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[2008] UKSSCSC CDLA_2203_2007 (19 February 2008)

CDLA/2203/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the Secretary of State against the decisions of the Cheltenham Appeal Tribunal given on 29^th January 2007. The appeal is opposed by the claimant. Nevertheless, for the reasons given below, I have concluded that the decisions of the tribunal were erroneous in point of law and must be set aside. I set out the consequences of my decision and give directions in paragraph 41 below.

The background to the matter is that the claimant has for some years suffered from rheumatoid arthritis, a condition which causes her some discomfort and disability at all times and which is liable to flare up, considerably exacerbating the claimant's condition. At issue are the questions whether in consequence the claimant, at the material times, was entitled to an award of disability living allowance and whether any part of the disability living allowance in fact paid to her was a recoverable overpayment.

The claimant requested a disability living allowance claim form on 5^th November 2002 and appears to have returned it on 31^st January 2003. Her evidence before the tribunal, which was accepted, was that it was filled in on her behalf by an advice worker and she did not read it through before signing it. Further, it was filled in at a time when she was going through a bad period as respects her condition.

The claim form gives details of very significant disability on the part of the claimant. She said that on seven days a week her walking ability was limited to a distance of 10 to 15 yards in five or six minutes. She fell or stumbled two or three times a week. At all times she needed help moving about indoors, getting up, getting dressed and undressed, coping with her toilet needs, washing and bathing, cooking and eating and while she was in bed. Her G.P. stated on the form:

"She has difficulty with all daily living activities due to pain and stiffness. She has had symptoms for a couple of years and it has not improved even with treatment."

The impression given by the form is that the claimant's disability was consistently at a high level.

The Department of Work and Pensions then obtained a medical report from the claimant's rheumatology specialist nurse, which is dated 14^th February 2003. In that report it was stated that the claimant had been diagnosed with rheumatoid arthritis in November 2001, having been originally referred to a rheumatologist in December 2000, and that she continued to have ongoing symptoms of joint pain and inflammation in particular to her hands, wrists, shoulders and feet. She was experiencing problems with daily activities and a referral to an occupational therapist and a podiatrist had been made for assessment. Details of impairment of the claimant's abilities were given and in response to a question about the claimant's prognosis the nurse stated:

"The condition is variable. Patient's disease can be very active causing a "flare" which causes considerable restriction to all activities. Medication is given to try to keep the activity controlled. This can often take different lengths of time depending on response to treatment. Even when the arthritis is settled for the patient they often still experience pain and stiffness but to a lesser degree."

The nurse commented that the claimant was very aware of her limitations, which caused her frustration. She had to watch lifting pans, kettles, hot objects etc. owing to her reduced grip and strength. She was aware she was not able to perform as effectively.

By a decision made on 17^th February 2003, the decision maker decided that the claimant was entitled to the highest rate of the care component of disability living allowance, on the basis that the claimant required attention both during the day and at night, and to the higher rate of the mobility component, on the basis that the claimant was virtually unable to walk. It appears from the record of the decision that the decision maker relied, as one would expect, on both the claim pack and the subsequent medical evidence. The award was an indefinite award from 3^rd January 2003.

In about September 2005 the Department became aware that the claimant was working as a part-time cleaner. Statements were obtained from the manager of the office where she cleaned and from her employer and she was interviewed by a counter-fraud investigator. It was clear, and is accepted by the claimant, that she had been working since before the disability living allowance claim was made. When her condition was bad she was helped by a daughter or niece, to the knowledge of her employer, but that was by no means all the time.

Perhaps not surprisingly, the claimant's entitlement was then reconsidered and by a decision made on 24^th March 2006 the original decision was revised and the claimant was found not to be entitled to benefit from 3^rd January 2003. (The decision is wrongly described as a supersession decision, but that is not material for present purposes.) The revision was based on the Department's ignorance of a material fact, namely, the true extent of the claimant's walking ability and her ability to meet her personal care needs. Heavy reliance was placed on the activities undertaken by the claimant in her work as a cleaner. The decision maker also stated that the claimant had misrepresented her condition on her claim form.

That entitlement decision was followed by an overpayment decision made on 21^st April 2007. It was decided that the claimant had been overpaid £16,522.50 between 8^th January 2003 and 14^th March 2006 and that that amount was repayable by the claimant, who was reasonably expected to know the true and full extent of her functional ability.

The claimant appealed against both decisions. The papers before me do not include her notice of appeal against the entitlement decision. Her appeal against the overpayment decision was in effect on the basis that the decision should await the outcome of her entitlement appeal.

The tribunal hearing the case on 29^th January 2007 dealt with both the entitlement and the overpayment appeals. They heard a considerable amount of oral evidence from the claimant and in due course produced a very detailed and careful statement of reasons. Their conclusion was:

(1) from 3^rd January 2003 the claimant was entitled to the care component of disability living allowance at the lowest, not the highest, rate and was not entitled to the mobility component at either rate. Her entitlement was on the basis that she could not cook a main meal for herself. There had been a considerable overpayment which fell to be recalculated by the Secretary of State;

(2) the original award had been made as a result of incorrect statements in the claim pack, amounting to misrepresentations. The award should not, however, have been for an indefinite period but should have been for a fixed period of one year. The misrepresentations therefore caused the overpayment made for the period 3^rd January 2003 to 2^nd January 2004, but thereafter the overpayment was caused by the Department's flawed decision.

It is to be noted that in paragraphs 21 and 27 of their statement of reasons the tribunal recorded that the claimant accepted that the original claim form was ridiculous. It is to be noted also that the claimant has not sought to appeal against the entitlement decision.

The Secretary of State now appeals with the leave of the district chairman against both the decision on entitlement and the decision on overpayment. The greater part of the Secretary of State's submission relates to overpayment, but I propose to deal first with entitlement, since the amount of any overpayment depends upon the question to what award, if any, was the claimant entitled.

In dealing with the claimant's ability to cook a main meal, the tribunal recorded in the statement of reasons that the claimant said she had problems cooking. She had problems lifting pans and used prepared ingredients and ready meals. She had difficulties peeling potatoes and on some days could not chop vegetables but could manage small pans. She could not cook when she had a flare up. The tribunal accepted that the claimant found difficulty cooking all the time, had poor grip and could not prepare vegetables and peel potatoes, noting her use of prepared ingredients, ready meals and meals cooked by her daughter. They said:

"The tribunal considered that the actions involved in cleaning were different from those needed for cooking and accepted that she could not cook a main meal for herself on a regular basis."

As to this, the Secretary of State points out that the tribunal did not make any findings of fact about the difference in actions for cooking and cleaning and did not make any findings comparing cooking with driving a manual car, an activity which admittedly the claimant undertook. It is submitted that the claimant could cook a main meal for one person except when her condition flared up and that given her evidence about cleaning and cooking it was not reasonable to find that she could not prepare a cooked main meal for one.

The claimant's observations on the Secretary of State's submission do not deal with this aspect, but are concerned solely with the question of overpayment.

In considering the Secretary of State's submission, it is important to bear in mind how the test of inability to prepare a cooked main meal, contained in section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992, has been interpreted in decided cases. It has long been accepted that the test is whether the claimant can produce "a labour intensive reasonable main daily meal freshly cooked", taking all the steps necessary by way of preparation, including "the peeling and chopping of fresh vegetables as opposed to frozen vegetables, which require no real preparation": see R(DLA) 2/95. More recently, the House of Lords has decided that the cooking test is one of overall impression to be reached by tribunals by a general approach. It is "an exercise in judgment rather than in arithmetical calculation of frequency": Moyna v. Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929.

In that state of the authorities, having regard both to the findings of fact of and the reasons given by the tribunal, and having regard also to the fact that an appeal tribunal hearing an appeal involving disability living allowance includes a medically qualified panel member and a panel member with a disability qualification (regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1991, S.I. 1999 No. 991), I do not take the view that the tribunal's conclusion was unreasonable, if by that is meant that it was a conclusion which no reasonable tribunal could have reached. There was evidence from the claimant of particular difficulties with specific activities relevant to the cooking test and those activities were ones which would not necessarily be exactly or very nearly duplicated through the claimant's work as a cleaner or in driving a car. Further, the specialist nurse drew attention to the claimant's reduced abilities in relevant respects. I also note that the effects of the arthritis were visible in the claimant's hands.

On the other hand, I see force in the point made by the Secretary of State that the tribunal did not make clear what differences they were referring to when distinguishing between cleaning and cooking activities, and did not deal at all, in this context, with the claimant's admitted ability to drive a manual car, albeit wearing supports. It is clear that both cleaning and driving did involve a considerable degree of use of the claimant's hands.

Further, it seems to me clear from the claimant's evidence that by perhaps mid to late 2003 her condition overall had improved somewhat and that until she experienced a severe flare up in August 2005 her disease was better controlled than it had been in the relatively early days of the diagnosis. This is not mentioned in the context of the cooking test.

In those circumstances, I have concluded that the tribunal made insufficient findings of fact and gave inadequate reasons for their decision that the claimant satisfied the cooking test. Their decision on the point was therefore erroneous in point of law. In view of the basis on which the decision was reached and in view of the absence of evidence as to the effect or otherwise of the claimant's improvement between late 2003 and August 2005 on her ability to cook a main meal, this is not a case in which it would be appropriate for me to substitute a decision of my own. The entitlement appeal must therefore be remitted to a new tribunal.

This brings me to the overpayment appeal. The decision which I have reached on entitlement does, of course, mean that the decision of the decision maker made on 24^th March 2006 stands for the time being and so the amount of the overpayment is restored to the amount originally determined by the Department. This will, of course, change if the claimant satisfies the new tribunal that she is unable to prepare a cooked main meal for herself, whether for some or for all of the period in issue. (In theory, the claimant will be able to argue for entitlement on some other or more advantageous basis, but I see no reason to suppose that any such argument would succeed.) In those circumstances, there is nothing to be gained by an immediate recalculation of the amount of the overpayment, as originally directed by the tribunal.

The question of principle raised by the overpayment appeal, however, remains a live one in any event. Before turning to the submissions on the point made by the Secretary of State and the claimant, I draw attention to the relevant legal principles. The statutory provision governing the recovery of overpayments is section 71 of the Social Security Administration Act 1992. It enables the Secretary of State to recover an overpayment made "in consequence of" the misrepresentation of or failure to disclose a material fact. It is well settled that the quoted words mean that there must be a causal connection between the misrepresentation or failure to disclose and the overpayment.

It is also clear law that, provided that such a causal connection exists, the misrepresentation or failure to disclose does not have to be the only cause of the overpayment. That is the effect of the decision in Duggan v. Chief Adjudication Officer (appendix to R(SB)13/89). It was there argued that the overpayment at issue resulted from a decision by the adjudication officer to reassess the claimant's benefit without further investigation when his wife ceased to be entitled to maternity allowance, rather than from the claimant's innocent failure to disclose that his wife had since begun to receive unemployment benefit. The Court of Appeal, while accepting that one of the causes might have been the adjudication officer's decision, held that certainly the continuing failure to disclose was a cause of the overpayment and that that was sufficient. The obligation of the adjudication officer was said to be "to deal fairly with the claim made and to obtain for that purpose any necessary information that he needs to do so".

The possible relevance of a failure by an adjudication officer or decision maker to perform that duty was considered in CIS/222/1991 and R(IS)4/06. In the former case, the claimant completed a claim form stating that she paid ground rent of £32.50 a month and (inconsistently) that her property was not a leasehold property. She had in fact confused ground rent with general rates. Her supplementary benefit was calculated on the footing that she did pay ground rent. The Department proceeded on that basis without regard to the additional requirement that ground rent was only to be taken into account if the leasehold interest was for a term exceeding 21 years, of which the claim form, understandably, contained no evidence. Mr. Commissioner Johnson decided that the answers given by the claimant were so plainly inconsistent and ambiguous having regard to the conflicting statements as to put the adjudication officer on notice that investigation was required, and that that circumstance and the absence of any evidence of the length of term of any lease meant that the overpayment was caused by an error on the part of the Department rather than a misrepresentation by the claimant.

In R(IS)4/06 the overpayment arose because the claimant's wife's pension was not taken into account in relation to a claim for income support. The claimant himself was illiterate and the form was completed on his behalf by his wife. The claimant nevertheless signed the form, so the omission of her pension was taken to be a misrepresentation by him. There were apparently certain questions on the claim form which remained unanswered. It was argued for the claimant that the case fell within the ambit of the decision in CIS/222/1991 and that the overpayment was caused by the Department's failure to investigate further. Mr. Commissioner Jacobs rejected that argument on the grounds that the claim form was incomplete rather than ambiguous and contained sufficient information to enable the decision maker to reach a decision. He regarded CIS/222/1991 as an example of a case in which the adjudication officer could not deal fairly with the claim without further investigation. In R(IS)4/06, the decision maker could deal with the claim on the basis of the information given and even if he was partly responsible for failing to investigate further, the claimant shared the responsibility for not giving the correct answers to the questions about his wife's benefits. On the basis of Duggan, the required causal connection existed.

I take the test of "dealing fairly" with the claim, including as it does a reference to obtaining necessary information, to be equivalent to dealing with the claim in a proper manner or appropriately. It follows from this line of authority that if the claimant is to succeed, she must show:

(1) that the decision maker's approach was in some way a failure to deal fairly or properly with the claim; and

(2) that the failure was sufficiently significant to break the causal connection between the misrepresentations contained in the claim form and any overpayment of benefit from 2^nd January 2004 onwards.

The Secretary of State's submission is directed to the first point above. Reference is made to paragraph 61613 of the Decision Maker's Guide, which reads:

"The [decision maker] should fix the period of the award on the balance of probabilities, using all the available evidence and sources of advice. The [decision maker] should make every effort to obtain a prognosis, using the Handbook or Medical services if necessary. Where this indicates that no change or improvement is likely in the person's needs, an indefinite period is appropriate."

The Secretary of State argues that the tribunal's decision rests upon hindsight in so far as it is concluded that the claimant's condition was variable and that the award should have been for a limited period.

The claimant's representative refers to the report of the specialist nurse and in particular to the prognosis given and the statement that the claimant had been referred to other members of the team. It is submitted that there was clear evidence that the condition was variable and that assessment was ongoing. The representative also refers to paragraph 61614 of the Decision Maker's Guide, which reads, so far as material:

"In all other cases, a fixed period award is appropriate. Evidence about treatment or likely surgical intervention may mean an award should be restricted, including such factors as local waiting lists and recovery time. An award may also be restricted for a reasonable period where the prognosis is uncertain, or in child cases as increasing age and maturity may change care or mobility needs."

The basis of the tribunal's conclusion is set out in paragraph 42 of the statement of reasons. They relied heavily on the report of the specialist nurse and on the fact that the claimant was receiving ongoing treatment with what was described as an aggressive form of medication. That was said to be inconsistent with the claimant's assessment in the claim pack. It is to be noted that the flaw in the decision identified by the tribunal was clearly the product of the perceived failure to consider and weigh the evidence properly rather than the result of a failure to obtain necessary information; it is not said that there was an ambiguity which could only be resolved by further evidence. I accept for present purposes that such a failure is capable of amounting to a failure to deal fairly or properly with a claim, for example if it should have been obvious to a decision maker reading the papers with reasonable care that the claimant had made a mistake. The question is whether in this case the decision was in fact so flawed as to constitute a failure to deal fairly or properly with the claim. .

In my view, the decision of the tribunal was unduly critical of the decision maker. The claim form not only gave a detailed picture of substantial and regular care needs, but also included the statement by the claimant that she knew she was not going to get any better. She said that the diagnosis had been made about 18 months earlier and her G.P. said she had had symptoms of the disease for a couple of years and it had not improved with treatment. On the basis of the claim form an indefinite award was clearly appropriate.

One then considers whether, when the report from the specialist nurse is taken into account as well, the overall impression is that this was a case for a fixed period award. That report shows that the claimant had been referred to a rheumatologist more than two years earlier. The section dealing with the prognosis was in general terms rather than specific to the claimant and, as the Secretary of State points out, stated that even when the arthritis is "settled" patients often experience pain and stiffness, although to a lesser degree. I accept that the reference to other members of the team was for assessment. As against this, the report gave clear information about impairment from which the claimant suffered and it does not convey to me the overall impression that there was a real prospect of significant improvement. In particular, the fact that the condition was variable is not to be equated with the prospect of significant improvement, although it does raise the possibility that the claimant's needs were not always at the level stated in the claim form.

In addition to these points, I have considered the guidance in the Handbook referred to in paragraph 61613 of the Decision Maker's Guide. I note the following statements in relation to rheumatoid arthritis:

(1) there is characteristically a prolonged period of joint stiffness in the morning on arising from bed and after sitting in a chair for some time. Help may be needed with getting up, dressing and washing;

(2) damage to the joint structure may cause the hands and wrists to be weak with markedly impaired grip and loss of dexterity;

(3) walking may well be impaired in those with active inflammation of joints in lower limbs. When the feet are affected, this may cause severe pain on walking;

(4) the needs of persons with highly active joint inflammation may lessen dramatically when spontaneous remissions occur or in response to drugs. Drug treatments are associated with an improvement in the extent and severity of arthritis. When this occurs, it will be likely to do so within about one year's treatment. Patients are most responsive to treatment two to five years following the onset of the disease;

(5) in the majority of people with rheumatoid arthritis, the disease smoulders on, involving further joints, and slowly increasing levels of disability and associated needs.

It seems to me that by the time the case came before the tribunal it was possible to see that the claimant broadly fitted the picture of a patient whose disease began to be controlled about a year after her treatment with methotrexate began. This is consistent with the G.P.'s letter dated 9^th November 2005 (p.98 in the bundle). The information before the decision maker, however, does not seem to have included the date at which that treatment started and the impression created by the G.P.'s report on the claim form is that the claimant was not responding to treatment: that is to say, she fell into the majority category. In those circumstances, and looking at the matter overall as it would have appeared to the decision maker on 17^th February 2003, it does not appear to me that the decision to make the award indefinite rather than for a fixed period was one which was not reasonably open to a decision maker in the proper performance of his duty to deal fairly with the claim.

It does not, of course, follow that a fixed period award could not reasonably have been made. Nor does it follow that a fixed period award for a period of a year could not reasonably have been made, having regard to what is said in the Handbook, although the specialist nurse's report gives no indication of the time frame within which the assessment process would be complete and within which it would be reasonably possible to conclude that the claimant's arthritis had been settled, if that was not yet the case. The Handbook, however, would also support a somewhat longer period, given the date of onset of the claimant's disease, and the tribunal were not specific about their reasons for preferring a period of one year rather than any other period.

In those circumstances I have concluded that the tribunal erred in law in proceeding on the footing that the question whether the claimant's misrepresentation caused the overpayment was to be answered by reference to a hypothetical correct decision different from the decision in fact made on 17^th February 2003 but based on the information then available. The decision was one which the decision maker could reasonably have made in the light of the available evidence and so there was no failure to deal fairly or properly with the claim.

If that conclusion is correct, there is no question of a break in the chain of causation. The misrepresentations in the claim pack led to a reasonable decision on entitlement which in turn led directly to the overpayment. But even if I am wrong in my view on the reasonableness of the decision and a failure to weigh the evidence properly led to the decision that the award should be for an indefinite period, the question remains whether the decision maker's error was sufficient to destroy the causal connection with the claimant's misrepresentations. In my view it was not. This is a case in which the claimant's misrepresentations, even if innocently made, were so extreme that she herself described the claim pack as ridiculous when giving evidence to the tribunal. It is not a case of one statement which was wrong but of a whole string of inaccuracies giving a completely false picture of her condition when she was not suffering from a flare up. It is not realistic to assert that the continued overpayment after 2^nd January 2004 is to be taken to have been caused entirely by the alleged error by the decision maker, to the complete exclusion of any causal connection with the claimant's misrepresentations.

In view of the conclusion I have reached on the main overpayment point, it is not necessary for me to deal at length with the Secretary of State's further argument that the tribunal's decision assumes that on a renewal application after the initial twelve months' award the claimant would have completed the claim pack truthfully, or with the claimant's submission that the question what would have happened at the expiration of the hypothetical correct award is irrelevant. I need only say that I see force in the point that the tribunal's decision was that the chain of causation was broken after twelve months because if the right decision had been made the true situation would have come to light. If it cannot be said with confidence that that would have happened, the chain is not to be taken to have been broken. It is not clear whether the tribunal's assertion that the true situation would have come to light is based on the assumption that the claimant would have filled in a renewal form truthfully or on the basis that further medical evidence which would have shown the true position would have been obtained or both.

In view of what I have said in the preceding paragraph about the tribunal's reasons for finding that the true situation would have come to light and what I have said in paragraph 35 about the tribunal's reasons for choosing a one year period of award, I would if necessary conclude in the alternative that the tribunal gave inadequate reasons for holding that the chain of causation was broken.

I should point out also that on the evidence before the tribunal there appears to have been an improvement in the claimant's general health from mid to late 2003 until at least August 2005 which was not disclosed to the Department of Work and Pensions despite the instructions to make disclosure contained in the annual uprating letters sent to the claimant. Those letters appear to have been referred to in the oral evidence. If the tribunal's decision had been right, there would have been a further question whether a fresh cause of overpayment arose when the claimant failed to disclose her improved condition.

The consequences of what I have said are as follows.

(1) I set aside the decision of the tribunal on the entitlement appeal and remit the matter to be determined by a new tribunal constituted, differently from the previous tribunal, under Part I of the Social Security Act 1998. As indicated in paragraph 22 above, it is open to the claimant to adduce such arguments and evidence as she thinks fit as to her entitlement to disability living allowance for the period 3^rd January 2003 to 24^th March 2006.

(2) The amount of any overpayment there may have been will depend upon the outcome of the hearing before the new tribunal. On the basis of the material before me, the original calculation of £16,522 will stand unless the claimant is successful to some degree before the new tribunal.

(3) The new tribunal must determine whether any overpayment there may have been is recoverable in accordance with the principles considered in this decision and with what I have said as to the decision of the original tribunal.

(4) Subject to what I have said in paragraph (3) above, the claimant remains at liberty to adduce such arguments and evidence as she thinks fit on the question whether any misrepresentation or failure to disclose on her part has caused any overpayment.

(5) In order that the claimant is properly informed of the case she has to meet, the Department must prepare a fresh submission dealing with both the entitlement and the overpayment appeals and serve it on the claimant in good time for her to obtain advice before the next hearing.

(signed on the original) E. Ovey

Deputy Commissioner

19^th February 2008