Upper Tribunal (Administrative Appeals Chamber)

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Cite as: [2009] UKUT 149 (AAC)

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DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision of the Sheffield First-tier Tribunal dated 16 December 2008 under file reference 138/06/00004 on the appellant's appeal against the Secretary of State's incapacity benefit entitlement decision does not involve an error on a point of law. The decision of the tribunal therefore stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal's decision in summary

The appellant's appeal to the Upper Tribunal is dismissed. The decision of the Sheffield First-tier Tribunal dated 16 December 2008 under file reference 138/06/00004 does not involve an error on a point of law. This means that there are no grounds in law for interfering with the tribunal's decision. Its decision therefore stands.

The issue at the heart of this appeal

The legal issue at the heart of this appeal is whether or not the tribunal erred in law in confirming the decision of the Secretary of State that the appellant was not entitled to invalidity benefit, and later incapacity benefit, for a period from August 1992 until October 2004.

The real issue at the heart of this appeal was the credibility or otherwise of the appellant, a woman now aged 61, whose initials are C E P. 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. 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'.

Before dealing with the substance of this appeal, there are a number of procedural matters to be mentioned. These arise because the present appeal is one of four linked appeals before the First-tier Tribunal and the Upper Tribunal, all relating to the same appellant.

The four linked appeals

The first appeal: the incapacity benefit entitlement decision

The present appeal relates to the appellant's entitlement (or otherwise) to invalidity benefit and later incapacity benefit. On 15 March 2005 a decision maker concluded that the appellant had been working as a cleaner from 14 August 1992 until 19 October 2004 and that that work was not exempt work. She therefore decided to supersede a decision dated 5 February 1990, which had awarded the appellant invalidity benefit, and decided that the appellant was not entitled to invalidity benefit and then incapacity benefit for the period in question. This appeal, which was originally under file reference U/01/138/2005/02078, and later 138/06/00004, has been given the Upper Tribunal reference CIB/838/2009. In effect it is the incapacity benefit entitlement decision.

The second appeal: the incapacity benefit overpayment decision

The second appeal relates to a further decision taken on 10 February 2006, and notified on 13 February 2006. The Secretary of State's decision maker concluded that as a result of the incapacity benefit entitlement decision there had been an overpayment of invalidity benefit and incapacity benefit amounting to £50,967.55 for the period from 14 August 1992 until 16 February 2005. The decision maker ruled that this sum was recoverable from the appellant because she had failed to disclose the material fact that she had started work. This is the incapacity benefit overpayment decision. This appeal, which was originally under file reference U/01/138/2006/01007, and later 138/06/00002, has been given the Upper Tribunal reference CIB/836/2009. A much smaller overpayment relating to a later period was found to be non-recoverable because of official error.

The third appeal: the income support decision

The third appeal relates to a decision taken on 18 May 2005, when a decision maker revised a previous decision taken on 1 October 2003 awarding the appellant income support from 23 September 2003. The original decision was revised on the basis that it had been taken in ignorance of a material fact. The new decision was that the appellant was not entitled to income support for the period from 23 September 2003 to 19 October 2004 but that she was entitled to income support at the rate of £55.65 a week as from 20 October 2004. This appeal, which was originally under file reference U/01/138/2006/00455, and later 138/06/00003, has been given the Upper Tribunal reference CIS/837/2009. This is the income support decision.

The fourth appeal: the disability living allowance decision

The fourth appeal relates to disability living allowance. Another decision maker decided on 27 April 2005 that the appellant was entitled to neither component of disability living allowance (DLA) as from 6 April 1992. The appellant lodged an appeal. On the face of it, this appeared to be an appeal solely against the decision on entitlement to DLA. However, it seems that in reality this was also an appeal against a further decision on the recoverability of a consequential overpayment of DLA. Whatever its precise remit, this appeal, which was originally under file reference U/01/138/2005/01208, and later 138/06/00001, has been given the Upper Tribunal reference CDLA/834/2009. This is the disability living allowance decision.

The First-tier Tribunal's treatment of the four linked appeals

The present appeal is thus 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.

Was the First-tier Tribunal right to proceed in that manner? In reported decision R(I) 22/58 the tribunal was concerned with an appeal in relation to one accident and a reference by the insurance officer about a separate accident which was alleged to have occurred several days before. The Commissioner advised as follows:

'When there are two proceedings before the local appeal tribunal relating to two different accidents they should be treated as separate cases and given separate numbers. They should be heard consecutively and the evidence given in each case and the local appeal tribunal's decision on that case should be separately recorded, though if the claimant or witness has given evidence in the first case which is relevant to the second and adheres to that evidence in the second case (with or without modification) it is sufficient on the second case to record that he adheres to the statement he made in the first case, adding when necessary that he does so subject to certain additions or modifications, which should then be stated.'

The Commissioner's guidance as regards separate cases being treated as such and given separate numbers remains as sound today as it was 50 years ago. The First-tier Tribunal recognised this by issuing four separate Decision Notices for each of the four appeals. This was especially important as the composition of the tribunal deliberating on each of the four appeals differed according to its subject matter. So, for example, all three members decided the DLA appeal but the District Tribunal Judge alone determined the income support appeal.

However, the Commissioner's guidance in R(I) 22/58 about recording the evidence separately is probably too prescriptive. The First-tier Tribunal today has a broad power to regulate its own procedure (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rule 5). The requirement to keep a record of proceedings, which was previously on a statutory footing (Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), regulation 55), is now the subject of a Practice Statement by the Senior President of Tribunals (Record of Proceedings in Social Security and Child Support cases in the Social Entitlement Chamber on or after 3 November 2008).

Ultimately, the format of the Record of Proceedings is a matter for the judgement and good sense of the tribunal judge. The District Tribunal Judge was therefore quite entitled to keep a single Record of Proceedings of the evidence heard on the day in relation to all four appeals. Given the inter-relationship of the various factual issues, in the present case this was realistically the only sensible way of proceeding. Rule 5(3)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) now formally allows the consolidation of separate proceedings raising common issues before the tribunal. As a matter of best practice, it is probably wise for the tribunal judge to ensure that the
parties agree that the facts relating to one set of proceedings can be applied to the
facts of the other proceedings, and likewise the arguments raised by the parties.

The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 also provide for a written statement of the tribunal's reasons to be issued on request (rule 34), but lay down no requirements as regards its format. The tribunal, of course, must have regard to the overriding objective of dealing with cases fairly and justly (rule 2), bearing in mind such issues as dealing with cases in a proportionate fashion and 'avoiding unnecessary formality and seeking flexibility in the proceedings'.

The Senior President of Tribunals has also issued a Practice Statement on the Form of Decisions and Neutral Citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008. This provides that 'First-tier and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering'.

In the present appeal the First-tier Tribunal's statement of reasons has been issued without any paragraph numbering. In my experience the District Tribunal Judge in the present case is not alone in persisting in issuing "free form" decisions without paragraph numbering. The Senior President's Practice Statement refers to the need to follow international practice and to use such numbering to facilitate publication of decisions on the web. The latter rationale may not be appropriate to decisions of the Social Entitlement Chamber of the First-tier Tribunal. However, paragraph numbering is also invaluable for the parties and the Upper Tribunal in identifying particular passages in tribunal decisions.

The Senior President's Practice Statements are apparently intended to be more flexible than formal Practice Directions. For the reason indicated above, however, it would be helpful if tribunals followed the Practice Statement on Form of Decisions. I observe that the Senior President has the unilateral power to make directions (with a small 'd') on 'the making of decisions by members of the First-tier Tribunal', without the approval of the Lord Chancellor (Tribunals, Courts and Enforcement Act 2007, section 23(6)(b)).

There is nothing in the Rules or the Practice Statement to stop the First-tier Tribunal issuing a single statement of reasons for all four cases. Again, this must be a question for the judgement of the tribunal judge concerned. There is much to be said for doing so, given the interlocking nature of the issues and desirability of avoiding 'unnecessary formality' and the need for 'seeking flexibility in the proceedings'. However, the danger of doing so is that an issue which is crucial to one particular appeal in a series of joined appeals may get lost in the overall picture. For reasons that will become apparent in CDLA/834/2009, this is why the Upper Tribunal is issuing a separate decision in relation to the DLA appeal in this case.

The Upper Tribunal's treatment of the four linked appeals

The present appeal is treated as the lead appeal in relation to the first three decisions outlined at paragraphs 5 to 7 above. Accordingly this decision of the Upper Tribunal (CIB/838/2009) also includes the reasoning in relation to both the incapacity benefit overpayment appeal (CIB/836/2009) and the income support appeal (CIS/837/2009). Separate short decisions merely setting out the Upper Tribunal's decision and referring back to this decision have been issued in respect of both CIB/836/2009 and CIS/837/2009. The fourth appeal, relating to DLA, requires separate consideration and is the subject of a further full decision in its own right in CDLA/834/2009.

The background to the incapacity benefit entitlement decision

On 2 August 2004 DWP fraud investigators in Rotherham received an anonymous telephone call stating that the appellant was working as a cleaner at a local storage and distribution depot ('the depot'). The information was quite specific in stating that the appellant worked Monday to Friday from 4.30 p.m. and drove an 'old land Rover and a red van, possibly ex-Post van'.

On 19 October 2004 a DWP investigator telephoned Mr H, the depot manager and director, who gave a description of a cleaner he knew as Liz but who he understood to be called Becky Harrison. He gave the cleaner's national insurance number (NINo) and home address and confirmed that she worked 2 hours a day. Monday to Fridays. He added that she drove an 'old red van or a Land Rover'. The investigator carried out various checks and discovered that the NINo related to a man living in another part of the country and the address was genuine but occupied by someone completely unconnected with the enquiry.

In the course of November 2004 investigators undertook surveillance of the appellant's address and on more than one occasion found a Land Rover and a red van parked outside the appellant's property. Enquiries of DVLA confirmed that both vehicles were registered to the appellant at the address being observed.

On 14 January 2005 the depot's administrative clerk, Ms C, confirmed by telephone that the cleaner had last worked on 19 October 2004 (the date of the telephone call to the depot manager). A week later Ms C completed an inquiry form sent by the DWP. This referred to the cleaner as Betty (not Becky) Harrison and gave the same (false) address and NINo as previously supplied. Ms C confirmed that the cleaner worked for 2 hours each day, had been employed prior to the current company taking over the depot on 14 August 1992, and had last worked on 19 October 2004. Ms C added that the cleaner walked normally, used no aids and showed no discomfort but 'often spoke of suffering back pain'.

On 25 February 2005 an investigator interviewed the appellant at her home. He was accompanied by a colleague and the appellant had a friend present. The interview was not tape-recorded but both officers kept a written note. The appellant was cautioned at the start of the interview. She stated that she could not work because of Menières Disease. She said that she had not worked since first claiming benefit in 1983. She denied working at the depot under the name of either Betty Harrison or Liz between 1992 and 2004. At first she denied owning a Land Rover, although she then said that she had owned one when she was 19 or 20. She said that she had acquired a red van 'a fortnight ago' but denied owning either a Land Rover or a red van in October 2004.

The investigator also interviewed the Secretary of a local dog training society. She gave a description of a woman who matched the description of the cleaner whom she knew as 'Polly P' (being the same surname as the appellant). She said that she had known this woman for about 15 years through dog circles, and that Polly P had both competed in and judged various dog competitions over the years. The Department also obtained a copy of Polly P's Kennel Club judge's questionnaire, on which she had described herself by the appellant's initials and surname (C E P) with the name Polly in brackets. The date of birth and address given on the form were the same as the appellant's. The signature – at least to the untrained eye – was the same as well. The questionnaire and official records listed over 30 dog show judging appointments around the country between 1991 and 2007.

On 15 March 2005 the decision maker made the incapacity benefit entitlement decision referred to at paragraph 5 above. A DWP fraud investigator then interviewed the appellant, again under caution, at Rotherham police station on three occasions on 21 March 2007, 30 April 2007 and 11 June 2007. On each occasion the appellant was accompanied by a representative of her solicitors. All the interviews were tape-recorded and transcribed, running to some 87 pages. The appellant exercised her right to silence and replied 'no comment' to many of the questions posed. However, when the investigator said that DVLA had confirmed that both vehicles were registered in her name at the material time, the appellant replied 'Perhaps if I'd been shown documentation I might have said yes'. She also denied showing or judging dogs and said that dog show trophies found at her home in the course of a search belonged to her ex-boyfriend, who she said was called Paul P.

The First-tier Tribunal hearing and the statement of reasons

After a series of adjournments for various reasons, the Sheffield First-tier Tribunal heard the appeal on 16 December 2008. Two presenting officers attended and two DWP fraud investigators were sworn in and gave evidence. The appellant also attended and gave sworn evidence. She did not have a representative at the hearing, although her solicitors had sent in a detailed written submission. The tribunal clearly conducted a very full hearing of the appeals, which started at 10.20 and finished (after some breaks) at 16.40. As indicated above, all four appeals were dismissed.

In its 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.'

The tribunal then went on to make a series of further findings of fact.

The First-tier Tribunal included the following passage as part of the discussion under the heading 'Reasons for Decision':

'The Tribunal has no hesitation in saying that the appellant is an untruthful and unreliable witness.

There are numerous examples in the evidence of instances where the appellant blatantly lied. For example, she claimed that she had never owned a Land Rover. It was only when faced with documentary evidence that the appellant admitted that she lied. The explanation for it was that she had not been shown the documentary evidence. That is irrelevant. She was asked to direct a question [sic] and gave a direct answer.

She claimed that neither the Land Rover nor the red van had been parked outside her home. This was despite being faced with clear evidence that they had been seen there.

She claimed that she did not keep dogs, that she did not show dogs and that "P P" was her boyfriend Paul.

She claimed that she had agreed to voluntarily take part in an identification parade whereas the documentation showed quite clearly that she had refused to do so...

…During her appeal the appellant was obstructive and continued to deny the undeniable. For example, despite being presented with the documentary evidence relating to the identification parade she continued to assert that she had agreed to take part voluntarily.'

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'.

The appellant applied for permission to appeal, but District Tribunal Judge Taylor refused permission to appeal on the basis that there was no issue of law involved. He added that 'the Tribunal came to the conclusion that the appellant was untruthful and had deliberately lied throughout. It was reinforced in this conclusion by the fact that the appellant lied about matters which were not contentious.'

The proceedings before the Upper Tribunal

The application for permission to appeal was then renewed before Upper Tribunal. I granted permission to appeal, although with some reservations given the very clear, robust and adverse findings on the appellant's credibility. However, I took the view that the grounds of appeal merited being explored, especially with regard to the decision on DLA entitlement. I gave permission to appeal in all four appeals given that there was a single statement of reasons and the case papers, while having much in common, were not identical, with the risk that some relevant material might be held on the file for a different appeal.

The appellant's solicitors have put forward two grounds of appeal in relation to the incapacity benefit entitlement decision (and the related incapacity benefit overpayment determination and income support decision). The first relates to adequacy of reasons and the second to an alleged breach of natural justice.

Ground 1: adequacy of reasons

The appellant's solicitors contend that not all the matters mentioned in their detailed written submission have been considered by the tribunal when considering the appellant's claim that she was not working at the depot. They refer in particular to two matters. First, the appellant claimed that she was travelling in Scotland with friends from May and into the summer of 2004, producing a letter to that effect from a friend, and that this was inconsistent with her working at the depot at the same time. The second was that the appellant had been asked to attend an interview at the Department approximately a month before the cleaner left the depot. It is argued that had she been the cleaner she would not have risked continuing to work there and so risk incriminating herself by surveillance evidence.

I reject this ground of appeal for two reasons: one relating to an aspect of the general principle of the tribunal's duty to give reasons and the other more specifically on the facts of this case.

It is a well established general principle that the duty to give reasons does not mean that a tribunal is obliged to deal with every single point that is presented to it. As the Tribunal of Social Security Commissioners noted in R(I) 2/06, the Court of Appeal has repeatedly stressed 'that elaborate or lengthy reasons are not necessary, as long as the tribunal identifies and records those matters that were critical to its decision, to enable the parties and others to understand the tribunal's thought processes when it is making its material findings'. For example, Lord Phillips MR, giving the judgment of the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409, explained the point as follows (at paragraph 19):

'It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.'

It is equally well-established that the weight to be attached to the evidence is a matter for the good judgement of the First-tier Tribunal (see e.g. Fryer-Kelsey v Secretary of State for Work and Pensions [2005] EWCA Civ 511, reported as R(IB) 6/05). This leads to my second reason for dismissing this ground of appeal. In any event, the tribunal was perfectly entitled to attach little weight to the evidence in question. As to the first matter, evidently the tribunal was more influenced by the fact that the cleaner, who drove vehicles matching the description of those registered to the appellant, had left the depot's employment on the very day that the fraud investigator had made his first telephone enquiry there. As to the second issue, concerning the trip to Scotland, the friend's letter is tentative about the dates in question. Furthermore, as Mr Atkinson notes, the dates given are contradicted by documentary evidence that the appellant was at a dog show in Lancashire in May 2004.

This was a case in which the appellant's credibility was central to the issues which the tribunal had to determine. In CIS/4022/2007 I explained the principles to be applied as follows (at paragraph 52):

'In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".'

The First-tier Tribunal in this case manifestly observed those principles and certainly made its decision comprehensible to a reasonable person reading it. It made detailed and robust findings on the appellant's (lack of) credibility. I dismiss this ground of appeal.

Ground 2: alleged breach of natural justice

As part of its reasons, and in the course of the same but longer passage than that cited at paragraph 29 above, the First-tier Tribunal stated as follows:

'She continued to deny even at the date of the tribunal that she had ever been employed at [the depot] despite having been chosen in an identification parade, despite accurate descriptions of her being given even down to the vehicles which she drove.'

The appellant's solicitors argue that this passage is worded in such a way as to suggest that the tribunal had already prejudged the crucial issue as to whether the appellant was indeed the cleaner who had worked at the depot. In effect, her denial was seen as evidence of her unreliability. The Secretary of State's representative agrees with the appellant's solicitor that this passage, and especially the phrase 'she continued to deny even at the date of the tribunal', might be read as suggesting that the tribunal had already made its mind up. However, Mr Atkinson points out that an alternative reading is that it is simply a statement of fact – namely that the appellant denied it at the hearing notwithstanding the additional evidence that had been presented. The tribunal had surveillance evidence, DVLA documentation and testimony from both the depot manager and clerk which connected the appellant to the two (relatively unusual) vehicles in question. I note the appellant's solicitors make no substantive response to Mr Atkinson's point.

I indicated when granting permission to appeal that I did not find this ground of appeal particularly persuasive. In my view it is reading too much into this single passage to contend that it is evidence of a closed mind on the part of the tribunal. This particular paragraph of the statement of reasons may not be particularly polished, but reading the statement of reasons overall I do not find any suggestion that the tribunal prejudged the issues or committed any other breach of natural justice. In R(I) 3/03 a Tribunal of three Social Security Commissioners warned against basing arguments 'on isolated use of language rather than on the substance that the language is trying to convey and the context of the reasoning as a whole' (at paragraph 42). I resist that temptation and dismiss this ground of appeal.

In this context I also bear in mind the sound guidance offered by Mr James Goudie QC, sitting as a Deputy High Court judge in F Primary School v T & Ors [2006] EWHC 1250 (Admin):

'The decision of a Tribunal is not required to be an elaborate, formalistic product of refined legal draftsmanship. It must contain an outline of the story which has given rise to the complaint, a summary of the Tribunal's basic factual conclusions, and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable an appeal court to see whether any question of law arises. A Tribunal's reasons are not, however, intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. Their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or (as the case may be) win. These reasons should not be subjected to a detailed analysis. That is to misuse the purpose for which the reasons are given.'

This tribunal's statement of reasons amply satisfies that test.

Conclusion on the incapacity benefit entitlement appeal (CIB/838/2009)

My conclusion, therefore, is that the tribunal's decision in relation to the incapacity benefit entitlement decision in Upper Tribunal file CIB/838/2009 discloses no error of law. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate and indeed ample reasoning for its conclusions. I turn now to consider the incapacity benefit overpayment (CIB/836/2009) and income support appeals (CIS/837/2009).

The appeal against the incapacity benefit overpayment decision (CIB/836/2009)

The incapacity benefit overpayment decision is set out at paragraph 6 above. There were in fact two such decisions taken after the incapacity benefit entitlement decision. On 14 June 2005 a decision maker concluded that the appellant had been overpaid £51,327.90 in incapacity (and invalidity) benefit during the period from 14 August 1992 to 16 March 2005 and that this sum was recoverable from the appellant on the basis of her failure to disclose the material fact that she had started work.

The appellant lodged an appeal against the decision. A decision maker reconsidered and then revised the earlier overpayment decision, ruling that the period covered by the overpayment was in fact a month shorter, ending on 16 February 2005, and recalculating the total gross amount of the overpayment at £51,326.55 and the recoverable net amount as £50,967.55. This was the decision notified to the appellant on 13 February 2006. The appellant then also lodged an appeal against the second and revised overpayment decision.

The First-tier Tribunal dealt with the appeal against the incapacity benefit overpayment decision very briefly. In essence it concluded that the appellant had been in paid employment, that she knew she had to report any change in her circumstances and that she had not done so. The overpayment of invalidity benefit and incapacity benefit was therefore recoverable.

It is right to say that the appellant's solicitors have raised no independent challenge to the tribunal's findings and reasoning in relation to the incapacity benefit overpayment decision. There has been no attack on the periods concerned or the calculation of the overpayment. The reality was that the appellant's sole defence was one of mistaken identity – the argument was that she was not the cleaner at the depot. Once that argument had been dismissed, there was really no realistic defence to the consequential overpayment claim. There are, however, two difficulties with the tribunal's decision on the question of the overpayment of incapacity benefit.

First, in its Decision Notice the tribunal stated that it was confirming the Secretary of State's revised decision dated 13 February 2006 (actually this was the date of notification, rather than the date of the actual decision, but nothing turns on this). However, the tribunal then referred to the slightly larger gross overpayment in that decision, not the actual recoverable net amount of £50,967.55.

Mr Atkinson argues that this is no more than a slip of the pen which could have been remedied by the First-tier Tribunal as a correction under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685). He invites me simply to remedy the error and to determine the correct period and amount of the recoverable overpayment. However, the Upper Tribunal has no freestanding power under the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) to correct accidental errors in decisions of the First-tier Tribunal.

For many years the Social Security Commissioners have emphasised the importance of tribunals identifying the precise amount of the recoverable overpayment (see e.g. reported decisions R(SB) 9/85 and R(SB) 11/86). In this case, however, it is clear that the tribunal was confirming the revised and not the original overpayment decision – it simply referred, by accident, to the gross rather than the net recoverable amount. In such circumstances the simplest solution would be for the Upper Tribunal to rule that the decision of the First-tier Tribunal on the incapacity benefit overpayment decision involves an error of law but need not be set aside (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). There is, however, a further and more fundamental problem with the tribunal's decision in this regard.

The second difficulty with the tribunal's decision relates to the period of the recoverable overpayment. In relation to the entitlement decision, the decision maker had concluded that the appellant was not entitled to invalidity benefit and then incapacity benefit from 14 August 1992 until 19 October 2004. The revised incapacity benefit overpayment decision was that there had been an overpayment of invalidity benefit and incapacity benefit amounting to £50,967.55 for the period from 14 August 1992 until 16 February 2005. So the overpayment decision covered a period some four months longer than that dealt with by the entitlement decision.

It is axiomatic that the overpayment recovery decision must be based on the entitlement decision. The tribunal did not actually have before it a decision to the effect that the appellant was not entitled to incapacity benefit as from 20 October 2004 and yet it ruled that there was a recoverable overpayment in relation to this period. That amounts to an error of law.

In the circumstances of this case, there is no point in sending this matter back for redetermination by the tribunal. Rather, it is appropriate for the Upper Tribunal to remake the decision in the terms which the tribunal should have done (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). I therefore remake the decision of the First-tier Tribunal under file reference 138/06/00002 (the incapacity benefit overpayment decision) as follows:

The appellant's appeal is allowed, but only to a minimal extent and to little advantage to her.

The decision of the Secretary of State dated 10 February 2006 and issued on 13 February 2006 is revised.

As a result of the decision dated 15 March 2005, as confirmed by the First-tier Tribunal and as remade by the Upper Tribunal, an overpayment of invalidity benefit and incapacity benefit has been made for the period from 14 August 1992 to 19 October 2004 (both dates included).

On 14 August 1992 or as soon as possible afterwards the appellant failed to disclose the material fact that she had started work.

As a consequence invalidity benefit and incapacity benefit was paid for that period which would not have been paid but for the failure to disclose. That overpayment is recoverable from the appellant.

The actual quantification of the amount of the recoverable overpayment is remitted to the Secretary of State. If there is any disagreement over the recalculation, the matter may be referred back to the Upper Tribunal for determination within one month of the notification to the appellant by the Secretary of State of the recalculated amount for the period from 14 August 1992 to 19 October 2004.

The appeal against the income support decision (CIS/837/2009)

The income support decision maker's decision is set out at paragraph 7 above. Essentially it was to the effect that the claimant was not entitled to that benefit from her date of claim (23 September 2003) to the date that she was found to have ceased employment at the depot (19 October 2004), but that she was entitled at the ordinary adult single person's rate as from 20 October 2004. The reason for the entitlement decision relating to the 2003/04 period was that the appellant was not incapable of work and did not fall into any of the other prescribed categories of persons eligible for income support during the relevant period.

The First-tier Tribunal dealt with the appeal against the income support decision in fairly short terms. However, the appellant's solicitors do not raise any challenges that are unique to this particular appeal. Mr Atkinson, for the Secretary of State, very fairly raises the possibility that the appellant may still have remained entitled to income support as a disabled worker, bearing in mind regulation 6(4)(a) of, and paragraph 8 of Schedule 1B to, the Income Support (General) Regulations 1987 (SI 1987/1967). In this context Mr Atkinson refers to the decision of Deputy Commissioner Poynter in R(IS) 10/05, in which the importance of exploring other possible avenues to entitlement was stressed.

Mr Atkinson argues that as in this case the appellant had failed to disclose any current work on her income support claim form (she had ticked the box saying she had not worked in the past 9 months and stated she was 'long term sick'), she could not now be retrospectively determined to have been a disabled worker at the time of her claim. I am not sure that can be right, given that in R(IS) 10/05 the claimant, who had been on income support for some time, had neither declared the change of circumstances at the time of starting part-time work or declared it to the Department on a subsequent income support review form, and yet the Deputy Commissioner clearly envisaged that she might nevertheless have qualified (retrospectively) for that benefit as a disabled worker.

There are possibly material differences between the two cases in that in R(IS) 10/05 the claimant was an existing income support claimant, whereas in the present case the tribunal was concerned with a fresh claim involving a clear misrepresentation. However, I am not convinced that this difference should affect the application of the underlying legal principles. In addition, the original incapacity benefit determination was missing in R(IS) 10/05, but not here, where the evidence base as to the appellant's capacity was much clearer. However, I prefer to rely on the principle that R(IS) 10/05 holds that a tribunal, in the exercise of its inquisitorial jurisdiction, must consider the possibility that another category applies, irrespective of whether it is also raised by either of the parties, where the evidence suggests that another prescribed category may be relevant. Given the tribunal's findings of fact in the present case about the appellant's true capabilities, and her misrepresentation of those abilities, the tribunal was entitled to take the view that no other prescribed category of potential eligibility for income support was applicable. The appeal in CIS/837/2009 therefore also fails.

Conclusion

For the reasons explained above, the decisions of the tribunal in joined appeals CIB/838/2009 (the incapacity benefit entitlement decision) and CIS/837/2009 (the income support decision) do not involve any errors of law. I must therefore dismiss those appeals under section 11 of the Tribunals, Courts and Enforcement Act 2007. The decision of the tribunal in the linked appeal CIB/836/2009 (the incapacity benefit overpayment decision) involves a technical error of law with regard to the overall period and amount of the recoverable overpayment. The Upper Tribunal remakes that decision, in the terms set out at paragraph 54 above, under section 12(2)(b)(ii) of the 2007 Act.

Signed on the original Nicholas Wikeley

on 31 July 2009 Judge of the Upper Tribunal