have i misunderstood this? -

the following prnciple-

“Failure to disclose” does not mean simply “non-disclosure”. It imports a breach of some obligation to disclose.

-has effectively been lost, and for section 71, failure to disclose means the same as a non-disclosure?

jj

I think they are saying that if you don't disclose you will have breached the obligation to disclose, so that non-disclosure is all that matters. The reasons for the non-disclosure don't seem to matter anymore.

However, what about all those cases where we argue that the claimant had discharged the obligation to disclose by an unsuccesful attempt to disclose, either by a phone call that hasn't been recorded or by a letter which has gone astray in the post? The Tribunal of Commissioners don't seem to me to have dealt with the issue of a claimant who believes they have disclosed but have not in fact done so.

The other thing that strikes me is that the claimant in this case had an order book, with all the instructions about what to disclose, and had received the INF4 information leaflet giving the same kind of instructions. They seem to have decided that this information was the Secretary of State's request for information. Order books are disappearing, and it is not that unusual for claimants to receive notification letters that are not accompanied by the relevant information leaflets. If the claimant has not been told what changes of circs they must disclose, does that not give them a defence against non-disclosure?

It may yet get overturned at Court of Appeal, but it looks a bad decision for many claimants.

Following the recent Tribunal of Commissioners decision in CIS/4348/2003 - see rightsnet news story Overpayments and reasonable failure to disclose - does anyone have any thoughts on tactics in the short and longer term for those with pending overpayment appeal hearings?

Although the Commissioners gave only 4 weeks to submit leave to appeal against their decision to the Court of Appeal, are there any arguments advisers could make in the interim, and once leave to appeal has been submitted?

the more i read it the worse it gets. basically, this decision gives the DWP the green light to administer an impossibly complex social security system, completely mechanically, with barely any regard for the humanity of its so called customers, so long as it once issues a requirement to report specified changes of circumstances ever after.

this is a system which baffles experts, never mind ordinary human beings whose human behaviour is in many ways entirely predictable, and never mind people with problems of social exclusion who may be said to have special needs. in a civilized society, it might be pre-supposed that a Secretary of State has a legal or moral obligation to administer a public service for the benefit of the state's citizens, not the benefit of the secretary of state's department.

the DWP is given little incentive to introduce procedures which protect public funds whilst being fair to claimants in any proportionate way, and can now pass on ALL risks involved in delivering a service in ways which do not meet the needs of 'service users, on to the service users themselves. social justice indeed!

i'm disturbed by the way in which the mitigation in 'duty 2' in reg 32(1) of the C& P regs, relating to notifing c/circs in section 5 (j), can be over-ridden by 'duty 1', relating to info required by the SoS for determining claims and questions arising, in sect 5 (h), but i'll leave that to the real experts.

i realize this doesn't address ken's question of tactics but i'm so appalled i need to vent before i can even think of it -

it strikes me that the writing on the wall is so deeply political that legal remedies alone will not address the problems and some sort of action for benefits campaigning will have to arise.

jj

I can't help but agree with you jj - this must be the worst decision in absolutely ages. More alignment of TCs and benefits anyway - now Income Support can go ahead and do what they like just like the Inland Revenue - rather than making than the Inland Revenue be more accountable and take account of its appalling forms and dreadful letters and harassed confused customers.

I aways felt that there was resistance all over when CG/4494/1999 (T please note) came out (NB it has never been reported). To gloss over its analysis of non est factum by CIS/4348/2003 seems to me to be a bit glib, saying that it was primarily concerned with what would become all of the Hinchy stuff. Particularly considering that the subject of non est factum is expressly considered in CG/4494/1999 and with reason - the claimant couldn't speak English. And they analyse Sheriff (used as a bulwark for CIS/4348/2003) and quote that nasty bit:

'"If she had the capacity to make the claim, surely she had the capacity to make the representation."


We do not demur from that observation but rather suspect that had the plea {of non est factum} been taken the result might have been otherwise. It is enough for us to observe that nothing in that case seems to restrict us from considering the plea in this case.'


I just hope that CPAG really pull out all of the stops to appeal this case, and what on earth is going on that a nice ordinary deadline of 3 months for an application for leave to appeal is suddenly cut to 4 weeks? (And why not make it 30 days to unify yet more IS and TCs??? Or just say that further appeal is not allowed at all.)

i hope so too. i don't know whether the Sec of State has argued before that reg 32 (1)has the _catch all_ power that the Commissioner's have ascribed to it. looking at sec.5 (h) to (j), i'm questioning two things - whether this interpretation of reg 32 is ultra vires, and the conflation of the furnishing of information for the determination of a claim or revision/supersession with reporting change of circs. i should add, my understanding of 'ultra vires' is less than impressive!

reg 17 (2)(c)of the DMA regs refers to a person who fails to comply with the provisions of 32 (1) relating to the provision of information etc, in the context of revisions/supersessions, and 17(3) and (4) continues with the SoS notifying the claimant of reg 17 (provision of info or evidence) and the person suplying it within one month (or longer). the consequences of failure to comply in this regulation is the suspension of benefit...

the Commissioner's appear to have emphasised the '_may_ require', in the SoS's powers,arriving at a very unrestricted meaning, whilst subordinating the '_require_' part, which elsewhere in the regs, is rather more active than implied in this decision (satisfied by a one time issue of INF4?)

i've looked at an older version of reg 32, which is headed 'Information to be given when obtaining payment of benefit'. (i've got supp 41 may 97 - nothing older) and i have some doubts that reg 32 is actually the place to look for the obligation, the breach of which section 71 deals with. is it possible that the obligation actually is 'presupposed', and the use of the word 'moral', which may have panicked the Commissioner's, was used simply in the sense of a pre-supposed duty to do the 'right' thing? i don't know.

the older version reads-
"Except in the case of jsa, every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Sec of State may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State may require (either as a condition on which any sum or sums shall be receivable or otherwise), and in particular shall notify the sec. of state of any changes of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt , as soon as practicable after its occurrence, by giving notice in writing..." etc.

doesn't the first half (equating to what the commissioners called duty 1), like Reg 7 in relation to claims, empower the s.o.s to require etc? mesher had something very interesting to say about reg 7 ( see p 378 of the 'bible'). How easy to forget the former separation of powers.

is the Sec of State now _really_ arguing that HIS obligations are met merely by the issue of an INF4 on award? (stuff adjudication on an individual case basis? ) how come the Chief Adjudication Officer never challenged the previous interpretations which the Commissioners have now ditched? is administrative self-interest really more important than social justice?

i don't know if this gives anyone any ideas, but i'll shut up for now before i say something all bitter and twisted.

jj

Has anyone had a look at Commissioner Howell's decision CFC/2766/2003?

Paragraph 13 shows that the Tribunal of Commissioners decision may not be the final word on this issue.

"For this purpose it is not of course necessary for the Board to prove that the failure of disclosure was other than innocent, and I further direct the tribunal that, as is well settled law, the principal question is whether disclosure was reasonably to be expected of the claimant in all the circumstances. That long established principle as laid down and confirmed by two Commissioners of unquestionable learning and experience, Mr I Edwards-Jones QC and Mr J S Watson QC, in the (reported) cases R(SB) 21/82 and R(SB) 28/83, has since been followed and applied as good law and practical sense on countless occasions by Commissioners and tribunals over the last 20 years and more, and should at least for the present continue to be applied in the context of facts such as these, notwithstanding the doubts voiced in quite a different context by a recent tribunal of Commissioners in case CIS 4348/03."

Now I've just got to work out what the different context is...

Good old Commissioner Howell. Has anyone ever lopped off the bits at the end and just looked at http://www.hywels.clara.co.uk/?? A shame that the dirty realists link has gone down but at least the cygnets were doing well in Highgate pond in July 03.

And at least they've deigned to let this decision out onto the website.