Reply To: Caselaw request please – The ‘Council as a whole’


The significance of Hinchy has been eroded over the years

In CIS/4422/2002 Mr Commiissioner Howell held at [10]

10. In any event, there was no evidence of any requirement on him to send any separate notification to any separately identified section of the staff working within what was otherwise presented to him as a single local office of the Department for Work and Pensions, of the activities within that office of any other. As far as that last point goes, the evidence and the findings of the tribunal in this case show that it falls within the same principle as that explained in CSB/677/86 and CIS/1887/02, there being nothing before the tribunal to suggest that the staff in this claimant’s local office had been physically separated as a matter of fact so as to constitute two distinct “offices” of the department albeit in the same building (so as to make the facts analogous with those accepted by the Commissioner in CIS/3700/05, on which the Secretary of State’s submission relied); or that any such division had in any way been identified to the claimant.

There have been a couple of Northern Ireland decisions (SK-v-Department for Communities (ESA) [2020] NICom 73 and PMcL-v-Department for Communities (ESA) [2020] NICom 21) which suggest that facts on the ground such as development’s in computer systems and centralised call centres may in some circumstances render Hinchy no longer good law.

Mr Commissioner Stockman held in SK at [47] and [50]-[51]

47 However, referencing R(SB)15/87, it seems to me that, in order to discharge the obligation to disclose, the issue in these cases is not merely whether the Department knew the fact in issue, but whether the appellant knew that the Department knew it. In addressing what the claimant knew, I consider that judicial notice has to be taken of the technological revolution over the past 30 years. The benefits system is fully computerised. To the extent that Chief Commissioner Mullan is saying that in the 21st century the Department can reasonably be assumed by claimants to have knowledge of the information it inputs on its own computer systems, I agree with him

50 More generally, I am also satisfied that when he received notice from the Department of the change it was making to his DLA award, the appellant was entitled to assume that all relevant branches of the Department also had received that information. I agree with the reasoning of Chief Commissioner Mullan in PMcL v DfC and support his approach. Lord Hoffman said at paragraph 32 of Hinchy that “the claimant is not entitled to make any assumptions about the internal administrative arrangements of the Department. In particular he is not entitled to assume the existence of infallible channels of communication between one office and another”. However, it is plainly time that the factual circumstances underpinning the House of Lords decision in Hinchy are distinguished in order to reflect the reasonably expected standards of 21st century benefits administration.

51. I conclude that the tribunal erred in law by rejecting the submission that the Department knew the material fact that the appellant’s DLA award had changed, and that he knew that it knew. The Department was the entity that had brought about the change in circumstances by its decision on DLA. The appellant learned that same information directly from the Department. By holding that the appellant was not entitled to rely on computerised Departmental systems to assume that the ESA branch of the Department knew of the decision that its DLA branch had made, and by holding that he had failed to disclose a material fact, I consider that the tribunal erred in law.