Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CG/3176/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Fox Court on 28 August 2012 under reference SC242/12/08786 involved an error on a point of law and is set aside.

The substituted decision of the Upper Tribunal is to set aside the Secretary of State’s decision of 30 March 2012 and replace it with a decision that any carer’s allowance that was overpaid to the appellant for the period 3 October 2011 to 22 January 2012 is not in law recoverable from him.

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

REASONS FOR DECISION

1.                   At the root of this appeal are two inter-linked issues. First, was the appellant not entitled to carer’s allowance (that is, was he overpaid it) from 3 October 2011 to 2 January 2012 because he was “receiving full-time education” at that time: per section 70(3) of the Social Security Contributions and Benefits Act 1992 (“SSCBA”). Second, if he had been overpaid then was that overpayment recoverable from him (that is, could the respondent get the sum already overpaid back from the appellant): per section 71 Social Security Administration Act 1992.

2.                  I only need to set out the key relevant facts so as to put in to context how the appeal arose and why I am allowing it.

3.                  The appellant made a claim for carer’s allowance on 21 December 2011 and sought backdating of that claim to 1 October 2011.  He made the claim on the basis that he was caring for his mother. The claim was allowed and the award of carer’s allowance backdated to 3 October 2011. The claim form had asked the appellant a number of questions. Most relevantly, it had asked him “Have you been on a course of full-time education since the date you want to claim from?” to which the appellant answered “No”. The appellant had completed the claim form by declaring that “the information I have given on this form is correct and complete as far as I know and believe”. 

4.                  On 17 January 2012 the appellant notified the respondent that he was back in full-time education.  Further enquiries of the appellant led to him notifying the respondent that his current course of education had started on 1 October 2011, it was a BA in social work, he spent 12 hours a week on course work,  and the course was due to end on 1 June 2013. The appellant qualified the 1 October 2011 start date for the course by stating that he had been taken off the course and he did not return as a student until 20 December 2011, but he only attended as a student from 9 January 2012.  Enquiries then made of the University led to it providing evidence that the appellant had started on the course on 29 September 2009, that the course was expected to end in July 2013, and that the course was full-time for 35 hours per week. 

5.                  This evidence led the respondent to conclude that the appellant had not been entitled to (and so had been overpaid) carer’s allowance from the date the claim had been treated as made on 3 October 2001 as he was “receiving full-time education” (s.70(3) SSCBA). That decision was made on 27 March 2012. Three days later, on 30 March 2012, the respondent decided that the overpayment of carer’s allowance that had been made to the appellant from 3 October 2011 to 22 January 2012, amounting to £888.80, was recoverable from him because he had misrepresented the material fact when claiming the benefit that he was not receiving full-time education.

6.                  The appellant appealed against both the decisions. His case on appeal was that during the time in question—that is from 3 October 2011 to 22 January 2012 – he was caring for his mother for over 30 hours a week and was not a student until the beginning of January 2012, and even after going back to be a student he was only in attendance on the course for 21 hours a week.

7.                  The appeal was decided in the absence of the appellant by the tribunal on 28 August 2012. The respondent did not attend the hearing before the First-tier Tribunal either. The tribunal upheld both of the decisions made by the respondent. An application by the appellant to have the tribunal’s decision set aside due to his non-attendance was dismissed on 6 December 2012.

8.                 The tribunal’s view on the first decision was that the appellant had no entitlement to carer’s allowance for the period in issue because he was in full-time education. It based this conclusion on the University’s evidence to the effect that: (a) it was a full-time course, (b) he was expected to spend 35 hours a week on course work, and (c) the course started in September 2009 and was not due to end until July 2013; and although the appellant had said he was caring for his mother at the time and was not a full-time student, his failure to attend the hearing meant that the tribunal accepted the University’s evidence.

9.                  As to the second decision, the tribunal found that the appellant had “stated in his claim pack that he was not in full-time education” and that this was a misrepresentation of a material fact which had resulted in the overpayment being made.

10.              I gave the appellant permission to appeal on 24 October 2013.  Strictly speaking, I did not give the appellant permission to appeal against the tribunal’s decision on what I have termed the first decision it had before it.  In my view it was open to tribunal on the evidence before it to conclude as a matter of fact that during the period from 3 October 2011 to 22 January 2012 the appellant was caught by section 70(3) of the SSCBA.  That section has to be read with regulation 5 of the Social Security (Carer’s Allowance) Regulations, which provides:

“5.—(1) For the purposes of section 70(3) of the Contributions and Benefits Act, a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.

(2) In calculating the hours of attendance under paragraph (1) of this regulation–

(a) there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b) there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

(3) In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it”

On the face of the evidence given by the University, taken together with the deeming provisions in regulation 5(3) above, which treat temporary absences from the course as still part of the course, in my judgment it was open to the tribunal to conclude that the appellant was receiving full-time education during the above period notwithstanding his temporary withdrawal from the course to care for his mother during (at least part of) this period. There was no evidence that the appellant had finally abandoned or been dismissed from the course: at best there was a temporary interruption of his course but regulation 5(3) above shows that did not did not mean he was not to be treated as attending the course during this period.

11.               It is for these reasons that I refused the appellant permission to appeal against the tribunal’s decision that he was not entitled to carer’s allowance from 3 October 2011 to 22 January 2012, and why I decline his request for this issue to be reopened.

12.              Further, and in any event, the key substantive issue is whether in law the respondent can get the sum overpaid to the appellant for the above period back from him. As he has already received this sum, if the respondent cannot in law recover the overpaid sum then this comes to much the same result as a finding that it was not an overpayment (that is, he was entitled to it).  Given I am of the clear view, and the Secretary of State in effect now agrees with this, that the overpayment is in law not recoverable from the appellant, this is a further reason not to re-open the entitlement issue.

13.              In my judgment the tribunal erred in law in not giving adequate reasons to explain why the appellant had misrepresented a material fact.  The reasoning and findings of the tribunal on this second issue amounts to more than that set out in paragraph 9 above. Crucially, the tribunal mischaracterises what the appellant had represented on his claim form. He had not in fact represented that “he was not in full-time education”. The tribunal failed to identify the exact nature of the representation he had made. This was that as far as the appellant knew and believed it was correct that he had not (per question 5 on the claim pack) “been on a course of full-time education since the date you want to claim from?” (my underlining added for emphasis). In the light of the evidence that the First-tier Tribunal seemed to accept that the appellant was not “on” the course at the relevant time and his honest belief as to these facts (see paragraph 48 of CDLA/5803/1999), it seems to me that the conclusion the tribunal ought to have drawn had it properly investigated the representation actually made, and the conclusion I draw, is that the appellant did not misrepresent any material fact.  At the material time he had not been on a course of full-time education since 1 October 2011 as he had been caring for his mother.

14.              For these reasons I set aside the tribunal’s decision of 28 August 2012 and substitute my own decision setting aside the Secretary of State’s decision of 30 March 2012 and replace that decision with a decision that the overpayment of carer’s allowance for the period 3 October 2011 to 22 January 2012 amounting to £888.80 is not recoverable from the appellant as it did not arise from a misrepresentation of any material fact.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 9^th January 2014