UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CSDLA_140_2006 (19 June 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/140/06

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

Oral Hearing

Appellant: Respondent: Secretary of State

Tribunal: Glasgow Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of the appeal tribunal sitting in Glasgow on 13 January 2006 (the tribunal) is in error of law and I therefore set it aside. However, I substitute the decision the tribunal should have given, which is to the same practical effect and is as follows:
2. The appellant's award of the higher rate mobility component of disability living allowance (DLA) and the lowest rate of the care component thereof, both awarded from and including 9 March 2001, is superseded on account of the relevant change of circumstances that her disablement and its functional effects significantly decreased; on supersession, there is no entitlement to DLA, either component at any rate, from 1 September 2001 (regulation 6(2)(a)(i) and regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991 as amended) (the decisions regulations).
3. As the result of the above supersession, there has been an overpayment of DLA for the period 1 September 2001 to 4 February 2004 (both dates included); this overpayment is recoverable from the appellant because she failed to disclose the material fact that her medical and functional condition had significantly improved (section 71(1) of the Social Security Administration Act 1992 (s.71(1)) and regulation 32(1), (1A) and (1B) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968 as amended) (the claims regulations)).
4. An offset under regulation 13 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (SI 1988/664, as amended) (the payments regulations) has been considered but has not been made out as applicable.
5. The tribunal refers the amount of the overpayment back to the Secretary of State for recalculation in the light of the above. Either party has the right to return to the tribunal in the event of further dispute but over the recalculation only.

The oral hearing

6. The case came before me for an oral hearing on 8 June 2006. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General. The appellant was represented by Mr Fernie, a welfare rights officer with the Social Work Services of the City of Glasgow Council. I am indebted to them all for their assistance.

The issues

7. These relate to the effective date of the tribunal's supersession having regard to the decisions regulations cited above, the extent of the obligation to disclose arising under s.71(1) and the nature of the requirement to consider an offset under regulation 13 of the payments regulations. Insofar as relevant, I refer to the arguments presented on behalf of the parties in my own reasons below.

My conclusion and reasons

8. It has not been suggested by Mr Fernie that any error in law lies in the tribunal's assessment of fact. It is trite law that the weight to be given to any evidence is a matter for the tribunal and is one of fact. It can be disturbed by a Commissioner as an error of law only if the conclusion as to weight is one which no reasonable tribunal could have reached. Having carefully considered all the evidence in the papers, I am not of the view that the way the tribunal assessed competing evidence is such as no reasonable tribunal could have so done and it fully explained its process of reasoning. I therefore rely upon the following findings of fact made by the tribunal:

"1. The claimant was awarded disability living allowance at the higher rate of mobility and lowest rate of the care component on the basis of being unable to cook a meal for herself from 9/03/01 for an indefinite period. The award was based on her evidence in the claim pack, an EMP report and a phone call from the claimant to say that 'medical opinion indicates at present that this damage to my left side will be permanent'.

2. The claimant's disablement followed an operation on her neck to remove part of a disc at C5/C6 level. She made her claim two days after the operation with the help of staff in the hospital. When the EMP visited her at home one month later, she was still having great difficulty mobilising using a zimmer and although she could manage the majority of her personal care because of left side weakness she was unable to prepare and cook a meal for herself. She had a home help.

3. On 1/09/01 the claimant went back to work at [a] Conference Centre working for [a] Catering firm. Her work entailed supervising bar staff, paper work, and general bar work. She cancelled her home help. Initially, she wore a collar to work and sometimes used a stick. …

4. From 15/3/03 to 10/08/03 she worked as a general bar worker … carrying out all the tasks involved in such work such as pulling pints, serving drinks, filling and emptying the dishwasher, handling money, using the till.

5. From 21/09/03 she worked … as a door steward at various pubs and night clubs in Glasgow.

6. Her hours of work over the whole period varied but on several weeks she worked in excess of 37 hours.

…

8. The claimant did not inform the DLA office in Blackpool that she had started work.

9. Her condition has become worse since she gave up employment in July 2004."

(There is one mistake of fact by the tribunal, which I correct: the phone call referred to in paragraph 1 of its findings was in fact a detailed written application dated 18 May 2001 from the claimant, seeking review of a wholly adverse decision on her DLA entitlement made by a decision maker (DM) on behalf of the Secretary of State on 30 April 2001, which disallowance followed a report from an examining medical practitioner (EMP) dated 5 April 2001; the award now superseded was carried out through revision by a DM on 28 June 2001.)

Effective date of the tribunal's supersession

9. The tribunal concluded there had been a relevant change of circumstances since the award was made (which justified a supersession under regulation 6(2)(a)(i) of the decisions regulations, although the tribunal did not refer to that regulation) but did not address how entitlement could be disallowed for a period earlier than the date of such supersession. Surprisingly, no-one at any stage has picked up this point. As Mr Commissioner Rowland pointed out in paragraphs 6 and 7 of CDLA/1823/2004

"… I consider that the appeal tribunal's decision is erroneous in point of law because the chairman failed to record any adequate reason for making the supersession effective from 1 September 2000. It is likely that the tribunal overlooked the material legislation. This seems to me to be a more obvious defect than that identified by the Secretary of State. However, the fault was not entirely the tribunal's, because the Secretary of State, as is all too common, totally failed to deal with the issue of the effective date of his decision when making his submission to the appeal tribunal. Indeed, there was no mention in his submission at all to the provisions relating to supersession in section 10 of the Social Security Act 1998 and regulations 6 and 7 of [the decisions regulations]. ...

7. By section 10(5) of the 1998 Act, a supersession decision made on the Secretary of State's own initiative takes effect from the date it is made, unless regulations otherwise provide (or section 27 applies, which it does not in this case). The only material exception where supersession is under regulation 6(2)(a)(i) on the ground of change of circumstances is provided for in regulation 7(2)(c)(ii) of the 1999 Regulations, which applies only where –

'the claimant … failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify, and the claimant … knew or could reasonably have been expected to know that the change of circumstances should have been notified'.

In such a case, the supersession is effective –

'from the date on which the claimant … ought to have notified the change of circumstances'

….".

10. Regulation 7(2)(c)(ii) operates in the case of most disability benefit and incapacity benefit decisions where either a disability or incapacity determination respectively is involved (regulation 7A of the decisions regulations sets out the relevant definitions). The "regulations under the Administration Act" refer to regulation 32(1), (1A) and (1B) of the claims regulations which, as in force from 6 January 2004, read:

"32–(1) … every beneficiary … shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require for determining whether a decision on the award of benefit should be revised under section 9 of the Social Security Act 1998 or superseded under section 10 of that Act.

(1A) Every beneficiary … shall furnish in such manner and at such times as the Secretary of State may determine such information or evidence as the Secretary of State may require in connection with payment of the benefit claimed or awarded.

(1B) …every beneficiary … shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect –

(a) the continuance of entitlement to benefit; or

(b) the payment of the benefit

as soon as reasonably practicable after the change occurs by giving notice of the changes to the appropriate office …".

The tribunal did not directly address the question of effective date nor do I accept Mr Brodie's submission that it did so by implication. Its reasoning refers rather to s.71(1).

11. In some cases, as here, whether the evidence satisfies regulation 7(2)(c)(ii) of the decisions regulations, which automatically brings in consideration of regulation 32 of the claims regulations, is closely related to whether or not there has been a recoverable overpayment under s.71(1) on the basis of her failure to disclose a material fact. For its adverse conclusion on the last point, the tribunal relied on what it perceived as the appellant's failure to follow instructions in a DLA leaflet.
12. The Court of Appeal in the case of B v the Secretary of State for Work and Pensions [2005] EWCA Civ 929 ("B") upheld the conclusion of a Tribunal of Commissioners (in CIS/4348/2003), that the content of the then unamended regulation 32(1) of the claims regulations imposes a duty on a claimant to report facts which the claimant has been unambiguously requested to supply by the Secretary of State, so that if he or she fails to disclose what is so required, this constitutes also a breach of s.71(1); it was therefore irrelevant that the mental capacity of the claimant was limited. However, the Court of Appeal restricted itself to the argument and evidence before it, relating only to the first duty under regulation 32, but did not disapprove the wider approach of the Tribunal of Commissioners. The Tribunal of Commissioners recognised that two distinct duties to disclose arose from regulation 32(1) (and now arise from regulation 31(1), (1A) and (1B)); if the first is not applicable (for example if there has been no request or such request was ambiguous), then the second relevant duty which informs the obligation under s.71(1) is that currently set out under regulation 31(1B) and is the duty to notify the Secretary of State of any change of circumstances which the claimant might reasonably be expected to know might affect the right to benefit.
13. As a recoverable overpayment must always be preceded by a valid revision or supersession which retrospectively takes away entitlement for the appropriate period, the result of regulation 7(2)(c)(ii) is that for those decisions to which it applies, in effect it will not be possible to make out a recoverable overpayment unless failure to comply with regulation 31(1B) of the claims regulations is demonstrated , and even if it is a case where the Secretary of State could have established a breach under regulation 32(1) or (1A). Similarly, albeit revision under regulation 3(5)(c) of the decisions regulations of an award made in ignorance of, or mistake as to, material fact is not directly linked to an obligation under the claims regulations, there is nevertheless the requirement that:

"at the time the decision was made, the claimant … knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision."

To this extent, therefore, the full reach of the reasoning in B does not affect a claimant.

14. However, although it erred in law, having regard to the undisputed evidence and the facts, the tribunal was correct in dating the supersession as effective from 1 September 2001. The award was made following completion by the appellant of a claim pack of 9 March 2001 in which she set out details of her disablement and its effects in answer to specific questions focused on the statutory criteria for DLA; then, after an adverse decision, she lodged a lengthy written statement in which she said she was back in hospital, she had been advised the damage to her left side was permanent, she needed someone to support and escort her outside and had been supplied with a wheelchair, and that she was too unsteady to cook because she so frequently fell over. By 1 September 2001, however, her condition was as described by the tribunal. The material fact which changed was not that she started work and the tribunal rightly recognised this, but that her functional condition had so improved. In my view, any claimant in such circumstances as the claimant found herself from the beginning of September 2001, could reasonably have been expected to know that this significant improvement should be drawn immediately to the attention of those responsible for paying her DLA. Therefore, under regulation 7(2)(c)(ii), the effective date of the supersession remains 1 September 2001.

A recoverable overpayment

15. The tribunal clearly relied on the reasoning of the Court of Appeal in B for its conclusion that there had been a failure to disclose a material fact and this failure underpinned the recoverable overpayment. It reasoned:

"The DLA leaflet tells the claimant that starting work or training is a change that must be reported because the Department needs to know if the claimant needs less or more help with personal care or getting around. This too is unambiguous – if you start work you must inform."

16. Mr Fernie argues that this is a misconstruction; the leaflet referred to (DLA95), although it requests the claimant to say if she starts work, then qualifies this in a later page by stating:

"If you have started work or training we need to know if you need less or more help with personal care or getting around".

He argues that what the leaflet requires is only that claimants who start work which results in changes to their care and mobility needs have to so notify. I reject this submission as a strained construction. The instruction to tell the Department if a claimant starts work is mandatory. The qualifying sentence merely explains why the information is needed. In any event, in the present case, it was that her mobility and care needs had altered so much which was the material fact which the claimant knew and about which it was reasonable that she should inform the Department immediately.

17. I am more sympathetic to Mr Fernie's argument that the Secretary of State has not satisfactorily established that any DLA95 in the terms now lodged was ever issued to the claimant. I agree with Mr Brodie that, as the common practice is to issue such leaflets to claimants, then even though the Department has no record of that having been done in the instant case, the tribunal may legitimately infer a leaflet was so issued. However, Mr Fernie points out that the leaflet to which the tribunal referred is dated November 2003, and thus after the relevant date when disclosure was required. Mr Brodie asks me to assume that the earlier leaflet was similarly phrased; I am less happy about making that inference but do not require to do so as the duty of which the claimant was in breach does not have to flow from regulation 32(1A) as in the case of B. From the evidence relevant to regulation 7(2)(c)(ii) of the decisions regulations, the appellant was in any event in breach of an obligation arising through regulation 32(1B) of the claims regulations, and this was sufficient to found the failure to disclose required under s.71(1). I substitute this alternative determination to underpin the recoverable overpayment for that of the tribunal.

Offset

18. It is undeniable that the adverse overpayment decision under appeal to it made no reference to consideration of any offset or to regulation 13 of the payments regulations. On this, the tribunal held:

"Following CDLA 3768 2002 is irrelevant to the award of disability living allowance that the claimant may or may not have claimed and may or may not have been entitled to income support. Regulation 13 deals with offsets between income support and similar claims. Disability living allowance is not one of those."

19. So far as pertinent, regulation 13 of the payments regulations reads:

"13— (1) … [I]n calculating the amounts recoverable under section [71](1) … where there has been an overpayment of benefit, the adjudicating authority shall deduct—

…

(b) any additional amount of income support, or state pension credit, or income-based jobseeker's allowance which was not payable under the original, or any other, determination, but which should have been determined to be payable—

(i) on the basis of the claim as presented to the adjudicating authority, or

(ii) on the basis of the claim as it would have appeared had the misrepresentation or non-disclosure been remedied before the determination;

but no other deduction shall be made in respect of any other entitlement to benefit which may be, or might have been, determined to exist.

…"

20. At paragraph 17 of CDLA/3768/2002, Mr Commissioner Williams said:

"Regulation 13 deals with offsets between income support and similar claims. … But this is a case of an overpayment of disability living allowance. The decision giving rise to the overpayment was a decision to stop payment of disability living allowance because of an improvement in the claimant's disablements. This was identified when it was found that she was regularly working. … The representative is attempting to resist the overpayment decision because the Secretary of State has not dealt with regulation 13. As the claimant puts it … 'they have not considered whether any underpayment of income support has ever happened in my benefit history'. But it is irrelevant to the award of disability living allowance that the claimant may or may not have claimed, and may or may not have been entitled to, income support or the other income-related benefits. Regulation 13 does not in any way make it relevant. There is no basis in extant law for any offset of these different benefits against each other in the case of the overpayment of one even if the underpayment of the other is established. So the possibility of an underpayment need not be considered. As regulation 13 is irrelevant in substance, the decision of the Secretary of State cannot be held to be at fault for failure to mention it. ..."

21. Although Mr Brodie supported this reasoning, I am unable to do so. I agree with the decision of Mr Commissioner Mitchell QC in R(IS) 9/96. At paragraphs 8 and 9 Mr Commissioner Mitchell said:

"8. In my judgment the terms of regulation 13 do render it obligatory for the adjudication officer in an overpayment case to consider the question of possible underpayment of income support. For that purpose he clearly requires to consider the 'basis of the claim as presented' in terms of regulation 13(b)(i) or 'the basis of the claim as it would have appeared …' in terms of regulation 13(b)(ii) and the awarding decision which followed the claim. Depending on the information in the claim he may also have to look at 'any other determination'. I do not consider it necessary that the adjudication officer should in every case expressly state that he has considered regulation 13 and not found there to have been any underpayment, provided he includes a reference to regulation 13 among the provisions stated to have been taken into consideration. I agree … that a claimant who has reason to believe he may have been underpaid income support should state the basis of that belief. ...

9. I adhere to the view expressed in R(IS) 5/92 that the period of possible underpayment is not limited to the period of overpayment. That necessarily follows in cases where the same benefit is involved, as in R(IS) 5/92 and the present case from the wording of regulation 13 itself. The overpayment in question may of course relate to an entirely different benefit (see the definition of 'benefit' in regulation 1(2) which applies to the use of that word in regulation 13). In such a case there may be no connection between the respective periods, particularly perhaps in the case falling under regulation 13(b)(i)."

22. Its wording also makes apparent that the claims and determinations referred to under regulation 13(b) are those relating to income support, state pension credit or income-based jobseeker's allowance rather than to the overpaid benefit, unless the overpaid benefit happens to be the same. Although poorly drafted, on which frequent comment has been made, it is clear what is the objective of regulation 13(b); if there was sufficient on a relevant claim form for the benefit it is now sought to offset (which is limited to the named benefits) to alert the adjudicator to a possible additional amount or such claim would have so alerted the adjudicator if there had been the correct information rather than as falsified by the misrepresentation or non-disclosure, then the means tested claimant may benefit from this.
23. At paragraph 11 of R(IS) 9/96, Mr Mitchell continued:

"… There is no evidence that the adjudication officer had considered the question of underpayment of income support under regulation 13 in this case. That being so and since the issue had been raised before them the tribunal should have called for production of the relevant claim and determination in order to satisfy themselves and remedy the deficiency in the adjudication officer's decision."

24. However, I judge that those comments must be read in context. Firstly, the overpayment and offset related to the same benefit, so that it was relatively easy for an adjudication officer to produce any claim documents. Secondly, although he does not state what underpayment of income support and when was being suggested, it is significant that Mr Commissioner Mitchell refers to "the relevant claim and determination" (my emphasis).
25. In R(IS) 1/05 I held at paragraphs 46 to 48 that, although the onus of proof lies on the DM to establish an overpayment of benefit under s.71 of the Act, it is for the claimant who seeks a deduction by way of offset to make it out. The claimant may not go on a fishing expedition so that if he or she merely raises the possibility of offset the DM has to rebut it; there must first be some prima facie evidence that an offset might be applicable. I agree with Mr Brodie that there was none such here. This is the second time the case has been before a Commissioner. Before that the appellant was not represented so, unsurprisingly, nothing relevant to offset was suggested. The first time the rehearing was listed, Mr Fernie simply submitted that offset should be considered before the tribunal came to its decision; at the hearing of the tribunal whose decision is now in issue, all he said was that "DLA confers entitlement to Disability Premium – talking 5 years ago".
26. A person who receives disability living allowance is entitled to a disability premium as part of their applicable income support amount, and as a result of the tribunal's decision the appellant was rightly in receipt of DLA from 9 March 2001 to 1 September 2001. However, despite ample time and opportunity to do so, the appellant made no attempt to substantiate a case that she was on income support during the relevant period and was not paid disability premium as part of it, although her appropriate claim for income support should have alerted a DM to such entitlement. On her claim form for DLA, the appellant suggested that she was then receiving income support. However, any such income support award could not encompass the DLA entitlement which came later. She does not suggest that she then applied for review based on the subsequent DLA award yet an additional amount to take account of disability premium was never made payable. There was therefore no relevant claim or its determination which a DM could be asked to produce.
27. Regulation 13 gives significant assistance to the claimant subject to a recoverable overpayment but in no way does it mean that any past underpayment requires an offset, other than in the limited circumstances set out in regulation 13(1); nor does it create a situation where a claimant has only to suggest offset, without further specification as to the particular claim relied upon, and the matter must be extensively investigated. Therefore, despite error in law by the tribunal in its approach to offset, again the correct result was reached.

Summary

28. Although there are errors of law in the tribunal's decision, that is of no practical benefit to the appellant because my own decision is as set out at paragraphs 2 to 5 above and is to the same effect as that of the tribunal. In order to avoid any doubt, I emphasise that the Secretary of State does not submit, nor do I suggest, that there is anything wrong in the tribunal's conclusion that any overpayment incurred after 4 February 2004 is irrecoverable.

(Signed)

L T PARKER

Commissioner

Date: 19 June 2006