Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/4131/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before

 

Attendances:

 

For the Appellant: The appellant represented himself

 

For the Interested Party Mr Ben Collins, of Counsel

 

 

Decision:  The judicial review proceedings are dismissed.

 

 

REASONS FOR DECISION

 

1. These proceedings for judicial review of the First-tier Tribunal (Criminal Injuries Compensation) decision of 30 October 2012 were brought with my permission.  I held an oral hearing of the case at Field House on 10 June 2013 at which the applicant represented himself and the interested party, to whom I will refer as CICA, was represented by Mr Ben Collins, of counsel.  The First-tier Tribunal (‘F-tT) rightly did not play any role in the proceedings.

 

2. The two issues on which I granted permission to proceed were

 

(i)              whether the F-tT had arguably failed to make sufficient findings for its conclusion that the applicant was not honest in relation to his continuing claim for DLA.  In particular, what test did it apply to establish its conclusion?  Was it enough that, objectively, the applicant should have realised that there was a discrepancy between his levels of activity (including long-distance running) and his award of the higher rate of the mobility component?  

 

(ii)             (ii) was the F-tT correct to confine its decision to one element of CICA’s decision, another element having been decided by a previous Tribunal which subsequently adjourned to obtain further evidence? 

 

3. The parties are aware that a Three Judge Panel will consider the procedural propriety of ‘splitting’ decisions in the near future but agreed that they did not wish me to pursue this issue, on which the previous F-tT ruled in the appellant’s favour. In these circumstances, I confined the judicial review to the first issue. 

 

4. The applicant applied for criminal injuries compensation under the 2008 Criminal Injuries Compensation Scheme on 20 May 2010 in respect of a crime of violence (an assault) against him in December 2009 in which he says he suffered criminal injuries.  CICA’s refusal to make an award was based on several grounds, including the applicants failure to cooperate with the police to bring his assailant to justice (paragraph 13(1)(b) of the Scheme), and his questionable character as evidenced by the applicant’s criminal convictions and CICA’s view that he was dishonestly claiming/receiving of Disability Living Allowance (DLA).  Both issues could result in the reduction, or withholding, of compensation because they showed the applicant’s character to be such that he did not merit an award from public funds. I shall refer to this as ‘a character issue’. 

 

5. The relevant paragraph of the Scheme which deals with the character issue is paragraph 13(1)(e). It gives a claims officer, or the F-tT standing in his shoes a discretion to refuse or reduce an award:

 

13(1) A claims officer may withhold or reduce an award where he or she considers that:

 

(e) the applicant’s character as shown by his or her criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974 at the date of application or death) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made.

 

6. CICA’s Guide to the Criminal Compensation Scheme 2008 , which it is required to publish under paragraph 22 of the Scheme, CICA gives information about the effect of certain types of activity on an applicant’s award.  This is found, coincidentally, in paragraph 22 of the Guide:

 

22 The Scheme is funded by the taxpayer, so we need to be certain that anyone applying has not deliberately avoided paying their taxes or deliberately claimed state benefits they were not entitled to.  If we discover someone been earning money which they have not been declaring for tax purposes or fraudulently claiming state benefits, we are likely to take this into account when considering your application.

 

7. The F-tT which heard the appeal from CICA’s decision on 30 October 2010 decided that the award should be withheld in its entirety because the applicant was not honest in his DLA claim. It did not find, therefore, find it necessary to deal with the question of reduction/withholding an award on the basis of criminal convictions.

 

8. DLA is a benefit for those whose disabilities result in their need for help in specified ways.  The relevant law is in the Social Security Contributions and Benefits Act 1992 sections 72 (care component), and section 73 and regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 (mobility component).  In brief, the ‘care component’ of DLA is payable at one of three rates to claimants depending on the extent of their needs for attention in connection with their bodily functions by day and/or by night, or because they need continual supervision to prevent substantial danger to themselves or others by day or, alternatively, watching over for the same reason at night.  The highest rate is payable to those with day and night needs and the middle rate is payable to those with day or night needs.  The lowest rate is payable where the claimant needs attention with their bodily functions for a significant portion of the day, or is unable to prepare a cooked meal for himself. The mobility component is payable at a higher rate to those who cannot walk or are virtually unable to walk, or at a lower rate for those who can walk, but require supervision or guidance to do so. 

 

9. For the purposes of this appeal, it is sufficient to note that, in order to qualify for the highest rate of the mobility component, regulation 12(1)(ii) and (iii) of the Social Security (Disability Living Allowance) Regulations 1991 require that a claimant’s physical condition as a whole must be such that … his ability to walk out of doors is so limited as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or the exertion required to walk would constitute a danger to his life or would be likely to lead a serious deterioration in his health.

 

10. The basic facts relating to the applicant’s DLA award are these:

 

1. He was diagnosed with HIV in 1991.

 

2. In 1997 the applicant was awarded the highest rate of the care component under ‘special rules’ for the benefit which apply to those who are considered to be terminally ill.  At the same time, he was also awarded the higher rate of the mobility component under the ordinary regulations relating to DLA because he was thought to satisfy the condition under section 72 of being virtually unable to walk through the effects of that illness. He stated at that time that he could only walk 70 meters in 3 – 4 minutes and was affected by dizziness, tiredness and joint pain when walking.

 

3. In 2005 the applicant fractured his tibia.  The fracture was secured with metal plates in his knee, which have not been removed. 

 

4. The applicant had a psychotic episode in 2006/2007, but this did not play any part in the disabilities he had or the needs arising from them.

 

5. In March 2008, the applicant’s award was reviewed by the Secretary of State for Work and Pensions.  By this time the applicant had started combination therapy for his HIV.  In the review form, he stated (T312, F-tT bundle) that he did not have physical problems that restricted his walking though he added that after walking he would be tired and have pain all over his body and need to take a pain killer.  He did not specify any distance he could walk or estimate the time he could walk without severe discomfort, but added that he walked slowly (40 – 50 meters per minute) and with poor balance (T313) and that by the end of the day he will get pain in his joint, legs, back.  He stated that he had to be ‘careful on his walking’ (T316) and that his current problems with mobility began in 2005, with the operation on his leg.  He did not describe any care needs.  Indeed, he specifically stated he did not need help preparing and cooking a main meal.  He signed a declaration stating ‘I declare that the information I have given on this form is correct and complete as far as I know and believe.  I understand that if I knowingly give false information, I may be liable to prosecution or other action.  I understand that I must promptly tell the office e that pays my Disability Living Allowance of anything that may affect my entitlement to, or the amount of, that benefit’. 

 

6. In summary, the applicant represented that his walking and balance were poor, his rate of progress in walking slow and that he was in pain all over after walking (particularly at the end of the day). 

 

7. On 29 April 2008, it seems, the Secretary of State made a decision which the applicant must have disputed since the Secretary of State then revised the decision on 3 June 2008 (First-tier bundle, 19^th page).  He awarded the applicant the higher rate of the mobility component and the lowest rate of the care component under the ordinary rules for DLA.

 

8. The correspondence and any reports produced for the purpose of the revised award were not before the F-tT, nor were the Secretary of State’s reasons for making the award.  From the codes on the decision notice, the reason for awarding the lowest rate of the care component is not clear, and the Secretary of State has issued two documents since the decision giving different reasons for it:  a notification from the DWP dated 15/4/2013 states that it was awarded because the applicant could not prepare a main meal for himself while a document at T14 (F-tT bundle) states that it was because he needed help with personal care. 

 

9. The applicant began running half marathons in October 2008, only 7 months after submitting the review form and three months after the award of the higher rate of the mobility component was made. 

 

10. His GP notes in June 2009 that the appellant was in preparation for a half marathon in October 2009 and that he had no knee symptoms (T26). The GP told him that the orthopaedic review he requested was unwarranted. 

 

 

11. CICA submitted that the applicant’s activities were inconsistent with an award of the higher rate of the mobility component.  It goes without saying that he had a duty to give an accurate account of his problems in his claim and review forms.  But, as CICA rightly submitted, the applicant was also under a legal duty to inform the Secretary of State if his circumstances changed in a way that might affect his entitlement to, or the amount of, his benefit, and that the applicant did not do so.  This duty arises under regulation 32(1B) of the Social Security (Claims and Payments) Regulations 1987. 

 

12. The applicant confirmed at the oral hearing before the F-tT that he ran 3 miles twice a week and had been running half marathons annually since October 2008.  He had recently run a 10 km event in Yorkshire.  He only stopped going to the gym because he could not afford it.  He said he was able to do everything that he wanted, including run half marathons, but was in pain afterwards.  He said that at present he walks slowly because of the medication he takes and pain, cannot walk straight and has balance problems.

 

13. I note that the F-tT mistakenly noted in its written decision that he ran his first half marathon in October 2007, but this is immaterial since, even if his statement in the review pack was not a misrepresentation when it was made, his mobility must have improved very rapidly and significantly thereafter.  This would have triggered his duty to let the Secretary of State know that his circumstances had changed, and did not do so.

 

Discussion

 

14. The first question is to decide what the words of paragraph 13(1)(e) mean in relation to ‘evidence of character’ which makes it inappropriate that a full award or any award at all be made.  The Guide to the Scheme gives some explanation, but it is not binding in law.  Its purpose of the Guide is to help the public to understand the main issues which come up under the Scheme and how CICA operates it.  

 

15. It is clear from the wording of paragraph 13(1)(e) that the discretion given to reduce or withhold an award because of criminal convictions is a separate category from withholding an award for other reasons relating to a claimant’s character.  In R (on the application of Olga Andronati) v CICAP [2006] EWHC 1420 Admin at [9], Keith J considered that

 

‘…At first blush the first of those arguments is not a promising one, because paragraph 13(e) does not place any limitations on the type of conduct which might justify the conclusion that an applicant's character renders an award of compensation inappropriate.  The type of conduct which usually demonstrates that an applicant's character might render an award of compensation inappropriate is conduct which results in an applicant acquiring criminal convictions.  Evidence of conduct which has not resulted in an applicant acquiring criminal convictions can sometimes demonstrate that an applicant's character should render an award of compensation inappropriate.  So why should the claimant's unlawful presence in the United Kingdom at the time not be conduct of that kind?’

16. Not every type or instance of misconduct which affects the view the F-tT takes of a person’s character will necessarily lead to a reduction or withholding of compensation.  In exercising its discretion, the F-tT must behave proportionately.  It would be disproportionate for a decision maker to refuse to make an award of compensation on the basis, for example, of mere distaste for a claimant’s behaviour and lifestyle, in the absence of notable misconduct.

 

17. In these proceedings, the particular character question which attracted the attention of CICA and the F-tT was dishonesty.  The applicant’s dishonesty lay in deliberately misrepresenting his condition in order to obtain, or continue to receive, DLA, or in failing to disclose changes which he realised affected his entitlement to it.   He could have faced prosecution for offences under the Social Security Administration Act 1992  and under the Fraud Act 2006.  

 

18. The F-tT’s approach to finding dishonesty was this [§15]: 

 

‘It was more likely than not that the applicant’s health was such that he was not entitled to the higher rate of the mobility component and he was aware that this was the case. [emphasis added] He had not been honest and forthcoming in completing his application for DLA when it was reviewed in 2008 since his walking was not poor.  He had continued to accept the higher rate of the mobility component of DLA and/or failed to notify DWP of a change in his circumstances.  In those circumstances, he demonstrated that his character was such that it is inappropriate that a full, or any award at all, be made [15].’

 

Its reasoning was supporting by findings of fact in § 11 – 13.  I note that the F-tT used the words ‘applicant’s health’, when it should have used the words ‘applicant’s needs’ or ‘mobility’ but looked at overall, it is clear that this F-tT, was focussing on the right issue.  I take into account that was not a specialist DLA Tribunal. 

 

19. Mr Collins’ submission was that the F-tT did enough by finding that the applicant knew his representation was untrue and that he made it to obtain benefit.  This was sufficient reason for finding that his character was such that an award would be inappropriate under paragraph 13(1)(e).  He also submitted that this paragraph did not require a technical examination of the criminal law tests in R v Ghosh [1982] EWCA 2.

 

20. I agree, with the caveat that there might be cases in which a case officer or F-tT would have to make further findings, as I explain later.

 

21. A deliberate deception that is made in order to obtain something to which a person is not entitled is an obvious form of dishonesty.  It is trite law that ‘deliberate’ in this context means that the accused knows that the representation is false when he makes it, or is reckless about its falsity.  Recklessness here means that the accused himself realises that the representation may be false but goes ahead and makes it anyway.  This subjective awareness is part of our fundamental view of what makes a person dishonest.  The F-tT found that the applicant knew that his representation was false.

22. Paragraph 131(e) and R (on the application of Olga Andronati) make it clear that it is not necessary to find a criminal offence has been committed.  There may, however, be cases (of which this is not one) involving conduct of questionable dishonesty, where people might differ as to whether the conduct in issue was dishonest.   If such a case were to arise, it might be necessary for a F-tT to establish more than subjective awareness and to go on to establish (i) whether what the applicant has done would be considered dishonest by ordinary standards and (ii) whether the applicant realised that others would consider it dishonest (R v Ghosh [1982] EWCA 2).  But those questions do not arise here.

 

23. Dishonesty is a question for the F-tT and is a question of fact.  The Upper Tribunal cannot interfere with that finding unless it was irrational or perverse, that is to say outside the range of findings a reasonable Tribunal could make having regard to the evidence and the law it had to apply.  The applicant has not come close to showing that the findings were perverse or irrational.  Nor has he shown that there was another error of law.

 

 

[Signed]

 

S M Lane

Judge of the Upper Tribunal

[Date] 22 July 2013