I'm involved in a technical argument on a very large IB overpayment. I shan't go into the details of that here but a question has arisen that could make or break that case!

For some years client gets IB. He does a small amount of work for a few weeks and fails to declare it. Comes to light many years after and DWP supercede the IB decision for that period stating that he was fit for work. They accept that he was unfit again after that. However the break in entitlement meant that he could no longer fulfil the NI contribution conditions after that date, so all IB paid after that is an overpayement. The DWP decision clearly refer to the two seperate periods and state he is not entitled to IB afterwards because of the NI issue. The two parts of that decision were made on the same day, on the same bit of paper.

In order for my argument to succeed I have to show that the DWP made two decisions. The DWP are arguing that only one decision was made and in any case only one was required i.e. once they had decided he was not entitled on hte basis of hte work he did, the rest simply follows. I'm convinced that I'm dealing here with two seperate decisions, is anyone aware of any supporting authorities for my position?

Well, well, well.....

This appears to be a variation on the "closed period supersession" issue that is currently causing much vexed debate in the context of HB/CTB.

In case the situation is different, I'll stay within the context of HB/CTB to, hopefully, avoid confusion.

In HB/CTB, the debate surrounds stand-alone retrospective periods for which it is determined there is no entitlement. i.e. there is entitlement, then nil, then "entitlement" again. Some, including the DWP, refer to this as a "closed period supersession" and take the view this "decision" does not result in a new claim being required and it also does not in anyway nullify subsequent "entitlement". DWP, and some LAs, are relying on CIS/2595/2003 in support of that argument (lots of other authorities cited). In summary, and dangerously oversimplified, the argument is that there is only one single decision.

However, in CH/0269/2006, the Cmmr plainly finds that a period of nil entitlement cannot be subject to supersession. But, the case did not involve a single decision. So, is it distinguishable?

Well, if it is correct that a period of nil entitlement cannot be superseded, then I can't see how the "second" period of "entitlement" can continue. Even if it is accepted that a "closed period supersession" is made under one single decision, it seems inescapable to me that there are nevertheless two distinct supersessions - one taking entitlement to nil; the next taking "nil" back into entitlement. So, if the Cmmr in CH/269 is correct in finding that "nil" cannot be subject to supersession, then surely it doesn't matter how many DECISIONS are involved. What counts is how many supersessions are involved. Or, for the purpose of this argument, are the terms "decision" and "supersession" interchangeable?

I have no definitive answer (er, sorry!) and strongly suspect this issue will end up at Cmmrs sooner or later. Nevertheless, I hope the above helps more than it confuses.

Thanks Kevin, I'm going to have to mull this one over a bit more, but I'm glad that I'm not going stir crazy! I htink my problem is that the above cases are ones where there is entitlement - no entitelement - entitlement.

Mine goes (1) entitlement, (2) no entitlement, (3) no entitlement, if you see what I mean! I need to proove that (3) was a seperate decision/supersession. The DWP are arguing that my case goes (1) entitlement - (2) no entitlement - (3) not required. I don't think that either ch/269/2006 or cis/2595/2003 are going to help me. Are they?

i don't think i'm going to be much help either, but here goes...you are querying the validity of the decision, but i'm a little confused by your second post.

my decision-making experience was pre- 1998 act, which had reviews and revised decisions, and i was ok with that - i've no idea why they changed to revisions and supersessions, and it makes my head hurt...but i'm not aware of anything preventing the revision from including multiple decisions on entitlement, and have given them in the past.

i would expect that if the decision says he is not entitled from xxxx to xxxx because he was not incapable of work (quote relevant reg)and not entitled from xxxx to xxxx because he did not satsfy the contribution conditions (quotes rel. reg) and is signed and dated, it is a valid decision for the purposes of sect 71 (5). ie the amount claimed as recoverable is calculated from a period covered by a revised decision.

the overpayment decision itself imo, has to explain why the amounts are recoverable under section 71(1)and if different reasoning applies during different periods, it should be broken down and stated in the text of the decision eg on X date, or as soon as practical thereafter, the claimant (heh!) failed to disclose the material fact that XXXX and in consequence, incapacity benefit of £X was overpaid in the period YYYY - YYYY and is recoverable... in general, there could be as many of these seperate elements as necessary, because sec 71 is complex and there could be any number of relevant issues, and the various periods don't necessarily have to correspond to the revised entitlement periods.

i have to say that i don't approve of the move away from providing formal decision texts to an pretty much automated system where you fill in a few blanks, because i know from my own experience, that the act of drafting the decision, which is analytical, could actually change the decision, and prevent errors. i do think that they have to provide argument to the tribunal as to why overpayment in period (3) is recoverable, and can't rely on 'it's a natural consequence of (2)' but unfortunately, i expect they would be able to do that, which would result in an extremely harsh decision...!!! i may be wrong about the above, because i haven't quite got my head around kevin's CD, which i haven't been able to locate, or indeed the other very difficult CDs on supersessions and the baffling changes in the 1998 Act, and have to sweat them on a case by case basis.

i don't suppose it was an industrial accident...? : (

I know this sounds a bit basic, and have not dealt with a case such as this for a couple of years, but was the work done for less than 8 weeks in total?.

I recall a Tribunal quite a few years ago deciding that a client was stuffed because she had fallen ill with the 'flu for a fortnight during a period under appeal, and they decided that, as she hadn't put in a fresh claim after the 'flu, there was no jurisdiction after that. I can no longer remember why, but that case was not appealed to O.S.S.C..

Have they followed all the correct procedures for supersessions, that may be worth checking, just a few thoughts.

I've managed to locate an electronic copy of CIS/2595/2003 - this is a cut & paste of it (para 9 looks at "closed period supersessions":

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DECISION OF THE SOCIAL SECURITY COMMISSIONER


1. My decision is that the decision of the tribunal given on 15 July 2002 is erroneous in point of law. I set aside the tribunal’s decision and since I can do so without making any fresh or further findings of fact, I give the decision which I consider that the tribunal should have given, that is to say:

(a) Under the provisions of section 25(1)(a) of the Social Security Administration Act 1992, I review the decision awarding the claimant income support from 15 September 1996 on the ground that the decision was made in ignorance of the material fact that the claimant was engaged in work I revise that decision so as to award the claimant income support commencing on 19 October 1996.

(b) Income support amounting in total to £232.64 was paid to the claimant in the period from 15 September 1996 to 18 October 1996 in consequence of the claimant’s failure to disclose that he was working during that period and is therefore recoverable from the claimant by the Secretary of State.

2. This is the second Commissioner’s appeal arising out of a decision made on 22 July 1999 that the claimant was liable to repay income support amounting to £9,561.78 paid in the period 15 September 1996 to 29 June 1999 because the claimant had failed to disclose that he was working. I allowed an appeal against the decision of an earlier tribunal dismissing the claimant’s on 8 April 2002 in CIS/3715/2001. The facts of the case have been analysed in greater detail than previously in the very helpful submission prepared by the Secretary of State’s representative dealing with the present appeal, to whom I am very grateful.

3. The claimant claimed income support on 15 September 1996 on the basis that he was incapable of work. However, on 22 June 1999 an adjudication officer determined that the claimant was to be treated as capable of work from and including 15 September 1996 because he had worked and the work did not fall into an exempt category.

4. By virtue of regulation 19 of the Social Security (Incapacity for Work) General Regulations 1999, which was then in force, that determination was to be treated as conclusive for income support purposes. On 22 July 1999 an income support adjudication officer gave a decision that the claimant was liable to re-pay income support paid in the period from 15 September 1996 to 29 June 1999, amounting to £9,561.78, on the basis that at the date of the claim the claimant had failed to disclose the material fact that he had undertaken a period of work, whilst declaring himself unfit on medical grounds. The decision was said to result from a review decision dated 2 July 1999, but no copy of that decision is available. The review decision was however set out in the submission to the tribunal in the following terms::

"I have revised the decision dated (blank) of the Adjudication Officer awarding Income Support from 15/09/1996 to 29/06/1999 (both dates included).

There has been a relevant change of circumstances since the decision was given. My revised decision is that Income Support would not have been payable to (the claimant) between 15/09/1996 and 29/06/1999 because he had undertaken a period of work whilst declaring himself incapable of work on medical grounds."

5. The claimant appealed on 6 September 1999 alleging that he had not done the work which he was alleged to have carried out, thereby putting in issue both the review and the overpayment decisions. Following a hearing at which the appeal was adjourned to enable further evidence to be obtained, the appeal was dismissed at a hearing on 3 May 2000, which the claimant did not attend. However, on 11 December 2001 I allowed the claimant’s appeal against the tribunal’s decision because it appeared that the claimant had not been given an opportunity of commenting on the documentary evidence which had been obtained between the first and second hearings of the appeal. I referred the case for rehearing before a differently constituted tribunal.

6. The re-hearing of the appeal took place on 15 July 2002. The tribunal, consisting of a legally qualified panel member sitting alone, rejected the claimant’s evidence that the work which the claimant was alleged to have carried out had in fact been done by another person, and found that the claimant had worked during the second half of September (1996) "and into October". The tribunal found that there were therefore valid grounds to revoke entitlement under regulation 16 of the Social Security (Incapacity for Work)(General) Regulations 1995 and in turn for an overpayment to be calculated. The statement of reasons continues:

"What has concerned me and why I reserved my decision is the ambit of regulation 16 does it only apply for the weeks when work was done or does it bring to an end a claim for benefit on the basis of incapacity? I have found no authority on the point to assist me (which is not to say that there not authority on the point). I have come to the conclusion that although the regulation only speaks in terms of being found fit for the week in which a person works it must bring to an end entitlement to Income Support on the basis of the incapacity claimed until a fresh claim is made because the appellant by working falls out of being a prescribed category of person for the purposes of Schedule 1B of the Income Support (General) Regulations and there must be the need for a further claim. The consequences of a failure to disclose a period of work therefore impact on the claim as a whole and not for the week or weeks in which there has been work."

The claimant applied for leave to appeal, which I granted on 30 April 2004, and the Secretary of State has supported the appeal.

7. I agree that the tribunal’s decision was erroneous in point of law. The tribunal proceeded on the basis that the overpayment decision was permissible because a decision had been made under regulation 16 of the Social Security (Incapacity for Work) Regulations 1995 that the claimant was capable of work. In fact, section 71(5A) of the Social Security Administration Act 1992 required the making of a revision decision in respect of entitlement to income support before a valid overpayment recoverability decision could be made, and the submission to the tribunal asserted that such a decision, albeit undated, had actually been made. Even on the basis that a decision under regulation 16 entitled the decision maker to give an overpayment decision relating to income support, the tribunal’s decision was nevertheless defective because it did not identify the end date of the period during which the claimant worked, as was required by regulation 16 in order to determine the weeks in which the claimant was to be treated as capable of work. I can see no reason to disagree with the Secretary of State’s representative that the reason why the tribunal did not make a more precise finding is because it believed that disqualification from 15 September 1996 had to be indefinite in the absence of a further claim.

8. If the tribunal had considered the review and revision decision, I agree with the Secretary of State’s representative that the tribunal were bound to have found that it was defective. I agree that it is extremely unlikely that the decision under review was made for a closed period and, if the claimant had been working at the date of the claim, the correct review ground would have been ignorance of a material fact, rather than change of circumstances.

9. I also agree with the Secretary of State’s representative that, if a valid review and revision decision had been made, the overpayment recoverability decision should have been limited to those periods when the claimant was shown to have been working. The position was correctly set out in the representative’s submission in CSIS/754/2002, which was accepted by the Commissioner:

"If, during the currency of an award, an overpayment arises because a claimant ceases to satisfy the conditions of entitlement, but later, and still within the currency of the award, he satisfies the conditions of entitlement, the disentitlement on revision or supersession is not indefinite because he has not made a new claim at the relevant time, but is instead limited to the period where the conditions of entitlement are not satisfied, unless some oither ground for disentitlement arises."

A similar approach was taken in CIB/5759/1999, CIB/5170/1999 and CIB/4090/1999.

10. I am therefore satisfied that the tribunal’s decision was erroneous in point of law in failing to remedy the defects in the review and revision decision, and in holding that in the absence of a new claim disentitlement from benefit was indefinite.

11. I can, however, see no reason to disagree with the tribunal’s reasons for rejecting the claimant’s evidence that he was not working for a period commencing on 15 September 1996 and, on the basis of the evidence of the receipt given by the proprietor of the premises where the claimant did that work, it seems to me that the most probable date on which that work ended was 18 October 1996. Although the evidence relating to the making of the review and revision decision is very unsatisfactory, I am satisfied that such a decision was made, and that accordingly I can rectify the defects in the decision in the terms in which it is recorded in the decision. I am satisfied that the claimant failed to disclose the material fact that he was in work at the date when the claim was made and that in consequence there was a payment of income support to which the claimant was not entitled in the period from 15 September 1996 to 18 October 1996. That overpayment totals £234.64.

12. Accordingly, my decision is as set out in paragraph 1.





(signed on the original) E A L BANO

Commissioner

17 February 2005
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Thanks to Kevin, CIS/2595/2003 is now available on rightsnet.

Thanks guys, you're all brilliant!