Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1491/2010

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Leeds on 28 January 2010. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal in accordance with the directions given below.

2. The Claimant is a woman now aged 55 who suffered a stroke in 2000 and also suffers from osteoarthritis. By a decision made on 5 January 2001 she was awarded the higher rate of the mobility component and the highest rate of the care component of disability living allowance from 4 October 2000 for an indefinite period.

3. As a result of information received from a third party the DWP carried out an investigation, pursuant to which the Claimant was interviewed under caution on 11 June 2008. The Claimant had been working for a number of employers whilst in receipt of disability living allowance.

4. On 21 August 2008 a decision was made (“the entitlement decision”) superseding and removing the entitlement to disability living allowance with effect from 19 November 2003 (the date on which she had started to work in a department store) by reason of a change of circumstances, namely an improvement in her condition.

5. On 5 September 2008 a decision was made (“the overpayment decision”) that an overpayment of disability living allowance had been made totalling £25,934.80 in respect of the period 19 November 2003 to 19 August 2008, and that the sum of £24,569.80 was recoverable from the Claimant because she had failed to disclose the fact that her care and mobility needs had decreased, and as a result that sum had been paid to the Claimant.

5. On 9 September 2008 the Claimant appealed against the entitlement decision (“the entitlement appeal”). On 16 September 2008 she also appealed against the overpayment decision (“the overpayment appeal”).

6. For some reason the entitlement appeal was heard first, on 23 February 2009, and was dismissed. No Statement of Reasons was sought, and therefore there was no appeal against the decision of that First-tier Tribunal (“the First Tribunal”).

7. On 30 December 2008 the Claimant had submitted a fresh claim for disability living allowance, which took effect from 26 November 2008. On 17 March 2009 a decision was made refusing that claim. The Claimant appealed against that decision (“the fresh claim appeal”).

8. The overpayment appeal and the fresh claim appeal were heard together on 28 January 2010. The Claimant was present and gave evidence, and was represented by Ms Anne Corden from Bradford CAB. The Secretary of State was represented by a Presenting Officer. Ms Corden had made it clear on behalf of the Claimant that it was not accepted that the Claimant had not satisfied the conditions of entitlement to disability living allowance during the overpayment period: see the submission at p.70.

9. That First-tier Tribunal (“the Second Tribunal”) dismissed the overpayment appeal, but allowed the fresh claim appeal to the extent of awarding the higher rate of the mobility component (but not the care component) from 26 November 2008.

10. The appeal now before me is against the Second Tribunal’s decision in respect of the overpayment appeal.

11. The only ground of appeal put forward on behalf of the Claimant is that the Second Tribunal made inadequate findings of fact, and applied the wrong test, when assessing whether the Claimant had satisfied the conditions of entitlement to the higher rate of the mobility component during the period 2003 to 2008, in that it did not sufficiently consider (i) the Claimant’s ability to walk out of doors, as opposed to indoors (ii) what distances were involved in walking from the various car parks to the Claimant’s places of work, or in walking inside while working, or (iii) the speed at which, manner in which or time for which the Claimant walked.

12. The Secretary of State’s response is that the ground of appeal is misconceived in that it had already been determined by the First Tribunal, in the entitlement appeal, that the Claimant did not satisfy the conditions of entitlement to any rate of either component during the period 2003 to 2008, and those issues therefore did not fall to be considered in the overpayment appeal.

13. In my judgment the Secretary of State’s response is not well founded. The effect of s.17 of the Social Security Act 1998 is that the First Tribunal’s decision in the entitlement appeal was “final”, but the findings of fact or “other determinations” embodied in or necessary to the First Tribunal’s decision were not conclusive for the purpose of the Second Tribunal’s decision of the overpayment appeal.

14. That means that, in the overpayment appeal, the Claimant had to accept that she had no award of disability living allowance in respect of the period 2003 to 2008. That meant that she could not deny that the amount paid to her in respect of that period had been overpaid. The main additional matters which the Secretary had to establish in the overpayment appeal were (i) that the Claimant had failed to disclose a material fact and (ii) that if the Claimant had made proper disclosure the disability living allowance would not have been paid: see the terms of s.71(1) of the Social Security Administration Act 1992. In my judgment the fact that the Claimant was bound to accept, for the purposes of the overpayment appeal, that she had no award of disability living allowance in respect of the period 2003 to 2008, and therefore that there had been an overpayment, did not mean that she was bound by the findings of fact made by the First Tribunal to the effect that she did not satisfy the conditions of entitlement to disability living allowance during that period.

15. Very similar points as to the effect of s.17 of the 1998 Act, or its predecessor, s.60 of the Social Security Administration Act 1992, were considered in a number of decisions by Social Security Commissioners, but the most helpful for present purposes is probably CA/2650/2006. In that case an award of attendance allowance was superseded from 27 October 2003 on the ground of a change of circumstances, namely that the claimant had ceased to be ordinarily resident in Great Britain on that date. The claimant appealed against that decision, but the appeal was dismissed on 24 August 2004, the tribunal finding that the claimant had ceased to be ordinarily resident on that date. A decision was then made that there had been an overpayment of attendance allowance in respect of the period 27 October 2003 to 4 January 2004 which was recoverable from the claimant as it had been caused by her late notification of moving abroad. The claimant also appealed against that decision. Mr Commissioner (as he then was) Mesher held that the claimant was not prevented from contending, in the overpayment appeal, that, contrary to the first tribunal’s decision, she had in fact been still ordinarily resident in Great Britain during the period 27 October 2003 to 4 January 2004, and therefore that if she had made full disclosure the attendance allowance would still have been paid. The Commissioner referred to and relied upon the decision of Mr Commissioner Levenson in CIS/3605/2005. Mr Commissioner Mesher said (at para. 19):

“However, in substituting a decision on the claimant’s appeal against the decision of 25 January 2005,I, like the appeal tribunal of 26 October 2005 can take an independent view of the question of when the claimant ceased to be ordinarily resident in Great Britain. Taking a different view on that issue would, within the principles accepted in the Commissioners’ decisions discussed above, not involve undermining the decision of the appeal tribunal of 24 August 2004 on entitlement.”

I would accept that the distinction between the fact of there having been an overpayment (as to which the Claimant was bound by the First Tribunal’s decision) and the question whether benefit would have been paid if disclosure had been made (i.e. whether she satisfied the conditions of entitlement), as to which she was not so bound, may appear a rather fine distinction, but it is in my judgment nevertheless a valid one, having regard to the wording of s.17 of the 1998 Act.

16. This demonstrates, yet again, the unsatisfactory consequences which can ensue if entitlement and overpayment appeals are not heard together. In effect, the decision of the First Tribunal in this case was a complete waste of time. The Claimant was entitled to reargue in the overpayment appeal the issues of fact decided by the First Tribunal.

17. I turn then to consider whether the Claimant’s contention that the Second Tribunal’s decision was wrong in law (see para. 11 above) is well founded. Towards the foot of Page 3 of the Statement of Reasons the Second Tribunal said:

“In the interview under caution she admitted that there had been an improvement in her condition. We have all seen beauty consultants working in Departmental Stores and applying our common sense though we had no detail of job description we are satisfied that such work would not be possible for a claimant who was so severely disabled that her bodily functions were [ ] extent that she reasonably required attention from another person frequently throughout the day and at night and who was virtually unable to walk which means practically unable to work (sic) or unable to walk to any appreciable extent having regard to time, speed, distance and manner of walking.”

There are obviously some words missing (probably words such as “compromised to the”) at the point where I have inserted square brackets in that passage.

18. In my judgment the Second Tribunal’s reasoning in relation to the mobility component was wrong in law in the following respects. First, at the end of that passage the Tribunal attempted a summary of the effect of the wording in reg. 12(1) of the Social Security (Disability Living Allowance) Regulations 1991. That sort of exercise always carries dangers. In this case the Tribunal did not refer to the very important requirement of reg. 12(1) that walking which can only be achieved with severe discomfort must be discounted. In my judgment the Tribunal erred in law in not making it clear that it had that important point in mind. Secondly, I agree with the contention in the ground of appeal that the Tribunal did not sufficiently examine what sort of distances the Claimant would in fact have had to walk in getting to work and during work. Thirdly, the Tribunal in no way sought to resolve the possible inconsistency between its decision in the fresh claim appeal that the Claimant was from at least 26 November 2008 virtually unable to walk and the finding, for the purposes of the overpayment appeal, that she was not virtually unable to walk between 2003 and the end of the overpayment period on 19 August 2008. The decision in the fresh claim appeal was largely based on an EMP examination which had been carried out on 16 November 2009. The fact that the Claimant was virtually unable to walk by 26 November 2008 obviously calls into question whether that was not also the case by earlier in that year. It was a point which required at least some mention by the Tribunal, if its reasoning was to be properly explained.

19. It may well be that the reason why the Second Tribunal’s reasons in relation to the overpayment appeal fell short in those respects was that it took the view that it needed to reconsider the question whether the Claimant satisfied the conditions of entitlement during the overpayment period, save in so far as relevant to the question whether there had been a failure to disclose. Whilst it is true that the Tribunal did note, about half way down the second page of the Statement of Reasons, that “Ms Corden disputes the conclusion that the facts and evidence presented show that [the Claimant] had no entitlement to disability living allowance in the relevant period”, the subsequent reasoning seems designed to deal only with the issue whether the mobility and care needs had deteriorated to an extent that there had been a failure to notify an improvement. The Tribunal was in my judgment right in considering (as in my judgment it did) that the terms of the information which had been supplied to the Claimant did not define the changes which ought to be notified by reference to the conditions of entitlement. There might well be a duty to notify a change even though it was not one which would lead to a change in entitlement.

20. The result is therefore that the Second Tribunal’s decision in respect of the overpayment appeal must be set aside and remitted to a fresh First-tier Tribunal for determination. The new tribunal, if it finds that there was a failure to disclose, will in determining whether benefit was overpaid as a result of the failure to disclose  reconsider whether the Claimant satisfied the conditions of entitlement during any or all of the overpayment period.

Charles Turnbull

Judge of the Upper Tribunal

16 December 2010