Upper Tribunal (Administrative Appeals Chamber)

MP v Secretary of State for Work and Pensions [2009] UKUT 193 (AAC) (16 September 2009)

Case Nos CIS/595/2009,CIS/596/2009,CIS/597/2009

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Before UPPER TRIBUNAL JUDGE WARD
OBSERVATIONS

This case started life as an appeal by the claimant. Although both parties are largely agreed that the decisions of the First-tier Tribunal involved errors of law, there is a sharp difference of view as to what the correct position should be, particularly after the Secretary of State's submission of 11 June 2009. The Upper Tribunal does not operate a formal system of appeals and cross-appeals, but I should make it clear at the start of this lengthy decision that in allowing the appeals, I am essentially finding for the Secretary of State.

The attention of the parties is drawn to paragraphs 38-40 of this decision, which have been added to the version previously circulated as a draft. Other changes made have been limited to the correction of clerical errors.

DECISION

1. The appeal in CIS/597/2009 is allowed on a technical level only. The decision of the First-tier Tribunal sitting at Rochdale on 21/11/2008 under reference 947/08/00662 involved the making of an error of law and is set aside. I substitute a decision that:

"The decision of the Secretary of State issued on 21/09/07 is confirmed, save to the extent that it is to be taken as having been given on revision of the decision awarding Income Support from and including 17/5/01 (as well as of the other decisions referred to in the Secretary of State's decision.)

[The claimant] is not entitled to Income Support from 17/5/01 to 27/6/2005 and from11/7/2005 until 19/9/2007 because throughout those periods he had actual capital in excess of the limit.

For the avoidance of doubt the sum of £27,000.00 transferred from the Halifax Building Society account on 15/12/05 continued to form part of the claimant's capital."

2. The appeals in CIS/595/2009 and CIS/596/2009 are allowed. The decisions of the First-tier Tribunal sitting at Rochdale on 21/11/2008 under references 947/08/01481 and 947/08/01482 involved the making of an error of law and are set aside. I substitute decisions in terms that the decisions of the Secretary of State issued on 14/03/2008 are confirmed.

REASONS FOR DECISION

The facts

1. The claimant had claimed income support on 17 May 2001. That claim ("the first claim") continued until 27 June 2005. On a date shortly afterwards, the claimant claimed income support again. Income support was paid on the second claim from 11 July 2005. (There is a suggestion in the papers that the second claim may have been made as soon as 30 June 2005. Whether this is so or not does not appear to me to be material, as it is not suggested on behalf of the claimant that there were anything other than two distinct claims.)
2. It subsequently came to the attention of the Department for Work and pensions that the claimant had an account with Halifax plc in his own name and was also the owner of a number of shares in the Halifax.

The tribunal's decisions and findings

3. The claimant disputed the beneficial ownership of the account and the shares and asserted that £27,000 had been paid from the account to the person beneficially entitled on 15 December 2005 but the tribunal found in the following terms:

"1. The Halifax account was at all material times both prior to the original claim and thereafter the property of the appellant.

2. The Halifax shares are the appellant's property.

3. The appellant still has capital in excess of £27,000 plus the shares

4. At all material times his capital exceeded the prescribed limit.

5. At 17.5.01 the appellant failed to notify the Department of his capital and has failed to do so since.

6. The appellant knew his duty of disclosure and wilfully misrepresented his capital position.

As a result of the above the appellant is not entitled to Income Support from 17.3.01 [this was a slip for 17.5.01].

With regard to the 2 overpayment decisions the tribunal find that as the overpayments occurred by reason of the appellant's misrepresentation they are recoverable.

The overpayment is to be calculated from 17.5.01 to date.

As the appellant has retained the capital the diminishing capital rule is not to be applied."

4. This passage from the statement of reasons went some way to filling in the gaps in the tribunal's intentions as expressed in its original decision notices, which were in the terms set out below.
5. Firstly, in appeal 947/08/00662 (CIS/597/2009) there was a decision on entitlement ("the entitlement decision"):

"The appeal is disallowed.

The decision of the Secretary of State issued on 21/09/07 is confirmed.

On the evidence before the Tribunal [the claimant] is not entitled to Income Support from 17/5/01 and continuing because throughout the period he had actual capital in excess of the limit.

For the avoidance of doubt the Tribunal find on balance that the transfer of the sum of £27000.00 from the Halifax Building Society account on 15/12/05 was not made to a third party."

6. Then, in appeal 947/08/01481 (CIS/595/2009) ("the first overpayment decision"):

"The appeal is disallowed.

The decision of the Secretary of State issued on 14/03/08 is confirmed.

By reason of the Appellant's failure to notify a material fact an overpayment has occurred which is recoverable.

The Secretary of State is to recalculate the overpayment."

7. In appeal 947/08/01482 (CIS/596/209) ("the second overpayment decision") the tribunal issued a decision notice in identical terms to that in respect of the first overpayment decision.

The appeal to the Upper Tribunal

8. No challenge is made on appeal to the findings 1 to 6 as set out in paragraph 3 above. The claimant, who is represented by the Citizens Advice Bureau, sought permission to appeal on the ground that "it is not clear why the first tier tribunal have said that the diminishing capital rule is not to be applied." I gave permission to appeal.

The entitlement decision

9. The tribunal was entitled to hold that the decisions awarding benefit from 17 May 2001 could be revisited. The decision of 18 September 2007 purported to do so in the following terms:

"I have superseded the decision awarding Income Support that includes 1/6/2001.

There has been a relevant change of circumstances since that decision was made. I have revised all subsequent decisions on that claim.

I have revised the decision that was made on 8/7/2005 and all subsequent decisions for the claim made 30/6/2005.

Those decisions were made in ignorance of a material fact.

Income support has been overpaid for the period 17/5/2001 to 27/6/2005 and from 11/7/2005, because [the claimant] has been in possession or is to be treated as still in possession of capital that exceeds the prescribed limit."

10. This decision was defective only because in finding that there had been no entitlement for a period including 17 May 2001, it necessarily implied that the Halifax account had been held by the claimant since the date of the first claim. What was involved was therefore not a change of circumstances (as to which the supersession envisaged by the decision of 18 September 2007 would have been correct) but , like the other decisions, a decision given in ignorance of a material fact which, like them, fell to be revised under regulation 3(5)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, with effect from the date of the original decision(s): Social Security Act 1998, section 9(3). In holding that the overpayment was recoverable from 17 May 2001, the tribunal ought to have taken the opportunity to correct this shortcoming in the decision of 18 September 1997, in order to ensure that the terms of section 71(5A) of the Social Security Administration Act 1992 were complied with. It was entitled to substitute a categorisation of that part of the decision as a revision rather than a supersession: the original shortcoming was not such as to affect the substance of the decision of 18 September 2007.
11. In proceedings before the Upper Tribunal, the Secretary of State has invited me to "perfect the First-tier tribunal's decision but to dismiss the appeal" against the entitlement decision, thereby upholding the Secretary of State's decision. The claimant's representative did not dissent from this. To do what the Secretary of State requests (correctly, in my view) needs to be technically effected by allowing the appeal and substituting a decision in different terms. I have taken the opportunity to make minor adjustments to the wording about the dates and to clarify the intention with regard to the £27,000.

The first overpayment decision

12. This decision, given on 14 March 2008, was in terms that :

"[The claimant] has been overpaid Income Support of £21735.82 for the period 17 May 2001 to 27 June 2005 and this amount is recoverable from him as he failed to disclose the material fact that he was in possession of capital in excess of the prescribed limit".

This decision was correct (at any rate once the entitlement decision had been corrected). The claimant's appeal to the Upper Tribunal makes no challenge to the start date adopted of 17 May 2001.

13. Regulation 14 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 ("the 1988 Regulations"), so far as relevant, provided at the material time:

"(1) For the purposes of section 53(1) of the Act, where income support… has been overpaid in consequence of a misrepresentation as to the capital a claimant possesses or a failure to disclose its existence, the adjudicating authority shall treat that capital as having been reduced at the end of each quarter from the start of the overpayment period by the amount overpaid by way of income support … within that quarter.

(2) Capital shall not be treated as reduced over any period other than a quarter or in any circumstances other than those for which paragraph (1) provides.

(3) In this regulation–

"a quarter" means a period of 13 weeks starting with the first day on which the overpayment period began and ending on the 90th consecutive day thereafter;

"overpayment period" is a period during which income support… is overpaid in consequence of a misrepresentation as to capital or a failure to disclose its existence."

The reference to section 53 of the Act is now to be understood as a reference to section 71 of the Social Security Administration Act 1992 ("the Administration Act").

14. The Secretary of State's decision had correctly applied the provisions of regulation 14 of the 1988 Regulations to the period 17 May 2001 to 27 June 2005: see documents 40-43 of CIS/595/2009. The tribunal did not need to refer this back to the Secretary of State for re-calculation and in the context of dismissing the appeal it was at first sight an illogical step to take.
15. By 27 June 2005, the claimant was considered to have capital of £28,269.58. However, the effect of regulation 14 was that for a short time in around August 2003 (document 41) and consistently from 10 February 2004, the claimant's capital was treated as having been reduced to a level below £8,000. That was the amount which was at that time the "prescribed amount" for the purposes of section 134 of the Social Security Contributions and Benefits Act 1992. The effect of this was that, rather than being disqualified from income support altogether, he would instead only have suffered a relatively small reduction in the amount, via the application of the "tariff income" rules. The impact of regulation 14 in such a case is therefore that a curve on a graph showing the amount of a recoverable overpayment would initially rise sharply, before rising less steeply once the prescribed amount figure was reached. By 27 June 2005, the figure to which his capital was treated as reduced for the purposes envisaged by regulation 14 was down to £6638.76, resulting in a weekly reduction in his benefit entitlement of £15 and hence that was likewise the weekly amount by which the amount of his overpayment was increasing.

The second overpayment decision

16. The claimant's first claim came to an end on (Monday) 27 June 2005 when the caring responsibilities which had founded his first claim ceased. He claimed again on (Thursday) 30/06/2005 by virtue of being a carer in respect of his sister. For reasons which are not clear to me, he was paid only from 11/07/2005. No challenge is made before me and none was made to the First-tier Tribunal to these being indeed two separate claims, even if separated only by a short period of time.
17. The second overpayment decision, likewise dated 14 March 2008, was in terms that:

"As a result of the decision(s) dated 28/11/2007 [it is not clear what these are as it appears the entitlement decision was that taken on 18 September 2007] an overpayment of Income Support has been made from 11/07/2005 to 19/09/2007 (both dates included) amounting to £10,627.59 as shown on the attached schedule.

On 11/07/2005, or as soon as practicable after, [the claimant] failed to disclose the material fact that he had capital in excess of the prescribed limit.

As a consequence, Income Support amounting to £10,529.02 from 11/07/2005 to 12/09/2007 (both dates included) was paid which would not have been paid but for the failure to disclose.

Accordingly that amount is recoverable from [the claimant].

The balance of the overpayment amounting to £98.57 is not recoverable as it did not arise as a consequence of the failure to disclose."

18. The capital figures used for this calculation appear at document 16 of CIS/596/2009 and show assets totalling initially £28,767.95 and by the end of the period £33,231.75. This figure included the £27,000 which subsequently came to be transferred from the claimant's account and which the Department continued to treat as his actual capital, as he had not provided an adequate explanation of what had become of it, as referred to in the entitlement decision. No challenge was made to this. While the Secretary of State's submission of 24 April 2009 (document 78 of CIS/596/2009) refers to a capital figure of £17,871.98 having been used for the purposes of CIS/596/2009, I think this is based on a misunderstanding. Documents 44-47 of that case, to which the Secretary of State refers, are what is described (ambiguously as will be seen) as a Diminishing Capital Calculation in respect of the period 17 May 2001 to 27 June 2005: in other words, it is the calculation used for the first overpayment decision and its presence in the bundle relating to the second overpayment decision is misleading.
19. The figure of £28,767.95 used was sufficient to disqualify the claimant from benefit altogether on his new claim. Consequently, the amount by which he was overpaid increased by the weekly amount of his benefit in full. The position may be contrasted with that prevailing towards the end of his first claim, when the overpayment was only ratcheting up at the rate of £15 weekly attributable to the tariff income. The consequence is that unless regulation 14 can be applied so as to bridge the two claims (and the two overpayments), the claimant has to face a second period when the amount of the overpayment rises sharply. On a very rough and ready basis, the impact of this, based on a gap in his claiming which was certainly no longer than two weeks and which may have been as short as two days, appears to have been around £9,000 or so, compared with a claimant in an otherwise similar position but who was able to benefit from the operation of regulation 14 right through.
20. A "failure to disclose" is apt to describe any action in breach of regulation 32 (1A) and (1B) of the Social Security (Claims and Payments) Regulations 1987: see B v Secretary of State for Work and Pensions [2005] EWCA Civ 929; R(IS)9/06.
21. A failure when filling in the claim for benefit on or around 30 June 2005 to mention the existence of (among other things) a bank account in which (as the tribunal found) the claimant had the beneficial interest will inevitably be a breach of regulation 32(1A) and hence a separate "failure to disclose" and indeed also a separate misrepresentation (an alternative peg on which the tribunal sought to base its reasoning in the statement of reasons, despite the terms of its decision notices in the overpayment decisions, but as I hold that both routes were available on the facts, nothing turns on this.) Income support under the 2005 claim was overpaid in consequence of that failure to disclose (or misrepresentation). Income support under the 2001 claim was overpaid in consequence of a previous failure to disclose (or misrepresentation).
22. Section 6 of the Interpretation Act 1978 provides:

"In any Act, unless the contrary intention appears,—

(a) words importing the masculine gender include the feminine;

(b) words importing the feminine gender include the masculine;

(c) words in the singular include the plural and words in the plural include the singular."

Is this a case where it is appropriate to proceed on the basis that the singular includes the plural or is there sufficient "contrary intention"? I consider that it is not appropriate, principally because section 71 of the 1992 Act, for the purposes of which regulation 14 exists, establishes a sufficient contrary intention through its focus on the existence or otherwise of a single, defined failure or a misrepresentation in order to determine liability to repay. Regulation 14 is consistent with this in identifying the concept of an "overpayment period": even if it were apt to cover overpayments in consequence of more than one misrepresentation or failure to disclose, it is a concept that cannot be stretched, even with the help of the Interpretation Act, to cover intervening days when the claimant was not in receipt of income support at all (and so cannot possibly have been overpaid it.)

23. It is clear from the wording of regulation 14(2) that the regulation is not to be applied for any purpose beyond its terms which, for the reasons above, I conclude are narrow in their effect. The result must be that on the second claim, it is the claimant's actual capital, rather than the capital as diminished by the application of regulation 14 on his previous claim, that falls to be taken into account.
24. I am fortified in this view by previous decisions of the Social Security Commissioners. In CIS/2365/2007 Mr Deputy Commissioner Mark reached a similar conclusion in respect of successive claims. In CIS/2287/2008 Mr Commissioner Jacobs observed (at paragraph 43):

"Regulation 14 applies to reduce the amount of a recoverable overpayment that has arisen on account of the amount of the claimant's capital by making a quarterly diminution of that capital equivalent to the amount of benefit overpaid. This is a concession to the claimant. It works on the assumption that the claimant would have drawn on the capital if the benefit had not been paid. By its terms, it only applies for the purposes of the overpayment decision. It is notional in its effect. It does not treat the capital as reduced for any other purpose, let alone for all purposes. It is a notional reduction that applies for a particular purpose only. If the claimant claims benefit later, that claim must be decided on the circumstances obtaining at that time, including the amount of capital actually held by the claimant."

I respectfully agree.

25. The impact of regulation 14 should nonetheless have been considered in relation to the second overpayment decision. However, I am satisfied that if it had been, it could not have affected the amount of the overpayment. I do not have ready access to details of historical fluctuations in the share price of Halifax plc. However, even if one were to disregard the shares altogether for my present purpose, up to and including 9 April 2006 the "prescribed amount" remained at £8,000. Excluding the shares, the claimant's capital in this time was never less than £25,584.92. The value of the benefit he received up to 12 April 2006 (document 20 of CIS/596/2009, sum of first four lines) came to £3,457.14 (thus the application of regulation 14 would not have taken him down below the prescribed amount.) By 12 April 2006, the prescribed amount had gone up to £16,000, but his capital (even excluding the shares) was at £28,097.61, so the benefit received could not take him below the "prescribed amount" figure then either. Finally, at 19 September 2007, when the claimant's capital had for a while ceased to continue to increase, but he had continued to receive income support, the figures were capital (less shares) £29,758.65 (document 16 of CIS/596/2009) and the amount of income support overpaid was £10,627.59 (document 20 of that file). Thus at a minimum, the claimant continued to have capital which even once reduced by the application of regulation 14 was in excess of £19,000 i.e. in excess of the prescribed amount as a minimum, and more once the value of the shares was added in.
26. If this were to be the only error the tribunal had made, I would not have held it to amount to an error of law, on the grounds that it proved not to be material when the matter was properly worked through. As I find there were other errors, the matter is subsumed within my overall decision.

The decision and statement of reasons

27. When the tribunal in its statement of reasons said "As the appellant has retained the capital the diminishing capital rule is not to be applied" it is in my judgment unclear what was intended. What the tribunal said was correct so far as it went, if it was referring to the rules in regulation 51A of the Income Support (General) Regulations 1987("the 1987 Regulations") , which, as its cross-heading states, is concerned with "diminishing notional capital". That expression refers to capital which a claimant is by virtue of regulation 51 of the 1987 Regulations to be treated as possessing where he has deprived himself of it for the purpose of securing entitlement to income support. Here, by contrast, the tribunal had found, in accordance with decisions such as R(SB)38/85, that the claimant was to be treated as still having the actual capital and, against that background and in this context, what the tribunal said would make sense. It would not make sense in the context of regulation 14, which is applicable where a claimant does retain the capital.
28. Regulation 51A however was not what the issue had been before the tribunal. Confusion may have arisen because of a last-minute change of position by the Department via its presenting officer, who on reconsideration shortly before the hearing and at the hearing appears to have taken the view that the calculations previously prepared by the Department which, as I have now held, were in the outcome perfectly correct, needed to be revised. Apart from the relatively minor point about whether the start date for the first overpayment decision ought to be 17 May 2001 or 1 June 2001, the issues (see document 41 of CIS/596/2009) revolved around the application of regulation 14 – whether (as appeared to have been the case) it had been correctly applied in relation to the first overpayment decision and whether it should have been applied to the second overpayment decision, but had not. On this basis, the tribunal's statement of reasons was addressing a point which was not in issue, while failing to address one which was.
29. The application of regulation 14 as a matter of general language might fairly be described as a "diminishing capital calculation". It appears, for instance, that the presenting officer used this terminology (41), as do the Department's own forms (see e.g. document 44 of CIS/596/2009). Indeed, it may be that the same form is used for both regulation 14 and regulation 51A purposes (note the heading "notional capital" on the form.) Whether there was some confusion between the respective requirements of regulation 14 of the 1998 Regulations and Regulation 51A of the 1987 Regulations I do not know, but it seems very probable.
30. The decision notice did not give to give any indication of the basis on which the Department was to carry out the re-calculation which the tribunal ordered or any mechanism for getting the matter back before the tribunal if there were to be a dispute. Further, the decision notices in the overpayment cases appeared internally contradictory in purporting to reject the appeal (against decisions which had included calculations) yet to refer the matter back to the Secretary of State for calculation. I would view the decision notices in the overpayment cases as being incomplete, what was within them as being not open to a reasonable tribunal correctly applying the law and the statement of reasons as providing inadequate reasoning for this aspect of the decisions (so far as they went) that were reached.

Inference as to exhaustion of funds

31. When granting permission, I raised a question in the following terms:

"Given the findings (which are not challenged on appeal) that the capital still belonged to [the claimant], there was as a matter of law no room for the diminishing capital rule to apply: see CIS/2287/2008. Nonetheless, ought the tribunal to have considered whether there were any factual circumstances from which it should have drawn inferences to similar effect: see CIS/2287/2008, paragraph 37?"

32. The Secretary of State replied in his submission of 24 April 2009 in terms that :

"I agree with the Judge that paragraphs 37 and 38 of CIS/2287/2008 may have been relevant to this case. However, the claimant has not in any of his submissions suggested that he had been forced to use any of the capital on living expenses and I submit that the First-tier Tribunal was not obliged to go on a fishing expedition. Despite living on benefit, the capital in the claimant's Halifax account can be seen to have grown steadily since 2001 without withdrawals being made and there is no reason to believe that the pattern of his expenditure changed after 15/12/05 when the bulk of the money was transferred from the account. I would therefore submit that the First-tier Tribunal did not err in this respect."

The claimant's representative has not sought to challenge that argument and I accept it as well-founded.

A fair hearing?

33. Among the points I raised when granting permission to appeal was whether the claimant could be said to have had a fair hearing of his appeal in one regard. In the submission to the First-tier Tribunal (document 41 of CIS/596/2009) the presenting officer wrote:

"No details have been supplied as to whether a diminishing capital calculation has been applied to the second period of overpayment, 11 July 2005 to 19 September 2007. However, looking at the calculation and taking into account how much the capital has diminished during the first overpayment period, this is quite clearly incorrect. By 27 June 2005 the amount of capital held had been notionally diminished by £21630.82 which meant that, when taking this amount of the actual capital held, the amount of the overpayment was £15.00 per week only, as tariff income only applied…The calculation for the period from 11 July 2005 appears to have been based on capital being in excess of the prescribed limit. The calculation will therefore have to be referred back for recalculation. However, I invite the tribunal to make a decision as to whether [the claimant] has failed to disclose a material fact."

So far as I can see, the decisions in CIS/2365/2007 and CIS/2287/2008 (the latter having only been given some two months previously) were not cited to the tribunal and based on them, the presenting officer's submission was incorrect in law.

34. If there had been a complete decision notice clearly indicating the basis of calculation, or had it merely indicated that the question of calculation was at large and that a decision on that issue would have fresh rights of appeal, I might have taken the view that any appeal to the Upper Tribunal was premature. With an incomplete decision notice and one as to whose effect further doubt is added by the final sentence in the Statement of Reasons, I have concluded that the Upper Tribunal properly has jurisdiction at this stage. The parties have not suggested otherwise.
35. It is evident from the record of proceedings and the written submission that the claimant might have assumed that he was going to get the benefit of a more favourable application of regulation 14 than he is now going to. Consequently, if there were points which he might have wished to make about the applicability of regulation 14 to the second overpayment decision, he would not have had the opportunity to make them.
36. This is a complex and technically difficult case. The Secretary of State in the proceedings before the Upper Tribunal has changed his position in that by its submission dated 11 June 2009 he sought to resile from an earlier position and argued for the first time that it was the amount of the claimant's actual capital that was the starting point for regulation 14 to be applied afresh to the amount involved in the second overpayment decision. The submission dated 11 June 2009 was sent to the claimant's representative for comments and the Upper Tribunal received a reply from him that he had none.
37. I considered it preferable in terms of meeting the overriding objective for the issues to be aired correctly, once and for all, so was prepared to allow the Secretary of State to change his position in this way. Nonetheless, he has now done so twice (once before the Upper Tribunal and once below) and I considered it to be vitally important, given the complexity of the law and the size of the sums involved, that the claimant and his representative should have the chance to see the implications of what is being said and have a final chance to make any further representations they wish in relation to matters covered by this decision. It was therefore issued to the parties as a draft, with the opportunity to make representations within one month of its issue.
38. In reply, the claimant's advisers replied that:

"Although you may not consider this to be relevant to the decision in hand, we would ask you to consider the effect of this decision on [the claimant] now and into the future. By this we mean that, at present and also after your decision, the Secretary of State considers that [the claimant] is the beneficial owner of capital in excess of the prescribed limit. In fact, a new claim for income support that he made in April or May 2009 was refused on that basis. Our concern is that [the claimant] will therefore never be able to successfully claim a means-tested benefit. Surely this cannot be the intention of the regulations that are quoted in the decision."

39. I think the answer to this is to be found in section 17 of the Social Security Act 1998, which provides that:

"(1) Subject to the provisions of this Chapter and to any provision made by or under Chapter 2 of Part 1 of the Tribunals, Courts and Enforcement Act 2007, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of—

(a) further such decisions;

(b) decisions made under the Child Support Act; and

(c) decisions made under the Vaccine Damage Payments Act."

40. Although a few regulations have been made which "so provide" for the purposes of sub-section (2), none addresses the present situation. It follows that the decision reached by the Secretary of State in the matters which are the subject of the present appeal, as in substance upheld in the appeal to the Upper Tribunal, and "any finding of fact or other determination embodied in or necessary to such a decision or on which the decision is based" is not conclusive for the purpose of further decisions under the provisions of Chapter II of the Social Security Act 1998, such as further claims for means-tested benefit, which will have to be taken in the light of the circumstances then prevailing and the evidence then available. I therefore do not agree that the outcome of the present appeal will necessarily have the consequences for future claims which the claimant's representative asserts and therefore the point put forward does not cause me to change the interpretation of the relevant legislation set out in these Reasons.

C.G.Ward

Judge of the Upper Tribunal

16 September 2009

Re-issued with clerical error corrected 17 September 2009