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!!
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