Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the Liverpool First-tier Tribunal dated 21 August 2014 under file reference SC068/14/00976 involves an error of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 29 January 2014 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

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

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing at a venue convenient for the Appellant. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or other members previously involved in considering this appeal on 21 August 2014.

 

(3) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the HMCTS regional tribunal office in Liverpool within one month of the issue of this decision. 

 

(4) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

1. It is very difficult to know where to start with this appeal.

 

2. This appeal is one of two related appeals. The present case, CDLA/5547/2014, concerns a claimant who is the mother of an appellant (“the daughter”) in another Upper Tribunal appeal under reference CDLA/5548/2014. Both mother and daughter, who lived at the same address, had been in receipt of disability living allowance (DLA) for some years. In 2014 the Secretary of State made a supersession decision to the effect that the mother had not been entitled to DLA from a date in 2011, creating a recoverable overpayment of over £7,000. A disentitlement and overpayment decision was also made in respect of the daughter, although in her case it was a revision decision going back to the start of her claim in 2001.

 

3. The respective appeals of the mother and her daughter were heard on the same day by the same First-tier Tribunal (FTT). Both appeals were dismissed. The FTT issued what were undoubtedly lengthy and in many respects detailed statements of reasons in both cases. In the mother’s case the FTT gave her a warning that it had the power to consider her entitlement to DLA from the date of claim in 2002, which it proceeded to do, revising the Secretary of State’s decision to the mother’s disadvantage. I gave both the mother and her daughter permission to appeal. In doing so, I indicated that I proposed to allow both appeals, set aside the FTT’s decisions and remit the cases to be re-heard by a fresh FTT. Both parties have agreed to that course of action. 

 

4. It follows that the mother’s appeal against the Secretary of State’s original decision now needs to be reheard by a new FTT. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

 

5. However, I  conclude that the FTT’s decision on the mother’s appeal involves several errors of law for the reasons given when granting permission to appeal. I therefore allow her appeal to the Upper Tribunal, set aside the FTT’s decision and direct a re-hearing before a new FTT.

 

6. The FTT’s errors of law in the mother’s case can be summarised thus:

 

(1)   the FTT failed to explain why it had exercised its discretion under section 12(8)(a) of the Social Security Act 1998 and so proceeded to give a warning;

(2)   the FTT failed to show how the requirements of section 71 of the Social Security Administration Act 1992 were satisfied;

(3)   the FTT failed to explain what it made of the extensive further evidence submitted late on behalf of the mother;

(4)   the FTT also committed a procedural error in viewing part of the DVD evidence in the absence of the mother.

 

7. I recognise that the FTT found the mother’s evidence not to be credible in certain important respects. Credibility, of course, is a matter for the FTT to judge. However compelling the credibility findings, they cannot excuse the due process failings that took place in this case (and in the daughter’s appeal).

 

8. I also note that the FTT hearing date was chosen to accommodate a plea and directions hearing the following day in the criminal courts. This urgency was plainly not at the appellants’ behest as there were repeated applications for a postponement of the FTT hearing. The question of “who goes first” in such cases involves the exercise of judicial discretion (Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324, reported as R(IS) 4/08). It is unclear to me whether the FTT in this case properly considered the exercise of that discretion. Be that as it may, the four grounds identified above mean it is inevitable that I allow this appeal to the Upper Tribunal.

 

9. The following lengthy extract from the grant of permission explains why I have been driven to this conclusion. I need say no more.

 

‘Introduction and a summary of the role of the Upper Tribunal on an appeal

1. The facts are for the First-tier Tribunal in Liverpool to judge. There is no appeal to the Upper Tribunal purely on the facts. However, the Upper Tribunal is the judge of the law which must be applied to those facts.

 

2.  It may well be that the Appellant is not entitled to disability living allowance (DLA) either from the date of the original award or from some later date. However, that is ultimately a question of fact, and so is not a question for me in the Upper Tribunal to judge. I emphasise that the fact I am giving permission to appeal against the tribunal’s decision should not be taken as expressing any view at all on the underlying issue of whether or not the Appellant was properly entitled to DLA and, if she was not, whether she is liable for a recoverable overpayment of that benefit. I simply do not know.

 

3.  What is clear to me, on reviewing the file, is that as a matter of law there are a number of serious problems with the way that the First-tier Tribunal went about its business. For that reason I am giving permission to appeal to the Upper Tribunal. I also propose to allow the appeal and send the case back for a proper re-hearing before a new First-tier Tribunal (FTT). Abbreviated case management directions follow to indicate what happens next in this appeal. In my view the sooner this appeal goes back to the FTT for a proper hearing the better.

 

…

The issue on the appeal to the FTT

6.  The Appellant initially had a 2-year award of the higher rate mobility component of DLA from 21.08.2002 to 20.08.2004 [98-115]. On renewal an unlimited award was made as from 21.08.2004 [159-161]. The Appellant then had a series of knee (2004 and 2005) and hip replacements (2011 and 2012). There appears to have been no award of the care component of DLA at any stage.

 

7.  Following a fraud investigation in 2013, during which the Appellant was interviewed under caution [220-234], the DWP made a supersession decision on 29.01.2014 [247-259]. The effect of this retrospective decision was that there was no entitlement to DLA as from 21.03.2011 – this date was chosen as it was the date of the care plan in which she was recorded as providing considerable help to her (now deceased) husband (see [171-189] and decision-maker’s explanation at [258-259]). The decision maker hinted that an earlier date might be more appropriate if further evidence became available (see [259], final paragraph). An overpayment decision was made on 30.01.2014, quantifying the recoverable overpayment at £7069.45. The Appellant appealed.

 

The hearing at the FTT

8.  The Appellant first instructed her current representative on 24.07.2014 [273], about a week after the first hearing date had been notified, and who immediately asked for a postponement of the hearing listed for 07.08.2014. The postponement application was initially refused [274]. However, at the earlier hearing of the daughter’s appeal at the FTT on 05.08.2014 a decision was taken both to adjourn the daughter’s appeal and to postpone the Appellant’s appeal (due 2 days later on 07.08.2014), both cases to be heard by the same FTT panel on 21.08.2014 [275A and 275B, copied from the CDLA/5548/2014 file]. A further postponement request was made on 13.08.2014 [276] but refused [277]. On 18.08.2014 (the Monday before the hearing on the Thursday) the representative wrote [278] with further evidence [279-322]. It appears this bundle was hand-delivered to the HMCTS office on 19.08.2014 [363].

 

9.  So the hearing of both appeals took place on 21.08.2014, the daughter’s in the morning and the Appellant’s in the afternoon. The FTT warned the Appellant that the tribunal could go further back than 21.03.2011, so there was the potential for the overpayment to increase [324]). The Appellant elected to proceed. The FTT decided to dismiss the appeal. It also revised the decision by going right back to the start date of the original award and revising that decision so that there was no DLA entitlement as from 21.08.2002 (rather than just 2011). The calculation of the consequential increased overpayment was left to the DWP [339]. The FTT also gave its detailed reasons [341-351].

 

10. The Appellant and her representative have set out detailed grounds of appeal [352-358] and also summarised on Form UT1. Some of these relate to pure issues of fact which were for the FTT to resolve and which do not give rise to any arguable error of law. I have reviewed the file in some depth and have identified the following potential errors of law in the FTT’s approach and decision.

 

Four potential errors of law by the FTT

11. There may be other possible errors of law, but the following four difficulties with the FTT’s decision plainly arise on my analysis.

 

(1) The warning and the exercise of the discretion

12. The issue the FTT had to determine was the Appellant’s appeal against the decision to withdraw her DLA as from 21.03.2011 (and the recoverability of the consequential overpayment). There was no issue (at that stage) as to the Appellant’s entitlement to DLA for the earlier period from 2002 to 21.03.2011. By law the FTT “need not consider any issue that is not raised by the appeal” (Social Security Act 1998, section 12(8)(a)). So the FTT could, but need not, consider the issue of entitlement from 2002 to 2011. In principle a FTT is certainly entitled to make a decision less favourable to a claimant than the supersession decision under appeal (see reported decision R(IB) 2/04). However, that discretion must be exercised judicially – see R(IB) 2/04 at [93] & [94]; see also e.g. AP-H v SSWP (DLA) [2010] UKUT 183 (AAC).

 

13. There is no doubt in this case that the FTT on the day of the final hearing gave the Appellant a number of warnings, either directly or indirectly; see statement of reasons (SoR) [343] at [9]-[13].

 

14. However, I can see no real sign that the FTT has at any stage explained why it thought it appropriate to exercise its discretion under section 12(8)(a) to look at a matter that was not an issue on the appeal. There is a passing reference to the FTT having considered the video evidence, but that dated from 2013 and logically, of itself, could hardly bring into doubt entitlement in 2002 (not least given the fact that there had been a series of four major surgical interventions in between).

 

15. It follows it is highly arguable the FTT erred in law by failing to explain why it had exercised its discretion under section 12(8)(a).

 

(2) The basis for the recoverable overpayment

16. The simple fact that a claimant has been paid DLA for a period for which they were not entitled to DLA does not mean the DWP has an automatic right to recover the wrongly paid overpaid DLA. The DWP must show that the overpayment was caused by a misrepresentation or failure to disclose a material fact by the claimant and indeed that all the requirements of section 71 of the Social Security Administration Act 1992 are satisfied. Any reader of this FTT’s statement of reasons would be forgiven for not realising that fundamental principle of law.

 

17. The DWP decision under appeal was a supersession decision with effect from 2011. The consequential overpayment decision was based on the claimant’s alleged failure to disclose [261] not misrepresentation [258]. In principle a FTT can change a decision from one ground for a recoverable overpayment to the other providing it acts fairly, e.g. (i) it gives the claimant adequate notice and (ii) explains why it is so doing.

 

18. The FTT’s decision notice [339] simply states that the overpayment is recoverable from the start of the claim in 2002.

 

19. The FTT’s SoR does not really help any further. The FTT found as a fact that the Appellant knew about the need to report changes in circumstances [348] at [50], especially if she got better. That hints at failure to disclose. The FTT then found that there was no entitlement to higher rate mobility as at the date of the original award in 2002. It may be that decision by the tribunal was open to it on the facts as it found them to be. However, I note that an EMP in 2002 expressed the view that the Appellant could only walk 50 m before the onset of severe discomfort [65], a finding which is arguably consistent with an award of higher rate mobility at the outset of the claim.

 

20. In any event, whatever the rights and wrongs of the entitlement decision, I am simply left unclear as to the factual and legal basis for the decision that there was a recoverable overpayment from 2002. The FTT found that the “appellant must have known that she was not virtually unable to walk and that she did not meet the criteria  .. from the outset” [349] (at 57]) which points to misrepresentation, but no specific misrepresentation is identified. In any event, to say that someone is “not virtually unable to walk” is a mixed question of both fact and law. The same passage then goes back to the issue about reporting changes in circumstances (failure to disclose?). The SoR at [66] on [350] is simply stating a conclusion, not explaining how the FTT got there.

 

21. The DWP decision under appeal involved a recoverable overpayment of just over £7000 for a period of just over 2½ years. The FTT’s revised decision extended the overpayment back in time for almost a further 9 years. This would result in a substantially larger recoverable overpayment. If that is going to happen, the FTT has to explain the basis on which section 71 bites from an earlier date. This FTT has clearly failed to engage in that exercise. There is no mention of the requirements of section 71 or the requirements of regulation 3 as regards revisions. Although there are passing references to statements on the claim form (see e.g. [342] at [7]), there is no analysis as to whether these are statements of fact or statements of opinion.

 

22. It follows again it is highly arguable the FTT erred in law by failing to explain the basis for the recoverable overpayment.

 

(3) No reference to the Appellant’s late evidence

23. The circumstances in which the late evidence was submitted on the Tuesday (the 19^th) before the hearing on the Thursday (the 21^st) are summarised at [8] above. The same issue arises in the daughter’s companion appeal CDLA/5548/2014, where the (separate) extra evidence was far more substantial.

 

24. In the Appellant’s case the extra evidence comprised some medical correspondence (the Appellant having previously refused to give her consent to disclosure) and what are described as witness statements but which were really both testimonials as to good character, observed disability etc. There were also some photographs. It seems this bundle was before the FTT panel – e.g. the record of proceedings at [332] refers to a “doc 280 (2^nd bundle)” which is a reference to a consultant’s letter produced in the extra evidence 2 days before the hearing. Although the FTT’s lengthy SoR makes frequent reference to documents in the original appeal bundle provided by the DWP, I have struggled to find a single reference to the extra material in the “2^nd bundle”. Obviously the FTT does not have to refer to all the evidence. However, the testimonial letters are quite detailed in places and contain evidence about the Appellant’s mobility problems. What did the FTT make of them?

 

25. It is arguable the FTT erred in law by failing to explain what weight it had attached to the extra evidence in the second bundle. It is further highly arguable that the FTT erred in law by failing to consider the admissibility of the evidence in the first place, for the reasons set out in the grant of permission in CDLA/5548/2014.

 

(4) A procedural irregularity?

26. The Appellant’s account of events at the start of the FTT hearing on 21.08.2014 is set out [354]. It is repeated in summary on the UT1. It is obviously the Appellant’s version of events. It may be more or less accurate and may be highly coloured by her sense of injustice. However, it is lent support by the record of proceedings which plainly records that (i) at 13.40 at the end of the daughter’s appeal, and in the absence of the Appellant, the representative (and presenting officer) was given the ‘warning’; (ii) at 14.25 the ‘warning’ was repeated (but it is unclear who was present) and (iii) the DVD started to be shown and then (time unknown) the Appellant “joined the Tribunal and does not wish to withdraw”.

 

27. I have a number of concerns about this process. First, the first warning was given to the representative, not the Appellant. The FTT was relying on the representative to convey what is on any basis a complex message in stressful circumstances. Second, given the fact there were also parallel criminal proceedings, the Appellant seems to have been given very little time to take advice. Given those parallel proceedings, it was entirely reasonable to wish to take advice not just from a welfare rights representative but from a criminal law solicitor (e.g. there are obvious issues about the right against self-incrimination). Third, it seems clear that the Appellant’s hearing continued (or perhaps even started?) in the absence of the Appellant for an unspecified period while some of the DVD was watched. Yet the Appellant has an absolute right to attend her hearing, subject to being excluded on narrowly defined grounds (rule 38 and 30(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685). That right was plainly breached here.

 

28. I understand the pressures on FTTs to conduct hearings expeditiously. Before being made an Upper Tribunal judge, I was a FTT judge for many years. If a claimant wanted a comfort break, or to contact a representative, one stopped the hearing as a matter of course. However, I am struggling to envisage circumstances in which one could properly carry on hearing (or viewing) the evidence while the Appellant was temporarily out of the room, for however short or long a period.

 

29. It is therefore highly arguable the FTT erred in law by continuing with the hearing in the absence of the Appellant.

 

Conclusion

30. I repeat I have no view on whether the Appellant is entitled to DLA now, was or was not entitled to DLA for a past period (and if so for when) and is or is not liable for a recoverable overpayment of DLA.

 

31. However, I have real concerns about the fairness of the hearing on 21.08.2014 which prompts me to make the following abbreviated case management directions. If both parties agree the appeal will be allowed and the Appellant’s original appeal will be re-heard by a fresh FTT.

 

Other matters

32. There are two other matters that cannot escape mention.

 

33. First, the Appellant asserts that “at the end of the Tribunal hearing when she left the building the Tribunal Panel, the DWP fraud officer and DWP Presenting Officer were seen outside the building talking, laughing and joking together”. That may or may not be true. It may be a malicious invention by an aggrieved appellant. I do not need to investigate that allegation given all the other matters above. It could, of course, be the subject of a judicial complaint. If it happened – and I express no view, and would need to ask for statements from all concerned before forming a view – it was obviously inappropriate.

 

34. Second, in her own application for permission to appeal, the daughter states (not by way of complaint, but simply as an assertion of fact as though it were entirely normal) that at the end of her hearing (i.e. approx 13.45) “I was then asked to leave the room while they discussed my mother’s case and the DWP fraud officer went to buy the panel some lunch” (CDLA/5548/2014 at [964]). Again, I do not need to investigate that matter. There is no suggestion that the DWP fraud officer actually paid for the panel’s lunch, as opposed to simply buying it as their agent. However, appearances are important and if there is any truth in the assertion it was also obviously inappropriate.’

 

 

 

 

Signed on the original Nicholas Wikeley

on 20 May 2015 Judge of the Upper Tribunal