[2009] UKUT 52 (AAC) (10 March 2009)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the Leeds appeal tribunal dated 7 August 2008 under file reference 013/07/02623 involves an error on a point of law. That tribunal decision is set aside. The Upper Tribunal re-makes the decision as follows:
The appellant's appeal against the entitlement and overpayment decisions succeeds.
I allow the appellant's appeal against the Secretary of State's entitlement decision dated 23 March 2006. I agree that the appellant's entitlement to income support as a lone parent ceased on 23 September 2003. However, I find that her entitlement continued on the basis of her incapacity of work and without any break as from 24 September 2003.
I also allow the appellant's appeal against the Secretary of State's overpayment decision dated 27 March 2006. The appellant made an effective telephone disclosure of the change in her circumstances at the material time to the right office. Thereafter she was under no continuing duty to disclose the material fact which she had already disclosed. I therefore find that there are no grounds under section 71 of the Social Security Administration Act 1992 to justify the recovery of any overpayment of income support.
I revise both decisions of the Secretary of State accordingly.
This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
The decision in summary
T
The background to this appeal
Did the tribunal's decision involve an error of law?
"I made a phone call to tell Dept – that mother had taken son – and that I needed to change my benefit – [they] said that couldn't deal with it because computer system was down – [they] would get back in touch, but never did, I was drinking heavily, didn't think to follow it up."
"It is possible that this happened because there were frequent problems with the system at that time – but would probably have been a request to put c in c [change in circumstances] in writing. But there is also a continuing obligation to [disclose]."
"The Tribunal accepted [the appellant's] evidence that she had telephoned the department in 2003 to inform them that her benefit would need to be changed because her son was no longer with her. This was not recorded because the systems were down, and nobody contacted [the appellant] after that, although she had been assured that they would. The Tribunal finds that [the appellant] did not discharge her continuing duty to notify a material change in circumstances, but that there was initial disclosure."
"The Secretary of State knew about those facts and the claimant knew that he knew because she herself had told him. If the Secretary of State did not act on the information he had been given because he was fearful that if the matter was not put in writing he may later forget about the disclosure or lack a record of it, so much the worse for him. This was not a case where the Secretary of State needed additional facts or comments from the claimant before he could properly supersede the claimant's award of income support (or suspend payments to her). He evidently had all that he in principle needed; he was merely requesting that the claimant repeat those facts for his administrative benefit. Nothing the claimant could say would materially add to his knowledge and therefore there was no 'disclosure' she could fail to carry out. Moreover, given that the prompt repetition of the disclosure would make no difference to the Secretary of State's knowledge, it cannot properly be said that the failure to make that repetition caused the overpayment of benefit. If an outcome would be the same whether or not an event occurred, the event in question cannot be a cause of that outcome."
Was the issue of entitlement to income support handled in the right way?
"There is much evidence of [the appellant's] alcoholism. Her inability to look after her child led directly to the award of his care to her mother, following court proceedings. The Tribunal finds, on the balance of probabilities, she would have qualified for income support on the basis of incapacity for work throughout the period of the overpayment."
What happens next?
Does there have to be another tribunal hearing to decide whether the appellant was incapable of work in September 2003?
"Persons incapable of work
7. A person who—
(a) is incapable of work in accordance with the provisions of Part XIIA of the Contributions and Benefits Act and the regulations made thereunder (incapacity for work); or
(b) is treated as incapable of work by virtue of regulations made under section 171D of that Act (persons to be treated as incapable or capable of work); or
(c) is treated as capable of work by virtue of regulations made under section 171E(1) of that Act (disqualification etc.); or
(d) is entitled to statutory sick pay."
"(viii) a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person's mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment."
"Once the claimant had raised the question of incapacity as a ground for challenging the removal of his income support (which he did in his notice of appeal to the tribunal), it was necessary for the tribunal to determine whether he fell within the scope of paragraph 7 of Schedule 1B to the Income Support (General) Regulations 1987 as amended. In practical terms that meant deciding whether the personal capability assessment was satisfied (see the Schedule to the 1995 Regulations) which required the case to be adjourned to a tribunal consisting of a legally qualified panel member and a medically qualified panel member (see regulation 36(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999)" (paragraph 4).
"As there are 24 prescribed categories at present, the fact that a claimant no longer falls within one category will not usually be a ground for superseding a decision awarding income support unless, on a balance of probabilities, he or she does not fall within any other prescribed category. There will be occasions when the Secretary of State has to make further enquiries before he can be satisfied that that is the case (see, for example, CIS/3781/2002 in which Mr Commissioner Rowland directed the Secretary of State to conduct a personal capability assessment of a claimant who had previously qualified for income support as a carer but also claimed to be incapable of work). The only circumstance in which a claimant's ceasing to fall within one of the prescribed categories will, of itself, justify supersession is where that change necessarily entails a change in the rate at which benefit is paid (for example, when a person who is in receipt of the disability premium ceases to be incapable of work)."
Conclusion
Signed on the original Nicholas Wikeley
on 10 March 2009 Judge of the Upper Tribunal