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[1994] UKSSCSC CIS_571_1994 (12 December 1994)

R(IS) 8/96

Mr. J. Mesher CIS/571/1994
12.12.94

Hospital in-patient - claimant absent from hospital during evenings and week-ends - whether circumstances existing at the beginning of a day are to be treated as continuing throughout the day

The claimant was admitted to hospital as an in-patient on 19 April 1993 but had various periods of home leave and could go out during the day. By virtue of regulation 21 of, and paragraph 1 of Schedule 7 to, the Income Support (General) Regulations 1987 the claimant would become entitled to a reduced rate of income support after being a patient for six weeks. Regulation 21(3) of those regulations defines a "patient" as a person who is receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975. The Department of Social Security did not become aware of the claimant's admission to hospital until September 1993. An adjudication officer then decided that there had been an overpayment of income support which was recoverable from the claimant by reason of his failure to disclose or misrepresentation of a material fact. The claimant appealed against this decision on the ground that he should not be classed as a patient because he had very few meals in the hospital and was away for most evenings and weekends. The tribunal disallowed his appeal.

Held that:

in determining whether a person was an in-patient for the purposes of regulation 2(2) of the Social Security Hospital In-Patients Regulations 1975, the circumstances existing at the beginning of a day were to be treated as continuing throughout that day (see CU/54/1948, CS/131/1949 (reported), R(S) 9/52). Thus a day on which a person is admitted, or returns, to hospital is not a day on which a person is discharged from, or leaves, hospital is to be treated as such a day;

the rule laid down in R(S) 1/66 in relation to disqualification from benefit that a person is only disqualified for days throughout which he is absent from Great Britain does not apply in this context. The provision at issue in that case used the phrase "for any period during which", which the Commissioner decided meant "throughout". However, regulation 2(2) merely refers to any period "for which" the person receives free in-patient treatment. Therefore, R(S) 1/66 does not indicate that decisions mentioned above are wrongly decided.

The Commissioner allowed the claimant's appeal and referred the appeal to a differently constituted appeal tribunal for rehearing.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1 . The claimant's appeal is allowed. The decision of the Bristol social security appeal tribunal dated 9 June 1994 is erroneous in point of law, for the reasons given below, and I set it aside. The appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the directions given in paragraphs 20 to 22 below (Social Security Administration Act 1992, section 23(7)(b)).

This appeal stems from an adjudication officer's decision on 2 October 1993 reviewing and revising the claimant's entitlement to income support from 6 May 1993. That was on the basis that the claimant had become an in-patient in hospital on 24 March 1993 and continued to receive in-patient treatment until 30 July 1993. The claimant would become entitled to a reduced rate of income support after being a patient for six weeks, but the Department of Social Security was not aware of the claimant's admission to hospital until it received the form MED 10 from the hospital concerned on 6 September 1993. The adjudication officer's decision on 2 October 1993 was that income support amounting to £273.05 had been overpaid to the claimant for the period from 6 May 1993 to 29 July 1993 as a consequence of his misrepresentation of material fact.

The claimant appealed against that decision. He said that while in the hospital unit concerned he had very few meals there, and was away for most evenings and weekends. His living expenses were substantially the same as before admission to hospital and it was unfair to require him to repay £273.05. The adjudication officer's written submission on form AT2 relied on misrepresentation of material fact in cashing specified girocheques and orders in order books and, in the alternative, failure to disclose material facts.

In a letter dated 11 January 1994 the claimant's father, on his behalf (because the claimant was unable to write himself), stated that the claimant was admitted to the hospital unit as an out-patient on 24 March 1993 and did not become an in-patient until 13 April 1993. He also stated that the claimant was granted home leave for most weekends and had unrestricted permission to leave the premises provided that he returned by about 10 pm, except when required to attend therapy sessions. In the light of that letter, the appeal tribunal which sat on 7 March 1994 adjourned the hearing for further investigation. A letter to the hospital produced the information from the ward clerk that the claimant was admitted as an in-patient on 19 April 1993, and giving dates for periods of leave from 30 July 1993 until his discharge on
3 September 1993. In a letter dated 8 April 1994, the adjudication officer submitted that the reduction in entitlement to income support should start from 3 June 1993, which was said to be six weeks after the date of admission. He recalculated the amount of the overpayment for the period from 3 June 1993 to 29 July 1993 at £190.05, on the basis that the claimant was an in-patient continuously in that period. In a letter dated 20 April 1994, the claimant's father agreed that the claimant was an in-patient from 19 April 1993 until 28 August 1993 and submitted a list of dates on which the claimant was on leave from the hospital, including many dates involving an overnight stay away from hospital, many of which were in the period prior to
30 July 1993.

Neither the claimant nor his father attended the hearing before the appeal tribunal on 9 June 1994. The adjudication officer's representative said that he had telephoned the hospital. Medical records had no separate information from that held in the ward. The ward said that there may have been informal arrangements for periods of home leave beyond those mentioned in writing. The representative also said that he had telephoned the claimant's mother, who had said that there were no nights that the claimant had spent away from the hospital.

The appeal tribunal disallowed the claimant's appeal and decided that £190.05 had been overpaid for the period from 3 June 1993 to 29 July 1993 and was recoverable from the claimant. Its findings of fact were recorded as follows:

"[The claimant] was admitted as a hospital in-patient on 19 May 1993 [clearly a slip for 19 April 1993]. From six weeks after the date of admission (3 June 1993) he was entitled to a reduced amount of income support. Although [the claimant] was at home frequently on day leave between 3 June 1993 and 29 July 1993 he spent every night in hospital throughout this period. [The claimant] was suffering from obsessional compulsion disorder and may have been unable to look after his affairs but there was no evidence to suggest that he was suffering from such mental impairedness that he was unaware of a material fact (that he was spending nights in hospital) and it was reasonably to be expected that disclosure would be made of this material fact."

Its reasons for decision were recorded as follows:

"During the above period (in box 3) [the claimant] spent every night in hospital; he was accordingly an 'in-patient', Commissioner's decision R(I) 27/59.

The applicable amount of income support for such a patient at the relevant time was £14.05 weekly, paragraph 1, Schedule 7, Income Support (General) Regulations. [The claimant] was overpaid for this period £190.05, see document 85 in papers for hearing.

The amount is recoverable because [the claimant] knew of the material fact (that he was an in-patient) and disclosure was reasonably to be expected. Recovery may be avoided if a person is not mentally capable of knowing or appreciating the relevant material fact. R(SB) 28/83, but there is no evidence to show that this was the case with regard to [the claimant] even though he has been described as unable to manage his affairs.

Section 71, Social Security Administration Act 1992"

The claimant's application for leave to appeal to the Commissioners was granted by the appeal tribunal chairman. The grounds were that the claimant's mother denied having said what the adjudication officer's representative had reported, that the claimant was on weekend leave for many days and that that should be taken into account in the calculation of the overpayment, and that the adjudication officer's calculation of the amount of the overpayment was wrong, as the claimant was only receiving £34.70 per week in the period in question. The adjudication officer then concerned with the case, in the submission dated 24 November 1994, submitted that the appeal tribunal erred in law in three respects. The first was that if the claimant was admitted as an in-patient on 19 April 1993, the 43rd day as a hospital in-patient was 31 May 1993, on the assumption that he did not return home on leave in that period. Therefore, the appeal tribunal had not shown how it arrived at the date of 3 June 1993. Second, the appeal tribunal did not show why it preferred the oral statement of the adjudication officer's representative to the written statement made on behalf of the claimant and did not make findings of fact on the exact periods for which the claimant was absent from the hospital throughout the whole period of his hospitalisation. Third, the appeal tribunal failed to indicate clearly whether its decision on the recoverability of the overpayment was based on misrepresentation or failure to disclose. It was submitted that there should be a rehearing before a new appeal tribunal.

In reply the claimant's father took exception to the raising of the possibility of a rehearing, saying that the claimant's only dispute was with the amount of the overpayment. That reply was, I think, based on a misunderstanding of the nature of an appeal to the Commissioners. If a Commissioner considers that an appeal tribunal's decision is erroneous in point of law, then the whole decision has to be set aside and the question of what the proper decision ought to be must be considered afresh. It is also the case that if it is accepted that the claimant did go on weekend leave during the period of the alleged overpayment, there would be no apparent reason not to accept that he also went on weekend leave prior to that period and that would affect the calculation of the six weeks before the reduction in income support was imposed.

It seemed to me that there might be some legal difficulties in working out the claimant's proper entitlement to income support if it were to be accepted that he was absent from the hospital for weekend leaves or other periods involving overnight stays away. I therefore directed that the adjudication officer should make a further written submission. The submission dated 24 April 1995 made essentially three points. The first was that paragraph 1 of Schedule 7 to the Income Support (General) Regulations 1987 ("the Income Support Regulations") reducing the amount of income support applied to each day on which a claimant was an in-patient after the first six weeks. It was not necessary for the claimant to be an in-patient for every day in a benefit week. That was said to follow from the terms of paragraph 7(2), (3) and (6) of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987 ("the Claims and Payments Regulations") on the date on which effect was to be given to changes of circumstances. Second, that each leaving of hospital for an overnight stay and each return from an overnight stay would be a change of circumstances giving grounds for review of entitlement from the date of each occurrence. Third, the evidence produced subsequent to the adjudication officer's decision of 2 October 1993 suggested that the claimant was an inpatient for some periods after 29 July 1993 and that the question of revision of entitlement after 29 July 1993 ought to be considered.

I directed an oral hearing of the appeal and drew attention to apparently conflicting Commissioners' decisions on the question of whether or not a person was to be treated as a patient on days of arrival at or return to hospital and on days of leaving hospital. Neither the claimant nor his father attended the oral hearing, although the claimant's father had reiterated the case made on the claimant's behalf in written submissions. The adjudication officer was represented by Miss Nicola Yerrell of the Office of the Solicitor to the Department of Social Security.

Miss Yerrell first adopted the points made in the adjudication officer's submission dated 24 November 1994 about the errors of law made by the appeal tribunal. I have no hesitation in agreeing that that appeal tribunal erred in law in the three respects identified in that submission (and set out in paragraph 7 above). The appeal tribunal's decision must therefore be set aside. A problem remains, however, about the legal basis on which I or any new appeal tribunal to which I refer the appeal should determine the claimant's case.

In order to understand Miss Yerrell's submission on the particular legal question raised in the direction for an oral hearing, the relevant legislation needs to be set out. The special rules as to the applicable amounts of patients contained in paragraph 1 of Schedule 7 to the Income Support Regulations apply to those falling within the definition of "patient" in regulation 21(3). That definition provides:

"'patient' means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975;"

Regulation 2(2) of the Hospital In-Patients Regulations, as in force from
16 November 1992, provides:

"(2) For the purposes of these Regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient-

(a) in a hospital or similar institution, under the National Health Service Act 1977, the National Health Service (Scotland) Act 1978 or the National Health Service and Community Care Act 1990; or

(b) in a hospital or similar institution maintained or administered by the Defence Council;

and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are provided under section 65 of the National Health Service Act 1977, section 58 of, or paragraph 14 of Schedule 7A to, the National Health Service (Scotland) Act 1978 or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990."

There is no question of the claimant's accommodation and services having been provided under any of the legislation specified in the final part of regulation 2(2). Therefore, he would be regarded as being maintained free of charge for any period for which he was undergoing medical or other treatment as an in-patient. The question of law which arises is how to identify the first and last days of such periods.

Miss Yerrell submitted that Commissioner's decision R(S) 1/66 should be followed. There the Commissioner was concerned with a provision that a person was to be disqualified for receiving any benefit "for any period during which" that person was absent from Great Britain. He held first that the period could consist only of complete calendar days and that the legislation made no provision for parts of days. That principle is unassailable and clearly applies also to regulation 2(2) or the Hospital In-Patients Regulations. The Commissioner also held that a claimant would not be disqualified under the provision he was considering for a day if during any part of the day the person was not absent from Great Britain. Thus a person would not be disqualified for days of leaving or returning to Great Britain. In paragraph 11 the Commissioner wrote:

"11. As was explained in decision CS/6/1965 the word "during" can mean either "throughout" or "on a particular occasion in". In Inland Revenue Commissioners v. St Luke Hospital Trustees, Registered [1930] 36 TLR 412 (reversed on other grounds) Rowlatt J observed that, if one is describing a thing which occupies the whole of a period such as presence in a given place, "during" is an admirable word for it. In my judgment "during" in section 49 clearly must mean "throughout"."

A person could not be said to have been absent from Great Britain throughout a day of leaving or arrival. The Commissioner declined to follow decision CU/54/1948 (reported), in which in relation to an identical provision it was held that it was convenient to assume that the state of affairs which at first occurred on a day persisted throughout that day.

Miss Yerrell submitted that the same approach should be applied to regulation 2 (2) of the Hospital In-Patients Regulations, so that a person would only be regarded as receiving free in-patient treatment for a day throughout which he was receiving treatment as an in-patient. She considered decisions relating to predecessors of regulation 2(2) in which it was held, following CU/54/1948, that since a period of treatment had to be calculated in days it was convenient to assume that the state of affairs which existed at the beginning of the day lasted throughout the day. Those decisions were CS/131/1949 (reported), R(S) 8/51 and R(S) 9/52. She submitted that those early decisions were very briefly expressed and did not deal with the point made in paragraph 15 of R(S) 1/66 that a rule treating a person as absent from Great Britain throughout a day for part of which the person was not absent would be artificial. She submitted that where there was some ambiguity in a regulation which operated to exclude a claimant from entitlement to benefit the ambiguity should be resolved in the way which produced the narrowest exclusion consistent with the language used.

Miss Yerrell's submission was persuasive, and made the points which could legitimately have been made on behalf of the claimant. Two factors in combination lead me to reject that submission. The first is the existence of the reported Commissioners' decisions CS/131/1949, R(S) 8/51 and R(S) 9/52 endorsing a different rule in relation to regulations which also required the identification of a period for which a person had received free in-patient treatment. Those decisions have not, so far as I am aware, been doubted in any later Commissioners' decisions. Although the Commissioner in paragraph 8 of R(S) 1/66 mentioned CS/131/1949 as one of the decisions which had followed and applied CU/54/1948, he did not say that it was wrong in relation to the provision with which it was concerned. Indeed, he emphasised in paragraph 16 of his decision that his decision was:

"based purely on a construction of the particular section of the Act with which I am concerned and does not depend on whether the result is favourable to the claimant or not. Moreover it cannot be assumed that the same result would necessarily follow under some other differently worded section or regulation."

The practice of individual Commissioners, as described in paragraph 21 of Commissioners' decision R(I) 12/75, is to follow the earlier decisions of individual Commissioners on questions of legal principle unless satisfied that those decisions are wrong. Thus I should follow the decisions mentioned above unless satisfied that they are wrong.

That point leads to the second factor the basis of the principle laid down in R(S) 1/66, which Miss Yerrell submits that I should adopt. It seems to me that, as emphasised in the passage quoted in the previous paragraph, the Commissioner's decision was strictly based on the construction of the particular provision before him. He reached the result that he did on the basis that the provision only disqualified a person for receiving benefit for a day "throughout which" the person was absent from Great Britain. That was why it was said that the application of the assumption in CU/54/1948 would be artificial. And the proposition that the disqualification only applied to a day "throughout which" the person was absent was itself based on the use in the provision before the Commissioner of the phrase "for any period during which", as is clearly shown in paragraph 11 of R(S) 1/66 (quoted in my paragraph 13 above). Neither regulation 2(2) of the Hospital In-Patients Regulations nor any of the provisions importing that definition into the income support scheme make any reference to a person being defined as a patient for "any period during which" the person is receiving free in-patient treatment. Instead, regulation 2(2) merely refers to any period for which the person receives free in-patient treatment. Thus there is not the particular legislative peg on which the Commissioner in R(S) 1/66 hung his decision. The difference between the forms of words may seem no more than a matter of form, but it was one which the Commissioner in R(S) 1/66 regarded as central to his decision.

In those circumstances, R(S) 1/66 cannot simply be applied to the legislation in issue in the present case. It does not indicate that Commissioners' decisions CS/131/1949, R(S) 8/51 and R(S) 9/52 were wrongly decided. I am certainly not satisfied on any other ground that they were wrongly decided and conclude that practice requires me to follow them. The regulations on hospital in-patients have been re-enacted several times since those decisions were given, without any change being made to the form of words. There may be an artificiality in a rule which assumes the circumstances existing at the beginning of a day to continue throughout the day, but that seems to me no more artificial than a rule which deems a person not to be receiving free in-patient treatment on a day on which the person is in hospital from midnight until 10 pm. Nor can either result be said to be intrinsically unfair to claimants.

The result is that the legal principle which is to be applied in cases arising under regulation 2(2) of the Hospital In-Patients Regulations, either directly or by incorporation into other regulations, is that where a person is admitted to or returns to hospital on a day, that day is to be treated as a day on which the person is not receiving treatment as an in-patient, but a day on which a person is discharged from or leaves hospital is to be treated as such a day.

I have already determined that the appeal tribunal's decision dated 9 June 1994 must be set aside as erroneous in point of law. I have concluded that I am not in a position to give the decision on the appeal and that the case must be referred to a differently constituted social security appeal tribunal for determination. It does not look as though the hospital involved would be able to produce anything better than the inadequate and incomplete records already in the papers. The claimant's father, in the document dated 20 April 1994 now at page T95 of the papers before me, produced a list of the days on which the claimant was absent from the hospital on leave. There are inconsistencies between those pieces of evidence (as well as what looks like a slip in the document dated 20 April 1994, where leave from 13 August 1993 to 15 August 1993 is listed as well as leave from 14 August 1993 to 14 August 1993). I do not think it would be right for me to assess the weight of those pieces of evidence without having given the claimant and his representatives the opportunity to clarify what was being put forward on his behalf.

Directions to the new appeal tribunal

There must be a complete rehearing before the new appeal tribunal, on the submissions made and evidence presented to it. As noted in paragraph 19 above, the claimant's father may wish to present a revised version of the document dated
20 September 1994 listing the days of leave from the hospital, if possible in advance of the rehearing so that the adjudication officer may have the opportunity to consider it. I can also say that it would greatly aid the new appeal tribunal in its consideration of the appeal if the claimant's father or mother were able to attend the rehearing and to give evidence in support of the dates of leave put forward, which could for instance indicate whether the dates were based on memory of what had happened or could be supported by something like entries in a diary or on a calendar.

The first legal question for the new appeal tribunal must be that of review and revision of the decision awarding the claimant income support for the period from
5 January 1993 onwards, on the basis of which payments of income support were made to the claimant throughout the period in question. Only once a ground of review has been proved and a revised decision less favourable to the claimant made can the amount of any overpayment of benefit and the period to which it relates be identified. In order to identify when, within the terms of regulation 21(1), (2) and (3) of and paragraph 1 of Schedule 7 to the Income Support Regulations, the claimant had been a patient for a period of more than six weeks, the new appeal tribunal will have had to make precise findings as to the days on which the claimant was in hospital as an in-patient for the entire day and as to the days on which he arrived in hospital and left hospital. In determining which days count as part of a period for which the claimant was within the definition of "patient" the new appeal tribunal must apply the rule expressed in paragraph 18 above. The provisions of the Claims and Payments Regulations as to the day on which a change of circumstances takes effect must be applied on that basis. Depending on the findings of fact made by the new appeal tribunal, that may produce the result that the award of income support to claimant should not be revised until some date later than 3 June 1993 (the date adopted on shaky arithmetic by the appeal tribunal of 9 June 1994), but may also produce the result that the revision should continue beyond 29 July 1993 (the end date adopted by both the adjudication officer initially and by the appeal tribunal of
9 June 1994).

If the new appeal tribunal finds that the process of review and revision leads to the identification of an overpayment of income support for an identified period, it must go on to consider whether the adjudication officer has proved that the amount of the overpayment is recoverable under section 71 of the Social Security Administration Act 1992. In the written submission to the new appeal tribunal the adjudication officer should make it clear whether he relies on the ground of misrepresentation of material fact or on the ground of failure to disclose a material fact or on both grounds, and what he relies on as constituting a misrepresentation of material fact or a failure to disclose a material fact. The new appeal tribunal must also, if it finds any amount recoverable, make it clear what ground is being relied on, and why, and ensure that the requirements of R(SB) 40/84 have been met. I need give no further directions of law on the application of section 71. The general principles to be applied are well known.

Date: 12 December 1994 (signed) Mr. J. Mesher
Commissioner