Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/2396/2011

ADMINISTRATIVE APPEALS CHAMBER

Before NJ Warren

Judge of the Upper Tribunal

Attendances:

For the Appellant:

For the Respondent Mr Cooper

Decision: 

1.             I give permission to appeal against the decision of the First Tier Tribunal sitting at Rochdale on 16 May 2011 (“the Tribunal decision”).

2.             I set aside:-

(a)            The Tribunal decision.

(b)            The decision of the Secretary of State dated 18 February 2010 (“the entitlement decision”).

(c)            The decision of the Secretary of State dated 3 March 2010 (“the overpayment decision”).

3.             This means that the Secretary of State’s original award of DLA higher rate mobility component from and including 27 February 2002 remains in force.

REASONS FOR DECISION

1.             This application for permission to appeal was the subject of a hearing at Manchester on 23 November 2011.  The appellant attended with her daughter.  Mr Cooper, a solicitor, attended to represent the Secretary of State.  Mr Cooper submitted that permission to appeal should be granted.  Both sides consented to my proceeding to deal with the appeal.

2.             The appellant is now 48 years old.  She has a long standing history of arthritis affecting multiple joints in her body.  This causes pain and stiffness, particularly in the neck and back but she has symptoms in most other joints.  The symptoms are worse first thing in the morning and after any period of rest or inactivity.  She is prescribed strong pain killers but anti inflammatory treatment has not been helpful.  For about 15 years she has worked in a large supermarket which has 26 tills.  Her doctor has encouraged her to do this to keep her mobile and to keep her muscles strong. 

3.             In 2002, at which point the appellant was working as a check out operator, she claimed DLA.  The only live issue in this appeal is whether she is entitled to DLA higher rate mobility component because she is “virtually unable to walk”.  This phrase has a statutory definition which, for the purposes of this case, is as follows:-

“ [Her] ability to walk out of doors is so limited as regards the distance over which or the speed over which or the length of time for which or the manner in which [she] can make progress on foot without severe discomfort that [she] is virtually unable to walk”

Its is convenient to refer to this as one of the “disability conditions” for receiving DLA.

The appellant completed a claim form which indicated that she did a fair amount of walking.  She went round a supermarket leaning on a trolley.  She could manage to go just to the bank or just to the post office on her own but if she was walking around several shops she would have to have someone with her to link arms.  She found that she could not walk far without stopping even if only for a minute and that she had to weigh up how far she’d walked from the car because if she went too far she was in too much pain.  The form asked her roughly how far she could walk before feeling “severe discomfort” and she replied “25 yards”.  Her case therefore was that she could walk a great variety of distances, but that she felt severe discomfort when doing so. 

4.             The Secretary of State sought advice from the appellant’s GP.  I need not go into all the detail of the report which was supplied.  Suffice to say that the GP stated that the appellant found walking painful and when asked to indicate a category that most accurately described her usual walking ability before the onset of severe discomfort, ticked “0-50 metres”.  The next one up was “51-100 metres”. 

5.             On 17 April 2002 the Secretary of State decided that the appellant was entitled to DLA higher rate mobility component for an indefinite period from 27 February 2002.  Some might say that was a generous award but it seems that the Secretary of State’s decision maker was impressed by the evidence of severe discomfort.

6.             In October 2003 the appellant was promoted to check out supervisor with responsibility for all the tills.  She says that this was in fact an easier job for her to do because if she sat at a check out she tended to stiffen up.  I accept this statement, which is supported by the medical evidence.  It is common ground that over the years the distance that the appellant has been able to walk has increased.  Her GP states that this is a direct result of her determination to keep as active as possible and adds that:-

“ Unfortunately although her walking distance has increased, the pain in her joints has also increased and her manual dexterity has reduced due to progression of her arthritis.”

The appellant, as I have said, accepts the improvement in distance but insists that she is walking through pain.

7.             In 2009 DWP conducted some observations of the appellant walking on several occasions a distance of about 60 yards not in apparent discomfort.  There followed an interview under caution.  Mr Cooper submitted, and I accept, that the transcript of the interview which appears in the tribunal file is, compared with most such documents, remarkable for the consistency of the appellant’s account.  She made no attempt to disguise the fact that she was working or the variability of her condition but insisted that she was always in a lot of pain. 

8.             On 18 February 2010 the Secretary of State made the entitlement decision.  This was that there had been a relevant change of circumstances in the appellant’s condition and that she was not entitled to DLA from 31 October 2003. 

9.              It is necessary here to say something about the ways in which an award of DLA can be changed. 

10.         Once the Secretary of State makes an award, he has a short period, usually a month, in which he can simply change his mind.  The subsequent alteration is known as a revision.  Beyond that period, the award has a certain level of protection and can be altered only on certain grounds.  This preserves the integrity of any element of discretion or judgement in the original decision. 

11.         One traditional ground for changing a decision is that a “relevant change of circumstances has occurred”.  This permits what is called a supersession.  Generally speaking the effective date of a supersession decision will be the date of the change in circumstances.  It has proved necessary, however, to refine this proposition in cases relating to the “disability conditions” of DLA.  Just occasionally, it is possible to point with comparative accuracy to the date from which an improvement in someone’s condition occurs.  This may be so, for example, if a claimant has successful medical treatment.  Usually, however, reality is less clear cut.  Improvement may be imperceptibly slow over a prolonged period.  Many conditions vary over time anyway and it is sometimes possible to point to a significant improvement only with hindsight. 

12.         The combined effect of the Social Security Act 1998 and the Decisions and Appeals Regulations is therefore that, in respect of disability conditions, a supersession decision adverse to the claimant based on change of circumstances takes effect instead from the date of the supersession decision unless the claimant:-

(a)            “…. failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify”.

AND

(b)            “…. knew or could reasonably have been expected to know that the change of circumstances should have been notified”.

I have edited some of the statutory language for the sake of clarity. 

13.         The effect of these provisions is succinctly expressed by the annotators of “Social Security Legislation” in the following terms:-

“ This means that, except where the claimant has clearly been at fault, there is no overpayment and so any question of the recoverability of an overpayment simply does not arise.”

14.         It is plain from the effective date of the entitlement decision that the Secretary of State considered the appellant had been at fault.  About 14 days later on 3 March there followed an overpayment decision to the effect that the appellant must repay £13,756.45 because she had failed to disclose that “her mobility needs had decreased”.  This decision was given under Section 71 of the Administration Act.  This is not all.  The Secretary of State brought a prosecution for failure to notify a change of circumstances. The appellant was acquitted.  She told me, and I accept, that two of her workmates gave evidence in her defence about the pain which they had observed her to suffer.  The district judge found her not guilty because he was unable to identify a change of circumstances which she should have reported.

15.         Meanwhile, the appellant had lodged an appeal.  The letter of appeal, although written on 8 March 2010, referred only to the entitlement decision.  The appeal was eventually heard on 16 May 2011.  The tribunal confirmed that the appellant was not entitled to DLA from 31 October 2003.  They also confirmed the overpayment decision, which had been referred to in the Secretary of State’s response as being also the subject of the appeal.

16.         Before dealing with the tribunal’s statement of reasons, I should refer to two matters concerning the scope of the appeal.

17.         An Upper Tribunal Judge has directed that the Secretary of State’s representative should make submissions as to whether the tribunal had jurisdiction over the overpayment decision.  On this issue, Mr Cooper submitted that the tribunal could deal with both issues and were correct to do so.  A tribunal would be acting in an unnecessarily formal and rigid way if it insisted on two letters of appeal for the two decisions.  No injustice had been caused by any failure to adjourn the hearing in order to put the paper work in order. 

18.         I agree that the tribunal were correct to treat the appeal as being against both the entitlement decision and the overpayment decision.  Appellants often have difficulty in identifying the decision or decisions which they should appeal.  I note in this case that the official form used by the appellant asked her to indicate the “date at the top of the letter about the decision” and that the box provided for this purpose was not large enough for two dates to be entered.  This case also demonstrates the injustice that an inflexible approach might cause.  By the time of the First Tier Tribunal hearing the overpayment decision was more than 13 months old.  It was therefore no longer possible for another appeal to be lodged, even with an extension of time.  In my judgement the approach to be adopted, is that, once the appellant has expressed a grievance in the letter of appeal, it is then for those more knowledgeable with the process, by they officers of the DWP or tribunal judges to identify the decision or the decisions which are the source of the appellant’s grievance and then to treat the letter of appeal accordingly.  This approach accords with the spirit of Kerr.  It is also in line with that adopted by Judge Jacobs, then a social security commissioner, in CJSA/714/2004 when he held that a tribunal should have considered not just whether a second claim should have been backdated but also whether an earlier one had been correctly refused.

19.         The second point I should mention is that buried deep in the Secretary of State’s written submission to the Tribunal is a request that the Tribunal should ask the appellant for more evidence about her shopping in 2002 and to consider removing entitlement from the outset of the claim on the basis that there were misrepresentations in the claim form.  It is unfortunate that the request was put in that way.  On the one hand, tribunals should not shrink from issuing a decision less favourable to an appellant if it appears correct to do so and provided fair notice has been given.  On the other hand, it is not appropriate for the Secretary of State, in circumstances such as these, to ask the tribunal to take on a role adverse to the appellant.  Instead he should send a representative to explore those issues at the hearing.  In the end, he did send a presenting officer to the hearing on 16 May.  There is no record of the officer raising this point and the tribunal did not deal with it in their statement of reasons.  I can only assume it was abandoned. 

20.         I turn now to the first point which Mr Cooper very properly advanced when arguing that permission to appeal should be given.  At the tribunal hearing, the appellant had very naturally relied upon her acquittal at the magistrates court.  In fact, she was under the mistaken impression that the court decision was the end of the matter and would govern the tribunal proceedings as well.  In response to this contention, the tribunal’s statement remarks as follows:-

“ The Tribunal found that the overpayment arose as a result of the appellant’s failure to notify a change of circumstances and so is recoverable.  However, the appellant’s case was not assisted by the fact that she had been acquitted of criminal charges relating to the payment of benefit.  The tribunal judge explained to her the different standard of proof in tribunal proceedings and, as stated earlier in this statement, it does not matter whether the failure to disclose is fraudulent or wholly innocent.”

21.         Now for many years, in respect of Section 71 of the Administration Act, it has been settled that the recovery of overpayments is not confined to cases of fraud but extends to cases of innocent misrepresentation and of non-fraudulent failure to disclose.  As Mr Cooper pointed out, however, to apply this reasoning to a case involving a disability condition of DLA is to overlook the important rules relating to supersession.  As I have indicated, these provide that unless the claimant has clearly been at fault then there is no overpayment so the question of recoverability does not arise.  It was an error of law, in the context of this case, for the Tribunal to act on the basis that it didn’t matter whether a failure to disclose was “wholly innocent”.

22.         Another error of law emerges from the tribunal’s approach to the grounds for supersession and their finding that the relevant change of circumstances had occurred within 18 months of the original award.

23.         In CSDLA/637/2006 a Commissioner gave advice as to how Tribunals should approach their task in a case such as this:-

“ It is sensible rather that a Tribunal hears all the evidence, including what is potentially relevant to current entitlement, but without yet making a final determination with respect to that, in order to compare present circumstances with those which surrounded the original award.” 

24.         What the Tribunal actually did in this case appears from para 12 of their statement:-

“ The Tribunal was satisfied that there has been a relevant change of circumstances which entitled to Secretary of State to supersede the original decision awarding DLA.  The Tribunal was satisfied that the appellant is not virtually unable to walk and does not satisfy the criteria for an award of either component of DLA.  The Tribunal accepted the Presenting Officer’s explanation that the award had been removed from October 2003 because this was the date when the appellant was promoted to checkout supervisor.  The Tribunal considered that, even taking account of variability of the appellant’s condition, it was inherently improbable that a person who was virtually unable to walk would be able to carry out the duties which the appellant is required to do as part of her job in a supermarket of the size of the one in which she works….”

25.         Contrary to the advice given by the Commissioner, the Tribunal have first reached their own conclusion as to whether they consider the appellant to be virtually unable to walk.  They have then asked themselves whether someone who was virtually unable to walk would be able to carry out the appellant’s duties at work.  This approach is erroneous because it relies throughout on their own view of what amounted to “virtually unable to walk”.  They have failed in their reasoning to give proper protection to the judgement of the original decision maker.  It is by no means obvious that a person who says that she walks through severe discomfort; can go to the bank and post office alone; and can walk round a supermarket using a trolley is incapable of the comparatively short bursts of walking, with stops, entailed in the job of supervising even a large number of check outs.  I am left guessing as to what was the change in the appellant’s condition that the Tribunal identified.

26.         Finally, Mr Cooper was unable to support the Tribunal’s approach to the content of the appellant’s duty to notify DWP of any change in circumstances.  On this, the Tribunal state that the appellant was aware of “the requirement to notify any improvement in her condition” and that she was reminded of her obligations in the letters sent to her about her motability car.  In fact, although the Tribunal papers do contain a typical motability letter, this indicates that the changes which the appellant was required to notify are set out in a separate leaflet.  No copy of the leaflet is in the Tribunal papers.  Mr Cooper had obtained one.  The leaflet required the appellant to notify the department if she required “less or more help with … getting around”.  Mr Cooper felt unable to match that requirement with the circumstances of this case.

27.         I therefore conclude that the Tribunal decision is erroneous in law and must be set aside.  This means either that I refer the case for rehearing by a different tribunal or that I re-make the decision myself.  The attractions of the former course are that I do not have the assistance of medical or disability experts and I have not seen the video evidence; on the other hand, there is comparatively little dispute about the primary facts and this whole process has now been going on for nearly two years with the appellant having to endure hearings before the First Tier Tribunal, the Magistrates Court and the Upper Tribunal.  I concluded on balance, having regard to rule 2 of the procedure rules, that I should take the decision myself.

28.         On the merits of the case, Mr Cooper submitted to me that the appellant should be treated as a witness of truth.  He based that submission on the consistency and lack of concealment that she had shown throughout.  I accept that and would add that her evidence is corroborated not just by the form originally completed by her GP but by two subsequent substantial letters from the same source.  It might be fair to add, even allowing for the differing standards of proof, that her evidence also appears to have successfully withstood cross examination in the Magistrate’s court.

29.         Mr Cooper then submitted that there are borderline cases for DLA higher rate mobility component.  It may be that the appellant was just such a borderline case.  If the decision went against her then any supersession based on an improvement in her circumstances should take effect from February 2010, not earlier.  On the other hand, there could be no supersession unless I was satisfied that there had been a relevant change of circumstances. 

30.         I have not found this an easy case to decide.  I have indicated in para 3 the circumstances which surrounded the original award from which I conclude that much of the walking which the appellant was doing was accompanied by severe discomfort.  It is common ground that the appellant is now walking longer distances and that this is helpful to her condition.  She insists that she is in permanent pain, especially in her back, and that the pain has not reduced.  This assertion is supported by an important unprompted comment from her doctor to which I have already referred (para 6).  Although her walking distance has increased the pain in her joints has also increased. 

31.         If this be so, what then is the relevant change of circumstances?  The test is the claimant’s ability to “make progress on foot without severe discomfort”.  Given the range of walking ability on which the appellant based her original claim; the acceptance in 2002 that some of her walking was accompanied by severe discomfort; and the evidence that although distance has increased, pain has increased as well, I cannot say, that I am satisfied that there has been a relevant change of circumstances.  On the whole, I am satisfied, taking an overall view, that the estimate of the appellant’s walking ability before severe discomfort given by her GP in 2002 still holds good. 

NJ Warren

Judge of the Upper Tribunal

07 December 2011