Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CDLA/3765/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 29 April 2013 under number SC225/10/02568 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal which reconsiders the case should not be the same as those who made the decision which has been set aside.

3. The parties shall send to the relevant HMCTS office as soon as possible any further evidence, if there is any.  If they cannot send that evidence within one month of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.  That is not to say that any further evidence will be necessary.

4. A copy of the Secretary of State’s submissions to the Upper Tribunal in this appeal (pages 1135-1142 of the Upper Tribunal bundle) and the grant of permission by Judge Wikeley (page 1133-1134) should be made available to the First-tier Tribunal which reconsiders the case.

5. The new panel will make its own findings and decision on all relevant matters. They will consider all aspects of the case afresh but they should note in particular the issues that I set out in the Reasons below.

REASONS FOR DECISION

1.    For the purposes of this appeal it is not necessary to set out the full complex history of this case, and what follows is a brief summary of the key decisions which are relevant for present purposes.

2.    The appellant had been in receipt of Disability Living Allowance (DLA) since 1992.  By reasons of a decision of an Appeal Tribunal made on 11 January 2001 the appellant was entitled to higher rate mobility component and middle rate care component of DLA from 26 May 2000.  Following various enquiries, on 7 September 2006 a Decision Maker superseded the Tribunal decision of 11 January 2001 and determined that the appellant was not entitled to any DLA from 18 October 2001.  The ground of the supersession was that there had been a relevant change of circumstances.  On 4 October 2006 a decision was made that the appellant had been overpaid £19,264.40 between 24 October 2001 and 27 June 2006 and that this amount was recoverable. The appellant appealed and on 15 May 2008 an Appeal Tribunal allowed his appeal. Thus the appellant remained entitled to higher rate mobility and middle rate care from 26 May 2000 and he had not been overpaid. 

3.    On 7 July 2010 the Secretary of State superseded the decision of the 2008 Appeal Tribunal.  On 28 July 2010 the Secretary of State notified the appellant that a recoverable overpayment had been made in the sum of £35881.05 for the period 24 October 2001 to 13 July 2010.  These are the decisions which are the subject of the present appeal.

4.    The basis of the Secretary of State’s decision was that the 2008 Tribunal had been ignorant of a material fact, that is that the appellant’s full walking ability and ability to self care was far greater than declared.  In so doing the Secretary of State was applying regulation 6(2)(c)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  The supersession decision was to reinstate the decision of 7 September 2006 that the appellant was not entitled to DLA from 18 October 2001.  The Secretary of State purported to apply regulation 7(2)(c)(ii) of the 1999 regulations and decided that the appellant had failed to notify the Department of a change of circumstances (ie his improved abilities) that had existed since at least 18 October 2001, that he would have known that the change should have been reported, and that the decision would have effect from 18 October 2001.   In fact, the relevant provision regarding effective date was regulation 7(5).

5.    The First-tier Tribunal considered the appeal against the above decisions of the Secretary of State.  A hearing took place on 11 April 2013 and the tribunal took further time to consider their decision.  On 29 April the tribunal issued its decision, refusing the appeal and confirming the decision of the Secretary of State. The tribunal provided a statement of reasons dated 29 April 2013.

6.    The tribunal set out some of the evidence that it had seen and heard, and then set out that it had to be shown that the 2008 tribunal was “in ignorance of or mistaken as to material facts”.  The tribunal set out in a schedule the material facts which it found that the 2008 tribunal had either been ignorant of or mistaken as to, and the date of those facts.  The tribunal concluded that:

“66 … if the 2008 tribunal had knowledge of or had not been mistaken as to the facts in the schedule to this Statement then their decision would have been less favourable to the claimant than it was. 

…

71. The tribunal find, on the balance of probability, that the appellant was not entitled to disability allowance from 18 October 2001…

72. It follows that the overpayment is recoverable.  The appellant had to have been aware of his duty to report relevant changes in circumstances…”

7.    The tribunal identified correctly that regulation 7(5) applied in respect of the effective date but did not make findings relevant to the application of that provision.

8.    The appellant sought permission to appeal which was granted by Upper Tribunal Judge Wikeley on 27 February 2014.  He made the following observations:

“4. This is a long-running and complex case. There is a large body of documentation. The present tribunal (“the 2013 tribunal”) crucially came to a different conclusion than the previous tribunal (“the 2008 tribunal”). In principle there is nothing wrong with that. One tribunal does not bind another as to the findings of fact, and the 2013 tribunal had evidence before it which was not available to the 2008 tribunal. However, it may be questionable whether the 2013 tribunal was as thorough as the 2008 tribunal in terms of its fact-finding (for example, paragraph [65] and the Schedule to the statement of reasons of the 2013 tribunal appear rather thin). On the other hand, I also accept that the question for me at this stage is not actually whether the 2013 tribunal’s fact-finding and reasoning was as thorough as that of the 2008 tribunal. Rather, the question is whether or not it is arguable that it was inadequate.

5. In that context, the Secretary of State’s representative may wish to consider whether the 2013 tribunal has really addressed properly the issue of whether or not the Appellant was, or was not, entitled to DLA in 2001 (see further e.g. the case of KC v SSWP [2012] UKUT 385 (AAC))? There is quite a lot of detailed examination of various bits of evidence in the 2013 tribunal’s statement of reasons, but has it all been adequately brought together to explain why the appellant was not entitled to DLA in 2001? The 2008 tribunal seems, at least on the face of it, to have made much more detailed findings about the various levels of the football coaching course and what they entailed. On that basis, has the 2013 tribunal properly explained how the 2008 tribunal was itself ignorant of relevant facts? Much of the evidence relied on by the 2013 tribunal seems to relate to the period in the late 2000s rather than around 2001. Indeed, has the tribunal properly addressed the criteria for higher rate mobility at all in relation to the evidence at the material date? Furthermore, did there need to be some express discussion of the effect of regulation 7(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999?”

9.    By written submissions dated 2 May 2014 the Secretary of State has supported the appeal.  He said that, if his submissions are accepted in their entirety, he consents to a decision without reasons.  The appellant sent further submissions and also consented to a decision without reasons.  Neither party seeks an oral hearing and I am satisfied that I can dispose of the appeal on the papers.

10. I accept the written submissions of Mr Whitaker on behalf of the Secretary of State and do not repeat them here.  In summary he says that the 2013 tribunal identified the facts which it considered the 2008 tribunal had been in ignorance of or mistaken as to but that it failed to explain the basis on which each of those facts was material to the 2008 decision.  Insofar as Judge Wikeley identified additional errors, particularly relating to the errors in respect of the factual findings, I adopt these as well. I uphold the appeal on all the grounds identified by the Secretary of State and Judge Wikeley.

11. Accordingly I set aside the decision of the First-tier Tribunal and remit the matter to be heard by a different tribunal in accordance with the directions above.

12. The task for the First-tier Tribunal when reconsidering this case pursuant to my directions will involve it considering carefully whether the statutory grounds for supersession are made out, and applying regulation 7(5) in order to determine the effective date. In order to do this, the tribunal must make clear findings of fact and address the following points:

a)    Identify the facts which the 2008 tribunal was ignorant of or mistaken as to.

b)    Identify the relevance of those facts to the decision which the 2008 tribunal was considering, that is the supersession decision of 7 September 2006.  The facts in question must therefore be relevant to the question whether on 7 September 2006 there were grounds to supersede the original decision (ie the decision of 11 January 2001) and that itself involves consideration of whether the appellant had been entitled to either component of DLA at any level and any time since 18 October 2001. 

c)    It follows from the foregoing, that the tribunal must identify how the relevant facts relate to the application of the statutory criteria for either component of DLA to the appellant’s case at the relevant times.

d)    In addition the tribunal must perform the same exercise in relation to the 4 October 2006 decision. Although there may be some overlap between the findings necessary to the supersession decision and that of whether there has been a recoverable overpayment, the different statutory criteria must be specifically addressed.

13. In addition, if the First-tier Tribunal confirms the decision of the Secretary of State to supersede the decision of the 2008 tribunal, the Tribunal must then proceed to consider the application of regulation 7(5) of the 1999 regulations.  This involves the tribunal considering the following questions:

a)    At the time of the decision of the 2008 tribunal, did the appellant know or could he reasonably have been expected to know of the facts which that tribunal was in ignorance of or mistaken as to?

b)    Were those facts relevant to the 2008 tribunal’s decision?

14. If the tribunal decide that regulation 7(5) applies, then the supersession decision will take effect from the date that the 2008 tribunal’s decision would have taken effect.  The 2008 tribunal’s decision would have taken effect from the date of the decision which it was considering (7 September 2006).  The decision of 7 September 2006 was that the supersession was effective from 24 October 2001.  So the tribunal reconsidering this case will have to decide whether the material facts would have led the 2008 tribunal to decide that the effective date was 24 October 2001 in accordance with regulation 7(2)(c)(ii). 

Signed on the original Kate Markus QC

On 7 July 2014  Judge of the Upper Tribunal