IN THE UPPER TRIBUNAL Case No  CDLA/1173/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: No attendance

 

For the Respondent: Mr S Cooper, Solicitor

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Manchester on 12 November 2008 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 21 of the Reasons. This decision carries no implication as to the outcome of the rehearing, which is a matter for the tribunal conducting it.

 

REASONS FOR DECISION

 

1. The First-tier Tribunal, against whose decision the claimant appeals, adjudged that he had been overpaid disability living allowance (“DLA”) in respect of the period 6 April 1992 to 22 November 2005 and that the overpayment was recoverable on the grounds of misrepresentation of material fact.  The sum involved was not specified but, as will be seen, was somewhat in excess of £42697.15.

 

2. As a result of the revision of earlier decisions, the position being adopted by DWP by the time of the tribunal was that an overpayment had occurred only in respect of the period from 5 April 2000 to 22 November 2005, amounting to £22793.25, and recovery was being sought on the basis of failure to disclose.  Notwithstanding this, the tribunal reached the decision referred to in [1].  I should say at the outset that the tribunal had made it abundantly clear that it reserved the right to look at the greater period and there is no criticism of the tribunal on the grounds of lack of natural justice in its approach to that issue.  Nor has any point been taken objecting to the shift in the grounds of recoverability from failure to disclose to misrepresentation.

 

3. I gave permission to appeal on limited grounds only.  The parties requested an oral hearing. Previous attempts to list it foundered when the claimant’s first representative ceased to act so that the claimant could go to a second representative, who was thought to be in a position to obtain funding from the Legal Services Commission.  The second representative then suffered a bereavement, preventing him from seeing the claimant before the original hearing, and shortly before the resumed hearing, withdrew from acting. The claimant then rang the Upper Tribunal to indicate he (the claimant) would not attend the hearing, but would abide by the result.

 

4. The decisions awarding the claimant DLA were as follows:

 

a) Decision of 6 February 1993.

This was based on a claim of 6 April 1992, which was not in evidence.  There is no evidence as to what material other than the claim form was taken into account. It resulted in an award of the higher rate of the mobility component and of the middle rate of the care component (on the ground of day supervision).

 

b) Decision of 5 April 1995.  There was no evidence as to the material on the basis of which this decision was taken and there was no claim form in evidence. The decision resulted in an award of the lower rate of the mobility component and the middle rate of the care component, once again on the basis of day supervision, from 5 April 1995 to 1 April 2000.

 

c) Decision of 2 February 2000. This was based on a claim form which had been received on 3 November 1999, which included a statement from the claimant’s Community Psychiatric Nurse (“CPN”), to whose service the claimant had been known for 6/7 years.  The decision was also based on evidence dated (I think) 3 December 1999 from the claimant’s GP, further evidence (dated 20 December 1999) from the CPN and on a  report dated 20 January 2000 from the examining medical practitioner (“EMP”). All of these were in evidence before the First-tier Tribunal. It resulted in an award of the higher rate of the mobility component and the middle rate of the care component (apparently once again on the grounds of day supervision) from 2 April 2000 to 1 April 2004.

 

d) Decision of 9 January 2004. This was based on a claim form which had been received on 17 November 2003 and on a report dated 10 December 2003 from the claimant’s GP.  Both of these were in evidence before the First-tier Tribunal.  It resulted in an award of the higher rate of the mobility component and the middle rate of the care component from 2 April 2004 to 1 April 2006.  This time, the care component was awarded on the basis of day attention needs, rather than supervision.

 

5. The decisions connected with withdrawing benefit were as follows:

 

a) On 8 March 2006, the DWP took a decision, expressed to be on supersession, removing entitlement from 31 May 1992.  This was shortly after the start of the original award.  The reason why that date was chosen was because there had come into the hands of the DWP a selection of the claimant’s home videos showing him engaged in activities which the DWP considered incompatible with the awards of DLA made at intervals in the periods 1992 to 2005. It is not necessary to set out all the details but it included participation in leisure activities such as karting, swimming, snorkelling and playing tennis, the use of tools including a chain-saw and a sledge-hammer, and apparent participation in a full and varied family and social life.  The evidence from 1992 was the first there was and showed the claimant riding a trials bike, picking up his daughter and with his family on the beach.

 

b) On 9 March 2006 a decision was taken that because the claimant had failed to notify what was then regarded as an improvement in his condition, an overpayment of £42697.15 had occurred and was recoverable.

 

c) The decision of 8 March 2006 was revised for error of law on 5 July 2007 and decisions of 2 February 2000 and 9 January 2004 were revised “because of misrepresentation of material fact” (the intention is clear, even if the wording was inaccurate.)  Benefit was removed from 5 April 2000, that is to say the start date of the award covered by the earliest claim form apparently still by then in the DWP’s possession and thus effectively proceeded by way of revision (see R(IB)2/04). Benefit was reinstated up to and including 4 April 2000.

 

d) On 13 July 2007 the DWP reduced the amount of overpayment in respect of which recovery was sought accordingly, so that it then stood at £22793.25.

 

6. There is medical evidence that the claimant, born in 1964, has had psoriasis since the age of 16 and that it has been viewed, at any rate in recent years, as “severe”.  He has psoriatic arthropathy, affecting hands, feet and back. He has suffered from depression and anxiety.  He is diabetic (type 2). It has however been very much in question in these proceedings what effect any or all of these conditions had on the claimant’s mobility, or his need for attention or supervision, at any stage in the period 1992 to 2005.

 

7. One area that it is possible to deal with briefly relates to the adverse consequences of an accident in 2000 when working on a lift.  The tribunal concluded that the after-effects were not sufficiently long-lasting as to have been capable of founding an entitlement to DLA.  I did not give permission to challenge that aspect of the tribunal’s decision, the point was not pursued further, and I say no more about it.

 

8. Under section 71 of the Social Security Administration Act 1992 (in the version in force at the time of the recoverability decision):

 

“(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure—

(a) a payment has been made in respect of a benefit to which this section applies; or

(b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.

…

 (3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

…

(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in   pursuance of which it was paid has been reversed or varied on an appeal or has been revised under section 9 or superseded under section 10 of the Social Security Act 1998.

…”

It is for the Secretary of State to prove on the balance of probabilities the facts which justify the recovery of the overpayment.

 

9. Leaving aside the lift accident (see above) as to the remainder of the period covered by the videos, that is to say 1992 – 2005, the tribunal’s approach was a simple one.

 

“[17] [The claimant’s representative] had not put forward in the grounds of appeal, or in any other written or oral submission, any reasoning to   explain the discrepancy between [the claimant] as described in the claim forms and [the claimant] as seen on the videos.  There was no attempt to reconcile the two…

 

“[19] We found the video evidence conclusive.  The video evidence established that [the claimant] was not, when seen in the videos, suffering from any physical or mental disablement such that he would   satisfy the criteria for any award of disability living allowance.  We considered whether the video evidence was representative of [the claimant] all the time or whether he possibly was shown on the videos   only when he was having an atypical good spell.  We concluded that that was not plausible.  The difference between the written claims and the video evidence was too great to be explained by good days and bad days, good spells and bad spells.  In the grounds of appeal [the claimant’s representative] submitted that if there had been any material improvement in [the claimant]’s condition it had been gradual and hardly noticeable by [the claimant].  It is inconceivable that [the claimant] as seen on the video evidence could have been as described in the papers, or could have been entitled to any award of disability living allowance, a day or a week or a month or three months earlier or   later.”

 

… [paragraphs omitted relate to the lift accident]

 

[24] We concluded from all the evidence that [the claimant] had never been entitled to any award of either component of disability living allowance and that accordingly the whole amount of disability living allowance that he had received had been overpaid.”

 

10. If the evidence had consisted solely of what the claimant said in his claim forms on the one hand and the video evidence on the other, such an approach might have been acknowledged, without much further comment, to have been open to the tribunal.  But the evidence was a lot more complex than that: indeed, the bundle contained some 1400 pages in addition to the video evidence.

 

11. We know that the claimant had been known to the CPN service since 1992 or 1993. That evidence confirms the existence of “severe anxiety… and bouts of debilitating depression”. The claimant is said to have “a severe and enduring depression and anxiety state.” And to have “periods of low mood & severe panic attacks, needs supervision and prompting to ensure he is safe and to carry out daily living tasks.”  It indicates a professional view that in 1999 the claimant needed supervision to ensure he was safe.  In 2003 he was referred back to the CPN service.  What did the tribunal make of this evidence, in concluding that he had never satisfied the requirements for DLA (the care component of which he had been receiving on the grounds of supervision needs between 1992 and 2004)?  The claimant as shown on the video may have been depicted apparently without disability  on a number of occasions, but how was that to be reconciled with his involvement with the CPN service, apparently over a protracted period, which would surely have made dissimulation difficult and with their view of his needs in 1999?  The GP had thought around the same time that the claimant could safely be left alone, but the tribunal do not explore this tension at all.

 

12. We know too that the 2000 renewal was made on the basis of an EMP’s report. The EMP had been sent specifically to investigate mobility, as to which the claimant’s GP had been somewhat equivocal. The EMP, with training in the assessment of disability, concluded that he was able to accept the claimant’s version, for reasons which he gave at some length and on the basis of clinical findings, including as to some, such as swelling, which it was not open to the claimant to misrepresent.  What did the tribunal make of the EMP’s report?

 

13. Even if these points were not taken on behalf of the claimant by an apparently experienced representative, these were major and significant items of evidence which are inconsistent with the tribunal’s conclusion and it therefore needed to explain, even if briefly, what it made of them in reaching its findings, as  part of its duty to give sufficient reasons.  Although there was considerable discussion of the tribunal’s approach to the evidence at the oral hearing before me, the grounds on which I had given permission to appeal did not, as such, include lack of sufficient reasons.  I therefore  base my decision not on this point, but on the point below concerning misrepresentations.  However, it will be important when the case is remitted that appropriately reasoned findings are made in these respects.  The process will also assist the tribunal in answering the question of whether there were grounds for the necessary supersession or revision of each previous decision. 

 

14. I consider that the tribunal erred in relation to all four of the operative decisions awarding benefit by failing to identify sufficient or any  misrepresentations on the basis of which benefit was awarded.

 

15. As regards the claim forms for the 1992 and 1995 awards, we simply do not know what was said and cannot conclude whether it was inaccurate and  was an operative cause of the award of benefit.  The tribunal dealt with the matter very briefly:

 

“The overpayment of the whole of the amount of disability living allowance paid to [the claimant] from 06/04/1992 arose as a result of his misrepresentation, in his various claim forms, that his condition was such that he qualified for the disability living allowance paid to him.”

 

16. We do not know that he made such a representation (or any representation) in 1992 or 1995.  While I can accept that there may be circumstances in which it is possible to rely on a misrepresentation in a claim form without the claim form itself being available in evidence, there would have to be sufficient secondary evidence and here there was none. The tribunal’s reliance on CDLA/3508/2006 is in my view (and as Mr Cooper accepts) misplaced.  In that case, the misrepresentation taken as the operative one (see [35]) was what the claimant had said to the examining medical practitioner (of which there was evidence), which in turn affected the doctor’s findings and opinions on which the adjudication officer then relied. 

 

17. In the present case, in my view the tribunal has lowered the burden of proof of any misrepresentation in 1992 or 1995 on the Secretary of State so far as effectively to erode it altogether. It is understandable that there should be concern that a claimant who could do the actions captured on video may have been receiving  DLA without necessarily being entitled to it for the full amount or the full period and understandable that the tribunal may have had a degree of scepticism towards the claimant’s evidence and actions given that the video  evidence became available in the  course of an investigation into an unrelated criminal offence to which the claimant pleaded guilty, but the fundamental building blocks for recovery of an overpayment still require to be observed. To progress from a position that the claimant on the facts as now known was not entitled straight to a conclusion that he had misrepresented a material fact is to ignore the reality that medical professionals and others may also be involved in making an award of DLA (as we know happened on the later renewals in the present case) and to ignore the possibility that the DWP may from time to time make awards which, with the benefit of hindsight, are unduly generous.  To do so removes the protection which section 71 provides.

 

18. We do know what was said in the claim forms in 1999 and 2003.  We also know what was said by the claimant to the examining medical practitioner in 2000.  The content of any of those might found a representation of fact.  Despite how the tribunal put it, I do not think that the claimant did, as such, make a representation that his condition was such as to entitle him to benefit.  The claim form does not contain such a representation, unsurprisingly, since that is the very matter which the DWP has to decide.  More likely, this was a form of shorthand on the tribunal’s part, designed to cover all the claims, whether or not a claim form was available in respect of them. It will be for the tribunal to whom this case is remitted to examine closely the terms of the material referred to earlier in this paragraph, against what they find the claimant’s condition to have been at the material times, in order to determine whether there has been one or more misrepresentations of a material fact.  The question will have to be asked in relation to each decision awarding benefit.

 

19. The tribunal will then need to consider in relation to any such misrepresentation, whether the payment of benefit was made in consequence of that misrepresentation. Again, this will need to be looked at in relation to each representation individually.  Further, it may not follow that the answer is necessarily the same in relation to each part of an award (I have in mind particularly the involvement of the EMP in 2000, limited as it was to reporting on mobility component.)  It will be important that sufficient reasons are given, examining the respective roles played by any representation made by the claimant, the CPN, the GP and the EMP in the decisions that were made.

 

20. Although the voluminous medical records do disclose some fluctuations in the claimant’s conditions, it was not the claimant’s case before the First-tier Tribunal that he had got better and before me it was no longer the Secretary of State’s case that the claimant had got better and failed to disclose that fact.

 

21. I direct therefore that:

 

a) the question of whether the claimant satisfies all or any part of the sum of £22793.25 was overpaid and is recoverable is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

 

b) The Secretary of State shall, having considered the terms of this decision,  within one month of receiving notification of this decision notify the First-tier Tribunal and the claimant in writing of  the amount of the overpayment he now alleges to be recoverable; in respect of what dates; and whether on the grounds of misrepresentation or of failure to disclose.

 

c) The tribunal shall take the notification to be made by the Secretary of State under (b) and the terms of this decision into account if it is considering whether to exercise its discretion to consider the recoverability of a larger sum than that provided for by the decision of 8 March 2006, as revised on 5 July 2007

 

d) I direct that the Secretary of State be represented at the re- hearing.  While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing and, if possible, arrange for him to be represented.

 

22. The above directions are subject to any further directions which may be given by a District Tribunal Judge.

 

23. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

 

 

 

CG Ward

Judge of the Upper Tribunal

10 January 2011