Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/562/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The claimant’s appeal is dismissed.

 

 

REASONS FOR DECISION

 

1. This an appeal, brought by the claimant with my permission, against decisions of the First-tier Tribunal dated 31 May 2012, whereby it dismissed appeals by the claimant against a decision of the Secretary of State dated 19 September 2011, superseding a previous award of disability and deciding that she was not entitled to disability living allowance from 1 January 2011, and against a further decision dated 27 September 2011, whereby the Secretary of State decided that disability living allowance amounting to £2,697.50 had been overpaid to the claimant from 5 January 2011 to 7 June 2011 and was recoverable from her.

 

2. It is accepted by the claimant on this appeal that the First-tier Tribunal was entitled to find that she was no longer entitled to disability living allowance.  What is challenged is the decision that the termination of the award should be effective from 1 January 2011.  It is contended that the termination should have been effective only from 19 September 2010, the date of the supersession decision, and that consequently there had been an underpayment of benefit rather than an overpayment.  The grounds of appeal require consideration of the provisions of the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) relating to revisions and supersessions, the most directly material of which are set out in an appendix to this decision.

 

3. It appears that the claimant first claimed disability living allowance in 2005.  There seems to have been an appeal in connection with that claim but the outcome is uncertain and, in the event, not material.  She was certainly awarded the higher rate of the mobility component and the lowest rate of the care component from 30 September 2006 and, following a supersession, the higher rate of the mobility component and the highest rate of the care component from 9 April 2009 until 8 October 2010.  A renewal claim was made on 7 June 2010 and, on 30 July 2010, it was again decided that the claimant was entitled to the higher rate of the mobility component and the highest rate of the care component from 9 October 2010 but, this time, for an indefinite period.

 

4. However, it appears that the Secretary of State had received information on 6 October 2010 suggesting that the claimant was capable of activities that were inconsistent with entitlement to disability living allowance.  This led to an investigation, including covert surveillance in May 2011, following which the claimant was interviewed under caution on 7 June 2011 and payments were suspended with effect from the following day.  In September 2011, the decisions leading to this appeal were made.

 

5. Importantly, although entitlement was removed retrospectively, it was removed only from 1 January 2011 on the ground that, in her interview in June 2011, the claimant had said that the 2010 claim form had been accurate when completed but her ability to do things had improved since then because she had been taking more effective medication for the previous six months.   The claimant appealed on the basis that the medication had been temporary and was against medical advice and that it had merely masked a continuing problem.

 

6. In its statement of reasons for dismissing the appeal against the “entitlement” decision of 19 September 2011, the First-tier Tribunal accepted that the claimant had been taking too many painkillers but found, relying on its medical member’s expertise, that the excessive dose would not have provided any additional pain relief (see paragraphs 43 and 51).  It also carefully considered the other evidence and made findings as to what the claimant could do.

 

7. It then turned to the law and referred to the Secretary of State’s submission and, in general terms, to section 10 of the 1998 Act and to regulations 6 and 7 of the 1999 Regulations.  In paragraphs 81 to 85, it said –

 

“81. We found as a fact that the DWP’s decision of 20.7.10 awarding DLA at the higher rate of the mobility and the highest rate of the care component, with effect from 9.10.10 (p.127/128), had been made in ignorance of material facts.  The contents of the appellant’s claim pack received on 7.6.10 (p.62) misrepresented her condition.  The DWP had presumably also relied on the GP’s report of 21.7.10 (p.100) but, as explained above, the Tribunal considers that, in reaching their opinion, the GP had been unable to take account of the true extent of the appellant’s abilities and activities because these had not been disclosed by her to the GP.

 

82. Although the video evidence was obtained in May 2011, there was nothing to suggest that, in June 2010, her condition had been significantly worse.  In the intervening 12 months, there had not been any significant new treatment.  In fact, her condition as described by her in June 2010 was much the same as described by the CAB in May 2005 (pp.46, 50).  It was improbable that she had experienced such a dramatic improvement over that year.  Certainly, it was not recorded by the GP.

 

83. Taking account of the opinion of our medical member, we were unable to accept that the difference between her condition as described in the claim pack and as seen in the video evidence could be ascribed to use of excessive levels of pain killers.  In addition to the video evidence, the appellant also gave evidence about driving, walking to the local shop, and travelling to central London, and she appeared to have been undertaking those same activities in June 2010.  Therefore, we concluded that, in the June 2010 claim pack, the appellant had completely misrepresented her functional impairment.

 

84. The further evidence about the extent of the appellant’s abilities and activities, not available to the Decision-Maker at the time that the award had been made, showed that the appellant did not meet the requirements to qualify for DLA.  Therefore Regulation 6(2)(b) applied, and there were grounds to supersede the 2002 [sic – presumably intended to be 2010] decision awarding DLA.

 

85. In their supersession decision made on 19.9.11, the DWP in effect concedes that, previously, the appellant met the conditions for entitlement, and that a change of circumstances occurred, taking effect from 1.1.11, from which date she was no longer entitled (pp.113/4).  With that concession having been made, it did not appear to the Tribunal that the conditions were met for a more disadvantageous decision to be made on the appeal, even though, on our understanding of the evidence, it was possible that the appellant had ceased to meet the requirements for some period prior to 1.1.11.”

 

8. Finally, the First-tier Tribunal concluded that the claimant did not satisfy the conditions for entitlement to disability living allowance from 1 January 2011 and so upheld the Secretary of State’s decision to supersede and terminate the 2010 award with effect from that date.  A separate statement of reasons was issued in respect of the decision to uphold the Secretary of State’s decision that the resulting overpayment was recoverable from the claimant. 

 

9. In the claimant’s grounds of appeal, the claimant’s representative, Mr Andy Malik of Luton Law Centre, argues that the true ground of the First-tier Tribunal’s decision was ignorance of a material fact and that such a supersession could, by virtue of section 10(5) of the 1998 Act, be effective only from the date of the superseding decision.  He accepts that ignorance of a material fact could be a ground for revision under section 9 of the 2010 Act, but appears to argue that that such a decision should have been effective from the date from which disability living allowance had first been awarded in 2005 or 2006 and that there was insufficient evidence of such a decision to justify a revision, particularly as the surveillance evidence dates only from May 2011.  He further submits that there was insufficient evidence of a misrepresentation on the 2010 claim form and that the First-tier Tribunal had failed to distinguish between representations as to fact and representations as to opinion.  Finally, it is submitted that, since the Department had first received information raising a question about the claimant’s entitlement in October 2010, the subsequent overpayment was not recoverable under section 71 of the Social Security Administration Act 1992, which permits recovery only where an overpayment is made “in consequence of” a misrepresentation of, or a failure to disclose, a material fact.

 

10. When I granted permission to appeal, I drew attention to paragraph 85 of the statement of reasons in the entitlement decision but suggested that it was arguable that the First-tier Tribunal should have considered whether there had been a failure to disclose a material fact in both the entitlement decision and the recoverability decision, in view of regulation 7(2)(c)(ii) of the 1999 Regulations and section 71 of the 1992 Act.  But I also asked whether the Secretary of State now accepted that there had been misrepresentations in the 2010 claim form and whether, in view of its finding to that effect, the First-tier Tribunal could, and should, have revised the decision made on that claim.  That, of course, would have left the claimant worse off than she was under the Secretary of State’s decisions.

 

11. The Secretary of State submits that, since the decision being challenged before the First-tier Tribunal was the supersession decision of 19 September 2011, the First-tier Tribunal was not entitled to substitute a decision for that of 30 July 2010 by revising that earlier decision.  In any event, he agrees with the claimant that there is insufficient evidence to justify a finding that the claimant made misrepresentations in her claim form in 2010.  On the other hand, he submits that the First-tier Tribunal’s decision was based on a subsequent change of circumstances and he says that the Secretary of State had had regard to regulation 7(2)(c)(ii) and so the First-tier Tribunal’s decision was not wrong in law. 

 

12. It seems to me that the claimant’s first two grounds of appeal are misconceived.  Firstly, as the Secretary of State submits, it is clear that the First-tier Tribunal eventually decided the case before it on the ground of a change of circumstances rather than ignorance of a material fact.  Secondly, it is not the case that a revision would have been possible only if a mistake was identified in a decision made when disability living allowance was first awarded. 

 

13. The claimant is correct in submitting that a supersession of a decision of the Secretary of State on the ground of ignorance of a material fact (under section 10 and regulation 6(2)(b)(i)) would have been effective from the date of the superseding decision, because regulation 7 does not disapply section 10(5) in such a case, and she is also correct in submitting that a revision on that ground (under section 9 and regulation 3(5)(c)) would be effective from the same date as the decision being revised, because regulation 5(1) does not disapply section 9(3) except where the error is in that date itself.  Moreover, whether or not the evidence could have supported a revision with effect from a date in 2005 or 2006, I accept that the First-tier Tribunal did not make a finding that there had been a mistake then and therefore it would not now be appropriate to revise the first award of disability living allowance that was made to the claimant.

 

14. However, there was a further award in 2010 and the Secretary of State could have revised that decision under section 9 and regulation 3(5)(c) had he taken the view that that decision was based on ignorance of, or a mistake as to, a material fact and that the claimant knew, or could reasonably have been expected at the time the decision was made to know, of that fact and that it was relevant to the decision to make the 2010 award.  If the ignorance or mistake had been based on a misrepresentation, the resulting overpayment from 9 October 2010 would have been recoverable under section 71 of the 1992 Act.  Moreover, the Secretary of State could also have superseded either the 2006 award or the 2010 award on the ground of change of circumstances had he found there to have been a change of circumstances after the relevant award had been made but before 9 October 2010 and had the conditions of regulation 7(2)(c)(ii) been satisfied.  Therefore, if, say, the Secretary of State had been satisfied that the claimant had misrepresented in her 2010 claim form material facts and had thereby failed to disclose a material change of circumstances that she could reasonably have been expected to disclose then but no earlier, he could have considered superseding the 2006 award with effect from 7 June 2010 on the ground of change of circumstances and revising the 2010 award with effect from 9 October 2010 on the ground of ignorance of, or a mistake as to, a material fact.  He could then have sought recovery of the overpayment from 7 June 2010.

 

15. On the other hand, the Secretary of State not having decided to revise the 2010 decision, was the First-tier Tribunal entitled to do so?  The Secretary of State says not.  His submission is very compressed but starts from the premise that the only decision that could be challenged on the appeal before the First-tier Tribunal was that of 19 September 2011 superseding the 2010 decision.  Two arguments are implicit, but the Secretary of State has not spelled them out.  First, to the extent that the Secretary of State had the power to revise the 2010 decision (rather than supersede it) so that the decision of 19 September 2011 must, or may, be taken to have been a refusal to revise the 2010 decision (particularly in the light of regulation 6(3)), there is no right of appeal under section 12 against a refusal to revise because such a decision is made under section 9 and not under section 8 or section 10.  Secondly, to the extent that the appeal might otherwise have been treated as an appeal against the 2010 decision, the claimant would not have wished to appeal against that award and, in any event, any appeal would have been out of time to such an extent that the First-tier Tribunal would not have had the power to extend time so as to be able to admit the appeal.  Section 9(5) would not have helped, at least on a literal interpretation, because it appears to apply where there has been a revision and not where there has been a refusal to revise.  (There are arguments against giving it the same sort of strained interpretation that was given to s.12(9) in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53 (reported as R(LA) 1/03).)

 

16. The main difficulty with the Secretary of State’s submission on this issue is that it is wholly inconsistent with the decisions of a Tribunal of Commissioners in R(IB) 2/04 and R(IS) 15/04.  Those decisions are binding on me.  In the former, the Tribunal said –

 

“55. In our judgment, if an appeal tribunal decides that the Secretary of State’s decision under section 9 or section 10 changing or refusing to change a previous decision was wrong then (subject to the restriction in section 12(8)(b), if relevant) it has jurisdiction to make the revision or supersession decision which it considers the Secretary of State ought to have made, even if that means making a decision under section 9 when the Secretary of State acted only under section 10, and vice versa. …”

 

The Tribunal of Commissioners qualified that statement in R(IS) 15/04, saying –

 

“76. The claimant’s contention that the tribunal erred in law in failing to consider whether the decision awarding income support made on 20 February 1998 should be revised for official error was based solely on the contentions founded on Convention rights, which we have rejected.

 

77. It was not submitted on behalf of the claimant that the tribunal was, in the appeal against the supersession decision which was probably before it, in any event entitled to revise the decision of 20 February 1998 for official error. That was because it was argued on behalf of the claimant, as it was on behalf of the Secretary of State, that on appeal against a decision under section 10 of the 1998 Act, an appeal tribunal has no power to substitute a decision under section 9 of that Act. In our decision dated 21 January 2004 in respect of the other four appeals which were heard at the same time as this [R(IB} 2/04], we rejected that proposition (see paragraph 55, under Issue 1A).

 

78. However, in the present case the appeal tribunal had before it an appeal against a section 10 decision in circumstances in which there had been an express refusal to revise by the Secretary of State which (as we have held) was not capable of being appealed, and which by section 17 of the 1998 Act was “final”. It seems to us that, in those circumstances, if an appeal tribunal were permitted to substitute a revision decision for the supersession decision, that would in effect be to permit by the back door what is not permitted by the front door, namely an appeal against the refusal to revise. This is another instance where an express statutory limitation on the powers of an appeal tribunal cuts into the general principle set out in paragraph 55 of [R(IB) 2/04] (see paragraph 12 of that decision). We do not therefore consider that, in dealing with the appeal against the supersession decision, the tribunal was entitled to consider whether the decision of 20 February 1998 should have been revised for official error. It would have been a different matter if the Secretary of State had not made a decision (whether express or implied) on the issue of revision for official error.”

 

17. The Secretary of State has not referred to either of those decisions.  Nonetheless, there is some force in his submission, which implicitly questions the logic of the distinction drawn in the last sentence of paragraph 78 of R(IS) 15/04.  I do not understand it to have been suggested since R(IB) 2/04 was decided that there are any difficulties with the First-tier Tribunal substituting a supersession decision for a revision or a refusal to revise, but the lack of a right of appeal against either a revision or a refusal to revise does, as was recognised in R(IS) 15/04, raise a question about the propriety of substituting a revision for a supersession.  Were the issue central to the present appeal, I would have referred the case to the Chamber President of the Administrative Appeals Chamber of the Upper Tribunal so that he could consider whether the issue should be considered by a three-judge panel, which would not be bound by the decision of the Tribunal of Commissioners.

 

18. I need not do that for reasons that I shall explain below, but I observe that the difficulty only arises due to the extremely convoluted way in which the 1999 Regulations have been drafted.  When I granted permission to appeal, I asked the Secretary of State what the policy was behind ignorance of, or a mistake as to, a material fact being a ground for revision of a decision of the Secretary of State in the circumstances covered in regulation 3(5)(c) of the 1999 Regulations, rather than a ground of supersession to which an extended regulation 7(5) might be applied.  His reply describes the effect of the provisions without explaining why, when ignorance of, or a mistake as to. a material fact is otherwise a ground of supersession, it was thought desirable that it should be a ground of revision in the circumstances currently falling within regulation 3(5)(c) or, for that matter, (b) or (d). 

 

19. The main differences between revisions and supersessions are as to rights of appeal and as to the date from which the new decision is effective.  There is no right of appeal under section 12 of the 1998 Act against a decision under section 9 to revise or not to revise an earlier decision, whereas there is a right of appeal against decisions made under section 10 to supersede or not to supersede an earlier decision.  Revisions are normally effective from the same date as the decision being revised (see section 9(3)) and supersessions are normally effective from the date of the supersession or, if the supersession was made on an application, the date of the application (see section 10(5)), but regulations may provide that they shall be effective from a different date (see section 9(4) and regulation 5 in respect of revisions and section 10(6) and regulation 7 in respect of supersessions).

 

20. Revision, rather than supersession, is clearly appropriate in the circumstances covered by paragraphs (1) and (3) of regulation 3, where Tribunal Procedure Rules provide for time for appealing against the original decision to run from the date of any refusal to revise and so a revision is in effect a reconsideration of the original decision before there is an appeal.  It is also appropriate, in the circumstances covered by paragraph (4A), where such an appeal will already have been made, and in the circumstances covered by paragraph (8), where there will have been no right of appeal against the original decision.  I can also see that, in cases where a change to a decision might be favourable to a claimant, there might be some classes of case in which it is considered desirable that the claimant should have no right of appeal against a refusal to change the decision unless the claimant is still within the conventional time limits for appealing against the original decision.  That may be the thinking behind paragraphs (4) and (5)(a) and some of the newer paragraphs of regulation 3.

 

21. However, it is not at all obvious to me why revision is regarded as necessarily appropriate where a decision to revise could only be unfavourable to a claimant so that there is no question of a claimant wishing to appeal against any decision not to revise.  There can be no need to use revision rather than supersession in order to exclude a right of appeal in such cases and so there can be no practical advantage to the Secretary of State or anyone else in having a revision in those circumstances instead of having a supersession that is generally effective from the same date as the decision being superseded.  I can see no reason in principle why regulations made under section 10(6) should not make a supersession effective from the same date as the decision being superseded, even where the decision being superseded was made by the Secretary of State rather than by a tribunal so that revision would be permissible and would achieve the same practical effect.

 

22. Moreover, if the Secretary of State is right to submit that the First-tier Tribunal cannot substitute a revision for a supersession, the current legislation has a result which the Tribunal of Commissioners, identified in R(IB) 2/04 described as bordering on the absurd.  It gave an example in paragraph 52(1) of its decision. 

 

“(1) The Secretary of State supersedes a decision awarding incapacity benefit on the ground of a relevant change of circumstances, namely that the claimant started working shortly after the date of the award, and removes entitlement from the date when the claimant started work. The claimant appeals, contending that what he was doing did not amount to “work”, and that there was no change of circumstances because he had been doing it at the date of the Secretary of State’s original decision, and furthermore the Secretary of State knew about it at the time. The appeal tribunal, after an oral hearing involving extensive investigation of the facts, decides (a) that what the claimant had been doing amounted to “work”, (b) that there had been no change of circumstances in that the claimant had been doing this work at the date of the original decision, and (c) that the Secretary of State had not been aware of the work. The appeal tribunal’s findings would lead to the conclusion that the correct decision would have been one revising the original decision for mistake of fact, rather than superseding it on the ground of change of circumstances. The result of the parties’ submissions to us would be that, despite its substantial acceptance of the Secretary of State’s case, the appeal tribunal could only hold the Secretary of State’s supersession decision to have been wrongly made, leaving it to the Secretary of State then to revise the original award. That would give rise to a fresh right of appeal, in which the claimant would be entitled to re-argue the issues as to whether he was working, and, if so, whether the Secretary of State knew about it – raising the possibility of a second appeal tribunal reaching different conclusions from the first. Indeed, it seems to us at least possible that, if the second appeal tribunal were to make findings which led it to conclude that the appropriate remedy was not revision but supersession, it would then have no alternative but to declare the revision invalid, with the result that the Secretary of State’s supersession and revision decisions would each have been held invalid. Such a result would offend against the general principle of finality of judicial (including tribunal) decisions, subject only to any further appeal.”

 

23. The facts of the present case draw attention to another near-absurdity, or at least an anomaly, that would arise if the Secretary of State were correct. The Secretary of State’s argument is dependent on the decision being altered being a decision of the Secretary of State.  If the 2010 award had been made by the First-tier Tribunal rather than by the Secretary of State, the First-tier Tribunal sitting in 2012 would clearly have had the power to consider substituting for the challenged decision (which was a decision superseding the 2010 award under regulation 6(2)(a)(i)) a decision superseding the award under regulation 6(2)(c)(i), and the supersession would have had effect from 9 October 2010 if the condition of regulation 7(5)(b) was satisfied.  There seems no good reason for it not to have had the same power merely because the 2010 award was made by the Secretary of State.

 

24. Even if the Secretary of State is wrong, and the legislation does not give rise to either of those near-absurdities or anomalies, it seems to me that the legislation is unnecessarily complicated and that it would be simpler if ignorance of, or a mistake as to, a material fact were always a ground of supersession, rather than revision, except where there is a perceived need to exclude a right of appeal against a refusal to alter the original decision.  Having a situation where the important question whether there is to be a supersession or a revision turns on minor differences of fact, such as whether a change of circumstances occurred before or after the decision being altered or whether the claimant should have realised, or did realise, that a representation of fact was untrue or whether the relevant decision was made by the Secretary of State or the First-tier Tribunal, is bound to lead to errors being made by decision-makers and tribunals.  It would be easier if they could concentrate on the relevance (if any) of those minor issues of fact to identifying the date from which the decision should be effective.

 

25. However, whether or not the legislation could be simplified, the present case must, of course, be determined under the legislation as it was actually in force at the material time.  Moreover, it is not necessary to determine whether the Secretary of State is right or wrong in his submissions as to the powers of the First-tier Tribunal unless a revision would be appropriate in the present case.

 

26. The Secretary of State effectively submits that there were no grounds to revise the 2010 award in the present case, notwithstanding the First-tier Tribunal’s findings and reasoning.  He submits that “there is insufficient evidence to show that the claimant did make representations in her renewal claim in 2010”.  Presumably his representative means “misrepresentations”, since every answer to a question on the claim form was a representation of some sort, but he has given absolutely no reason for disagreeing with the First-tier Tribunal’s clear view that there had been misrepresentations.  The claimant implicitly makes the same submission.  Her grounds of appeal correctly argue that the mere fact that a person is found to have received benefit to which he or she was not entitled is not an adequate reason for finding there to have been a misrepresentation in a claim and that a distinction must be drawn between representations of fact and statements of opinion.  However, she, too, does not address the First-tier Tribunal’s reasoning.

 

27. That reasoning is principally to be found in paragraphs 82 to 84 of the statement of reasons, which have even more force when read against the First-tier Tribunal’s detailed consideration of the evidence.  Inaccurate statements of fact are generally misrepresentations, even if honest (which they may not have been here).  I need not set out all the evidence.  It is sufficient to refer to one aspect of it for illustrative purposes.

 

28. In relation to her mobility, the claimant had said in her 2010 claim form that she could walk only two metres without severe discomfort because she suffered severe discomfort as soon as she started walking.  Asked to describe the way she walked, she ticked the box for “extremely poor”, when the form indicated that “poor” meant that “[f]or example, you shuffle, or walk with a heavy limp, or a stiff leg or have problems with balance” and “extremely poor” meant “[f]or example, you drag your leg, stagger or need physical support”.  She ticked further boxes to indicate that she needed physical support from another person because otherwise she would fall and injure herself and that she needed supervising or guiding outdoors to avoid danger and make sure she was safe. She said that another person could provide “help crossing roads, avoiding unfamiliar paved areas that could be uneven, unfamiliar kerb heights and slopes, finding easy accessible entrances and exits to places”.  She said that, because she had restricted movement in the lower part of her body, she shuffled when walking and that she fell once or twice a week and, because she had severe pain and weakness in the whole of her body, she was unable to pull herself up unaided or push herself up using the floor. 

 

29. The surveillance on several different days in May 2011 revealed a different picture.  The claimant drove what the First-tier Tribunal described as an automatic “jeep-style vehicle” to take her dogs to a country park.  She went alone with them.  As the First-tier Tribunal recorded –

 

“34. …  The video, viewed by the Tribunal, show the appellant walking briskly around woodland and open countryside, carrying shopping, getting in and out of her car, and bending quickly and easily to collect kindling from the ground.  In the video evidence, all the appellant’s movements appeared to be fluid and pain-free.  She was not using a stick.  She was not limping.

…

 

38. In the video evidence, the appellant appeared to have been walking her dogs for at least 20 minutes, and for up to an hour.  The distances covered were stated by the DWP to be 1.5km and 3.5km (p.135).  In the Interview Under Caution, she said that she could walk for 40 minutes taking a break every 10 minutes (p.152).  In the video evidence, the appellant could be seen walking at normal speed, and in 10 minutes, at that pace, she would be able to cover more than 800m.  Some people experience morning stiffness, with movement of the joints becoming somewhat easier after they have been up and about for a while; however the appellant took her dogs out at about 7.45am every day (p.321).”

 

30. If that was also the position in June 2010, I find it very difficult to see how the answers on the claim form could be said not to include a number of misrepresentations, even if, for instance, the distance she said she could walk without severe discomfort was based on an innocent misunderstanding of the meaning of “severe discomfort”.

 

31. Of course, while a misrepresentation is a ground for finding an overpayment to be recoverable under section 71(1) of the 1992 Act even if it is innocent, it is also a condition for a finding of recoverability that the award under which the overpayment has been made has been revised or superseded (see section 71(5A) of the 1992 Act).  As explained above, a key question here was whether the 2010 award should be revised under regulation 3(5)(c).  That required, in particular, a finding as to whether the award was made in ignorance of, or was based on a mistake as to, a material fact that, at the time the decision was made, the claimant “knew or could reasonably have been expected at the time the decision was made to know”, where the claimant also knew that the fact was relevant to the decision”.  A mere finding of misrepresentation is not enough to satisfy that test and the First-tier Tribunal did not make the findings necessary to found a revision.  Paragraph 84 of the statement of reasons suggests that that was because the First-tier Tribunal looked only at regulation 6(2)(b) and not also at regulation 3(5)(c), which is an illustration of the confusion caused by this legislation.  On the other hand, I have little doubt that, having rejected what the claimant had said in her interview under caution and subsequently, the First-tier Tribunal would, had it considered the issue, have concluded that the misrepresentations involved the claimant making representations that she knew to be false, or at best misleading, and, further, that she knew, or could reasonably have been expected to know, that the true facts that she misrepresented or withheld were relevant to her entitlement to disability living allowance.

32. However, the Secretary of State, having been given a clear opportunity to argue along those lines and to concede that the decision of 19 September 2011 was too favourable to the claimant even if the First-tier Tribunal had had no power to correct it, has not taken that opportunity.  In those circumstances, like the First-tier Tribunal, I do not consider it appropriate to make his case for him and then be the judge of it, particularly as that would involve giving the claimant an opportunity to make a further submission in order to respond to the case.  Accordingly, the question of revising the 2010 award does not arise and neither I nor a three-judge panel need consider whether the First-tier Tribunal had the power to revise it.

 

33. Nor is it strictly necessary to answer the claimant’s third and fourth grounds of appeal because they are irrelevant, given the basis on which the First-tier Tribunal made its decision.  It is correctly argued that the mere fact that a person is subsequently found not to have been entitled to a benefit is not a reason for finding that the claim for it contained misrepresentations and that a distinction must be drawn between representations of fact and representations of opinion, but I really have some difficulty in seeing how it can be said that First-tier Tribunal erred in law in finding that the claim form contained at least some misrepresentations if the claimant’s condition then was as it was in May 2011.  Most obviously, there were her representations as to the way she walked.

 

34. However, since the supersession was ultimately on the ground of change of circumstances, the ground upon which the overpayment was recoverable was a failure to disclose material facts, rather than a misrepresentation of material facts, and the basis of the decision was clearly that, if there really had been the dramatic improvement in the claimant’s condition claimed by her (albeit that she later said it was temporary) and accepted by the Secretary of State, she could hardly have failed to notice it and should, in view of the instructions given to her (even if she had not read them), have reported it.  A copy of the instructions should have been included in the documents before the First-tier Tribunal but reference was made to them in the interview under caution.  They clearly imposed a legal duty on the claimant to disclose improvements in her mobility and ability to care for herself and a failure to comply with such a duty is sufficient to amount to a failure to disclose a material fact for the purpose of section 71 of the 1992 Act (see B v Secretary of State for Work and Pensions [2005] EWCA Civ 929; [2005] 1 W.L.R.3796 (also reported as R(IS) 9/06).  This should perhaps have been spelled out more clearly but is sufficiently obvious to make the failure to do so immaterial.

 

35. That seems to me to be the answer also to the issue I raised in relation to regulation 7(2)(c)(ii) of the 1999 Regulations.  Even though the First-tier Tribunal ought expressly to have made a finding that the claimant “knew or could reasonably have been expected to know that the change of circumstances should have been notified”, the evidence and the First-tier Tribunal’s other findings did not allow any conclusion to be drawn other than that the claimant did indeed know, or could have been expected to know, that the dramatic improvement in her ability to walk and care for herself should have been reported.  The failure to spell that out was therefore immaterial.

 

36. For all these reasons, I am satisfied that the First-tier Tribunal’s decision that the claimant was not entitled to disability living allowance from 1 January 2011 was not erroneous in point of law.  It was entitled to accept both parties’ submissions that there had been a substantial improvement in the claimant’s condition since the renewal claim had been determined and, once it had rejected the claimant’s contention that the improvement was achieved only through her taking an excessive amount of painkillers, it was bound to find that the 2010 award had correctly been superseded with effect from 1 January 2010.  The findings of fact are clearly explained and the legal reasoning can be inferred.

 

37. If the entitlement decision had been wrong in law, the recoverability decision would have fallen with it.  The only independent challenge to the recoverability decision made in the claimant’s grounds of appeal is a causation point based on the fact that the investigation seems to have arisen out of information originally received by the Department for Work and Pensions on 6 October 2010.  It is argued that if the information was sufficiently compelling to justify the covert surveillance, it was sufficient to justify suspension of benefit.  I do not accept that submission.  Quite apart from the fact that the information was received at a time when it is now accepted that she was still entitled to disability living allowance and therefore before the change of circumstances that she was required to report, the Secretary of State was not obliged to exercise his powers of suspension upon receipt of that information.  The information was presumably information that could not have been relied upon for the purposes of making a supersession decision and the Secretary of State is perfectly entitled not to exercise powers of supersession until reliable evidence has been gathered, particularly if the effect of suspension might be to alert a person to the fact that a criminal investigation is being carried out.  Moreover, the investigation might well have shown that the information was incorrect and that the claimant was indeed entitled to the allowance.  Whether or not the Secretary of State could have put an end to the payments earlier by suspending them, the claimant could also have done so by disclosing the material new facts that she knew, or ought to have known, should be reported.  Her failure to disclose the material new facts therefore remained a cause of the overpayment, even if not the only cause.  For these reasons, I am also satisfied that the recoverability decision is not erroneous in point of law.

 

 

Mark Rowland

28 January 2014

 

 

APPENDIX

 

DIRECTLY RELEVANT LEGISLATON AS IN FORCE ON 19 SEPTEMBER 2011 (HAVING REGARD TO SUBSEQUENT RETROSPECTIVE LEGISLATION)

 

 

 

SOCIAL SECURITY ACT 1998, sections 9, 10 and 12(1) and (2)

 

Revision of decisions

9. —(1) Subject to section 36(3) below, any decision of the Secretary of State under section 8 above or section 10 below may be revised by the Secretary of State—

(a)  either within the prescribed period or in prescribed cases or circumstances; and

(b)  either on an application made for the purpose or on his own initiative;

and regulations may prescribe the procedure by which a decision of the Secretary of State may be so revised.

  (2) In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

  (3) Subject to subsections (4) and (5) and section 27 below, a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect.

  (4) Regulations may provide that, in prescribed cases or circumstances, a revision under this section shall take effect as from such other date as may be prescribed.

  (5) Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.

  (6) Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.

 

Decisions superseding earlier decisions

10. —(1)  Subject to subsection (3) and section 36(3) below, the following, namely—

(a)  any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above;

(aa) any decision under this Chapter of an appeal tribunal or a Commissioner; and

(b)  any decision under this Chapter of the First-tier Tribunal or any decision of the Upper Tribunal which relates to any such decision,

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.

  (2) In making a decision under subsection (1) above, the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

  (3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.

  (4) Repealed

  (5) Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

  (6) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.

  (7) In this section—

“appeal tribunal” means an appeal tribunal constituted under Chapter 1 of this Part (the functions of which have been transferred to the First-tier Tribunal);

“Commissioner” means a person appointed as a Social Security Commissioner under Schedule 4 (the functions of whom have been transferred to the Upper Tribunal), and includes a tribunal of such persons.

 

Appeal to appeal tribunal

12. —(1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which—

(a)  is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or

(b)  is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act.

  (2) In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right to appeal to the First-tier Tribunal, but nothing in this subsection shall confer a right of appeal in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.

  …

 

 

SOCAL SECURITY AND CHILD SUPPORT (DECISIONS AND APPEALS) REGULATIONS 1999 (SI 1999/991), regulations 3(5), 6(1), (2)(a) to (c)(i) and (3) and 7(1)(b), (2)(c) and (5)

 

Revision of decisions

3. —(1)  …

  (5) A decision of the Secretary of State under section 8 or 10—

(a)  except where paragraph (5ZA) applies, which arose from an official error; or

(b)  except in a case to which paragraph (c) or (d) applies, where the decision was made in ignorance of, or was based upon a mistake as to, some material fact and as a result of that ignorance of or mistake as to that fact, the decision was more advantageous to the claimant than it would otherwise have been but for that ignorance or mistake;

(c)  subject to subparagraph (d), where the decision is a disability benefit decision, or is an incapacity benefit decision where there has been an incapacity determination or is an employment and support allowance decision where there has been a limited capability for work determination (whether before or after the decision), which was made in ignorance or, or was based upon a mistake as to, some material fact in relation to a disability determination embodied in or necessary to the disability benefit decision, the incapacity determination or the limited capability for work determination, and

(i) as a result of that ignorance of or mistake as to that fact the decision was more advantageous to the claimant than it would otherwise have been but for that ignorance or mistake and,

(ii)  the Secretary of State is satisfied that at the time the decision was made the claimant or payee knew or could reasonably have been expected at the time the decision was made to know of the fact in question and that it was relevant to the decision;

(d)  where the decision is an employment and support allowance decision, is a disability benefit decision, or is an incapacity benefit decision, which was made in ignorance of, or was based upon a mistake as to, some material fact not in relation to the limited capability for work determination, incapacity or disability determination embodied in or necessary to the employment and support allowance decision, the incapacity benefit decision or disability benefit decision, and as a result of that ignorance of, or mistake as to that fact, the decision was more advantageous to the claimant than it would otherwise have been but for the ignorance or mistake,

may be revised at any time by the Secretary of State.

…

 

Supersession of decisions

6.—(1)  Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

  (2)  A decision under section 10 may be made on the Secretary of State’s own initiative or on an application made for the purpose on the basis that the decision to be superseded—

(a)  is one in respect of which—

(i) there has been a relevant change of circumstances since the decision had effect or, in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations, since the decision was made; or

(ii)  it is anticipated that a relevant change of circumstances will occur;

(b)  is a decision of the Secretary of State other than a decision to which sub-paragraph (d) refers and—

(i) the decision was erroneous in point of law, or it was made in ignorance of, or was based upon a mistake as to, some material fact; and

(ii)  an application for a supersession was received by the Secretary of State, or the decision by the Secretary of State to act on his own initiative was taken, more than one month after the date of notification of the decision which is to be superseded or after the expiry of such longer period of time as may have been allowed under regulation 4;

 (c)  is a decision of an appeal tribunal the First-tier Tribunal, the Upper Tribunal or of a Commissioner—

(i) that was made in ignorance of, or was based upon a mistake as to, some material fact; or

(ii) …

…

  (3) A decision which may be revised under regulation 3 may not be superseded under this regulation, except where …

…

 

Date from which a decision superseded under section 10 takes effect

7. —(1)  This regulation—

(a)  …

(b)  contains exceptions to the provisions of section 10(5) as to the date from which a decision under section 10 which supersedes an earlier decision is to take effect.

  (2)  Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under section 10 shall take effect—

(a)  …;

(b)  …;

 (c)  where the decision is not advantageous to the claimant—

(i)   Revoked

(ii)  in the case of a disability benefit decision, or an incapacity benefit decision where there has been an incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination (whether before or after the decision), where the Secretary of State is satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision, or the incapacity determination or an employment and support allowance decision where there has been a limited capability for work determination, the claimant or payee failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify, and the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified,

(aa) from the date on which the claimant or payee, as the case may be, ought to have notified the change of circumstances, or

(bb) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, or

(iii)  Revoked

(iv)  in the case of a disability benefit decision, where the change of circumstances is not in relation to the disability determination embodied in or necessary to the disability benefit decision, from the date of the change; or

(v)  in any other case, except in the case of a decision which supersedes a disability benefit decision, from the date of the change.

…

  (5) Where the Secretary of State supersedes a decision made by an appeal tribunal, the First-tier Tribunal, the Upper Tribunal or a Commissioner on the grounds specified in regulation 6(2)(c)(i) (grounds of ignorance of, or mistake as to, a material fact), the decision under section 10 shall take effect, in a case where, as a result of that ignorance of or mistake as to material fact, the decision to be superseded was more advantageous to the claimant than it would otherwise have been and which either—

(a)  does not relate to a disability benefit decision or an incapacity benefit decision where there has been an incapacity determination; or

(b)  relates to a disability benefit decision or an incapacity benefit decision where there has been an incapacity determination, and the Secretary of State is satisfied that at the time the decision was made the claimant or payee knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision,

from the date on which the decision of an appeal tribunal, the First-tier Tribunal, the Upper Tribunal or the Commissioner took, or was to take, effect.

…