May 2001 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the appeal against the decision on behalf of the Secretary of State dated 14 October 2000 (Social Security Act 1998, section 14(8)(a)(i)).
2. My decision is that the adjudication officer’s decision awarding the claimant income support from and including 17 August 1994 falls to be superseded with effect from 21 September 1994, on the ground of relevant change of circumstance, as a payment of student grant was to be taken into account as income from that date. The superseding decision, for the period from 21 September 1994 to 7 July 1995, is that the claimant is entitled to income support at the revised weekly rates shown against the relevant weeks in the schedule on page 4 of the papers. In relation to the period from 8 July 1995 to 5 September 1996, the superseding decision is that the claimant is entitled to income support at the weekly rate originally awarded. In consequence of that decision an overpayment of income support of £4,705.46 is revealed to have been made for the period from 21 September 1994 to 7 July 1995. The amount of that overpayment attributable to the period from 13 December 1994 to 7 July 1995 is recoverable from the claimant under section 71 of the Social Security Administration Act 1992 as it is the consequence of a failure to disclose a material fact. The amount of the overpayment attributable to the period from 21 September 1994 to 12 December 1994 is not recoverable from the claimant under section 71. The amount of the recoverable overpayment is to be calculated by the Secretary of State. In the event of any disagreement as to the calculation, the case may be returned to me or, if necessary, to another Commissioner for further decision.
3. This is an overpayment case. As appears from the previous paragraph, it depends on the claimant’s entitlement to income support in a period from September 1994 into 1995 when she was a student on a BA course in Real Estate Valuation at Southampton Institute for Higher Education. The decision that an overpayment had been made and was recoverable was not made until 14 October 2000. The fundamental information on which that decision was based was in the hands of the relevant office of the Benefits Agency in January 1996. That delay is deplorable and has not been satisfactorily explained (the suggestion by the presenting officer at the appeal tribunal hearing that it was caused by there being so many overpayments to catch up with is, with respect, not believable). A central part of the claimant’s case is that the delay should make the overpayment non-recoverable, probably through the operation of the Human Rights Act 1998.
4. The claimant had been in receipt of income support as a lone parent since June 1993. In September 1994 she started the first year of the BA course. The first day of the autumn term was 26 September 1994 and the last day of the following summer term was 7 July 1995. She had applied to Hampshire County Council for a grant, which was awarded. I do not know the dates on which the award was made or notified to the claimant. However, the printout from the Council at page 1E, the obtaining of which prompted the investigation of the claimant’s case, shows the cheque date for the first term as 8 December 1994. The printout shows that in the academic year she received £2,317.25 for ordinary maintenance and £3,490 for the maintenance of her dependants, including the increase for her being a lone parent. The cheque date for the second instalment of the grant was 20 December 1994 and for the third instalment was 21 March 1995. The claimant has complained that, since Hampshire County Council have destroyed all grant files prior to 1996 and there are no computer records, she has been unable to check whether payment of that amount of grant was in fact made to her on the dates indicated. However, the amounts seem to be in accord with the figures prescribed in the Education (Mandatory Awards) (No. 2) Regulations 1993. I see no reason to doubt that the payments identified on the printout were made.
5. The claimant did not inform the income support office that she had started the course or been awarded the grant or received any instalment of the grant. She had declared on her grant application that she was receiving income support and did not think that she needed to do anything else about the integration of the two sources of income. I do not think that it is in dispute that, while the claimant was within the definition of “student” in regulation 61 of the Income Support (General) Regulations 1987, her grant income would have fallen to be taken into account in the weekly amounts calculated on page 3, giving rise to the reduced entitlement to income support shown in the schedule on page 4. As she was a lone parent, being a student would not in itself take her out of entitlement to income support, but her grant income would have to be taken into account as laid down in Chapter VIII of the Income Support Regulations. Regulation 62 then required the ordinary maintenance element (after deduction of the set amount for books and travel) to be taken into account equally over the period from the beginning of the autumn term to the end of the summer term and the amount for dependants to be taken into account over the period of 52 weeks starting with 1 September 1994.
6. The claimant was interviewed on 24 January 1996, it appears after the printout had been obtained. In a statement she confirmed that she had been a student at the Southampton Institute of Higher Education. She stated that she understood that she had probably been overpaid some income support, which would need to be repaid. The printout had shown that nothing had been paid by way of grant to the claimant for the academic year 1995/96 and that the Council had not yet been told that she was in attendance. Since she appeared therefore no longer to be a student, no adjustment was needed of her current entitlement to income support. In August 1996 she received a capital sum from her...
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