Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CA/1587/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision:  The decision of the Appeal Tribunal given on 18^th October 2010 contained an error on a point of law.  Accordingly, I allow the claimant’s appeal and I set aside the tribunal’s decision.  In exercise of the powers given by s.12(2)(b) and (3)(a) of the Tribunals, Courts and Enforcement Act 2007 I remit the case to the First-tier Tribunal and direct that it be heard by a differently constituted tribunal.

 

 

REASONS FOR DECISION

 

Preliminary

 

1. This is an appeal originally brought by the claimant against the decision of the Appeal Tribunal given on 18^th December 2010.  At the time of the hearing the claimant, who was then aged 104, was acting by his daughter, who was his appointee.  Sadly, while the present appeal was pending, the claimant died and the appeal is now being pursued by his son-in-law under an appointment made by the Secretary of State pursuant to regulation 30 of the Social Security (Claims and Payments) Regulations 1987, S.I. 1987 No. 1968.

 

2. The appeal to the tribunal was against the decision of the decision maker made on 12^th January 2010 that a sum of £4,522.50 was recoverable from the claimant in respect of attendance allowance overpaid to him for the period 28^th July 2008 to 1^st November 2009.  This overpayment was said to have been caused by the daughter’s failure to disclose the fact that on 23^rd June 2008 the claimant’s residence in a care home had become partly funded by the local authority.  The tribunal decided that the claimant satisfied the conditions for entitlement to attendance allowance but that attendance allowance had not been payable since 28^th July 2008, and therefore dismissed the appeal.

 

3. As I shall explain further below, the Secretary of State has made two helpful submissions on the appeal.  In the first submission, dated 5^th October 2011, the Secretary of State supported the appeal on the ground that the tribunal had not adequately addressed the question whether any non-disclosure amounted to a failure to comply with the legal obligations contained in the Claims and Payments Regulations.  In the second submission, dated 14^th June 2012, made after some further documentation had been produced following case management directions given by Judge Lane, the Secretary of State maintained the submission that there had been an error of law but submitted that the judge determining the case might decide that there was sufficient information to substitute a decision of the judge’s own.

 

4. I accept that there was an error of law as identified by the Secretary of State.  There appear to me, however, to have been additional errors, as I shall explain, and on the material before me I am not in a position to substitute my own decision.  The case must therefore be remitted for hearing by a new tribunal if the Secretary of State decides to pursue the claim in the circumstances considered below.

 

The facts

 

5. The claimant was born on 22^nd April 1906.  His daughter and son-in-law explain that he was one of the last veterans of the Second World War and was a very independent man.  I his last years he experienced sight and hearing problems and the general frailty of old age.  In his 90s he made a claim for attendance allowance and was awarded the lower rate of attendance allowance from 13^th March 2000.  He was then still living in his own home.

 

6. In 2006 the claimant’s daughter persuaded him that the time had come to sell his house and to move into residential care.  He moved in on 13^th January 2006 (see p.26 of the bundle) and on 26^th June 2006 the daughter completed a further claim for attendance allowance on the claimant’s behalf.  In that form she stated (p.8) that she was acting under a power of attorney and that the Department of Work and Pensions had already appointed her to get her father’s benefits and to deal with letters about his benefits.  She also stated that her father was in residential care but he was not receiving local authority funding or any other form of public funding for any of the costs.  In a further form (form DBD688, at p.27), the daughter stated that the claimant paid all the cost himself.  It is accepted that that was a correct statement of the position at the time and it seems that the claimant was funding the costs of his residential care from the proceeds of sale of his house.

 

7. By a decision made on 17^th August 2006 the original decision awarding attendance allowance at the lower rate was superseded and the claimant was awarded attendance allowance at the higher rate from 29^th June 2006 for an indefinite period.

 

8. As a result of a telephone conversation with someone from the Stockport Pensions Centre on 27^th October 2009 the Disability Benefits Directorate, which is the section of the Department of Work and Pensions which is responsible for attendance allowance, became aware that the claimant was said to be receiving local authority funding towards his care costs.  It is not clear what led to the conversation, but the position was investigated.  The local authority stated that it had been funding the claimant’s accommodation from 23^rd June 2008.  As a result, the decision of 17^th August 2006 was superseded by a decision dated 12^th January 2010 to the effect that attendance allowance was not payable from 28^th July 2008. 

 

9. As I understand it, the reason why attendance allowance ceased to be payable from that date was because of the combined effect of the Claims and Payments Regulations and the Social Security (Attendance Allowance) Regulations 1991 (S.I. 1991 No. 2740).  Reg. 7 of the Attendance Allowance Regulations provides that attendance allowance is not payable for any period where throughout the period the person in question is resident in a care home and is receiving payment of any part of the costs of qualifying services from specified public or local funds.  Reg. 8 provides that reg. 7 does not apply for the first 28 days of such a period.  The result was that the claimant was not entitled to further payments of attendance allowance after 21^st July 2008, which was 28 days from 23^rd June 2008.  Under para. 1 of Sch. 6 to the Claims and Payments Regulations, attendance allowance is payable on Mondays at a weekly rate.  28^th July 2008 was the first Monday after the expiration of the 28 day period provided for by reg. 8 of the Attendance Allowance Regulations.

 

10. Since the Disability Benefits Directorate was not aware until 27^th October 2009 that the claimant was receiving funding from the local authority, it continued paying attendance allowance after 28^th July 2008.  Payment apparently stopped with effect from 8^th November 2009, which was a Sunday.  The last payment would therefore have been made on 2^nd November 2009, after the Disability Benefits Directorate became aware of the position.  The total overpayment for the period 28^th July 2008 to 8^th November 2009 amounted to £4,592.85 (see p.44).

 

11. Once the decision about the period for which attendance allowance was payable had been made, the Department of Work and Pensions turned its attention to the question whether any part of the overpayment was recoverable.  A decision was made on 4^th February 2010 that “on 23^rd June 2008 or as soon as practicable after” the daughter had failed to disclose the material fact that the claimant became funded in a care home and as a consequence attendance allowance for the period 28^th July 2008 to 1^st November 2009 had been paid which would not have been paid but for the failure to disclose.  The last week of overpayment was stated not to be a consequence of the failure to disclose.  The conclusion was that the overpayment, except for the last week, was recoverable from the claimant.  The sum in question amounted to £4,522.50.

 

12. The background to the funding arrangements is not entirely clear, but there are some points to be noted.  First, both the daughter and son-in-law were attorneys for the claimant and they operated an account with Coventry Building Society in the name of attorneys for the claimant from which fees were paid to the claimant’s care home (pp. 50 and 60).  The statements I have seen postdate the stopping of attendance allowance, so I do not know whether the payments went in to that account.  The statements do not, however, show the receipt of funds from the local authority and I note from p.143 that payment was made direct to the care home.

 

13. Secondly, although it is said that the local authority started to fund the claimant’s care (subject to a top up payment) on 23^rd June 2008, a meeting was held at the care home on 25^th August 2008:

 

“to complete a financial assessment for [the claimant’s] residential care and to check that he is receiving all the benefits that he is entitled to”.  (p.4)

 

The daughter and son-in-law were present at that meeting and produced various documents for the purpose of the assessment.  The daughter was notified of the meeting by a letter dated 13^th August 2008 containing the statement quoted above and a further statement that The Pension Service and four local authorities were working together in partnership to provide a combined service for their customers.  The person from the partnership bodies who was to conduct the assessments was described simply as a “visiting officer”.  The letter bore the names and logos of all five bodies and under the name The Pension Service there appeared the words “Part of the Department of Work and Pensions”.

 

14. Thirdly, it is an obvious inference that the funding arrangements were not in final form until after completion of the financial assessment.  Further, there was nothing in the letter dated 13^th August 2008 which of itself suggested that the outcome of the assessment would or might be that the claimant would lose a benefit to which he was currently entitled.

 

15. It should also be noted that it has never been suggested that the alleged failure to disclose the fact that the claimant was receiving local authority funding was other than an innocent failure to disclose.

 

The appeal to the tribunal

 

16. On being informed of the overpayment decision, the claimant’s daughter appealed.  In a letter dated 15^th February 2010 which accompanied the notice of appeal, she referred to the meeting of 25^th August 2008 and said, in effect, that she and the son-in-law regarded the people who carried out the assessment as responsible for how the overpayment came to be made.  She supplied a copy of the letter dated 13^th August 2008 and a copy of part of a letter dated 31^st March 2009 informing her of an increase in the attendance allowance payable to the claimant and stating that the claimant was entitled to the higher rate “indefinitely”.

 

17. The claimant’s daughter also asked for a statement of reasons for the overpayment decision and that statement was provided by letter dated 22^nd February 2010 (p.48).  It added little, but did state that The Pension Service had informed the Attendance Allowance Unit about the local authority funding after receiving a claim for pension credit.

 

18. In preparation for the appeal the daughter and son-in-law produced some further documents giving additional background information about the claimant.  They also stated that the visiting officer had said at the meeting that “all the various listed parties in his letter” would be notified of the outcome of the assessment and that:

 

“we were completely left understanding … that Worcestershire Council was carrying out its duties correctly and working in partnership with the D.W.P.”

 

They also drew attention to the use of the word “indefinitely” in the letter dated 31^st March 2009.

 

19. At the tribunal hearing there was a representative for the Department of Work and Pensions and the son-in-law represented the daughter as the claimant’s appointee.  The Department’s representative accepted that there was a indefinite award of the higher rate of attendance allowance which continued in force but argued that attendance allowance was not payable while the claimant was receiving local authority funding.  He also accepted that the meeting took place but said that “the DWP” were not a party to the meeting and the daughter “would have been notified” of the responsibility to notify the DWP of the change in circumstances.  He referred to the decision of the House of Lords in Hinchy v. Secretary of State for Work and Pensions [2005] UKHL 16, R(IS) 7/05, which he submitted had decided that a change in circumstances had to be notified to the relevant office and whether The Pension Service was aware of the position was not the point.

 

20. The daughter and son-in-law maintained their contention that The Pension Service was involved in the partnership referred to in the letter dated 13^th August 2008 and said that the visiting officer had said he would notify all the relevant authorities.  They also gave evidence (it is not entirely clear from the record of proceedings who was speaking at all times) that they thought everything was being sorted out at the meeting and that some months afterwards the owner of the home said that he had effectively been overcharging because the local authority was making some payments.  They said that someone else had helped them get local authority care for the claimant at least two months before they met the visiting officer.  It seems possible, but it is not clear from the record, that that was associated with a reduction in the claimant’s capital, which they had been told to notify.  They agreed that there had been a substantial reduction in the fees paid to the home, from £515 per week to £388 per month, but explained that the care home had continued to charge the full amount for six to eight weeks and had then given “a couple of months ‘free’ ” to claw back the overpayment.

 

21. The Department’s representative further submitted that the letter of 31^st March 2009 and previous letters had included warnings to notify a change of circumstances.  It does not appear that the copy of the letter before the tribunal (which consisted of one page out of, apparently, four pages) contained any such warning and none of the previous letters were produced.

 

22. In its statement of reasons, the tribunal dealt with the question whether the overpayment was recoverable as follows:

 

“8. The Tribunal was satisfied as a matter of fact that the DWP was not notified of the change in circumstances.

 

 9. The Tribunal found as a matter of law that where as a result of a person’s misrepresentation or failure to disclose a material fact a payment of benefit has been made the Secretary of State was entitled to recover any such payment which would not have been made if there had been no misrepresentation or failure to disclose.  It did not matter whether misrepresentation or failure to disclose was fraudulent or wholly innocent.  The relevant statutory provisions are under section 71(1) of the Social Security Administration Act 1992.

 

10. [The daughter and son-in-law] were anxious to stress as to how dependent (sic) [the claimant] was and what a contribution he had made throughout his life as a responsible citizen.  All this was accepted by the Tribunal as was the fact that the [daughter and son-in-law] had acted throughout in good faith.  There was no criticism as to the integrity of [the claimant or the daughter and son-in-law].

 

11. Having said all that the Tribunal concluded that as a matter of law although [the claimant] seemed to meet the criteria for eligibility for benefit such a benefit was not payable as long as there was funding from the Local Authority.  Moreover the DWP had not been notified of the change in circumstance.  On that basis therefore under the appropriate statutory provision there had been an overpayment of £4,522.50 and that was recoverable from [the claimant] or his estate.

 

Reasons for Decision

 

12. There was no dispute that [the claimant] met the criteria for the award of the higher rate of the Attendance Allowance.  However the benefit ceased to be payable once the Local Authority was funding his placement at the [care home].  Since the DWP had not been notified of the change in circumstances the overpayment of £4,522.50 was recoverable.

 

13. The Tribunal had every sympathy with the arguments put forward by [the daughter and son-in-law] but was required to act in accordance with the applicable statutory provision.  The Tribunal did note that the care home had notified [the daughter and son-in-law] that they had effectively overcharged [the claimant] for 6-8 weeks because it had continued to deduct £515 per week from his account with the Coventry Building Society whereas [the claimant’s] contribution had been reduced to £388 per month to take account of the contribution being made by the Local Authority.

 

14. In any event the issue for the Tribunal was whether from a legal point of view there had been an overpayment and there had been and also from a legal point of view whether the monies were recoverable and they were.”

 

The present appeal

 

23. The daughter and son-in-law sought permission to appeal on the grounds that the local authority was responsible for the overpayment and that the award of attendance allowance was indefinite.  Permission to appeal was granted by the tribunal judge on the grounds that:

 

(1) it was at least arguable that the tribunal failed to address the fact that the visiting officer was acting on behalf of four public authorities of which The Pension Service was one;

 

(2) the tribunal had not adequately addressed the question whether any non-disclosure constituted a “failure” to comply with the legal obligations contained in the Claims and Payments Regulations.

 

24. Following the grant of permission, Judge Lane gave directions for submissions, leading to the submission dated 5^th October 2011 from the Secretary of State to which I have already referred.  In summary, the submission was that:

 

(1) the tribunal did fail to address the fact that the visiting officer was acting on behalf of The Pensions Service, but in the light of the decision in R(A) 2/06 that did not affect the existence of the daughter’s duty to disclose the change of circumstances.  The appeal was not supported on the first ground;

 

(2) as held in B v. Secretary of State for Work and Pensions [2005] EWCA Civ 929, R(IS) 9/06, the duty of disclosure arises from reg. 32 of the Claims and Payments Regulations.  There was no evidence before the tribunal that the daughter had been instructed to disclose the fact that the local authority was funding the care home fees and no indication in the statement of reasons that it had been established that the daughter was under any duty to disclose.  The appeal was supported on that ground and it was envisaged that the case would be remitted to be heard by a differently constituted tribunal.

 

25. The Secretary of State further noted that it was unclear from the papers under which enactment the claimant was being funded and therefore whether or not, under reg. 7 of the Attendance Allowance Regulations, attendance allowance had ceased to be payable.

 

26. The Secretary of State was willing to consent to a decision without reasons if the submission was accepted in its entirety, but the daughter was not so willing, taking the understandable view that she and the son-in-law owed it to the claimant to know the reasons for the decision.

 

27. The submissions were considered by Judge Lane, who gave further directions.  In substance, the Secretary of State was required:

 

(1) to make a submission on the question whether the questions about funding on the claim form and the form DBD688 were sufficient to alert the daughter to the possibility that changes in funding might affect entitlement or payment of attendance allowance and give rise to a duty to report such a change;

 

(2) to state under which enactment the local authority was meeting the care home fees;

 

(3) to provide copies of information leaflets supplied to the claimant or the daughter with a print out of dates when they were sent or a statement of the Secretary of State’s practice in sending them;

 

(4) to make a submission on whether, in the light of the additional information, it would be necessary to remit the appeal or whether the Upper Tribunal judge could substitute his or her own decision.

 

I infer from point (4) that Judge Lane agreed with the submission by the Secretary of State that the tribunal had failed to deal adequately with the issue whether the daughter was under a duty to disclose the change in funding.

 

28. Those directions produced the further submission from the Secretary of State dated 14^th June 2012 and some further documentary material.  The documentary material consists of:

 

(1) copies of leaflets AA55 and AA95, from January 2011 and May 2011 respectively.  AA55 includes the statement “You must also tell us if a local authority or health authority start paying for you to live in a care home.”  AA95 includes the statement “Attendance Allowance may only be payable for the first 28 days you are in a care home.  Tell us if you go into, or come out of a care home.”  Unfortunately, the version of both of these leaflets which has been supplied postdates the relevant period and, in any event, the Attendance Allowance Unit cannot provide evidence of which leaflet was issued to the claimant or the daughter at the relevant times.

 

(2) a printout showing that uprating letters were sent to the daughter at her home address on 30^th March 2007, 1^st April 2008 and 31^st March 2009, together with a specimen uprating letter which includes the statement “Please tell us if the local council start paying for you to live in residential care.”  Unfortunately, the beginning of the specimen letter is not identical in form to the letter of 31^st March 2009, so it is not clear that that statement appeared on the letters sent to the daughter.

 

(3) a response from Worcestershire County Council to inquiries about the funding of the claimant’s accommodation.  It is stated that payment was made for the period 23^rd June 2008 onwards, the money was paid directly to the care home and the payment was provided under Part III of the National Assistance Act 1948.

 

29. In the light of that material the Secretary of State submitted that:

 

(1) the claimant and his daughter were under a specific duty to disclose the change in funding by virtue of the requirement contained in the uprating letters, which was a requirement to disclose within the meaning of reg.32(1A) of the Claims and Payments Regulations;

 

(2) the requests for information about funding contained in the claim form and the form DBD688 were sufficient to alert the claimant and his daughter to the possibility that changes in funding would affect the right to attendance allowance, so that they came under a duty to notify the change by virtue of reg. 32(1B), on the ground that they might reasonably be expected to know that it might affect continued payment;

 

(3) the sums paid by the local authority were paid pursuant to Part III of the National Assistance Act 1948, which is one of the enactments specified in reg. 7(2) of the Attendance Allowance Regulations.  It was not clear whether the claimant was paying the costs of the qualifying services referred to in reg. 7(1).

 

30. The claimant in fact died on 3^rd June 2006 and the daughter and son-in-law promptly notified the Upper Tribunal.  In a further letter dated 21^st June 2012 they explained that the daughter was not the claimant’s appointee when he first applied for attendance allowance.  They also referred to having started to find correspondence from the Department of Work and Pensions unopened in the claimant’s room at the care home in about 2008 and having made an inquiry which led to the discovery of the overpayment problem.  Subsequently, in observations dated 28^th September 2012, the son-in-law stated that “almost all” letters were found to have gone to the care home and been opened by staff there and not passed on to the daughter.  It is clear, however, that the letter dated 31^st March 2009 was addressed to the daughter at her home address and the material at pp. 131 to 136 strongly suggests that that would also have been the case for earlier uprating letters.  The original overpayment letter dated 4^th February 2010 (p.42) was also sent to the daughter’s home address.  That is not to say that correspondence did not go to the care home, but it certainly appears to be the case that relevant documentation went to the daughter at her home.

 

31. I now turn to consider the law.  Like Judge Lane, I accept the Secretary of State’s submission that there was an error of law on the part of the tribunal in that it failed to address the question how the daughter had come under a duty to disclose the change in funding, so that she could be said to have “failed” to disclose that change.  It is clear from B v. Secretary of State for Work and Pensions that:

 

(1) there can be no “failure” to disclose a material fact for the purposes of s.71 of the Social Security Administration Act 1992 unless there is a duty to disclose the fact;

 

(2) the basis for finding a duty to disclose will in general be found in reg. 32, which establishes:

 

(a) a duty to provide such information as the Secretary of State may require for determining whether a decision on the award of benefit should be revised or superseded (this part of the duty now being found in reg. 32(1)) or in connection with payment of the benefit claimed or awarded (reg. 32(1A)); and

 

(b) a duty to disclose any change of circumstances which the claimant might reasonably be expected to know might affect the right to benefit, or its receipt, as soon as reasonably practicable after its occurrence (now to be found in reg. 32(1B)).

 

It is essential, if s.71 is to be relied on in a case such as the present, that there should have been a failure to disclose a material fact, in consequence of which the overpayment has been made:  see s.71(1) itself.  The tribunal’s decision proceeds without reference to B v. Secretary of State for Work and Pensions and contains no material to show the basis on which the tribunal concluded that the daughter was under a duty to disclose the changed funding arrangements.  It does not even refer to the very limited material, consisting largely of assertions by the Department’s representative, which was before it on this issue.  There is thus an error of law on a point which is fundamental to the right of the Secretary of State to recover the overpayment and accordingly the decision must be set aside.

 

32. The next question is whether, leaving aside for the time being the issue of the meeting on 25^th August 2008, the material which has now been produced by the Secretary of State is sufficient to enable me to substitute a decision of my own on the issue whether the claimant’s daughter as his appointee was under a duty to disclose the changed funding arrangements. 

 

33. As noted in paragraph 29(1) above, the Secretary of State’s first submission is that the statements in the uprating letters constituted a requirement by the Secretary of State in connection with payment of the benefit claimed for the purposes of reg. 32(1A). As I pointed out in paragraph 28(2), however, it has not yet been shown that the letters received by the daughter contained a statement in exactly the form set out in the specimen letters and relied upon by the Secretary of State.  Forms AA55 and AA95 show that varied forms of wording are currently in use and I am not prepared to infer from the material before me that the statement relied upon appeared in any of the uprating letters referred to by the Secretary of State.  (I add, for completeness, that the Secretary of State rightly does not rely on forms AA55 and AA95 themselves, which have not been shown to have been sent to the claimant or the daughter.)

 

34. I reach that conclusion without reference to the recent assertions by the son-in-law that correspondence went direct to the claimant and was not received by the daughter.  There is certainly material which seems to show that the relevant correspondence did go to the daughter.  This issue, however, can be addressed before the new tribunal if necessary.

 

35. The Secretary of State’s second submission is, as noted in paragraph 29(2), that in the light of the questions about funding, the change in funding arrangements fell into the category of a change of circumstances which the daughter might reasonably be expected to know might affect the payment of benefit for the purposes of reg. 32(1B). The first question, at p.19, reads:

 

“Have the local authority, a health authority, a NHS trust, Primary Care Trust or a government department paid any of the costs for you to live there?”

 

If the answer “yes” is given, there is a further question about which public body paid.  There is nothing to indicate that attendance allowance may therefore not be payable and the question could, in my view, be seen as intended to elicit information to facilitate the allocation of funding between departments.  Similarly, the second question, at p.27, reads:

 

“Does [the claimant] pay all the cost himself?”

 

The possible answers are “yes”, “not sure” and “no”, the last answer being again followed by a question about who does pay.  There is nothing to indicate that attendance allowance may not be payable unless the claimant does pay for himself and the form includes other questions about who arranged for the claimant to live in residential care, whether he was in such care at certain specified dates and whether he has recently been in hospital and if so who paid for his stay and treatment. 

 

36. The underlying intention of those questions in their context is in my view likely to be uncertain to an uninstructed claimant and I am not prepared to hold, on this appeal and when the daughter and son-in-law have not had the opportunity of dealing with this point in oral evidence, that the fact that the questions were asked is sufficient to constitute the basis of a duty to disclose a change in funding arrangements.  The reg. 32(1B) duty is imposed on “every beneficiary and every person …” if “he might reasonably be expected to know” (my underlining) that the benefit might be affected.  There is therefore scope for looking at the particular circumstances of the individual claimant or other relevant person.

 

37. In addition, there is to be considered in relation to the duty to disclose (whether alleged to arise under reg. 32(1A) or reg. 32(1B)) what is said by the daughter and son-in-law about the meeting on 25^th August 2008.  It is clearly the case that the tribunal did not address the fact that the visiting officer was acting on behalf of The Pension Service, but the Secretary of State submits, in effect, that R(A) 2/06 has the effect that the daughter cannot rely on disclosure to The Pension Service as sufficient disclosure to discharge a duty under reg. 32.

 

38. That case was in many ways very similar to the present, since it also involved an alleged failure by a daughter, acting as appointee for an elderly parent, to notify the appropriate office of the Department of Work and Pensions that the claimant had started to receive local authority funding in a care home.  It was accepted by the appointee, in the light of Hinchy, that the starting point was that disclosure should have been made to the Disability Benefits Unit, but she argued that the ordinary duty of disclosure was modified by what had occurred at a meeting with a “customer liaison manager” held for the purpose of discussing nursing home fees.  In paragraph 14 of his decision Mr. Commissioner Rowland accepted as a matter of law that the duty to disclose may be modified by an oral representation made by an officer of the Department of Work and Pensions to the effect that further disclosure is unnecessary.  He went on to reject the argument on the facts, on the ground that (in the absence of any specific discussion about attendance allowance, which was not alleged) the discussion must have been about income support and state pension credit which the appointee presumably knew was not administered by the Disability Benefits Unit.  It is that rejection on which the Secretary of State relies in the present case.

39. The principle that oral modification is possible applies equally in the present case.  The question is whether, on the facts, a modification is shown.  In my view, R(A) 2/06 is not decisive here.  In that case, the evidence was that the appointee was told by the customer liaison manager that the visit would initiate any action required with regard to her mother’s benefit changes when council funding started and there was no need for her to take any further action.  She said that she could not remember whether attendance allowance was specifically discussed or whether she was told that the claimant would cease to be entitled to attendance allowance.

40. By contrast, the meeting in this case was to complete a financial assessment for the claimant’s residential care and to check he was receiving all the benefits he was entitled to, and the daughter was asked to produce any benefit letters, statements relating to bank or savings accounts and details of pensions or any other income (p.4).  This naturally implies a full assessment of the claimant’s entitlement to benefits and a full survey of all that he was receiving.  Information about the claimant’s receipt of attendance allowance would necessarily be provided if the instructions were to be complied with.  That is the context in which the visiting officer’s statement that he would inform all listed parties or all relevant parties is to be considered.

41. In addition, I am unfortunately unable to read what may be a significant part of the record of proceedings.  P.6 of the record (p.67 of the bundle) records the question, “Can you help us by saying what you thought the meeting on 25/8/08 was about?”  The answer reads, I think, “We thought everything was being sorted out to [illegible] that [the claimant]” and then ends.  I am therefore unable to consider the full explanation given by the daughter and son-in-law of what they understood to be the purpose of the meeting.

42. In all the circumstances, I conclude that the question whether there was an oral modification of the ordinary reg. 32 duties should be considered by a new tribunal which will also have the opportunity of considering the material produced by the Secretary of State relating to the duty of disclosure and any relevant evidence the daughter and son-in-law may give.  There was an error of law in the tribunal’s failure to address the issue and I do not accept the Secretary of State’s submission that, in effect, it was immaterial.

43. There is a further reason why this matter requires a rehearing.  It is well settled, as was recognised in B v. Secretary of State for Work and Pensions, that a person cannot fail to disclose a fact unless he or she is aware of it.  The overpayment in this case is calculated on the footing that the fact of the claimant’s local authority funding ought to have been disclosed by 28^th July 2008.  The evidence of the daughter and son-in-law, however, seems to be that they were not aware that the claimant was receiving local authority funding until the care home notified them that they were being “overcharged” and an adjustment was made (see, e.g., p.87).  This seems to have been some six or eight weeks after the visiting officer’s visit, which itself was four weeks after 28^th July 2008.  The tribunal accepted this evidence, as appears from paragraph 13 of its decision, and there was therefore a further error of law by the tribunal in that it did not make a finding as to the date on which the daughter first had the knowledge which would have enabled her to disclose the material fact or address the  potential consequences for the amount of the overpayment.

44. There remains the point raised by the Secretary of State about whether the local authority was paying for any of the costs of any qualifying services for the purposes of reg. 7 of the Attendance Allowance Regulations.  Reg. 7 in its present form is the result of regulations (the Attendance Allowance and Disability Living Allowance (Amendment) Regulations 2007 (S.I. 2007 No. 2875)) made under s.67(2) of the Social Security Contributions and Benefits Act 1992 as amended by s.60 of the Welfare Reform Act 2007 and the definition of “qualifying services” is to be found in s.67(4) of the 1992 Act.  That subsection provides that “qualifying services” are the provision of accommodation, board and personal care.  Bearing in mind that before local authority funding was in place the claimant was paying £515 a week and afterwards he was paying £388 a month, it seems to me inconceivable that the local authority was not paying some part of the costs of the qualifying services received by the claimant.

Final points

45. The daughter and son-in-law are clearly concerned that the decision that attendance allowance was no longer payable to the claimant was inconsistent with the award of attendance allowance for an indefinite period.  For the sake of completeness, I should say that there are two answers to that point.  First, the decision did not relate to the claimant’s entitlement, which was still for an indefinite period, but to whether the benefit was payable while the claimant was receiving local authority funding.  Legally, those are different issues.  Secondly, as a matter of social security law, any award, even if made for an indefinite period, is liable to be revised or superseded if, among other things, there is a change of circumstances which means that the conditions of entitlement are no longer satisfied.

46. It is to be noted that this is not a case in which the Secretary of State seeks to recover the overpayment from the daughter.  The decision of 4^th February 2010 was clearly that the overpayment was recoverable from the claimant and the statement of reasons given by the tribunal concludes that the overpayment was recoverable from him or his estate.  It is well understandable on the facts that the Secretary of State should have limited the claim to a claim against the claimant himself.

47. Finally, the son-in-law has stated in his letter dated 6^th August 2012 that the only asset in the claimant’s estate was the balance in his account of less than £3,094.31.  In all the circumstances of this case, including the point made in paragraph 43 above as to the possible amount which might be claimed, the Secretary of State may wish to consider whether the claim should still be pursued at all.

Conclusion

48. For the reasons given in paragraphs 31 to 43 above, the decision of the tribunal contained errors on a point of law and I set the decision aside.  As explained in those paragraphs, various issues of fact arise and it is therefore appropriate for me to remit the matter to be heard by a new tribunal.  I direct that that tribunal should be differently constituted from the previous tribunal.

49. The new tribunal will of course have in mind the points made above as to the evidence of any relevant duty of disclosure in this case and as to the amount claimed.

50. If the matter is pursued, the daughter and son-in-law may find it helpful to produce copies of the claimant’s Coventry Building Society statements both for any light they may shed on the funding arrangements generally and specifically with a view to showing the period for which the care home “overcharged” the claimant.

 

 

(Signed) E. Ovey

Judge of the Upper Tribunal

 

(Dated) 22^nd November 2012