Upper Tribunal (Administrative Appeals Chamber)

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 Blackpool First-tier Tribunal dated 24 January 2012 under file reference SC064/11/02211 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decisions dated 27 May 2011 (the entitlement decision) and 10 June 2011 (the overpayment decision) are remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing will be at an oral hearing.

 

(2) The new tribunal should not involve the tribunal judge or other members who sat on the tribunal that considered this appeal at the hearing in Blackpool on 24 January 2012.

 

(3) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service in Liverpool within one month of the issue of this decision. 

 

(4) A copy of the submission to the Upper Tribunal by Mr Wayne Spencer, the Secretary of State’s representative, dated 9 August 2012 (docs 227-302 of the Upper Tribunal file, including attachments), should be provided to the next tribunal. 

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

REASONS FOR DECISION

 

Summary of Upper Tribunal’s decision

1. The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Blackpool First-tier Tribunal (FTT) on 24 January 2012 involves an error on a point of law.  That tribunal decision is set aside. The case – which means the appellant’s combined appeals against the disability living allowance (DLA) entitlement supersession decision and the overpayment recoverability decision – needs to be reheard by a new tribunal. 

 

The proceedings before the Upper Tribunal

2. The appellant’s appeal to the Upper Tribunal has been supported in a detailed and helpful submission by Mr Wayne Spencer, the Secretary of State’s representative in these proceedings. Miss Clare Jackson, the appellant’s solicitor, agrees that the decision should be set aside and remitted to a new tribunal. Miss Jackson consents to the Upper Tribunal issuing a decision without reasons. Whilst that concession is appreciated, I take the view that it will be helpful for both the previous and the new tribunal to have an outline of the reasons for the Upper Tribunal’s decision.

The background to this appeal

3. The decisions under appeal to the FTT concerned the appellant’s entitlement to DLA for a period of almost 15 years, dating back to 1996. There had previously been an award of the higher rate mobility and lowest rate care components of DLA with effect from 9 October 1996. Much later the Department for Work and Pensions undertook an exercise which identified individuals working for the NHS who were claiming DLA. The Department considered that the appellant’s job as a paediatric nurse might be incompatible with the award of higher rate mobility component and carried out a fraud investigation. The appellant was subject to covert DVD surveillance in late 2010 and she was then interviewed under caution.

 

4. In 2011 a decision maker revised the original awarding decision on the basis that it had been taken in ignorance of a material fact, namely the appellant’s actual care and mobility needs. It was further decided that on the original DLA claim form she had misrepresented her needs as being greater than they actually were. The consequential alleged overpayment of DLA amounted to more than £42,000.

 

5. The FTT confirmed both decisions by the Secretary of State. The FTT’s statement of reasons ran to just ten paragraphs and less than two printed pages. The length of a decision, of course, is no guarantee of its quality. However, it might be considered remarkable if an appeal of this nature could be satisfactorily dealt with in such short order. The law governing the revision and supersession of existing awards does not necessarily lend itself to summary analysis. The FTT’s treatment of the appeal also needs to be proportionate to the importance of the issues. There was, very simply, a lot riding on this tribunal’s decision.

The reasons why permission to appeal was granted

6. When giving the appellant permission to appeal, I commented as follows:

 

‘1. The appellant’s grounds of appeal are arguable. The representative’s grounds as drafted are largely directed towards what are seen as weaknesses in the tribunal’s findings of fact and reasoning. There may well be some force in some of these points, especially as regards the issue of “severe discomfort” and how that affected the appellant’s mobility at the relevant time(s).

 

2. However, it seems to me that there may be some more fundamental (if rather technical) problems with the tribunal’s decision and the adequacy of its reasoning. This appears to have been a case in which there were decisions about both entitlement to DLA and recoverability (of any consequential overpayment, if no entitlement) which were under appeal to the tribunal.

 

3. As regards entitlement, the decision under appeal was a revision decision based on alleged ignorance or mistake as to a material fact. This was flagged up in the Department’s submission to the tribunal. The relevant provision is regulation 3(5)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), which provides some protection for claimants in sub-paragraphs (i) and (ii). The tribunal’s decision notice and statement of reasons do not refer to revision at all, let alone to the specific grounds for revision. Indeed, the decision notice is written as though it was a fresh claim decision (“she does not satisfy the statutory criteria…”). On the evidence, it is also perhaps questionable whether the tribunal dealt satisfactorily with the 14 year gap between the date of claim and the video evidence.

 

4. As regards recoverability, the tribunal found that the appellant had misrepresented a material fact (“when declaring that her care and mobility needs were greater than they actually were”). However, the tribunal do not seen to have distinguished between what may have been statements of opinion and what were statements of fact (see my decision in the case of DG v SSWP [2011] UKUT 14 (AAC)). Nor have the tribunal examined why the original award was made in 1996 after the initial refusal – the adjudication officer (AO) decision on file provides no reasoning to explain the change of mind (docs 58-59). Was it simply the appellant’s (very brief) letter that prompted the new decision (doc 55)? Or was it a reconsideration by the AO of the GP’s generally supportive evidence (docs 50-52)?  Was it a reconsideration of the statements on the claim form by third parties (docs 48-49)? Was it official error? It seems to me plainly arguable that the tribunal failed to deal properly with the issues of misrepresentation and causation.

 

5. I therefore grant permission to appeal. I was considering issuing abbreviated case management directions, inviting both parties to agree to the provisional analysis above and to me setting aside the tribunal decision and directing a re-hearing before a new tribunal. However, given the importance of the issues at stake, and especially the amount of the overpayment, I am inviting the Secretary of State to prepare a submission in the normal way. It would be particularly helpful, if the submission writer agrees with the points identified above, for that submission to include suitable draft directions for the new tribunal providing them with a “roadmap” to tackling the relevant issues in a logical and appropriate fashion.’

 

The error of law in the FTT’s approach

7. Mr Spencer, who acts for the Secretary of State in these proceedings before the Upper Tribunal, agrees with the analysis of the FTT’s decision above. He notes that the FTT appears to have confined itself to making two rather general findings. The first was that “with regard to care the Tribunal found that she had exaggerated the effect of the condition so far as daily life was concerned but downplayed the effects so far as her work was concerned”. The second was simply that she had “exaggerated the effects of her condition”. Mr Spencer argues that these findings are “too oblique” to explain why the FTT found that regulation 3(5)(c) (of the 1999 Regulations) and section 71(1) (of the Social Security Administration Act 1992) were both satisfied in the particular circumstances of this case.

 

8. In short, I agree. The FTT’s decision involves an error of law and must be set aside for that reason as having no effect. There will have to be a fresh hearing before a new tribunal.

 

Directions to the new First-tier Tribunal

9. Mr Spencer has taken up the challenge to create a “roadmap” for the new tribunal, as posed by paragraph 5 of the grant of permission, with his customary analytical precision and thoroughness. A copy of his submission should be made available to the new tribunal. I direct the new tribunal to follow the sequence of questions as set out in Mr Spencer’s submission in order to guide it through the challenges set by this appeal.

 

10. Those questions may be summarised in bullet point terms as follows:

 

The entitlement decision

(a) The starting point is this: are any of the statutory grounds for revision of the original awarding decision made out?

(b) Has the Secretary of State now shown that on the balance of probabilities the appellant was not entitled on 8 October 1996 (the date of claim) to any part of the DLA award made?

(c) If the Secretary of State has not shown that, the FTT should make a finding that there were no grounds to revise the original award, but should also consider (the perhaps unlikely possibility) that there was a change of circumstances justifying a supersession decision before the award was made on 26 November 1996.

(d) If, however, the Secretary of State succeeds on point (b), then the FTT will need to consider whether a ground for revision (e.g. under regulation 3(5)(c)) is made out (and, failing that, whether supersession is open as an alternative).

(e) The FTT should, if required, also consider the possibility of “official error” under regulation 3(5)(a).

(f) If there are no grounds for revision, the FTT should consider the possibility of supersession, e.g. for ignorance or mistake as to material fact under regulation 6(2)(b)(i), bearing in mind the need to identify the correct effective date.

(g) If the “material fact” head of regulation 6(2)(b)(i) does not apply, was the decision “erroneous in point of law”?

(h) If the FTT finds that the original award is either revised or superseded, the FTT will need to make findings as to the correct entitlement and when such decision is effective from.

 

The overpayment decision

(a) If entitlement is left unchanged, then the FTT should record that there is no recoverable overpayment under section 71(1).

(b) If the FTT conclude that there was no entitlement at the date of claim, was there a misrepresentation and was any such misrepresentation causative (see further CDLA/5803/1999 and also DG v Secretary of State for Work and Pensions (DLA) [2011] UKUT 14 (AAC))?

(c) There would, however, appear to be no scope for any decision based on a failure to disclose between 8 October 1996 and 26 November 1996.

 

11. The new tribunal will, of course, bear in mind that working and claiming DLA are in principle not inconsistent. It may be, however, that the activities involved in some cases in working may cast doubt on whether the conditions of entitlement to DLA are indeed met. The new tribunal will also have to be careful in “reading back” from what may be disputed evidence from 2010 and 2011 as to the position in 1996.  For example, in MK v Secretary of State for Work and Pensions (DLA) [2011] UKUT 12 (AAC), where surveillance evidence was also deployed, there had been a successful criminal prosecution for benefit fraud (in the present case it appears that such proceedings are under consideration, but the information on file may be out of date). However, in MK V SSWP Judge Ward reminded tribunals of the very real difficulties involved in adjudicating upon such cases (at paragraph 17):

“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.”

 

Conclusion

12. For the reasons explained above, the FTT’s decision involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new First-tier Tribunal subject to the directions listed above (section 12(2)(b)(i)).  

 

 

 

 

Signed on the original Nicholas Wikeley

on 22 October 2012 Judge of the Upper Tribunal