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Cite as: [2013] UKUT 23 (AAC)
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KD v Secretary of State for Work and Pensions [2013] UKUT 23 (AAC) (11 January 2013)
Revisions, supersessions and reviews
revision: general
IN THE UPPER TRIBUNAL Case No. CDLA/756/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Judge of the Upper Tribunal Miss E. Ovey
Decision: The decision of the Appeal Tribunal given on 5th May 2011 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. By a decision dated 22nd January 1999, on a renewal claim for disability living allowance, the claimant was awarded the higher rate of the mobility component and the lowest rate of the care component. The award of the care component was on the basis that the claimant could not cook a main meal for himself. As set out in his renewal claim form, he was then suffering from arthritis of the hips, back and elbows, angina and irritable bowel syndrome.
2. By the final form of a supersession decision originally made on 22nd March 2010 and twice revised, the 1999 decision was superseded by a decision that from 28th February 2005 the claimant was not entitled to either component of disability living allowance at any rate, the basis for the decision being that there had been a relevant change of circumstances by 28th February 2005 which had the effect that the claimant no longer satisfied the conditions for entitlement to disability living allowance.
3. The claimant appealed against an earlier version of the supersession decision, under which he ceased to be entitled to disability living allowance from 12th March 2010. In substance, the decision related to his future entitlement rather than his historic entitlement. From his grounds of appeal, dated 21st June 2010, it was clear that he was disputing the decision maker’s decision, based in part on recent medical evidence, that he no longer satisfied the conditions for entitlement.
4. The second revision of the supersession decision, which had the effect that the claimant had been substantially overpaid between February 2005 and March 2010, also gave rise to the possibility of a repayment claim by the Department of Work and Pensions. On 17th October 2010 it was further decided that a sum of £16,326.40 was recoverable from the claimant on the ground that he had failed to disclose the relevant change of circumstances. The claimant appealed against that decision also.
5. The two appeals were heard together and the tribunal decided:
(1) that the claimant was not entitled to either component of disability living allowance from 28th February 2005 because he did not satisfy the statutory criteria; and
(2) that the overpayment of £16,326.40 was recoverable from the claimant.
6. The claimant was given permission to appeal against both decisions and those appeals have rightly been linked in the Upper Tribunal. The present decision deals with the question of entitlement, but inevitably much of the material is also relevant to the appeal against the recoverability decision (case no. CDLA /757/2012). My conclusions on that appeal are set out in a separate decision.
7. The claimant has fortunately had the benefit of representation by solicitors on both appeals. For present purposes, I summarise the grounds of appeal on the entitlement issue as follows:
(1) the Secretary of State had no power to revise the supersession decision twice, so there was no valid decision that the claimant ceased to be entitled to disability living allowance from 28th February 2005;
(2) the tribunal made insufficient findings of fact about the claimant’s ability to walk;
(3) the tribunal gave inadequate reasons for its conclusions both about the claimant’s ability to walk and about his ability to cook a main meal;
(4) the tribunal fell into error in the way in which it dealt with evidence relating to previous investigations of the claimant’s claim by the Department of Work and Pensions, in particular as respects the destruction of documents by the Department.
8. The Secretary of State supports the entitlement appeal on the grounds that:
(1) the tribunal made insufficient findings of fact about the claimant’s ability to walk;
(2) in effect, the tribunal gave inadequate reasons for its conclusion on the claimant’s ability to cook a main meal;
(3) the supersession decision was flawed because neither the decision maker nor the tribunal had regard to the apparently favourable outcome (from the point of view of the claimant) of two previous investigations.
The Secretary of State therefore invites me to set aside the tribunal’s decision and to remit the matter to be heard by a freshly constituted tribunal.
9. The Secretary of State also helpfully points out that the claimant made a new claim for disability living allowance from and including 9th May 2011. The claimant has now been awarded the higher rate of the mobility component and the middle rate of the care component from that date. It follows, says the Secretary of State, that if the case is remitted, the period in respect of which the claimant’s entitlement is in issue will be 28th February 2005 to 8th May 2011.
10. As I shall explain in detail below, I agree with the claimant and the Secretary of State that the tribunal fell into error in a number of ways. The Secretary of State has not dealt expressly with the claimant’s first ground of appeal. That ground was, however, the point by reference to which the district judge gave permission to appeal and although, for the reasons set out below, the practical importance of the point in the present case may be limited, it is certainly a point which may have considerable significance in other cases. It is of the nature of a preliminary point and I shall therefore deal with it before turning to the grounds on which the parties are agreed that the case should be remitted.
Could the supersession decision be revised twice?
11. I must now set out the procedural history in more detail. The starting point is an allegation apparently made to the Department of Work and Pensions in 2009 to the effect that the claimant should not be receiving disability living allowance because he was able regularly to play golf. This led to a fraud investigation by the Department. It was discovered that the claimant had been a member of a local golf club for four years, that he usually played on Wednesdays and Sundays and that he used a golf buggy when playing.
12. The claimant was interviewed under caution on 10th December 2009. He said that he had joined the golf club in February 2005, some four months after having a hip replacement operation. There was considerable discussion of his walking ability and his use of a buggy. The decision maker then sought a report from an examining medical practitioner on the claimant’s condition and its effect on his functions. The report was requested on 2nd March 2010 and was produced on 12th March 2010. In the meantime, the claimant’s disability living allowance was suspended on 9th March 2010.
13. As I have already said, a supersession decision was made on 22nd March 2010. It was based on a relevant change of circumstances, consisting of an improvement in needs assessed at an examination on 12th March 2010. The decision maker said:
“I consider that [the claimant’s] hip replacement in 2004 and him joining the golf club indicate a substantial improvement in his needs. However the award is removed from 10.3.10 in the absence of a specific date of his admitted improvement.”
14. The decision was notified to the claimant by a letter of the same date. The letter included information about the claimant’s right to appeal and also stated that if he thought the decision was wrong he should telephone or write to the Department within one month and the Department would look at the claim again. The claimant did not appeal against the decision at that point but, as the letter invited him to do, he did telephone the Department and ask for a reconsideration. That telephone call was made on 26th March 2010.
15. The reconsideration took place on 11th June 2010 and the supersession decision was revised to the very limited extent of substituting 12th March 2010 for 10th March 2010 as the date on which the award ceased to have effect. The purpose was to correct the date to the date of the doctor’s report. The decision maker said:
“The decision maker previously has only used the date of the recent evidence, it could be reasonably argued that his golf alone shows a clear reason to disallow DLA but recent date used as a safer date.”
16. The decision was again notified to the claimant by a letter of the same date. On this occasion, the claimant did appeal, by notice of appeal received on 22nd June 2010.
17. On 12th October 2010 the decision maker purportedly reconsidered the decision of 11th June 2010 on the ground that there had been a relevant change of circumstances in that the claimant’s mobility and care needs improved prior to 12th March 2010. The reasons for the decision were all based on what the claimant said during his interview under caution. The decision maker said:
“Benefit is revoked from 28/02/2005 as no definite date can be established, however this day clearly indicates his needs to have improved to the extent he can no longer be regarded as being unable or virtually unable to walk or unable to carry out all tasks to prepare a main meal for himself.”
18. This decision was notified to the claimant by a letter dated 12th October 2012 which stated that the existing appeal would continue and would be treated as an appeal against the new decision. The decision appealed against was identified as the decision issued on 22nd March 2010.
19. There is thus a complicated decision-making background, which unfortunately was not clearly elucidated in the submission to the tribunal. The submission proceeded on the basis that the decision of 11th June 2010 was the decision which superseded the decision of 22nd January 1999, which was plainly not the case. The decision of 11th June 2010 was on its face a decision revising an earlier supersession decision.
20. This is an important, although highly technical, point because it opens the way to the claimant’s argument, not raised before the tribunal, that the Secretary of State had no power to make a decision revising the first revision decision. The path does, however, lead into a complex hinterland of legislative provisions.
21. First, it should be noted that s.12 of the Social Security Act 1998 gives a claimant a right of appeal against an original decision under s.8 of the Act or a decision superseding such a decision under s.10 of the Act, but does not give a right of appeal against a decision under s.9 revising either a decision under s.8 or a decision under s.10. What s.12 does is to make clear that the right of appeal against the s.8 or s.10 decision applies to that decision either as originally made or as revised under s.9. The claimant’s right of appeal was therefore a right to appeal against the decision of 22nd March 2010 as subsequently validly revised.
22. This approach is reflected in the provisions relating to time limits for appeals. The primary rule is set out in r.23 of and Sch. 1 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, S.I. 2008 No. 2685, namely, that a notice of appeal must be sent or delivered to the decision maker so that it is received within one month after the date on which the notice of the decision was sent to the appellant or, if a written statement of reasons is requested within that month, 14 days after the later of the end of the month or the date on which the statement of reasons is provided. If, however, a decision is revised under s.9, the decision is regarded for the purpose of the time limits rule as being made on the date when it is revised: s.9(5) of the 1998 Act.
23. The statutory powers to revise a decision under s.9 of the 1998 Act or to supersede a decision under s.10 of the Act are exercisable in prescribed circumstances. The regulations which set out the prescribed circumstances are the Social Security and Child Support (Decisions and Appeals) Regulations 1999, S.I. 1999 No. 991.
24. In the present case, the supersession decision of 22nd March 2010 was based on a relevant change of circumstances. Reg. 6(2)(a)(i) permits the Secretary of State to exercise the s.10 power to supersede a decision on his own initiative if there has been a relevant change of circumstances since the decision to be superseded had effect. Clearly, therefore, the Secretary of State had power in principle to make that supersession decision, although equally clearly the claimant had power under s.12 to appeal against that decision, which would then have to be looked at on its merits by the tribunal.
25. In fact, instead of appealing the claimant, by his telephone call on 26th March 2010, applied for a revision of the supersession decision under reg. 3(1) of the 1999 Regulations, although he may not have fully appreciated that that was what he was doing. Reg. 3(1)(b) gives a claimant what is effectively a general right to ask the Secretary of State to revise a decision without having to specify any particular ground of revision, provided that an appropriate application is made within one month of the notification of the original decision. This gives the Secretary of State a useful opportunity to reconsider the original decision and put right anything which may be wrong with it. If the claimant does not like the revised decision, he is still in time to appeal against the original s.8 or s.10 decision as revised by virtue of s.9(5), mentioned in paragraph 22 above. (If an application for revision is made and the decision is not revised, the claimant’s time for appealing against the original decision is extended to one month after notification of the refusal to revise, by virtue of special provision made by Sch. 1 to the Tribunal Procedure Rules.)
26. Here, the Secretary of State took advantage of the opportunity of revising the supersession decision to “correct” the date of revocation of the award. Although the point is not spelt out in detail, it seems that the June 2010 decision maker took the view that the substance of the March 2010 decision was that the change of circumstances was shown to have occurred by the report from the examining medical practitioner and therefore the correct date for terminating the award was the date of that report, rather than the earlier date from which the payment of disability living allowance had been suspended.
27. As I have said, the claimant then appealed against the supersession decision in its revised form. Under reg. 3(4A), where there is an appeal against an original decision within the prescribed time limit but the appeal has not been determined, the original decision may be revised at any time. A decision is an “original decision” if it falls within the definition of that expression in reg. 3(1), namely, a decision under s.8 or s.10 of the 1998 Act. The power under which reg. 3 is made, namely, s.9(1) of the 1998 Act, is similarly a power to prescribe circumstances in which a decision under s.8 or s.10 can be revised. Thus there arises the question whether a decision made under s.8 or s.10 which has already been revised under s.9 can be further revised.
28. It should be noted that although I have explained how this issue arises by way of reg. 3(4A), because that is the obvious power to revise in the present case, a similar question arises in relation to all the other revision powers in reg. 3 which relate to a decision made under s.8 or s.10. The district judge, in giving permission to appeal in the present case, described the point of law in general terms as being whether a decision which has been revised pursuant to s.9 can be revised again.
29. The claimant’s submission on the point refers to CIS/3535/2003, a decision of Mr. Deputy Commissioner Marks, in which the Deputy Commissioner expressed a view on the point, although, as he made clear, it did not fall to be decided in the case before him: see para. 17 of the decision. The claimant there had argued that a revised decision could not again be revised, relying on a passage in Social Security Legislation 2003 at p.201. In that passage, the authors drew attention to the express inclusion in ss. 10 and 12 of decisions under s.8 and s.10 which had been revised under s.9 and “tentatively suggested” that the absence of any such express inclusion in s.9 itself meant that a second revision was not possible. They pointed out that such a construction would avoid the potential mischief of repeated applications for revision under reg. 3(1) but recognised that it would also have the effect that, for example, a revised decision which included an official error could not be corrected under reg. 3(5)(a) and would have to be dealt with by a supersession which might have effect at a much later date, if a claimant failed to appeal.
30. The Deputy Commissioner dealt with the point as follows:
“23. The passages referred to in sections 10 and 12 which refer to decisions under sections 8 and 10 (whether as originally made or as revised under section 9) make it clear that decisions which are revised under section 9 are still, in their revised form, decisions under either section 8 or section 12 [I take this to be an error for section 10], and are to be subject to supersession or appeal on that basis. Section 9 is expressed to apply to any decision under section 8 or section 10, and that, in its natural meaning, must include revised decisions under those sections. It appears to me to be highly unlikely that the legislature, by failing specifically to include an express reference to revised decision such as appears in sections 10 and 12, intended to preclude errors in the revised decisions from being put right, with the result either that a claimant who ought to receive benefit would be precluded from receiving it or that benefit would have to be paid to a claimant who was plainly not entitled to it.
24. In my judgment, section 9 can clearly be invoked to permit a revision of a decision which has previously been revised…”
31. I agree with what is there said about the effect of the references in ss.10 and 12 to decisions revised under s.9. They clearly mean that a revised decision is nevertheless a decision under s.8 or s.10, as the case may be. No doubt the draftsman could have found a form of words to make clear that references to decisions under ss.8 and10 in s.9 were to be understood as references to such decisions as explained in ss.10 and 12, but one can see why the draftsman might not have thought it necessary to do so. Certainly, it can also be said that if the draftsman wanted references to decisions under ss.8 and 10 to have a different meaning in s.9 from the meaning expressed in ss.10 and 12, he ought to have made that clear.
32. On the footing that there are nevertheless linguistic arguments either way, I turn to arguments based on the probable intention of Parliament in passing s.9 in its present form. In my view, the indications to be found in the surrounding context point strongly in favour of its being possible to review a decision under s.8 or s.10 more than once. The authors of Social Security Legislation 2003 and the Deputy Commissioner both drew attention to the possible difficulty in correcting official errors in revised decisions if no second revision is possible. I agree that in the absence of an appeal the identified difficulty would arise and might favourably or adversely affect the claimant or the Department. It certainly seems unlikely that such a result would have been intended by Parliament.
33. The possibility of a revision is useful in cases other than those of official error. Reg. 3(5) also gives the Secretary of State power to revise a decision in various circumstances where the decision was made in ignorance of, or was based on a mistake as to, a material fact. There is no obvious reason why Parliament should have determined that, for example, a decision made in ignorance of two material facts can be revised to reflect the true factual position if both material facts come to light at the same time, but cannot be revised twice to achieve the same result if the two facts are discovered sequentially.
34. Further, even where an appeal is brought, so that any error or the consequences of any ignorance or mistake could be corrected by the tribunal, the effect of construing s.9 to exclude second revisions would be that the matter had to go to the tribunal before the error could be corrected, even if, for example, the Department was willing to revise the erroneous decision in a way which would give the claimant all that was being asked for. S.9(6) provides that where a decision is revised before an appeal against it is determined, the appeal lapses. The width of that provision is limited by reg. 30, which has the effect that an appeal does not lapse if the revised decision is not more advantageous to the appellant than the original decision, but clearly where there is in substance no longer any dispute between the claimant and the Department it is considerably more convenient for all concerned if the Secretary of State can simply revise the mistaken decision and the appeal will then automatically lapse. The existence of reg. 3(4A) supports this.
35. Of course, as the present case illustrates, the Secretary of State may wish to make a second revision not only in cases where there is an obvious error or where the true position is no longer disputed with the claimant but also in cases in which the decision on a second revision remains a matter of dispute. It is to be recalled that any bar on second revisions would not prevent the tribunal from reaching a decision to the same effect as the decision maker would have reached by the second revision. A tribunal hearing an appeal under s.12 stands in the shoes of the decision maker who made the decision appealed against (i.e., the s.8 or s.10 decision, as originally made or as revised) and has power to make any decision which that the decision maker could have made: see R(IB) 2/04. It follows that if the tribunal allows an appeal against a revised decision, the practical effect as far as the claimant is concerned is the same as if the decision maker had made a second revision in the same terms as the tribunal decision.
36. It is true that, as R(IB) 2/04 makes clear, the tribunal may therefore make a supersession decision which is more unfavourable to the claimant than the decision which is being appealed against, although subject to compliance with art. 6 of the European Convention on Human Rights and the rules of natural justice, which will require as a minimum a warning to the claimant where such an outcome is under consideration. Given that after a warning the claimant may decide to exercise his right to withdraw the appeal before the tribunal reaches such an adverse conclusion, it might be argued that the Secretary of State should not be able to achieve a similar result by a second revision of a decision in circumstances where the claimant has no protective warning and s.9 should not be construed to have that effect.
37. In answer to such an argument, it may be said that the overall object of ss. 8 to 12 of the Social Security Act must be to ensure that claimants get the benefits to which they are entitled: again see R(IB) 2/04. In order to achieve that object, provision is made for the correction of errors in the broadest sense by a variety of means. The benefit of a protective warning given to a claimant by a tribunal is that it enables the claimant to abandon the search for a higher benefit entitlement in favour of protecting what he already has in circumstances in which the tribunal has formed the view that the present award may be more than he would be found entitled to on the appeal. The object of ensuring that claimants get the correct benefits is to a small degree compromised as a result. In those circumstances, however, any further right of appeal by the claimant against the decision of the tribunal is limited to a right to appeal to the Upper Tribunal on a point of law under s.11 of the Tribunals, Courts and Enforcement Act 2007 and it can readily be understood that on balance it is thought fair that the claimant should be able to retain the award which the Department has decided is the correct award and should not be compelled to put it at risk by pursuing his appeal. By contrast, if the claimant is dissatisfied with a decision on a second revision, he will still have a right of appeal to the tribunal under s.12 of the 1998 Act, which will be a right to a full rehearing. The claimant is thus protected not by a warning but by the existence of his right of appeal, while the Department is not held to a decision which it believes to be wrong.
38. In any event, it is difficult to see how an argument based on the absence of a protective warning could be construed as limited to second revisions. It is much more common to find that a decision is made, the claimant appeals and the decision maker revises the decision, in a way which may be favourable or adverse to the claimant. In this case also the claimant does not have the benefit of a protective warning before an adverse decision on revision, although he would have had such a warning if there had been no revision decision but the tribunal had considered making an adverse decision to the same effect. The claimant’s protection in that situation clearly lies in his right of appeal.
39. Given those considerations, I conclude that the absence of a protective warning mechanism does not point to construing s.9 as preventing a second revision.
40. Editions of Social Security Legislation subsequent to 2003 have omitted the preference previously tentatively expressed for the view that only one revision was permitted and have simply referred to the decision in CIS/3535/2003. I should, however, deal with the point raised in the 2003 edition that it is unlikely that it was intended that repeated applications under reg. 3(1) should be possible. In my view, to construe s.9 as permitting more than one revision is not likely to give rise to a substantial problem of repeated applications under reg. 3(1). Applications are required to be made within a specified period of the decision under s.8 or s.10. On the construction that more than one application is permitted, if a decision is revised, there will be a window of opportunity for applying for a revision of the decision as revised, just as there will be an extended opportunity to appeal against the decision as revised. If there is a second revision, there will be a second window of opportunity for applying for a revision in the light of the changed decision just as there will be an extended opportunity to appeal. The process will come to a halt when the s.8 or s.10 decision (as the case may be) is not further revised, leaving simply the right of appeal. In other words, the process will stop when the Department, on a reconsideration, believes that it got the decision right last time. I see no obvious objection to the claimant’s having both the right to apply for a revision and the right to appeal until that point is reached. The door is not opened to unlimited repeated applications.
41. After this extended consideration, I conclude that s.9, properly construed, does permit a decision under s.8 or s.10 to be revised twice, and the logic of what I have said is that a decision could in theory be reviewed any number of times. I see no basis for construing reg. 3 differently and so conclude that the reference in reg. 3(1) to a decision under s.8 or s.10 means a decision under the relevant section whether as originally made or as revised.
42. In support of my conclusion, I draw attention to reg. 30, which deals with the lapse of appeals where a decision has been revised. If the revised decision is not more advantageous to the claimant and so the appeal does not lapse, the appeal is treated as though it was brought against the decision as revised (reg. 30(3)) and the appellant is then given a period of one month in which to make further representations by reg. 30(4). Under reg. 30(5) the appeal then proceeds unless in the light of the further representations the Secretary of State “further revises” the decision. It is thus clearly contemplated that in those circumstances the Secretary of State will have power to make a second revision, but the only source of such a power seems to be reg. 3 and s.9 itself.
43. It follows from the above that in principle the decision of 22nd March 2010 could be revised twice. I have, however, felt some concern over the question whether it could properly have been reviewed a second time as it was on 12th October 2010. As the claimant’s representative points out in his submission, there had been no new evidence to support the revision. Nor was any mistake of law identified. As far as is possible to tell from the reasons given, it seems simply to have been the case that the October 2010 decision maker decided to abandon the path of safety followed in June 2010 and to revise the March supersession decision so that the relevant change of circumstances was found to have taken place at an earlier date. At first sight, it seems slightly surprising and even potentially oppressive to the claimant if the Secretary of State can revise a decision without having to show any ground for doing so and simply on the basis that he has had second thoughts.
44. On my own second thoughts, I think that that first impression is mistaken. In the first place, the Secretary of State clearly cannot in general revise a decision at any time on the basis that he has had second thoughts. Reg. 3(1) gives him a general power to revise a decision within a specified time limit or on an application by the claimant. Most other paragraphs in reg. 3 require the existence of a specified ground before the Secretary of State can revise a decision. Reg. 3(4A) is the other paragraph which gives a general power of revision, but that power itself is limited to a case in which an appeal is pending.
45. Further, there is good ground for giving the Secretary of State the opportunity to have second thoughts when an appeal is pending. As has already been discussed, it means that a decision may be revised in such a way that the claimant gets all he wants and the appeal lapses. In any event it means that the Secretary of State will be defending what he believes to be the correct decision and the claimant will be (or ought to be) clear about what the Secretary of State’s case is. In the absence of a revision, the Secretary of State might be arguing for a decision different from the existing decision, which would be a recipe for confusion. Finally, given the tribunal’s power to make the decision it thinks the decision maker ought to have made, the claimant cannot be prejudiced by the making of a revised decision except in so far as he may lose the power to protect his existing award by withdrawing the appeal, as considered in paragraph 37 above. That prejudice will consist of depriving the claimant of the ability to retain an award which the tribunal would have found he was not entitled to retain. There is no good policy reason for protecting the claimant from suffering such prejudice.
46. Given these various considerations, I conclude that reg. 3(4A) should be construed as meaning exactly what it says: that is, that where an appeal is pending, the original decision may be revised at any time. There is no scope for implying any limitation to the effect that there must be further evidence or an error of law must have been identified or that the Secretary of State cannot simply reconsider the existing evidence and come to a different conclusion.
47. It follows that what I have called the preliminary point, the claimant’s first ground of appeal fails. The tribunal correctly understood itself to be dealing with a supersession decision made on 22nd March 2010, but subsequently revised, to the effect that the claimant was not entitled to disability living allowance from 28th February 2005. Although the tribunal did not refer to the revisions that had taken place, that is how it described the decision in paragraph 1 of its statement of reasons.
The other grounds of appeal
48. As I have said, the claimant and the Secretary of State are largely in agreement about other errors of law into which it is said the tribunal fell and in my view the submissions are broadly correct. I shall therefore deal comparatively shortly with this aspect of the case. It is necessary, however, to give a little more of the factual background before doing so.
49. The claimant’s 1999 award was made on the basis that he suffered from arthritis, angina and irritable bowel syndrome, as mentioned in paragraph 1 above. It is not disputed that he had a total left hip replacement operation in 2004 and joined the golf club in February 2005. It is at first sight unsurprising that when the Department was informed in 2009 that the claimant was playing golf regularly, it should have inquired into his continued entitlement to disability living allowance.
50. What is more surprising is that the claimant referred in his interview under caution to having been the subject of a previous investigation as a result of his golf-playing activities, he gave some detail of two investigations, in 2005 and 2007, in an affidavit sworn on 4th May 2011 which was handed in at the hearing and he gave oral evidence about those investigations. He stated that when under investigation he informed the Department that he had been medically advised to take exercise and on both occasions he subsequently received a letter from the Department confirming that there was no issue about his entitlement. He said that on the second occasion he was told that the Department had spoken to his surgeon who had confirmed the advice given. He had not retained copies of those letters and when his then solicitors asked the Department for copies they were told by a Mr. Keith Thomas, the investigating officer in 2009-2010, that the letters had been destroyed. Mr. Thomas was present at the hearing and did not dispute the claimant’s evidence so far as related to him.
51. Putting that to one side for the moment, it is clear that in the course of his interview under caution the claimant accepted that he could walk further after his hip operation than previously, that he did not need to use walking sticks and that the pain was less, although he was still limited in what he could do. He also said that he could walk about 105 yards slowly and he sometimes played a few holes without a buggy if he could not get one. The Department compared his evidence in the interview with his self-assessment in 1999, in which he said that he could only walk 3-4 metres or yards before feeling severe discomfort and it would take him 30 to 60 seconds with walking sticks to do so, depending on how severe the pain was, and that he could not cook a main meal for himself because he could not cope with the pans because he needed to use the sticks to support himself. As already mentioned in paragraph 12, it was decided to obtain a further medical report.
52. In his report the examining medical practitioner noted that the claimant still suffered reduced mobility and pain in relation to his hip problems and remained under orthopaedic review. He had had knee problems for several years and was awaiting knee surgery after seeing the orthopaedic surgeon. He also had low back pain. On examination the doctor found slight impairment of the claimant’s left hip and both knees and of his lumbar function. His gait was slightly stiff and very slightly limping. The doctor concluded that the claimant had a history supportive of significant left hip problems and right knee problems, but examination and observation did not confirm severe impairment of function. He assessed the claimant’s speed of walking as slightly slow, referred to pain in his left hip, right knee and low back and concluded he was likely to be able to walk about 200 metres on level ground before the onset of severe discomfort. As to halts, he said “10-15 s due to above”. The doctor thought a walking stick might help. He concluded the claimant could safely use a traditional cooker. Clearly it is not surprising that following that report the decision maker decided to supersede the 1999 decision.
53. When seeking a reconsideration, the claimant stated that he could only walk 2 metres without pain and only walked 5 metres in front of the doctor. He also pointed out that one of his legs was 1½ inches shorter than the other and said that his limp was severe. He made similar points in his notice of appeal dated 21st June 2010 and enclosed a copy of a report from his GP stating that he suffered from generalised degenerative disease of the upper hips and knees and that when pain in his joints got bad he did have a problem walking.
54. The claimant gave oral evidence about his ability to walk, saying he walked about 10 to 15 metres, the distance from the front door to the car, and he experienced discomfort virtually straight away. He explained that his surgeon had told him to try to walk without a stick. He said that following the operation his left leg was 1 inch shorter rather than 1½ inches, that he had had a built up shoe but did not get on with it very well and that the pain flared up at times unpredictably. He also said that the operation gave him confidence that his hip would not dislocate but did not give him more mobility. He gave evidence about his golf playing and said it involved no walking and no bending and was not competitive. He used his arms and shoulders and did not twist his hips because of the pain.
55. The claimant also dealt briefly with his ability to cook. He said he did not want to be carrying pans given the way his legs were. He would be afraid to pick up anything like hot fat. He also said he had had some trouble in his arm for years. His car had power steering and he used light weight golf clubs.
56. The section of the tribunal’s decision headed “Findings of Fact” contains no findings of fact as to the claimant’s walking ability. The section headed “Reasons for the Tribunal’s Decision” contains the following:
“18. We found the Appellant’s oral evidence at the cautioned interview of being able to walk the length of a rugby field [put at 105 yards in the interview] to be compelling evidence of an improvement in his walking ability following surgery in 2004. This amounted to a relevant change of circumstances, namely a decrease in his mobility needs.
19. We also found his ability to play golf using a buggy and sometimes an electric trolley, twice a week doing 18 holes in 3 hours, with 3 disabled partners and a handicap of 15 was also compelling evidence of an improvement in his condition. Such activity is in complete contrast and wholly incompatible with the claimed ability to walk 3-4 metres.
20. We concluded, therefore, that the Appellant’s evidence of an improvement after surgery, is corroborated by his activities, namely playing golf and is directly correlated to the clinical findings of the EMP following an examination in March 2010. The evidence of play, terms of frequency which of necessity requires mobility and agility together with the level of handicap, is simply inconsistent and incompatible with a virtual inability to walk sufficient to qualify for the higher rate of the mobility component of DLA.
21. The Appellant said that he had dispensed with his two walking sticks 3-4 months after surgery in 2004, and had reported joining the golf club initially with a handicap of 18, subsequently reduced to 15 which we found to be evidence of consistent playing to a good standard.
22. Whilst the Appellant reported using a buggy to navigate the golf course, we were aware of the fact that buggies are not allowed on the greens, which means that walking reasonable distances would still be required. The evidence from [the golf club] … showed the shortest hole is 161 yards, with most to be over 300 yards. Using these figures and the Appellant’s evidence at interview of using an electric trolley if “going for a couple of holes” we unanimously concluded that this cannot equate to a virtually unable to walk sufficient to qualify for benefit. The Appellant’s oral evidence to us at the hearing that no walking was involved after parking the car at the Golf Club was clearly therefore incorrect and affected his credibility.
23. Whilst the Appellant told us that he considered his golfing activity to amount to gentle exercise recommended by his General Practitioner, we unanimously concluded that the frequency of his playing and the number of holes covered within the 3 hour time span could not have been done without a reasonable degree of mobility, and which was not consistent with the relevant criteria to qualify for the higher rate of the mobility component of DLA.
24. We also agreed with the Decision Maker that, it is inconceivable that the Appellant would allow his son to pay golf membership fees amounting to approximately £600 per annum for a period of 5 years unless he considered himself able to make good use of the course, which, of course he did, playing twice a week.
25. Whilst we accept the Appellant’s disabling conditions limited his mobility, we concluded, for the reasons detailed above, that it is not to such an extent as to render him virtually unable to walk sufficient to qualify for the higher rate of the mobility component of DLA.”
57. As respects the claimant’s care needs, the tribunal said:
“29. In reaching our unanimous conclusion upon the lowest rate of the care component, we found that his activities were wholly incompatible with the degree of disability claimed.
30. The EMP’s examination in March 2010, detailed normal upper limb joints, and he had told the EMP that he could make himself a hot drink, drive a manual car and operate a computer. The EMP had assessed him as being able to self care using appropriate aids.
31. We unanimously concluded that his joining the golf club in February 2005 was compelling evidence of his own assessment of an improvement in his care needs. Whilst he had told us that he avoided bending, and did not twist his hips because of pain to play golf, we concluded that he was still able to manoeuvre a golf club, using his arms and shoulders and in doing so reach a reasonably good level of golf handicaps. We concluded, therefore, that he would be able, taking his time, to prepare and cook a main meal for himself, using the top of the cooker, standing and sitting as and when necessary.
32. This conclusion was consistent with the clinical opinion of the EMP who, after a physical examination, talking to and observing the Appellant, assessed him as not satisfying the cooking test sufficient to qualify for benefit…”
58. The claimant contends that the tribunal failed to make adequate findings of fact and to give sufficient reasons. The Secretary of State has referred to R(DLA) 4/03 in relation to the mobility component and agrees that the tribunal made insufficient findings of fact. In that case Mrs. Commissioner Parker said:
“22. All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made. This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time. This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as ‘virtually unable to walk’.”
59. I conclude that the claimant and the Secretary of State are right in submitting that the tribunal’s findings of fact were insufficient. There is no clear finding in relation to any of the aspects of manner, speed, distance and time, or in relation to pain and discomfort. There is no consideration of what the examining medical practitioner said about halts, which I do not entirely follow. What the tribunal has done is to find as a fact simply that there was an improvement in the claimant’s walking ability which disqualified him from the higher rate of the mobility component. The detailed consideration of the frequency with which the claimant played golf, the number of holes, the length of time taken and his handicap does not adequately replace the missing findings. That is particularly so given the use made of a buggy by the claimant (recognised by the golf club itself) and the tribunal’s claim to be “aware … that buggies are not allowed on greens”. As the claimant points out, it is not clear whether that is intended as a general statement or whether it is applied to the club in question, which was said by the claimant’s representative to be adapted for disabled people (p.172). Nor is it clear how the tribunal’s discussion of the length of the holes relates to what it says about access to the greens (said by the club at p. 76 to be 20 square yards) and the consequent need to walk. The insufficient findings of fact lead to an inadequacy in the reasons given.
60. The claimant himself says little that is specific to the cooking test. Since the award appears to have been based on his need for walking sticks and his inability to use his sticks and deal with hot pans, it was inevitable that evidence that he no longer used walking sticks would call his ability to satisfy the cooking test into question. The Secretary of State submits, as I understand the submission, that the tribunal failed to give adequate reasons because it did not consider the claimant’s ability to undertake all the tasks involved in preparing and cooking a main meal, as discussed in R(DLA) 2/95.
61. This part of the case appears to me very close to the borderline. It is, however, the case that the tribunal has not at any point addressed the claimant’s ability to carry out the tasks actually involved in cooking a main meal, which are clearly not the same as driving a car and operating a computer, or even making a hot drink, and certainly are different from playing golf. Nor has the tribunal considered the concern expressed by the claimant about his legs, which I understand to be a reference to his evidence that he has a propensity to fall. I therefore accept the Secretary of State’s submission on this issue also.
62. Finally, I turn back to the fact of the previous investigations. Those investigations find no mention at all in the tribunal’s decision on the entitlement issue and appear to have been treated as relevant only to the overpayment appeal. The fact is, however, that there was unchallenged evidence that the investigations had taken place, based on the fact of the claimant’s golf-playing activity, and that he had continued to be in receipt of disability living allowance thereafter. According to the claimant, on the second occasion the Department had also had the benefit of further evidence from his surgeon. The conclusion reached by the tribunal is prima facie inconsistent with the outcome of those investigations, but no explanation for that inconsistency has been given. This is a further error of law.
Conclusion
63. There appear to me to be two main areas in which there is a shortage of evidence. The first such area is the absence of any medical evidence from the claimant’s medical advisers other than the short letter dated 26th April 2010 from the claimant’s G.P. The claimant may now wish to put further medical evidence before the tribunal. His detailed medical records, together with evidence from his surgeon as to the purpose and effect of the 2004 operation, might well be of assistance. So might any medical evidence which was adduced in connection with the decision on the new claim, under which the claimant was awarded the higher rate of the mobility component and the middle rate of the care component from 9th May 2011, if it sheds light on the claimant’s condition during the relevant period. I accept the submission of the Secretary of State that that period is the period 28th February 2005 to 8th May 2011.
64. The second area is the area of the previous investigations. It would be helpful to know whether it is agreed that those investigations took place, whether any material has been retained and what the policy is for the retention or destruction of evidence relating to fraud investigations. The claimant says that he was told that in the absence of any change his case would be looked at again in 2012, so it would also be helpful to know in what circumstances such a statement might be made. If any relevant material is available, it should of course be put before the tribunal.
65. Given that I have concluded that the decision of the tribunal contained errors of law and that further relevant evidence is likely to be available, I set aside the decision of the tribunal and remit the case to be heard by again by a freshly constituted tribunal. Both the claimant and the Secretary of State will no doubt wish to make further submissions to the tribunal and will include in their submissions any points they may wish to make about the previous investigations.
66. The First-tier Tribunal will in due course make its decision having regard to the various matters considered above. In order to enable the parties to deal effectively with any new material in their submissions, the district judge may wish to give procedural directions to ensure the production of evidence by each party by an appropriate date in exercise of the case management powers given by rule 5 of the Tribunal Procedure Rules.
67. Further, in my separate decision on the recoverability appeal, CDLA/757/2012, I also allow that appeal and remit it to be heard by a freshly constituted tribunal, if it is to proceed at all. Clearly if the result of the entitlement appeal is that the claimant is found to have been entitled to his award at all times from 28th February 2005 to 9th March 2010, when payment was suspended, there cannot have been any overpayment. To that extent the recoverability appeal is conditional on the outcome of the entitlement appeal and I therefore direct that it should not be listed before the entitlement appeal. The district judge may wish further to consider, in the light of the reasons for which I have allowed the recoverability appeal, whether it should be listed to be heard together with the entitlement appeal or whether it should be heard at a later date. The parties may have views on the point and it may be that, taking the two matters together, this is a case in which a case management hearing would be helpful. That, however, is a matter for the district judge.
(Signed) E. Ovey
Judge of the Upper Tribunal
(Dated) 11th January 2013