CSIS 355 2004
| Jurisdiction | UK Non-devolved |
| Judge | Mrs L.T. Parker |
| Judgment Date | 18 October 2004 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CSIS 355 2004 |
| Subject Matter | Recovery of overpayments |
R(IS) 1/05
|
Mrs L T Parker Commissioner 18.10.04 |
CSIS/355/2004 |
Evidence – onus of proof – offset under regulation 13 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988
The claimant had been in receipt of income support from 1996 both on the basis of her incapacity for work and also as a lone parent. The award was superseded after the claimant admitted that she had a partner who was in remunerative work. As a result an overpayment of income support had been made which was recoverable from the claimant. On her behalf it was averred that she should have received a higher rate heating addition for supplementary benefit which would have led to a transitional addition to income support. It was also contended that she may have been entitled to a disability premium for an earlier period. This would give rise to an appropriate offset under regulation 13. All records held by the Department for Work and Pensions had been destroyed. The claimant appealed to a tribunal which dismissed the appeal concluding that the onus was on the claimant to establish an entitlement or additional entitlement relevant to the application of an offset. Previous awards had been made on the basis of information provided by the claimant and there was no evidence that such awards had been challenged, nor had the claimant now produced any evidence which supported the claimed entitlement. The onus did not lie on the Department when considering a potential underpayment. The claimant appealed to the Commissioner
Held, dismissing the appeal, that
1. the reference to the Public Records Act 1958 in CIB/378/2002 was in a different context to the present case. What constituted a “public record” was imprecisely defined as was the differentiation between documents which ought to be “permanently preserved” and those which were to be destroyed. The Act does not assist in the resolution of problems which result from missing documents (paragraph 39);
2. it did not seem reasonable to expect the Department to retain claim forms for ever to meet the possibility of a potential claim for offset. The decision of the Lords of Appeal in Kerr (AP) (Respondent) v Department for Social Development (Appellants) (Northern Ireland) [2004] UKHL 23, [2004] 1 WLR 1372, R 1/04 (SF) did not mean that contrary inferences should necessarily be drawn from the destruction of such forms. No presumptions ought to be made by a tribunal about the existence or contents of such forms without evidence. It was for the tribunal to consider whether it was more probable than not that the circumstances for a deduction under regulation 13 existed at any relevant time (paragraphs 40, 41 and 42);
3. it is clear from section 1(1) of the Social Security Administration Act 1992 that it is for the claimant to establish that the conditions of entitlement are met and that the claimant must bear the consequences of ignorance. Therefore one who must pay benefit back because it has been demonstrated that she should never have had it necessarily has the same task in establishing a similar entitlement to offset against a proven debt. The onus of proof lies on the Department to establish an overpayment of benefit but the onus is on the claimant who seeks a deduction by way of offset (paragraphs 46 to 48).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decision
1. The decision of the Glasgow appeal tribunal (the tribunal) held on 26 November 2003 is not erroneous in point of law. That decision therefore stands.
The statutory provisions
2. The Public Records Act 1958 (the 1958 Act) at section 3(1) and (6) states the following duties:
“(1) It shall be the duty of every person responsible for public records of any description which are not in the Public Record Office or a place of deposit appointed by the Lord Chancellor under this Act to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping.
…
(6) Public records which, following the arrangements made in pursuance of this section, have been rejected as not required for permanent preservation shall be destroyed or, subject, in the case of records for which some person other than the Lord Chancellor is responsible, to the approval of the Lord Chancellor, disposed of in any other way.”
However, subsection (4) of section 3 qualifies the above:
“(4) Public records selected for permanent preservation under this section shall be transferred not later than thirty years after their creation either to the Public Record Office or to such other place of deposit appointed by the Lord Chancellor under this Act as the Lord Chancellor may direct:
Provided that any records may be retained after the said period if, in the opinion of the person who is responsible for them, they are required for administrative purposes or ought to be retained for any other special reason and, where that person is not the Lord Chancellor, the Lord Chancellor has been informed of the facts and given his approval.”
In the First Schedule to the 1958 Act, the definition of public records includes the following:
“1. The provisions of this Schedule shall have effect for determining what are public records for the purposes of this Act.
Departmental records
2.―(1) … administrative and departmental records belonging to Her Majesty, whether in the United Kingdom or elsewhere, in right of Her Majesty’s Government in the United Kingdom and, in particular, –
(a) records of, or held in, any department of Her Majesty’s Government in the United Kingdom, or
(b) …
shall be public records.
…”
3. Section 1(1) of the Social Security Administration Act 1992 (the 1992 Act) states:
“… no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied–
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.”
4. Section 71 of the 1992 Act reads, so far as relevant:
“71.―(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 Secretary of State in connection with any such payment has not been recovered,
the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he 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 Secretary of State 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 Secretary of State, 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.
…
(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.
(6) Regulations may provide –
(a) that amounts recoverable under subsection (1) above … shall be calculated or estimated in such manner and on such basis as may be prescribed;
…”
5. Regulations under section 71(6) of the 1992 Act are the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (SI 1988/664) (the 1988 Regulations). The applicable part of regulation 13 (as amended) reads:
“13. ―(1) Subject to paragraph (2), in calculating the amounts recoverable under section [71](1) of the [1992] Act … where there has been an overpayment of benefit, the adjudicating authority shall deduct –
…
(b) any additional amount of income support, or state pension credit, or income-based jobseeker’s allowance which was not payable under the original, or any other, determination, but which should have been determined to be payable –
(i) on the basis of the claim as presented to the adjudicating...
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