Northern Ireland - Social Security and Child Support Commissioners' Decisions

AK-v-Department for Social Development (DLA) [2012] NICom 261

Decision No:  C57/11-12(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 25 January 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    Having considered the circumstances of the case, I am satisfied that the application can properly be determined without a hearing.  I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.    The decision of the appeal tribunal dated 25 January 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the Department, on 15 February 2005, had grounds to supersede the decision dated 14 January 2004, and that the appellant was not entitled to either the care or the mobility components of disability living allowance (DLA) from 12 July 2004 until 1 March 2005 is confirmed.

 

       Background

 

3.    This appeal has a detailed and complicated background.  The appeal is also inextricably linked to another appeal which is before the Social Security Commissioners and which has the reference C56/11-12(DLA).

 

       Original decision-making in the Department

 

4.    On 14 January 2004 a decision-maker of the Department decided that the appellant satisfied the conditions of entitlement to the higher rate of the mobility component and the middle rate of the care component of DLA from 25 March 2004 until 24 March 2006.  Following investigations and observations conducted by officers from Benefit and Investigation Services and the conducting of interviews under caution with the appellant, another decision-maker, on 15 February 2005 decided that there were grounds to supersede the decision dated 14 January 2004 and remove entitlement from and including 12 July 2004.  I shall refer to the decision dated 15 February 2005 as the ‘entitlement’ decision.  A letter of appeal against the decision dated 15 February 2005 was received in the Department on 11 March 2005.

 

5.    There than followed a lengthy period of appeal activity.  Before setting out the chronology of that appeal activity, I would note that on 23 February 2005, another decision-maker of the Department decided that an overpayment of DLA, amounting to £2492.40, for the period from 14 July 2004 to 15 February 2005, had been made and which was recoverable from the appellant.  I shall refer to the decision dated 23 February 2005 as the ‘overpayment’ decision.  That decision is the subject of the proceedings which are before the Social Security Commissioners in the appeal with the reference C56/11-12(DLA).  The relevance and context of that decision to the present appeal will be noted below.

 

6.    I would also note that on 25 May 2005 another decision-maker of the Department decided that the appellant should satisfy the conditions of entitlement to the middle rate of the care component of DLA from 2 March 2005 to 2 March 2007 on the basis of a further claim to that benefit.

 

       The first appeal tribunal hearing in connection with the ‘entitlement’ decision

 

7.    An appeal tribunal hearing took place on 6 November 2007.  The delay in hearing and finally determining the appeal was caused by a series of adjournments, primarily to permit criminal proceedings to be taken.  For the purposes of the oral hearing of the appeal, the Department had prepared an additional submission which alluded to the decision dated 25 May 2005 which had made a further award for a fixed period from 2 March 2005 to 2 March 2007.  Further the additional submission contended that as a result of the decision dated 25 May 2005 the appeal tribunal was confined to considering the period from 12 July 2004 to 2 March 2005.

 

8.    The appeal tribunal disallowed the appeal but substituted its own decision for that of the Department.

 

       The further appeal in connection with the ‘overpayment’ decision

 

9.    On 3 March 2008, and following an earlier postponement, an appeal against the decision dated 23 February 2005, the ‘overpayment’ decision, was listed for oral hearing.  The appeal was adjourned as it was noted that an application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal’s decision in connection with the ‘entitlement’ decision had been lodged with the Commissioner.  The legally qualified panel member (LQPM), in the terms of the adjournment noted that should the Social Security Commissioner grant leave, allow the appeal and remit the ‘entitlement’ decision for re-hearing, the re-hearing should be listed together with the hearing of the appeal in connection with the ‘overpayment’ decision.

 

       The first proceedings before the Social Security Commissioner

 

10.   An application for leave to appeal to the Social Security Commissioner against the decision of the appeal tribunal dated 6 November 2007 was successful.  My decision (C16/08-09 (DLA)) was to remit the case back to a fresh tribunal for re-determination.

 

       The second appeal tribunal hearing in connection with the ‘entitlement’ decision

 

11.   Following an earlier adjournment, the further oral hearing of the appeal in connection with the ‘entitlement’ decision took place on 25 January 2010.  In line with the terms of adjournment of the oral hearing which took place on 3 March 2008, the further oral hearing in connection with the ‘entitlement’ decision was listed together with the oral hearing of the, as yet, undetermined appeal against the ‘overpayment’ decision.

 

12.   In connection with the ‘entitlement’ decision, the appeal tribunal disallowed the appeal and issued two decision notices to the following parallel effect:

 

‘Appeal disallowed.

 

1.               Grounds existed on 15.2.05 to supersede the decision dated 14.1.04.

 

2.               Appellant is not entitled to the Mobility/Care Component of DLA in respect of the period 12.7.04 to 1.3.05.

 

3.               12.7.04 is the effective date of supersession.’

 

13.   On 20 April 2010 a letter of appeal against the decision of the appeal tribunal dated 25 January 2010 was received in the Appeals Service (TAS).  On 1 October 2010 the application for leave to appeal was rejected by the LQPM as he considered that leave to make an application for leave to appeal out of time under regulation 58(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, should be refused.

 

       Proceedings before the Social Security Commissioner

 

14.   On 8 October 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 13 December 2010, and following a requirement to seek further clarification from TAS and the LQPM concerning the LQPM’s decisions in connection with the applications for leave to appeal, I accepted the late application for special reasons.  Also on 13 December 2010 written observations on the application for leave to appeal were requested from Decision Making Services (DMS) and these were received on 18 January 2011.  In these written observations, Mrs Hulbert, for DMS, opposed the application on the grounds cited by the appellant’s representative.  The written observations were shared with the appellant on 27 January 2011.  On 28 February 2011, written observations in reply were received from the appellant’s representative which were shared with Mrs Hulbert on 10 March 2011.  On 28 March 2011 a further reply was received from Mrs Hulbert which was shared with the appellant and her representative on 11 April 2011.

 

       Errors of law

 

15.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

16.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)      giving weight to immaterial matters;

(v)      making a material misdirection of law on any material matter;

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

The submissions of the parties

 

17.   The appellant’s representative made a single composite application for leave to appeal against the appeal tribunal’s decisions in respect of both the ‘entitlement’ and ‘overpayment’ decisions.  In summary, the appellant’s representative submitted that the decision of the appeal tribunal was in error of law on the basis that the Department’s presenting officer indicated to the appellant, her niece and her legal representative at the oral hearing of the appeal, on 9 December 2009, that the Department would not be seeking recovery of the overpaid DLA.  At the subsequent hearing on 25 January 2010, however, the appeal tribunal members had no record of this concession and decided to continue with the hearing.  This had three separate consequences, as follows:

 

(i)          Firstly, the indication by the Department to the applicant, her niece and legal representative that it would not be seeking recovery of the DLA overpaid was enough to create within the appellant, a legitimate expectation that the Department would no longer be seeking any repayment.

 

(ii)         The second issue was whether it necessarily followed that if the decision to supersede was valid then the Department would be entitled to recovery for overpayment.  Given that the decision to supersede was correct, the appeal tribunal could still have increased the appellant’s entitlement to DLA to include the highest rate of the care component for the period then it ‘… clearly does not follow.’

 

(iii)       The final issue was whether or not the tribunal had adequately investigated the appellant’s assertion that the Department had indicated that it would not be seeking recovery for the overpayment.  The appellant’s representative submitted that it was worth noting that the record of proceedings for appeal tribunal hearing held on 9 December 2009 was not consulted.  In addition no evidence was adduced from the applicant, her niece or her representative.  Finally the Department’s representative was not contacted.  Consequently, it was highly arguable that the tribunal had not adequately investigated the applicant’s assertion and in failing to do so, the tribunal was in breach of Article 6 of European Convention on Human Rights and/or the decision to proceed with the hearing amounted to an abuse of process.

 

18.   The appellant’s representative also submitted that she had proceeded with her appeals despite suffering from a number of stress related conditions and felt it was not in her best interests to delay the appeal any longer.  The representative also contended that in light of the decisions that were taken it was now arguable that both appeals should have been dealt with separately by two different tribunals.

 

19.   Finally, the appellant’s representative submitted that it was arguable that the appeal tribunal had failed to explain its conclusions that the Department, on 15 February 2005 had grounds to supersede the decision dated 14 January 2004 and remove entitlement from and including 12 July 2004.  Additionally, the appeal tribunal had failed to address all of the medical evidence which was before it.

 

20.   As was noted above, in written observations on the application for leave to appeal, Mrs Hulbert, for DMS, opposed the application on the grounds cited by the appellant’s representative.

 

       Analysis

 

21.   Section 69(5A) of the Social Security Administration (Northern Ireland) Act 1992, as amended, provides that:

 

(5A)  Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.

 

22.   In summary, this paragraph says that there can be no recoverable overpayment of social security benefit, unless the original decision which gave rise to the award of benefit, now deemed to have been overpaid, is revised or superseded.  Without an alteration or change in the decision giving rise to the entitlement to the particular benefit, there can be no recovery of it.

 

23.   The importance of the proper identification of a section 69(5A) decision was emphasised by Deputy Commissioner Powell in C10/07-08(IS).  At paragraph 4 he stated:

 

‘ … the relevant statutory provision, which is section 69(5A) of the Social Security Administration (NI) Act 1992, expressly provides that a decision which seeks to recover an amount of overpaid benefit cannot be made unless the determination in pursuance of which the amount was overpaid has been revised or superseded by a separate decision.  In other words, the decision which awarded benefit must be abrogated or corrected in one of the ways permitted by the legislation before a decision can be made as to how much has been overpaid and what is now recoverable.  Put like that, the sequence of decisions is logical.  The two decisions can be contained in a single document provided that the sequence is apparent.  Section 69(5A) is an important safeguard.  Tribunals, rightly, are alert to see that it has been complied with.  Nothing I am going to say casts doubt on their vigilance.  A tribunal must allow an appeal against a decision seeking to recover overpaid benefit once it becomes clear that the decision which awarded benefit has not been revised or superseded in the appropriate manner.  Further, a tribunal should also allow an appeal where not only is there no copy of the revision or supersession decision before it but such evidence as is relied upon leaves the tribunal uncertain as to whether the necessary decision was taken.’

 

24.   In essence, the appeal tribunal will have to identify two decisions.  The first is a decision which alters previous decision(s) awarding entitlement to benefit – that can be described as the entitlement or section 69(5A) decision.  The second is a decision that overpaid benefit is recoverable – that can be described as the recovery or section 69(1) decision.  At paragraph 10 of C10/07-08(IS), Commissioner Powell stated:

 

‘It is now settled law, and section 69(5A) so provides, that the recovery of an overpayment of benefit requires two distinct decisions which are often called the “entitlement decision”, which changes the entitlement to benefit for a past period through the process of revision or supersession, and the “recoverability decision”.  The latter being based on the former.  I use the word “distinct” deliberately.  Since the recoverability decision is based on the entitlement decision it must be proceeded by it.  Subject to that, the two decisions can be given on the same date or even in the same document – provided that they are distinct and that it is clear that the entitlement decision comes first.’

 

25.   Deputy Commissioner Powell also emphasised the importance of ensuring that there has been a proper notification of a decision, including a section 69(5A) decision, to a claimant, and set out the consequences where no such proper notification had been made.

 

26.   In the present case, the Department has submitted that the decision dated 15 February 2005 is the decision which could be classified as a section 69(5A) entitlement decision.  Accordingly, the appeal tribunal’s duty was to consider whether the decision dated 15 February 2005 was correct.  That included the requirement to determine whether the Department, on 15 February 2005, had grounds to supersede the decision dated 14 January 2004 and, if such grounds did exist, should remove entitlement to DLA, from and including 12 July 2004.

 

27.   The appellant’s representative, in the application for leave to appeal, challenges the appeal tribunal’s decision on the basis that it was arguable that the appeal tribunal had failed to explain its conclusions that the Department, on 15 February 2005 had grounds to supersede the decision dated 14 January 2004 and remove entitlement from and including 12 July 2004.  Additionally, the appeal tribunal had failed to address all of the medical evidence which was before it.

 

28.   Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.  More particularly, and contrary to the submission made by the appellant’s representative, it is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.  The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

 

29.   The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

 

30.   The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.  All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.

 

31.   The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.  In particular, the appeal tribunal correctly applied the legal rules with respect to the supersession of decisions.

 

32.   The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of, and adherence to, such principles.

 

33.   Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.  The appellant’s application for leave to appeal to the Social Security Commissioner amounts, for the most part, to a further submission on factual issues rather than questions of law.  It is clear that an appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

 

34.   Finally, I have noted that in the composite application for leave to appeal to the Social Security Commissioners against both of the appeal tribunal’s decisions in connection with the ‘entitlement’ and ‘overpayment’ issues which were before it, the majority of the application is taken up with the raising of issues relating to what was submitted to be a ‘concession’ made by a Departmental presenting officer concerning pursuit and enforcement of the ‘overpayment’ decision by the Department.  I have dealt with the submissions on this issue in my related and parallel decision in connection with the appeal tribunal’s handling of the ‘overpayment’ decision in C56/11-12(DLA).

 

       Disposal

 

35.   The decision of the appeal tribunal dated 25 January 2010 is not in error of law.  Accordingly the decision of the appeal tribunal that the Department, on 15 February 2005, had grounds to supersede the decision dated 14 January 2004, and that the appellant was not entitled to either the care or the mobility components of DLA from 12 July 2004 until 1 March 2005 is confirmed.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

27 February 2012