Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL

Appeal Nos: CPC/1672/2012 and CPC/1674/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeals of the appellant.

 

The decisions of the First-tier Tribunal sitting at Newcastle-upon-Tyne on 10.11.11 under references 200/10/01026 and 200/10/01167 involved errors on a point of law and are set aside.

 

The Upper Tribunal is not in a position to re-decide the two appeals. It therefore refers the appeals to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)            The new hearing will be at an oral hearing, at which the appellant and a presenting officer for the Secretary of State must attend. The appellant and the First-tier Tribunal will need to liaise over where the venue for the hearing will be. 

 

(2)           If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Newcastle Appeals Service Centre within one month of the date this decision is issued.

 

(3)           The First-tier Tribunal should have regard to the points made below.

 

 

 

 

REASONS FOR DECISION

 

 

 

1.                These are two appeals by the claimant from two decisions of the Newcastle-upon-Tyne First-tier Tribunal (SEC) dated 10.11.11. I will refer to this from now on as “the tribunal” and the claimant as the “appellant”. The tribunal dismissed the claimant’s appeals from the Secretary of State for Work and Pension’s decisions of 15.11.05 and 23.02.06.

 

2.               The first of the Secretary of State’s decisions was a revision decision to the effect that the appellant was not entitled to state pension credit from the outset of his claim for that benefit on 15.03.04 to 2.10.05 because he was not resident in Great Britain throughout this period: per section 1(2)(a) State Pension Credit Act 2002 and regulation 2 of the State Pension Credit Regulations 2002. 

 

3.               The second decision, dated 23.02.06, was the resultant recoverable overpayment decision. This said that there had been an overpayment made to the appellant between 15.03.04 to 2.10.05 amounting to £7,822.85 (because he was not in Great Britain but abroad during this period), and this sum was recoverable from the appellant because he had misrepresented a material fact on the state pension credit claim form, namely that “he was permanently resident at an address in Norwich”. I will return later to what was actually represented on the claim form.

 

4.               The appellant’s case throughout has been that he was not overpaid as he was at all material times on a British registered and British flagged  boat, albeit mainly (if not always) outside UK territorial waters,  and that had the legal effect of making him “in Great Britain”.

 

5.               The tribunal rejected this argument and disallowed both of the appeals.  The appellant did not attend the hearing. The tribunal held that at the material time the appellant was travelling on his British registered boat but “this did not fulfil the criteria of being resident in Great Britain”. This was the basis for it upholding the first of the Secretary of State’s decisions. The tribunal further held that the appellant had clearly stated on the 2004 state pension credit claim form that “he was residing at the Norwich address”, that he had not resided there for many, many years, that “it would have been expected of the appellant to explain that he intended to reside on a boat (albeit British registered) from March 2004”, and that the overpayment had occurred because of a misrepresentation of a material fact “by the appellant declaring that he was permanently resident at an address in Norwich”.

 

6.               On 24.04.12 District Tribunal Judge Moss granted the appellant permission to appeal to the Upper Tribunal in respect of both decisions of the tribunal. Judge Moss asked “[i]s living on a British registered boat regardless of where it is in the [world] to be counted as being resident in  Great Britain[?]”.

 

7.               The initial submissions made on the appeals to the Upper Tribunal by the Secretary of State did not support either of the appeals.  One of those submissions submitted, without reference to authority, that Great Britain does not include: Northern Ireland; Isle of Man; Channel Islands; British ships on the high seas; British embassies abroad; British military bases aboard; British owned aircraft flying over the high seas or another state.  It added, without explaining the relevance of this, that the “breadth of territorial sea adjacent to the United Kingdom is for all purposes 12 nautical miles”.

 

8.               The appeals were then transferred to me to deal with, and on 18.10.12 I said the following in a set of directions:

 

“On examining the papers it seems to me that two main issues may arise on these appeals. 

 

The first relates to the ground on which DTJ Moss granted permission to appeal, namely whether because [the appellant] was on a British registered boat sailing to Norfolk between 15.03.04 to 2.10.05 he was, or could be deemed to be, “in Great Britain” for the purposes of section 1(2)(a) of the State Pension Credit Act 2002. In point 9 of his appeal to the First-tier Tribunal [the appellant] had referred to information he had been given by the Legal and Government Affairs Department of the Royal Yachting Association to the effect that “you are protected by virtue of your Nationality under English law” and “having a British flagged boat means that you are subject to UK Merchant Shipping Legislation”. That argument is continued in [the appellant’s] observation of 13.08.12 where he also argues that “a British flagged boat…is deemed to be British Sovereign territory by virtue of its ensign…”.  It is not clear to me at present, however, what exactly [the appellant] was "protected" from, nor am I clear how UK Merchant Shipping Legislation acted to treat [the appellant] as being in Great Britain for the purposes of the State Pension Credit Act 2002. If [the appellant] wishes to pursue this argument then it would assist the Upper Tribunal if he could expand upon the information he obtained from the Royal Yachting Association and refer to the particular parts of UK Merchant Shipping Legislation that says that under the law, and in particular for state pension credit purposes, he is to be treated as being “in Great Britain” when aboard a British registered boat.  It may assist [the appellant] to note that, as far as I can see, this very issue was addressed in the social security case R(IS)6/06.  I attach of copy of that decision. Commissioner Rowland (now Upper Tribunal Judge Rowland) ruled that living on a British registered boat was not to be treated as residence in Great Britain. At paragraphs 16-19 Commissioner Rowland said:-

 

“[the claimant’s] argument as to residence in Great Britain under domestic law was therefore based principally upon the idea that residence on a British registered boat or in Gibraltar is to be treated as residence in Great Britain.

17. That is simply not the law. There is no general provision to the effect that residence on a British registered boat is to be treated as residence in Great Britain when the boat is not in British waters and, in particular, there is nothing in the Merchant Shipping Act 1995 to that effect. The Social Security (Mariners Benefits) Regulations 1975 (SI 1975/529) have no application to the present case. Nor is there any provision to the effect that residence in a British colony is to be treated as residence in Great Britain. Even residence in Northern Ireland is treated as residence in Great Britain for social security purposes only because there is specific provision to that effect in paragraph 2(1) of Schedule 1 to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 (SI 1976/1003).

18……….

19. The claimant’s other arguments confuse residence with domicile. Domicile is concerned with where a person’s long-term roots are and I am quite content to accept that the claimant remains domiciled in England and Wales. However, residence is concerned with the place where he has his home for the time being. A person may have more than one residence but it is unusual to be ordinarily resident in more than one place at a time. It is unnecessary to explore the circumstances in which that may occur. The truth is that the claimant had ceased to have any residence in Great Britain before 5 January 1998 and so he plainly was not ordinarily resident in Great Britain as a matter of domestic law.”

 

 

This is a reported decision of the Commissioner. It ought therefore to be followed by me unless it can be shown that it was wrongly decided.  At present I can see no basis for holding R(IS)8/06 to have been wrongly decided. If [the appellant] wishes to persuade me that it was wrongly decided then he will need to refer to more extensive legal authority than the summary he has provided to date of the information provided to him by the Royal Yachting Association.

 

The second issue concerns the argument that [the appellant] misrepresented a material fact.  It is alleged, and the First-tier Tribunal accepted this, that he did this by ticking the box that asked for “Your permanent address” on the state pension credit claim form he completed on 23.03.04.  [The appellant] has put forward arguments as to why he understood this to mean his permanent land address in the UK as opposed to where in fact he was living at the time.  These arguments need to be more fully explored, and further information needs to be put forward to assist with this. The claim form refers on its first page to a booklet sub-titled “Notes to help you fill in the form”.  This booklet does not seem to be in the papers the Upper Tribunal has.  It would assist in construing how “Your permanent address” was expected to be read to have sight of the published version of this booklet that was in use in March 2004.  I also note that it seems to be agreed that the claim form was completed by an interviewing officer (and then read back to [the appellant]). Given this, it would also assist the Upper Tribunal to have sight of (a) any general advice notes or information issued to interviewing officers, and in use in or about March 2004, to help them complete the claim form, and (b) if such were made and still exist, any notes taken by the interviewing officer who filled in the claim form in March 2004 about any issues or questions that arose in the course of the form being completed.  In addition the Secretary of State (and [the appellant]) may wish to make submissions on why the recording of the Norwich address as [the appellant’s] permanent address was (or was not) a misrepresentation of a material fact.

 

There may of course be other arguments that the parties wish to rely on. If that is the case then it would assist if they could set out what those other arguments are”.

 

9.               The Secretary of State, through Mr Wayne Spencer, then filed a further submission in response to my observations on 19.12.12.  This submission was far more detailed and, if I my say so, helpful. The Secretary of State now supports both appeals being allowed. It was submitted that as further findings of fact had to be made on both appeals, both ought to be remitted to the First-tier Tribunal to be re-decided. 

 

10.            The appellant in his observations in reply of 27.01.13 makes some detailed observations in reply and asks for an oral hearing of his appeal to the Upper Tribunal. 

 

11.             Before turning to that and the merits of the two appeals to the Upper Tribunal, I need to make two apologies. The first relates to the fact that although the submissions of the parties closed on 27.01.13 it is only now that this decision is being dealt with.  It seems the files were misdirected within the Upper Tribunal’s office once the submissions had closed, and that error was only corrected when the files were redirected to me on 13.05.13.  I do not know why this mistake occurred.  The second apology relates to a hare I started running by mistakenly referring to the original 2004 state pension credit claim form having been completed with the assistance of a DWP official. Both the appellant and the Secretary of State assert that this was not the case. I accept this. I am afraid I mistakenly read what is set out on pages 55 and 105 of the CPC/1674/2012 Upper Tribunal file as referring to the 2004 claim form. It is now clear to me that what was there set out was referring to a form completed in April 2005 (see pages 95 and 97) as part of the investigations into whether the appellant had been overpaid.  This “assistance” with that form therefore has no material bearing on any representations made in the 2004 claim form.  I apologise for any extra effort this error of mine caused to either of the parties.

 

Oral hearing

 

12.            I refuse the appellant’s request to hold an oral hearing of his appeals to the Upper Tribunal. I do so because: (a) the relevant legal matters have been fully addressed in writing and those submissions allow me to address fully all the relevant arguments; (b) I agree with the Secretary of State (and for the reasons he gives) that both the appeals ought to be allowed and the tribunal’s decisions set aside, and (c) the further findings of fact that now have to be made will be better done before the First-tier Tribunal (and this will also fully preserve the appellant’s rights of appeal).  The function of the Upper Tribunal when deciding an appeal is not to rehear and re-decide the appeal on the facts.  The Upper Tribunal’s function is to decide whether the tribunal below erred in law.

 

Overpayment

 

13.            I agree with the Secretary of State’s analysis of where and how the tribunal erred in law. I do not accept the appellant’s argument that he was entitled to state pension credit whenever he was on his British registered boat. I now explain my reasons why.

 

14.            The relevant primary statutory test that the appellant had to satisfy during the period of the overpayment was that he was “in Great Britain”: per section 1(2)(a) of the State Pension Credit Act 2002.  I do not understand the appellant to argue with this. However, his case is that being on a British registered boat and/or flying a British flag deems him under the law to meet this test. I do not accept this. To start with, there is nothing in the State Pension Credit Act 2002 or the regulations made under it that says anything about a British registered boat or one flying its Ensign flag as being part of Britain.  Moreover, the surrounding social security legislation points against this. As Mr Spencer, for the Secretary of State, has pointed out, where the law governing social security has considered what is meant by Great Britain and the sea it has only done so in terms of the territorial waters surrounding it, and those provisions are expressly drawn into state pension credit law: see, respectively, 172(a) of the Social Security Contributions and Benefits Act 1992 and section 17(3)(a) of the State Pension Credit Act 2002.   

 

15.            Furthermore, there is very strong authority against the very argument made by the appellant, namely R(IS)8/06.  The fact that this was an appeal concerned with another benefit makes no difference as it was concerned with an identical argument about relevantly identical statutory wording “is [ordinarily resident] in Great Britain” in regulation 2(1)(a) of the Social Fund Winter Fuel Payments Regulation 2000. In any event, I agree with the analysis in R(IS)8/06.

 

16.            I also respectfully agree with the submission made by Mr Spencer on behalf of the Secretary of State that the appellant has conflated two issues that need to be kept separate: the first is the jurisdiction of British courts over British flagged ships; the second is whether being on such a ship constitutes being in Great Britain: see R -v- Gordon Finalyson [1941] 1 KB 171 and Commissioner’s decision C.P. 93/49 (K.L).

 

17.            Despite my invitation to do so, the appellant has not really been able to flesh out the arguments referred to in paragraph 8 above. Reliance on the Merchant Shipping Act 1995 does not assist for the reasons given in R(IS)8/06 and C.P 93/49 (KL).  Nothing in that 1995 Act states that being on a British registered boat on the high seas counts as being “in Great Britain”.

 

18.            Accordingly, save for the points made below, the appellant was overpaid state pension credit during any period in the alleged overpayment period when he was on his boat and outside the territorial waters of Great Britain.

 

19.            However, this is subject to two qualifications, both of which Mr Spencer has very fairly (and entirely properly) raised.

 

20.           The first is that the appellant will have been in Great Britain during any day in which he was either present on the land that constitutes Great Britain or in the twelve mile territorial waters adjacent to Great Britain. I agree with Mr Spencer that the tribunal erred in law in not enquiring properly into this. Moreover, this issue may not be arid or academic as over the period there was some evidence of the appellant travelling back to Great Britain (see, for example page 2 of CPC/1672/2012 where the appellant refers to transiting a boat back to Norfolk, which suggests that at least for the later part of the overpayment period the appellant may have been in the 12 mile territorial waters around Great Britain). Accordingly, this issue needs to be looked into properly. The most sensible starting point may be a diary from the appellant covering where he was on each day in the overpayment period, or perhaps more usefully a schedule of the days in this period on which he says he was in Great Britain or its territorial waters as described above.

 

21.            The second qualification concerns the temporary absence rule in regulation 3 of the State Pension Credit Regulations 2002 which, in effect, provides that a claimant will continue to be entitled to state pension credit for 13 weeks while not in Great Britain if the period of absence is unlikely to exceed 52 weeks and he continues to satisfy the other conditions of entitlement while absent.  The First-tier Tribunal which re-decides this appeal will need to decide whether, on the evidence, this regulation has any application in the alleged overpayment period. I decline to give any more guidance on the application of this provision given that to do so would be in a factual vacuum.  However, the tribunal may find useful the case-law decided under the similar (though not identical) rule for housing benefit in regulation 7(13) of the Housing Benefit Regulations 2006.

 

Misrepresentation

 

22.           Assuming there is an overpayment, however, the next issue that arises, and arose for the tribunal, is whether it is recoverable under section 71 of the Social Security Administration Act 1992 (“section 71”). The Secretary of State’s case was, and is, founded on misrepresentation of a material fact, and the tribunal upheld this decision. 

 

23.           However, it is important to establish first what representation of fact was made by the appellant. This is based on his answers on the initial claim form for state pension credit which he completed in April 2004. Somewhat surprisingly this form only appears on page 149 of the CPC/1674/2012 bundle.  The key representation is on page 149. This is where the appellant gave as Your permanent address an address in Norfolk. No different Contact address was given.  It may be of some relevance that the question was not “Where do you live” or “What is your current home address”. The permanent address answer, and any representation it contains, also has to be read subject to what appears above the appellant’s signature on page 158, namely that “the information given on this form is correct and complete as far as I know and believe”. I agree with Mr Spencer that the guidance notes that may have accompanied the claim form, and which the appellant may (or may not) have read,  do not cast any further light on what is meant by the phrase “Your permanent address” (see page 199 of CPC/1672/2012).

 

24.           Two other comments are relevant here. First, the reference to a “contact address” being different from the permanent address suggests that a person may have two addresses at the same time and therefore permanent address is not always to be equated with where the person is living at present. An obvious example, though perhaps less relevant in the pension credit context, is the student living away from home while at University. It may therefore be that on some particular facts the failure to give a contact address (which is different to the permanent address), where the claimant has one, may amount to a misrepresentation, particularly if the signed declaration at the end of the form says the information given is “correct and complete” (ignoring, for the moment, the “as far as I know and believe words” in that declaration – as to which see below). However, I do not know whether the appellant in fact had a “contact address” (which I assume means an address he could be written to at) other than the address in Norwich. That may be a matter that will require investigation by the First-tier Tribunal.

 

25.           The second comment is that although Part 3 of the claim form is addressed to About where you live, it is not linked back to the permanent address in Part 1 of the claim form, and so, as far as I can see, the answers given in Part 3 contain no representations as to where the appellant was in fact living at the time he completed the claim form.

 

26.           These comments aside, given the specific wording used on the claim form there was, as far as I can see, no direct representation made by the appellant that “he was permanently resident at an address in Norwich” (the stated basis for the Secretary of State’s decision (the underlining is mine)), nor is it the case that he had declared “that he was permanently resident at an address in Norwich”(the ostensible basis for the tribunal’s decision). I therefore agree that the tribunal erred in law in relying on a representation that was not in fact given, or at least it did not explain adequately how such a representation of fact arose on the claim form.

 

27.            I may add that I do not understand the relevance to the alleged representation of the tribunal’s view that  “it would have been expected of the appellant to explain that he intended to reside on a boat (albeit British registered) from March 2004”, or how such an expectation arose legally.  This phrasing smacks of the old “reasonably to be expected to disclose” test under the failure to disclose limb of section 71, but that is no longer the test there following B-v- SSWP (R(IS)9/06).  Moreover, I can find nothing on the claim form that obliged the appellant to represent that he was living on a boat (let alone on a boat outside GB territorial waters), nor anywhere for him to make such a statement.  In so far as this was a matter the tribunal took into account in deciding the appeal then it erred in law as it was immaterial to the issue of misrepresentation. In so far as there was some other relevance to this finding then the tribunal erred in law in not explaining adequately what that relevance was.

 

 

28.           Returning, however, to what was actually represented on the claim form, this is covered by the appellant asserting that his permanent address was, as far as he knew and believed, the address in Norwich.  I am not sure it if it is helpful , as Mr Spencer has sought to do on behalf of the Secretary of State, to try and separate out what is meant by the words “permanent” and “address” from what the appellant knew and genuinely believed. It is usually better to try and construe a phrase as a whole rather than what its constituent parts mean and then trying to put those meanings back together as the overall meaning can be lost. Furthermore, the example of the student with his term-time address and permanent address provides at least one exception to Mr Spencer’s definition of permanent address as meaning “the place at which he is at present living indefinitely”, as the student is not living at all at the permanent address in term-time.  I am also mindful that the appellant has put forward arguments for a different meaning to be given to the phrase (see page 236 of CPC/1672/2012).

 

29.           In my judgment, the better approach is for the tribunal simply to consider whether, per paragraph 48 of CDLA/5803/1999 (at page 230 of CPC/1672/2012), the appellant genuinely believed at the time he completed the 2004 claim form that the Norwich address was in fact his permanent address. That may be informed by what is generally thought to be meant by the phrase “permanent address” (and thus, to that extent at least, an enquiry into its dictionary or common meaning or meanings may be relevant).  However, as even the Secretary of State accepts, given the words used on the declaration at the end of the claim form, in the end it comes down to whether the appellant genuinely believed in April 2004 that the Norwich address was his permanent address.  His comments on pages 236 and 237 of the CPC/1672/2012 appeal bundle may prove a useful starting point for judging this.

30.           It is for all these reasons that the tribunal’s decisions dated 10.11.11 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeals. The appeals will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on these appeals to the Upper Tribunal on error of law says nothing one way or the other about whether his appeals will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law as set out above and once it has properly considered all the relevant evidence.

 

31.            The appellant did not attend the hearing before the tribunal. He is now, it would seem, resident at an address in Brittany in France.  However, his request for an oral hearing of this appeal to the Upper Tribunal indicates that he is both able and willing to come back from France in order to attend a hearing of his appeal.  Given the contents of this decision, I hope it is evident that his presence at a hearing would be likely to best enable the First-tier Tribunal to assess all matters relevant to the facts and the appellant’s knowledge and belief when he completed the claim form in 2004. 

 

32.           I have noted from the First-tier Tribunal’s files that the appeals were transferred from its South West Region (covering Plymouth) to its Northwest region (covering Newcastle) at the request of a District Tribunal Judge because at that time the appellant had indicated he would not attend a hearing but the Secretary of State’s representative (based in Newcastle) had asked to attend a hearing. Given the need and desire of the appellant to attend a hearing that action is no longer likely to be appropriate and the appeals may need to be transferred back to the South West Region. The appellant and the First-tier Tribunal will need to liaise over this.

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 24^th May 2013