Upper Tribunal (Administrative Appeals Chamber)

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Cite as: [2009] UKUT 148 (AAC)

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DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant, but not on the basis of the grounds of appeal that have been advanced by her.

The Upper Tribunal remakes the tribunal's decision in terms that essentially lead to the same outcome.

The decision of the Sheffield First-tier Tribunal dated 16 December 2008 under file reference 138/06/00001 relating to disability living allowance in fact involves two decisions.

The first is the tribunal's decision to dismiss the appellant's appeal against the Secretary of State's decision dated 27 April 2005 (the disability living allowance entitlement decision). This decision involves an error of law as the tribunal failed to recognise that the Secretary of State's decision should have been by way of revision not supersession. The tribunal's decision is set aside and remade as follows:

The substance of the appellant's appeal against the Secretary of State's decision dated 27 April 2005 (the disability living allowance entitlement decision) is dismissed. The Secretary of State's decision was that the appellant was not entitled to any rate of either component of disability living allowance with effect from 6 April 1992. That decision was carried out by way of a purported supersession. The Secretary of State should have achieved the same result by way of a revision and the decision is revised accordingly to the same effect. All subsequent decisions relating to disability living allowance are also revised as regards entitlement up to and including 26 June 2008.

The second is the tribunal's decision that it had no appeal before it from the appellant against the Secretary of State's decision dated 11 May 2005 (the disability living allowance overpayment decision). This decision involves an error of law as this decision was properly under appeal to the tribunal. The tribunal's decision that it had no such appeal before it is set aside and remade as follows:

The appellant's appeal against the Secretary of State's decision dated 11 May 2005 (the disability living allowance entitlement decision) is dismissed. The appellant was overpaid disability living allowance £37,614.52 in respect of the period from 8 April 1992 to 12 April 2005. The decisions making those awards have all been revised by virtue of the Secretary of State's decision dated 27 April 2005 as remade by the tribunal. The overpayment was caused by misrepresentations made by the appellant and is recoverable from her under section 71 of the Social Security Administration Act 1992.

This decision of the Upper Tribunal is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The issues at the heart of this appeal

The practical issues at the heart of this appeal relate to the appellant's entitlement to disability living allowance for a period between 1992 and 2008 and her potential liability for a recoverable overpayment of disability living allowance for most of that same period.

The real issue at the heart of this appeal was the credibility or otherwise of the appellant, a woman now aged 61. At the tribunal hearing, the Department argued that throughout the period in question the appellant was working part-time as a cleaner under an assumed and false identity and had misrepresented her capabilities on successive application forms for disability living allowance. The appellant claimed that there was no evidence to link her with this 'ghost worker'. In effect, she was saying it was a case of mistaken identity. The tribunal dismissed the appellant's appeal, concluding that it had 'no hesitation in saying that the appellant is an untruthful and unreliable witness' and that she had misrepresented the nature of her medical conditions on the disability living allowance claim forms from the outset.

The Upper Tribunal's decision in summary

The appellant's appeal to the Upper Tribunal is nominally allowed, but it is of no practical benefit to her. The decision of the Sheffield First-tier Tribunal dated 16 December 2008 under file reference 138/06/00001 on the disability living allowance appeal involves an error on a point of law. However, it is appropriate for the Upper Tribunal to re-make that decision in terms which achieves the outcome sought by the First-tier Tribunal. The effect is that the appellant is not entitled to disability living allowance for the period from 6 April 1992 to 26 June 2008 and the Secretary of State is entitled to recover from her the overpayment of disability living allowance amounting to £37,614.52 in respect of the period from 8 April 1992 to 12 April 2005.

The four joined appeals

This was one of four linked appeals that were heard together by the First-tier Tribunal in Sheffield on 16 December 2008. District Tribunal Judge Taylor kept a single Record of Proceedings for the hearing(s). A few days later the tribunal issued four separate Decision Notices, disallowing each of the four appeals. The District Tribunal Judge later issued a single five-page composite statement of reasons for all four appeals.

The decision of the Upper Tribunal in the appeal relating to the incapacity benefit entitlement decision (CIB/838/2009) has been treated as the lead case. The Upper Tribunal's decision in CIB/838/2009 therefore also includes the reasoning in relation to the incapacity benefit overpayment appeal (CIB/836/2009) and the related income support entitlement appeal (CIS/837/2009). For that reason separate short decisions merely setting out the Upper Tribunal's decision and referring back to CIB/838/2009 have been issued in respect of the appeals in both CIB/836/2009 and CIS/837/2009. This fourth appeal, relating to disability living allowance, requires separate consideration and so is the subject of this further full decision in CDLA/834/2009.

Before considering the disability living allowance appeal itself, it is necessary to set out the tribunal's findings and conclusions on the appeal against the incapacity benefit entitlement decision and the history of the appellant's disability living allowance claim.

The tribunal's decision on the incapacity benefit entitlement appeal

In its combined statement of reasons, the First-tier Tribunal made two pages of detailed findings of fact. It started by noting that 'ultimately all of the appeals turn upon the honesty and credibility of the appellant'. The tribunal continued:

'The tribunal finds as a matter of fact that the appellant was employed by the company on the dates set out above.

The tribunal further finds as a matter of fact that the appellant provided a false name, Betty Harrison, a.k.a. Liz, a false address… and false national insurance number, namely….'

During the course of this employment the appellant cleaned three offices, performing among other such tasks as empty waste bins, vacuuming and dusting.

The appellant travelled to work in a red van on some occasions and a Land Rover on others. The van was converted to transport dogs and was used by the appellant when she attended dog shows.

The appellant was at all dates relevant to all of the appeals a dog breeder who travelled to shows throughout England and who also acted as a judge at dog shows.'

As a result of the various findings and reasoning, the First-tier Tribunal stated that it 'had little difficulty in coming to the conclusion, on the balance of probabilities, that the appellant had been working between the relevant dates'. As this was not exempt work, the tribunal therefore concluded that the appellant had not been entitled to invalidity benefit and then incapacity benefit for the stated period between 1992 and 2004. The tribunal accordingly dismissed the appellant's appeal against the Secretary of State's decision in relation to entitlement to incapacity benefit.

The history of the appellant's disability living allowance claim

The appellant made a claim for disability living allowance (DLA) in March 1992, shortly before that benefit came into operation. She completed a DLA1 claim pack, stating that she suffered from severe vertigo, sickness, vomiting and shortness of breath. She said that she could walk about 40 steps before the onset of severe discomfort. She also claimed that she had these difficulties seven days a week. She signed a declaration on the claim pack to the effect that 'The information I have given about the help needed with getting around is correct and complete'. She made no reference to any personal care needs.

On 20 May 1992 an examining medical practitioner (EMP) visited the appellant at home and completed a report for the Department. The appellant told the EMP that 'I have attacks of Menière's daily which last a couple of hours, there is no warning. A bad attack can confine me to bed all day', signing a declaration to the effect that 'I agree that this information is correct'. The EMP added, presumably on the basis of what the appellant had told him, that '[the appellant] will not go out on her own as too frightened… Menière's attack almost daily.' On 2 July 1992 an adjudication officer made an indefinite award of the lower rate of the mobility component of DLA with effect from 6 April 1992.

On 17 July 1992 the appellant completed a fresh DLA1 claim pack by way of an application for a supersession. She described her care needs as including help moving around indoors 4 to 5 days a week and help with cooking 6-7 days a week. Again, she signed to confirm that the information given on the form was correct and complete. The Department seem initially to have mislaid that application, as the appellant completed another form in similar terms in November 1992. An adjudication officer then made an indefinite award of the lowest rate of the care component of DLA with effect from 15 July 1992, to run alongside the existing award of the lower rate mobility component.

On 1 July 1996 the appellant made a further request for a supersession, completing a DLA434 pack. She stated that she now had chronic back trouble, could only walk 50 metres before severe discomfort, and had mobility problems seven days a week. She did not refer to any new personal care needs. An adjudication officer decided that the appellant met the conditions for an award of the higher rate of the mobility component for the period from 30 April 1995 to 31 December 1997. However, that higher rate was not payable for the period from 30 April 1995 to 31 March 1996 because of the late application for supersession.

On 9 July 1997 the appellant completed a DLA580 form, presumably a renewal form, referring to both her mobility needs and care needs. She had another EMP examination in August 1997. She told the doctor that she could walk no further than 50 yards and needed supervision because of dizziness caused by Menière's. She said that she was never out (alone) in traffic on foot and that her carer's husband drove her anywhere she needed to go.

On 9 September 1997 an adjudication officer changed the existing award and made an award of the middle rate care component for the period from 11 June 1997 to 31 December 1997. The adjudication officer also made an award of the higher rate mobility component and the middle rate care component of DLA with effect from 1 January 1998. Both of those awards were stated to be indefinite.

The chronology of DLA awards set out above has been based on the copies of adjudication officers' decisions contained in the appeal bundle. It does not correspond in every detail either to the evidence given by a presenting officer at the tribunal hearing or to the applicable dates and rates as found by the tribunal. However, whatever the precise details of the earlier history, there seems to be no dispute that the appellant's DLA claim history had started in April 1992 with an award of the lower rate of the mobility component and that she had had the benefit of an award of the higher rate mobility component and the middle rate care component from January 1998 until 2005.

The circumstances surrounding the DWP fraud investigation have been outlined in decision CIB/838/2009. Following that inquiry, on 27 April 2005 a decision maker purported to supersede the earlier decisions awarding DLA. The new decision was that both components were disallowed with effect from 6 April 1992. The reasons given were that (i) the earlier decisions had been given in ignorance of a material fact, namely that the appellant had been working regularly in a physical job; (ii) the appellant had only taken odd days off from the job; and (iii) the veracity of her own evidence had been thrown into doubt as a result of matters uncovered in the fraud inquiry. As a result, the decision maker concluded, 'had the decision makers had the above evidence from start of entitlement then it is reasonable to conclude that she would not have been considered as virtually unable to walk, unaccompanied outdoors, and could undertake all aspects of own care unaided or unsupervised'. The appellant wrote a letter of appeal on 8 May 2005 against that DLA entitlement decision.

A further decision was then taken on 11 May 2005 that the appellant had been overpaid DLA amounting to £37,614.52 in respect of the period from 8 April 1992 to 12 April 2005. The overpayment was found to be 'due to non-disclosure by C P of the full facts of her abilities', as stated in the entitlement decision, and so recoverable from her. Her solicitors wrote a letter of appeal on her behalf against the DLA overpayment decision.

On 27 June 2008 the appellant made a fresh claim for DLA. The claim pack for that application was not before the tribunal, but the decision maker asked the tribunal to 'take this into account and only consider an award up to 26/06/2008'. At the hearing, the tribunal was told by the presenting officer that there had been an award of DLA comprising the higher rate of the mobility component, but no rate of the care component, with effect from 2 July 2008. It was unclear whether the decision maker who made that award in 2008 did so (a) solely on the basis of the 2008 claim pack; (b) on the basis both of that claim pack and also in the full knowledge of the history of the previous awards and the subsequent fraud investigation; or (c) some other basis.

The tribunal's conclusions on the disability living allowance appeal

The tribunal's unanimous decision, as stated on the Decision Notice, was that the appellant was not entitled to either component of DLA 'with effect from 6 April 1992'. In other words, the appeal was dismissed and the Secretary of State's decision dated 27 April 2005 about entitlement to DLA was confirmed.

In its combined statement of reasons, the tribunal devoted most of its attention to the appeal against the incapacity benefit entitlement decision. It is right to say, however, that may of the tribunal's findings of fact in relation to the appellant's physical capabilities were applicable equally to the incapacity benefit and DLA appeals. There were only two passages which focussed on the issues relating specifically to DLA.

In the first passage, as part of its summary of the background, the tribunal stated as follows:

'Following the supersession by the Secretary of State the award terminated and overpayment decision was made in addition to the outcome [i.e. the entitlement] decision. The appellant has not appealed the overpayment decision although she appeals the outcome decision.

Since the date of termination of the original award as superseded, the appellant has made a further claim for DLA on 02/07/08 as a result of which she has been awarded higher rate mobility but no element of the care component. The award is an indefinite award. The appellant has not appealed the non-award of the care component.'

In the second passage relating to DLA, under the discussion of its reasons, the tribunal concluded as follows:

'So far as entitlement to DLA is concerned because the tribunal has found that the appellant is both untruthful and unreliable it comes to the conclusion that each application for DLA was based upon misrepresentations and untruths by the appellant as to her condition. Even though there were medical examinations, given the nature of the appellant's stated disability which can be simulated, the tribunal is of the unanimous opinion that the appellant simply exaggerated or made up the majority of her symptoms and that she did not meet the criteria for an award of DLA at any time.

Although it falls after the date of the decision the tribunal notes that whilst the appellant has been awarded the high rate of the mobility component, despite having applied for the care component and having been refused an award of the care component she has not appealed that element of the decision. In any event the tribunal is further reinforced in its opinion that the appellant was not entitled to any award from the outset because even when entitled to the low rate of the mobility component she was clearly going out alone when working.

This is an unusual case to the extent that the appellant has succeeded in deceiving various doctors, those charged with examining her for the purpose of disability living allowance or her own medical attendants. Nevertheless it is the judgment of that tribunal that this is exactly what she did and accordingly the appeal in relation to disability living allowance is also dismissed.'

The appellant's grounds of appeal in relation to disability living allowance

The appellant's solicitors set out two grounds of appeal which are particular to the DLA appeal; one concerns adequacy of reasons and the other relates to the lower rate mobility component.

Adequacy of reasons

The tribunal is said to have found that the appellant was an untruthful and unreliable witness and that therefore each and every DLA application involved misrepresentations and untruths. The appellant's solicitors argue in effect that the tribunal have jumped to the wrong conclusion. The first ground of appeal thus relates to adequacy of reasons. Furthermore, it is said that the tribunal failed to make any findings of fact as to her actual mobility and care needs, and failed to explain how the appellant both working (which, of course, was denied) and attending dog shows meant that she was not eligible for DLA.

Mr Atkinson, the Secretary of State's representative in the proceedings before the Upper Tribunal, takes issue with this contention. He refers to the tribunal's very strong findings on the appellant's lack of credibility, in the context of her sustained and strenuous denial that she was the cleaner at the depot and her very late admission that she was involved in dog shows. He argues that the tribunal was accordingly entitled to conclude, as it did, 'that the appellant was not entitled to any award from the outset because even when entitled to the low rate of the mobility component she was clearly going out alone when working'. In addition, Mr Atkinson submits that the tribunal did not need to make precise findings of fact as to her actual mobility and care needs, given the particular context of the tribunal's findings as a whole.

The simple fact that the appellant was found to have been working did not automatically mean that she was not entitled to disability living allowance. There is no direct link between employment status and entitlement to DLA, and of course many people are both in work and (properly) in receipt of DLA. However, as Mr Commissioner Mullan explained in the unreported Northern Ireland Commissioner's decision C12/08-09(DLA), building up a picture of an appellant's lifestyle and general level of ability includes 'within that picture evidence relating to a person's employment, where relevant. More importantly, the appeal tribunal will be permitted to adduce evidence of the level of functional ability arising from the work requirements, make findings on that level of functional ability and draw inferences concerning care and mobility needs' (at paragraph 83).

In granting permission to appeal, attention was drawn to the tribunal's finding that 'given the nature of the appellant's stated disability which can be simulated, the tribunal is of the unanimous opinion that the appellant simply exaggerated or made up the majority of her symptoms'. I asked whether the tribunal needed to make a specific finding as to which particular condition could be simulated and as to whether this was a case of actual symptoms being exaggerated or false symptoms being made up. On reflection, I am confident that the reference to a 'disability which can be simulated' was almost certainly a reference to Menière's Disease.

I also take the view that the tribunal was not required to make a conclusive finding as to which of the two possibilities applied (whether the symptoms had been either exaggerated or made up). The tribunal members may not all have agreed on which of these options applied. Or they may have all taken the view that some symptoms were exaggerated and others were made up. Ultimately it does not matter as, whichever was the case, the fact remained that the tribunal concluded unanimously that the appellant was not entitled to DLA at any rate at any date under consideration. That was sufficient to dispose of the matter.

I also take account of the tribunal's very robust findings as to the appellant's lack of credibility as a witness. Mr Commissioner (now Judge) Jacobs has rightly warned tribunals to guard against the risk that they might erroneously 'infer general unreliability from isolated inaccuracies' (CDLA/2783/2006). This was not that type of case.

In reported decision R 3/01(IB), a Tribunal of Social Security Commissioners in Northern Ireland stated as follows:

'If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.'

The present tribunal went further in giving detailed reasons for its findings on credibility. Given the context of the present case – including the amount at stake and the seriousness of the allegation – it was entirely right to provide 'chapter and verse'. However, the tribunal was also entitled, given the strength of those findings, to state that the appellant had exaggerated or made up her symptoms and that she never met the criteria for DLA at the times under review. The adequacy of fact finding and reasons are to some extent always context specific. This is one of those probably rare cases in which a global conclusion that the criteria for entitlement had not been met did not need to underpinned by detailed fact-finding with regard to e.g. particular attention or supervision needs. The tribunal was entitled to take the view that the appellant's evidence was tainted and unreliable throughout.

As Mrs Commissioner Brown stated in the Northern Ireland decision C48/03-04(DLA) (at paragraph 32), 'It is not a legal rule that a Tribunal must make a separate evidential assessment for each component or rate of a component. All that is required is that the reasons be adequate to explain the decision.' This tribunal amply met that obligation.

Indeed, the tribunal might well have referred to other evidence supporting its conclusions. For example, the appeal bundle included a 77-page print-out of the appellant's GP records dating back to 1992. The tribunal made no express reference in its statement of reasons to these records, much of which referred to repeat prescriptions. This omission may be because the tribunal had formed the view that the appellant had deceived her doctors over a pronged period of time.

However, the tribunal noted that between 2002 and 2004 there were several entries stating that the appellant undertook 'aerobic exercise three or more times per week'. Furthermore, an entry on 9 February 2005, a fortnight before the first interview under caution, stated that she 'enjoys moderate exercise'. Yet, by 20 September 2005, after those interviews had been concluded, her GP records stated that 'exercise physically impossible'. The medical reason for this apparent rapid deterioration was unclear. It is plain from the Record of Proceedings that the tribunal asked the appellant questions about these various entries but failed to elicit satisfactory replies.

For the reasons set out above, I would not have allowed this appeal on the basis of the challenge to the adequacy of the tribunal's fact-finding and reasons, taking the statement of reasons as a whole.

The lower rate mobility component

The second ground of appeal that is specific to the DLA appeal concerns the award of the lower rate mobility component. The appellant's solicitors argue that the tribunal misapplied the relevant statutory test by concluding that she was ineligible because 'she was clearly going out alone when working', given that the journey to work would have been a familiar route. Certainly, section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 mentions disregarding 'any ability [the claimant] may have to use routes which are familiar' to her on her own.

Mr Atkinson submits that the tribunal committed no error of law in this respect. He argues that the tribunal's finding that the appellant had exaggerated or made up her symptoms from the very first DLA application was sufficient to justify its conclusion that the appellant was not entitled to the lower rate of the mobility component. He also points to the tribunal's findings as regards the appellant's participation in dog shows around the North of England as evidence that unfamiliarity was not an issue.

I agree with Mr Atkinson's analysis. It is also well established that consideration can be given to the use of familiar routes in assessing the ability of an individual to use routes which are not familiar (see R(DLA) 2/08 at paragraphs 14-16). Furthermore, as Mr Commissioner Mullan emphasised in C12/08-09(DLA), 'the ability to drive, even on familiar routes, is evidence of clear headedness and competency which is relevant to the ability to walk on unfamiliar routes without guidance and supervision'. There was ample material in the evidence, as reflected in the tribunal's overall findings, to support the conclusion that there was no entitlement to the lower rate mobility component as from April 1992. I therefore also reject the second ground of appeal.

There are, however, three further issues which need to be considered: these are (i) the tribunal's reference to the subsequent award of DLA made to the appellant in 2008; (ii) the tribunal's treatment of the basis of the Secretary of State's decision in 2005 on DLA entitlement as from 1992; and (iii) the tribunal's decision on the DLA overpayment appeal.

The tribunal's reference to the appellant's subsequent award of DLA

In giving its reasons for dismissing the DLA entitlement appeal (see paragraph 22 above), the tribunal added that: 'Although it falls after the date of the decision the tribunal notes that whilst the appellant has been awarded the high rate of the mobility component, despite having applied for the care component and having been refused an award of the care component she has not appealed that element of the decision.'

When giving permission to appeal, I questioned whether the tribunal was entitled to take this matter into account. In doing so, the tribunal made no reference to the submission by the appellant's solicitor that she had been advised of the possibility of appealing the recent decision on the care component 'but after recent experiences does not want to go through the appeals process'. It is possible, of course, that the tribunal gave little weight to that explanation given their other findings on credibility.

However, I was also concerned that the tribunal might have acted in breach of section 12(8)(b) of the Social Security Act 1998, which precluded it from 'taking into account any circumstances not obtaining at the time when the decision appealed against was made'. Mr Atkinson seeks to argue that the tribunal's observation was unnecessary and that there is no evidence that the tribunal placed any weight on this consideration.

In the context of the relevant passage in the statement of reasons, it seems plain to me, if not to Mr Atkinson, that the tribunal did indeed regard the appellant's decision not to appeal the subsequent refusal of an award of the care component as a relevant consideration. In a sense, the tribunal regarded that inaction as an implied admission by the appellant that her care needs were not significant.

I am not satisfied, however, that this amounts to a material error of law. The tribunal may have had regard to the appellant's later election not to challenge the refusal of the care component for the purposes of drawing inferences as to her state of mind and her credibility before the decision under appeal, which would be consistent with section 12(8)(b). In any event, however, even if there was an error of law here, it was not material in the overall scheme of the decision. The question is whether the tribunal 'would have been bound to reach the same conclusion, notwithstanding the error of law' (see e.g. Detamu v Secretary of State for the Home Department [2006] EWCA Civ 604 at paragraph 14). This tribunal was so bound, given the weight of its other findings.

The tribunal's treatment of the Secretary of State's DLA entitlement decision

Mr Atkinson in his helpful submission to the Upper Tribunal makes a much more fundamental point about the DLA entitlement decision dated 27 April 2005. This decision was described by the decision maker as a supersession decision. The tribunal also treated it as a supersession decision. Yet the Secretary of State's decision on 27 April 2005 found that the appellant had not satisfied the conditions of entitlement for either component of DLA as from 6 April 1992, the effective date of the first claim and the starting date for that benefit. It was accordingly simply impossible for it to be a supersession decision under section 10 of the Social Security Act 1998, as such a decision supersedes an earlier decision. What the decision maker was purporting to do was to change the decision from the very outset.

The appropriate avenue for revisiting the original (and indeed subsequent) decisions on DLA entitlement was by way of revision under section 9 of the Social Security Act 1998. However, the Secretary of State's failure to identify the correct route was not fatal. The First-tier Tribunal should have identified the error and ruled that the decision taken on 27 April 2005 should have been taken by way of revision. As the Tribunal of Social Security Commissioners stated in R(IB) 2/04 at paragraph 55:

'In our judgment, if an appeal tribunal decides that the Secretary of State's decision under Section 9 or Section 10 changing or refusing to change a previous decision was wrong then (subject to the restriction in Section 12(8)(b), if relevant) it has jurisdiction to make the revision or supersession decision which it considers the Secretary of State ought to have made, even if that means making a decision under Section 9 when the Secretary of State acted only under Section 10, and vice versa.'

Accordingly, what the First-tier Tribunal should have done was to confirm the effect of the DLA entitlement decision but to reach that conclusion by remaking the Secretary of State's decision by way of a revision rather than a supersession. Were there then grounds for such a revision?

The general rule, subject to certain exceptions, is that a revision under section 9 of the 1998 Act 'shall take effect as from the date on which the original decision took (or was to take) effect' (section 9(3)). In the present case none of the exceptions to the general rule applied (see regulation 5 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)). So in principle any revision would take effect from the outset. The question, therefore, was whether the Secretary of State did indeed have grounds in 2005 to revise the original awarding decision of 1992 (and later decisions).

The circumstances in which the Secretary of State may revise decisions are set out in regulation 3 of the 1999 Regulations. In particular, under regulation 3(5)(c), as amended, the Secretary of State may 'at any time' revise a decision:

'(c) …where the decision is a disability benefit decision… which was made in ignorance of, or was based upon a mistake as to, some material fact in relation to a disability determination embodied in or necessary to the disability benefit decision… and –

(i) as a result of that ignorance of or mistake as to that fact the decision was more advantageous to the claimant than it would otherwise have been but for that ignorance or mistake and,
(ii) the Secretary of State is satisfied that at the time the decision was made the claimant or payee knew or could reasonably have been expected at the time the decision was made to know of the fact in question and that it was relevant to the decision.'

The tribunal in the present case did not specifically refer to this provision, although it had been highlighted in the submission from the appellant's solicitors. However, the tribunal's findings of fact led inexorably to the conclusion that (i) the 1992 decision had been 'made in ignorance or, or was based upon a mistake as to, some material fact' about the appellant's true capabilities; (ii) as a result the 1992 decision 'was more advantageous to the claimant than it would otherwise have been'; and (iii) the appellant 'knew or could reasonably have been expected at the time the decision was made to know of the fact in question and that it was relevant to the decision'.

The tribunal's failure to deal with the revision/supersession issue underlying the DLA entitlement decision is a material error of law which is such that its decision should be set aside.

This is, however, a technicality. In the circumstances of this case it would be wholly disproportionate for the Upper Tribunal to send the DLA entitlement appeal back to the First-tier Tribunal for rehearing. This is because the tribunal conducted a lengthy oral hearing and has made findings and reached decisions on the fundamental substantive issues which are adverse to the appellant and (certainly so far as the credibility findings are concerned) unimpeachable.

It follows that the appropriate course is for the Upper Tribunal to remake the decision in the terms that the First-tier Tribunal should have done (under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal's remade decision is set out at the start of this Decision. There is, however, also one further problem with the tribunal's decision.

The tribunal's decision on the disability living allowance overpayment appeal

The First-tier Tribunal committed a further error of law in its treatment of the DLA appeal. The tribunal found as a fact that the appellant had only appealed the entitlement (or outcome) decision. It therefore said nothing about the question of whether the resulting overpayment of DLA was recoverable. In fact, the appeal bundle discloses that the appellant had appealed both the entitlement and the overpayment decisions.

The tribunal's error on this point is not surprising, for two reasons. First, the total bundle of evidence for this appeal (one of four joined appeals) was nearly 700 pages in total. The overpayment appeal letter was buried at page 233. Secondly, the Secretary of State's written submission for the tribunal, explaining the case at the outset, was both categorical – under 'Issues raised by the appeal', the submission stated that 'An overpayment has occurred as a result of the supersession decision. However, [the appellant] has not appealed against the overpayment decision' – and categorically wrong.

Be that as it may, the tribunal's failure to determine the overpayment appeal was an error of law which means its decision must be set aside on that ground too. The question then is whether that matter has to be sent back for rehearing or whether the Upper Tribunal can remake the decision in relation to the overpayment issue in the same way as for the entitlement issue. For the same reasons as are outlined at paragraph 52 above, the latter is the appropriate course. There is no real prejudice to the appellant in so doing. There has been no request for an oral hearing before the tribunal. The issue of the overpayment was before the tribunal and her solicitors made representations on the point in their submission. No natural justice considerations arise.

Given the tribunal's very clear and detailed findings of fact in relation to the joined appeals, and the volume of evidence on file, it is therefore appropriate for the Upper Tribunal to remake the tribunal's decision so as to resolve the overpayment appeal as well. The tribunal specifically found as a fact that each of the DLA applications 'was based upon misrepresentations and untruths by the appellant as to her condition'.

I bear in mind that there are clearly many cases where a statement on a DLA claim form is no more than a claimant's statement of honest opinion, and that in such circumstances it is difficult to regard such a statement as constituting a failure to disclose a material fact or a misrepresentation (see e.g. CDLA/5803/1999 and CDLA/1823/2004). This was not that type of case. It is clear that the tribunal found the appellant to have deliberately made statements, both on the DLA application forms and to the EMPs, which were either exaggerated or fabricated.

The tribunal therefore found as a fact that the appellant had misrepresented certain material facts. In order for the overpayment to be recoverable under section 71 of the Social Security Administration Act 1992, the misrepresentations must have caused the overpayment. This was a case in which the decisions were based on both the appellant's own applications and at least two EMP reports. The issue of causation was addressed by Mr Commissioner Jacobs in CDLA/5803/1999 (at paragraph 36) as follows:

'Although it is difficult to identify the evidence relied on by the adjudication officer, causation may be more easily established. If the claimant's was the only evidence relied on, the claimant caused the overpayment. If the claimant's evidence was part of the evidence relied on, it was a cause of the overpayment; it is irrelevant that there was also an additional cause: see the decision of the Court of Appeal in Duggan v. Chief Adjudication Officer (reported as an Appendix to the decision of the Commissioner in R(SB) 13/89), which has been followed in Scotland in Riches v. Secretary of State for Social Security [1994] Scottish Law Times 730 at page 734. The only circumstance in which the claimant will not have caused the overpayment is if (a) the other evidence was the only evidence relied on and (b) it did more than merely report the claimant's evidence.'

Applying those principles to the present case, there can be no doubt but that the appellant's misrepresentations on the original and successive claim packs caused the overpayment of DLA. The other conditions of section 71 being met, the only conclusion that the tribunal could have come to on the findings it had made was that the overpayment of DLA was recoverable from the appellant. The Upper Tribunal accordingly remakes the decision to that effect.

Conclusion

The grounds of appeal advanced by the appellant against the decision of the First-tier Tribunal on the disability living allowance appeal are dismissed. However, the decision of the tribunal involves an error of law in two respects. First, the tribunal failed to find that the DLA entitlement decision should have been by way of a revision, rather than by way of a supersession. Secondly, the tribunal only dealt with the DLA entitlement appeal and wrongly concluded that the DLA overpayment appeal was not before it.

It follows that the decision of the Sheffield First-tier Tribunal dated 16 December 2008 under file reference 138/06/00001 involves an error on a point of law. That decision is accordingly set aside. The Upper Tribunal remakes the decision under appeal as set out at the start of this Decision. This decision of the Upper Tribunal is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

Signed on the original Nicholas Wikeley

on 31 July 2009 Judge of the Upper Tribunal