Hi all, I'm looking for some help in finding case law or just getting opinions on a recent decision of mine.

Commissioner refused leave on an overpayment appeal. The facts were basically that the client had claimed IS as a single person although he was due to get married within weeks of the date of claim. He didn't state on the claim form he was intending to get married. His case however was that he attended at his local office two days after completing the IS form to complete an SSP1 form and advise them that he was getting married. The tribunal found against him on these facts and as he had failed to disclose his marriage, the o/p was recoverable as result.

In refusing leave, the Commissioner has found that the failure to disclose his intention to get married in the near future was a misrepresentation. I have checked the IS claim form and it does not ask if the claimant is intending to get married or if there is likely to be a change in his circumstances. I can't see how completing the form and correctly stating that he was single can be a misrep. Admittedly, it would have been sensible for him to note his upcoming wedding somewhere on the form but it can hardly amount to a misrep! Conversely, the department suggested in its comments that as his alleged disclosure at his local office occurred before the actual marriage, it couldn't have been effective disclosure under Reg 32 anyway. Yet the Commissioner found that he is apparently under some duty to disclose a future event on the claim form and his failure to do so was misrep! And all this when misrepresentation was not raised in the original appeal papers, wasn’t raised at tribunal and neither party to the Commissioner application raised it or were asked to address it.

Anyone out there know any case law regarding a claimant's duty to disclose future changes in circumstances when completing a IS form? There is general catch-all question "tell us anything else you think we might need to know". Any case law on what kind of information a claimant is expected to give to that kind of question? JR is our only possible option now and the clients may not qualify for legal aid but I’d like to put my mind at rest anyway.

i did read this but have trouble wrapping my head round advance misrepresetnation.

man wasn't married until the day he was married - what would hthey ahve done if he'd told them earlier? and what if it all went pear shaped prior to the wedding for some reason? (as these things do...)

I’m not sure I understand what is going on here. He disclosed to the local office two days after completing the claim form that he was getting married. So, presumably before the decision was made on it. Thus if there was effective disclosure then the IS could have been awarded and superseded later from the date of the wedding. No problem.

Or, there was no record of effective disclosure, the tribunal found on the balance of probabilities that there was no disclosure and found against the claimant. As long as the tribunal reached its decision properly and ticked all the appropriate boxes then no error of law thus LTA refused. So why has the commissioner muddied the waters and introduced this rather nebulous concept. Or is there more going on here.

Agree with nevip.

Further, what is commissioner proposing would have been the effect of a putative non-misrepresentation - ie had claimant actually said on on claim form that he was going to get married?

Would the department have awarded IS at the couple rate before the wedding?

Would they have refused to award IS at the single person rate? (Well, they might, I suppose, but let's assume they got it right)

Or would they have awarded at the single rate and told client to go away and declare actual change of circs once it actually happened?

A misrepresentation is a statement of fact which is not true. It has been said in civil cases that "the state of a man's mind is as much a fact as the state of his stomach" (one of those useful dicta that all law students remember).
What I can't get over is why they went for misrep rather than failure to disclose. After all he would have been told that he had to disclose starting to live with a partner. Unless - and could this be it? - it took so long to process his IS claim that he didn't get his list of changes you must tell us about for weeks after the date of claim and so they couldn't use Re B to get at him?
Like they say, hard cases make bad law!

Reading Big Lee's post, I don't think "they" did go for misrep - it appears to be something introduced by the commissioner.

Nevip has it right in his second scenario, no record of disclosure at local office although he was sure he disclosed. There was evidence to show he had attended at the local office the day he states he disclosed (completed an SSP1) but no record of disclosure. Relatively standard decision from tribunal but we took it to the Commissioner on the basis that the tribunal appeared to have made no specific findings on what he states actually occurred on that day. RoP was very short and the tribunal appeared to have taken no evidence about the terms in which he states he made disclosure, what did he say, what was the staff member's response etc, etc. He had no rep at the original tribunal and I feel they could have done a more thorough job.

Tribunal instead went down the route of if he had disclosed, department would have actioned the disclsoure and as they didn't, on the balance of probabilities, he didn't disclose. A decision they were probably entitled to reach, but they did it under a number of misunderstandings about the factual position (they thought that benefit was in payment, and therefore if his disclosure had been effective, payment should have been affected. As it wasn't affected, they found he was under a continuing obligation to disclose. Of course, as the disclosure was made only two days after the claim form was submitted, benefit was not in payment. Commissioner dealt with this point by finding that the tribunal's misunderstanding about the continuing obligation did not vitiate the decision despite the fact that the tribunal expressly take that fact into account when reaching its decision.)

The Commissioner upheld the finding from the tribunal that on balance he did not disclose, which he was entitled to do although I still think the tribunal could have done a better job in finding out what actually happened when he states he made disclosure. But the determination from the Commissoner found that they were entitled to their findings, entitled to reject claimant's evidence etc, etc. That was probably enough to decide the case and refuse leave on that basis.

The misrep issue came up only in the Commissioner's decision refusing leave. Hadn't been mentioned before and we certainly did not have an opportunity to address whether the failure to state on the claim form that he was getting married in a few weeks was a misrepresentation. But I still don't understand how someone can be under a duty to disclose an intention to marry on a claim form which doesn't ask anything about future intentions! And I can't understand how failing to disclose this future intention can be a misrepresentation. And like past caring said, what would have happened if he did state it on the form? He would probably have been awarded as a single person. If he only stated it on the form and then didn't disclose when he actually got married, I'm pretty sure I'd been looking at a decision which attempted to argue that it wasn't effective disclosure as he didn't disclose after the event occurred.

I should mention that misrep was not the basis on which recovery was being sought though. While the list of instructions of what to disclose hadn't yet been issued to him on this claim, he had been on benefit only a few months prior to making this claim and had been issued with the INF4 then. There was no real dispute over the fact that he was expected to disclose especially when his case was that he had disclosed. Having spoken to the client, I am convinced he did disclose and someone in his local office either failed to record it or failed to advise him on what he had to do next. The department even put forward a signed statement from the staff member who dealt with the SSP1 claim stating "to my knowledge he did not say he was married or getting married." It's a laughable peice of evidence, written by a staff member who sees maybe 30 people a day and written 18 months after the event. Everything about the decision annoys me, although I'm in the middle of trying to stop smoking, so everything annoys me at the moment!!