Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/5042/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the case to be reheard by a new tribunal at an oral hearing in accordance with the directions below.

REASONS FOR DECISION

1.    This is an appeal by the claimant with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 26 March 2014 dismissing the claimant’s appeal from decisions dated 11 and 18 April 2012 superseding an earlier award of the highest rate of the mobility component and the highest rate of the care component from and including 22 March 2007 and finding that there has been an overpayment of £28581.25 which was recoverable from the claimant. 

2.    The claimant has renal failure, high blood pressure,, gout, diabetes, heart failure, and stomach an d skin problems.  He was on dialysis three times a week.  Nevertheless he was found to have been playing golf regularly from 2007, walking around the course.  It is unsurprising that he accepted that this was an improvement in his condition compared with when he had been awarded higher rate mobility that he ought to have reported to the DLA unit dealing with his award.  It is also unsurprising that, after the supersession decision and in the course of this appeal, he pleaded guilty at the magistrates court to a charge that between 28 March 2007 and 29 November 2011 he dishonestly failed promptly  to notify the DWP in the prescribed manner of a change of circumstances which he knew would affect his entitlement to DLA, namely that there had been a reduction in his mobility restrictions and care needs. 

3.    I note that his solicitor at the magistrates’ court is said to have conceded the dishonesty and the improvement of his mobility in relation to his mobility restrictions but not in relation to his care needs.  I am unable to attach any significance to this.  The 2006 form DLA 434 completed by the claimant, which led to his award at the rates which I have described, includes care needs in relation to moving about downstairs, and help getting in and out of bed and getting upstairs to the toilet.  It is plain that the improvement in his mobility reduced his care needs and it is equally plain that it was not being suggested that the claimant had no remaining care needs.  At the least he needed dialysis three times a week and he may well have had other care needs.

4.    In seeking to assert those care needs, the claimant is not in any way seeking to resile from his guilty plea in the criminal proceedings.  Nor does the assertion of those care needs in any way call into question the criminal conviction.  The charge to which he pleaded guilty was a failure to disclose that there had been a reduction in his mobility and care needs.  There had plainly been a reduction in his mobility needs and care needs but this does not stop him from asserting that his care needs were still such, taking into account what he has admitted, that he still qualified for benefit at some level or other.  Indeed it is at least theoretically possible that despite the significant improvement in his mobility needs, he remained entitled to some level of mobility award.  I reject the submission of the Secretary of State on this appeal that by pleading guilty to failing to disclose a reduction in his needs he was prevented from subsequently asserting that he still had some needs consistent with the admitted reduction in those needs.

5.    As the claimant does not appear to me to be attacking his conviction in any way, this is not the place to examine the submissions made on behalf of the Secretary of State as to my decision in AM v Secretary of State [2013] UKUT 94 (AAC), any more than it was in KL v Secretary of State [2015] UKUT 222 (AAC), where I pointed out, by reference to two Court of Appeal decisions postdating the case of Arthur J.S. Hall v Simons [2002] 1 AC 615 on which the Secretary of State has sought to rely.  As explained by Jonathan Parker LJ in Simms v Conlon [2006 EWCA Civ 1749, at paragraph 141, there is no catch-all formula for identifying an abuse of process since everything will turn on the facts of the particular case. 

6.    I therefore turn to the rest of the appeal on the basis that there was nothing in the conviction which prevented the tribunal from giving proper consideration to all the facts of the case including the admitted improvement in the claimant’s mobility by 22 March 2007.

7.    I see no merit in the ground of appeal that the Secretary of State did not provide the tribunal with full evidence of what happened in relation to the criminal case.  For the reasons given, what went on at the hearing in relation to the plea in mitigation or by way of qualifying the guilty plea was irrelevant.  I can find nothing in the record of the conviction to suggest that the magistrates’ court did order repayment of the overpaid mobility component, but f the court did make that order, and there is a second decision that it be repaid, it still only has to be repaid once. 

8.    The more significant question is whether the claimant had sufficient remaining needs to qualify for an award of either component at any rate during the period under appeal.  The tribunal addressed this question.  It recognised that he required dialysis three evenings a week, a fact which does not seem to have been disputed by the Secretary of State, but considered that in all other respects the claimant could self-care.  It was in plain error of law in failing to consider the application of regulation 7 of the Social Security (Disability Living Allowance) Regulations 1991.  The claimant was admitted to have renal failure and would appear to fall within regulation 7(2)(i) in that he underwent renal dialysis two or more times a week.  Given that he went to hospital for the dialysis, it would also appear to be likely that either the dialysis was of a type which normally required the attendance or supervision of another person during the period of the dialysis or that because of his particular circumstances he in fact required the attendance or supervision of another person in order to avoid substantial danger to himself.  What is less clear is whether during the dialysis no member of the staff of the hospital assisted with or supervised it so as to bring him within regulation 7(2)(b).  Nor is it clear whether, if the dialysis did fall within regulation 7(2), whether any part of the dialysis was by night – that is after the family would normally have retired to bed.

9.    It appears to me that these are questions which the tribunal should have addressed and were in error of law in failing to address.  I therefore set aside the decision and remit the matter to a new tribunal. 

10. A tribunal judge will need to consider, before there is a further hearing, what medical and other records will need to be produced to show if the dialysis falls within regulation 7(2) and give directions accordingly.  The claimant will also be able to rely on the dialysis as part of his ordinary care needs even if the dialysis is not within regulation 7(2)(b) (see regulation 7(3)), but except to the extent that he can come within regulation 7(2)(b), the renal dialysis cannot by itself satisfy any of the conditions in section 72(1)(a) to (c) of the Social Security Contributions and Benefits Act 1992 – see regulation 7(4) but, insofar as it involves attention or supervision within section 72, it can and should be included in calculating any  relevant care needs for that purpose.  If therefore the claimant can show other care needs in addition to any relevant care provided in relation to the dialysis, then he may succeed in obtaining some element of an award of the care component even if he cannot bring himself within regulation 7(2).

(signed)

Michael Mark

Judge of the Upper Tribunal

9 June 2015