|
it's been downhill since CIS/4348/2003, as far as I'm concerned.
of course, i'm not as knowledgeable or learned as a Commissioner, nevermind three of 'em. as a mere welf in bondage to the LSC, i'm a practical kind, and too overworked to worry about being grossly offensive by opening my mouth... i can't help feeling a sense of regret that the issue of 'failure to disclose' has been unhelpfully obscured to some extent by the complication of the question of mental capacity in this case.
R(SB)21/82, which wasn't challenged by the Department, and was incorporated via R(SB) 54/83 into the guidance for AO's, (not sure why the Secretary of State's rep. denied this - para 55)was one which as an AO at the time, I found particularly helpful and put to regular use. I didn't notice that it was particularly incoherent - all CDs were a bit of a struggle, but the really significant effect of the decision, (and it's probably in the nature of the bureaucratic beast to be reductionist in interpreting the interpretation of the law, no doubt more so than Commissioners, and even welfs would like!) was that it made a distinction between 'failure to disclose' and the mere fact of non-disclosure. one inferred that the Commissioner was saying that the use of the word 'failure' in section 71, as opposed to simply 'not disclosed' was taken to mean something, which he had a stab at identifying, now much criticized in CIS/4348/03 and the Court of appeal decision.
the effect was to allow an element of judgement in 'failure to disclose' decisions, whereas misrepresentation was a matter of fact. the circumstances in which the non-disclosure occurred had a bearing on the decision.
these authorities were vexed and baffled by the Commissioner's definition, particularly it seems by the use of the word 'moral', which is not clearly explained as we would now expect. (It was early days for commissioner's decisions on supplementary benefit!!). the tribunal of commissioners located the source of the duty to disclose outside of sec. 71 itself, in sec. 5 of the Admin Act and reg 32 of C&P. i don't know if it existed in any pre-1992 form (unlike sec.71 - so i have some doubts about paras 55 and 56!!) for what its worth (less than 2 cents!)i think that Commissioner Edwards-Jones would have agreed that it did not lie in sec 71 itself, but i'm not sure that he located it anywhere (in the statutes) and it reads to me that his use of the word 'moral' could have been simply to cover a 'necessarily' existing obligation, implied by the concept of breach of obligation, whether or not the legal duty actually existed. (i'd like to know whether there was a form of reg.32/sec.5 in 1980 but don't have the old books.) the CA rejected the idea of moral as opposed to legal duty, but if the duty lay outside sec. 71, where did it lie in 1980? did the Commissioner make an error in not locating it, did it not exist...? this seems to me to be a crucial question. have i missed the answer in these decisions?
the effect anyway, is to restrict the meaning in sect 71 of 'failure' as distinct from non-disclosure, to the area of knowledge of the fact - you can't fail to disclose what you don't know, and with that one exception, renders failure to disclose and non-disclosure synonymous. this is a very restricted interpretation. if it had been in operation in 1986 when the 'due care and diligence' test for non-means-tested benefits was replaced, how would it have been justified, i wonder?
is it fair? it hardly seems so, if a fully mentally competent and reasonable person, intent on operating their claim correctly and conscientiously, can still fall foul of the rules and get a nasty bill which causes them hardship; and where the continuously amended laws make the system so complicated, illogical and occult, and the administration of the system is prone to all sorts of failures of its own, and becoming increasingly poor at providing information and explanations that a reasonable person needs to exercise any sort of control over their own claim, and none of these things are allowed any bearing on whether there has been a failure to disclose, provided that a catch all disclosure requirement has been issued at some point.
with regard to the first duty and second duty in reg 32, maybe it's the remnants of the civil servant in me, but i still think the first applied to the initial claim and reviews and the second applied to notifying changes, and the Department, before it discovered post-modern revisionism always accepted that there was more difficulty with failure to disclose on change of circumstances, possibly because there are some circumstances when it is just damned unreasonable to expect disclosure.
|
