IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Poynter

DECISION

The appeal is allowed.

The decision of the First-tier Tribunal given at Chesterfield on 6 August 2014 under reference SC031/13/03527 involved making an error on a point of law.

That decision is set aside.

The case is remitted to the First-tier Tribunal for reconsideration in accordance with the directions immediately below.

DIRECTIONS

1                The First-tier Tribunal ("FTT") must hold an oral hearing at which a full reconsideration of all issues in the appeal must take place.

2                I recommend that the judge who is chosen to preside over the re-hearing should be a District Tribunal Judge.

3                Whether or not that recommendation is followed, the members of the FTT who are chosen to reconsider the case must not be the same as those who made the decision I have set aside, or as those who adjourned the hearing of the appeal on 31 March 2014.

4                There are two decisions under appeal:

(a)             The first is the decision made by the Secretary of State on 19 March 2010 as revised by the decision made on 16 April 2013. The latter of those two decisions does not carry an independent right of appeal. The practical consequence is that, in relation to the first decision, section 12(8)(b) of the Social Security Act 1998, prevents the FTT from taking into account circumstances that did not obtain on 19 March 2010.

(b)             The second is the overpayment decision made on 23 April 2014.

5                The FTT must first consider whether the claimant was entitled to disability living allowance from 14 January 2010 to 12 June 2012. That issue will turn on whether there were grounds for revising the original decision to award him that benefit. When considering that question, the FTT must apply the law as I explain it in paragraphs 10-19 below.

6                If there were no grounds for revising the original decision, then the claimant was entitled to the disability living allowance he received because he was awarded that benefit and the decision to award it is final. In those circumstances there will, of course, be no overpayment.

7                If, on the other hand, there are grounds upon which to revise the original decision, then an overpayment will have occurred and the FTT must decide whether that overpayment is recoverable from the claimant. That is likely to turn on whether he caused the overpayment by misrepresenting some material fact. When considering that question the FTT must apply the law as I explain it in paragraphs 25-35 below.

8                Directions 1 and 2 above may be set aside by a salaried judge of the Social Entitlement Chamber of the FTT or (if the recommendation in Direction 2 above is not followed) by the judge who presides over the re-hearing. Those judges may also give supplementary directions to the extent that they are consistent with Directions 3-7 above.

REASONS FOR DECISION

Introduction

1                The claimant appeals against the above decision of the First-tier Tribunal ("FTT") with the permission of Upper Tribunal Judge Lloyd-Davies. By its decision, the FTT confirmed a decision made by the Secretary of State on 23 April 2013 that the claimant had been overpaid £15,421.90 as disability living allowance ("DLA") for the period from 20 January 2010 to 12 June 2012.

2                The Secretary of State’s representative supports the claimant’s appeal.

3                I have set aside the FTT’s decision because—to use everyday English rather than, for the moment, the technical language of the law—the law does not allow the Secretary of State to change an award of DLA retrospectively (i.e., so as to create an overpayment) without observing certain safeguards for the claimant. The FTT’s written statement of reasons does not consider whether those safeguards applied in this case. On the contrary, it seems to proceed from the unstated premise that the FTT can change an award of benefit retrospectively whenever it does not agree with it. As I shall explain, that is legally incorrect.

4                As the appeal must now be re-heard by the FTT, this decision will say as little as possible about the evidence and the background facts. However, I must advise the claimant that the fact he has succeeded at this stage is not necessarily any indication of the final outcome of his appeal. The FTT will reconsider all the issues and will form its own conclusions about the facts and, in particular, about whether the claimant knew, or could reasonably have been expected to know, the facts on which the revising decision was based and that those facts were relevant to the decision.

Background

5                The claimant is now 48 years old and suffers from Parkinson’s Disease. In 2010, when he was 42, he claimed DLA. On 19 March 2010 he was awarded the higher rate of the mobility component and the highest rate of the care component indefinitely from and including 14 January 2010 (pages 46-47 of the appeal papers). That decision was notified to him on 20 March 2010 (pages 48-52). I will call this decision “the original award”.

6                On 16 April 2013, following a fraud investigation, a decision maker revised the original award. As revised, the decision was that the claimant was not entitled to any rate of either component of DLA from and including 14 January 2010 (pages 311 to 323). That decision was notified to the claimant on the same day (pages 324 to 327). I will call this decision “the entitlement decision”

7                On 23 April 2013, a different decision maker decided that, as a result of the entitlement decision, the claimant had been overpaid £15,421.90 as DLA for the period from 20 January 2010 to 12 June 2012 and that that overpayment was recoverable from him (page 328). That decision was also notified to the claimant on the same day (pages 329-332). I will call this decision “the overpayment decision”.

8                On 26 April 2013, the claimant’s representatives, Derbyshire Welfare Benefits Information and Advice Team, appealed against the entitlement decision on his behalf (pages 1-2). I cannot find any separate appeal against the overpayment decision but it was clear from the documents before the FTT that the claimant was disputing that decision too and the FTT treated the appeal as including the issue of whether the overpayment was recoverable, as well as the issue of whether the claimant had been entitled to DLA during the overpayment period. In my judgment, it was correct to do so.

9                I have been unable to work out why the overpayment period begins on 20 January 2010 rather than from the beginning of the award on 14 January 2010. However, it is the Secretary of State’s case that—on a true view of the facts—the claimant has never been entitled to DLA. I proceed on that basis.

Revising a DLA award

10             The general rule is that a decision to award (or to refuse) a social security benefit is final (see section 17(1) of the Social Security Act 1998 ("the Act")). For present purposes, the exceptions to that rule are that a decision may be changed by revising it under section 9 of the Act, superseding it under section 10 or by an appeal to the FTT under section 12. As the Secretary of State’s case is that the claimant has never been entitled to DLA, we are concerned with revision, which, in general terms, is the procedure used to correct decisions that were wrong from the outset.

11             In keeping with the general aim that decisions should be final, the Secretary of State’s powers to revise are not unconstrained. By section 9(1) of the Act:

“9.—(1) Any decision of the Secretary of State under section 8 above or section 10 below may be revised—

(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.”

The Act confers no other power to revise a decision. So unless the revising decision is made within the prescribed period, or the case falls within the prescribed cases and circumstances, the decision cannot be revised. That is so even if a different decision maker, or the First-tier Tribunal, or the Upper Tribunal do not agree with the decision. It is inherent in a general rule that—with only limited exceptions—decisions are final, that some decisions cannot be changed even though they are wrong.

12             The prescribed period, prescribed cases, and prescribed circumstances are established by regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In April 2013, and so far as is relevant in this case, that regulation was in the following terms:

“Revision of decisions

3.—(1) Subject to the following provisions of this regulation, any decision of the Secretary of State under section 8 or 10 (“the original decision”) may be revised by him if—

(a) he or they commence action leading to revision within one month of the date of notification of the original decision; or

(b) an application for a revision is received by the Secretary of State or the Board or an officer of the Board at the appropriate office—

(i) subject to regulation 9A(3), within one month of the date of notification of the original decision;

(ii) where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided within the period specified in head (i), within 14 days of the expiry of that period;

(iii) where a written statement is requested under paragraph (1)(b) of regulation 28 and is provided after the period specified in head (i), within 14 days of the date on which the statement is provided; or

(iv) within such longer period as may be allowed under regulation 4.

(2)-(4A) …

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

(a) … which arose from an official error, or

(b) except in a case to which sub-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 other-wise have been but for that ignorance or mistake,

(c) 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 of, 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 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 limited capability for work determination, to the 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 other-wise have been but for the ignorance or mistake,

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

(5ZA)-(11) …”

13             Applying that law, it will be clear from my brief summary of the background that the entitlement decision was not made within the prescribed time. The Secretary of State did not commence action leading to the revision within one month of the original decision, so regulation 3(1)(a) does not apply. The claimant has never applied for revision of the original decision, so regulation 3(1)(b) does not apply either.

14             As the entitlement decision was not made within the prescribed time, the Secretary of State only had power to revise if the case fell within the prescribed cases or circumstances. So far as relevant to this appeal, those cases and circumstances are set out in regulation 3(5).

15             The case does not fall within regulation 3(5)(a) because “official error” is defined by regulation 1(3) as one to which the claimant (among other people) did not materially contribute. In this case, the Secretary of State is saying that claimant not only materially contributed to the error, but caused it by misrepresenting the extent of his disability.

16             If the Secretary of State is correct, then the original award:

“ … 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”

within regulation 3(5)(b). However, that sub-paragraph does not apply “in a case to which sub-paragraph (c) or (d) applies”.

17             The original award was a “disability benefit decision”, and the material fact or facts on which the Secretary of State was relying related to a “disability determination”, i.e., they related to whether the claimant satisfied the disability conditions for DLA (see the definitions in regulation 7A(1)).

18             That being the case, regulation 3(5)(c) applies to the exclusion of regulation 3(5)(b).

19             The consequence is that, before the Secretary of State could revise the original award he had to be satisfied not only that:

(a)             the original award “… was made in ignorance of, or was based upon a mistake as to, some material fact in relation to a disability determination”; and that

(b)             it was more advantageous to the claimant as a result; but also that

(c)             the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision.

The First-tier Tribunal’s decision

20             Unfortunately, the FTT’s written statement of reasons does not discuss any of those issues. The word “revision” is not used at all. Neither is there any attempt to identify a ground for revision, nor any exploration of whether the claimant knew, or could reasonably have been expected to know, the material facts on which the entitlement decision was based or that those facts were relevant to the decision.

21             On the contrary, the statement of reasons seems to suggest on page 514—in one of its many unnumbered paragraphs—that the claimant may not have known the material fact, but that it was irrelevant whether he knew it or not.

22             That is correct where the issue is whether a misrepresentation has occurred (which is what the FTT was discussing when it made the remark). However in a case where regulation 3(5)(c) applies, there are no grounds for revision, and hence no overpayment, unless the claimant knew—or at least ought to have known—the material fact. And if there is no overpayment, the question of misrepresentation does not arise.

23             For those reasons—which are essentially the same as those given by the Secretary of State’s representative for supporting the appeal—the FTT did not address the legal questions that the law required it to answer before it could properly uphold the Secretary of State’s decision. It thereby erred in law. As I cannot say that the result would inevitably have been the same had the FTT asked itself the correct questions, the error is a material one. I therefore exercise my discretion under section 12(2)(a) of Tribunals, Courts and Enforcement Act 2007 ("TCEA") to set the FTT’s decision aside.

24             It is inexpedient that I should re-make the decision. That is partly because the decision requires a judgment to be made about whether the claimant met the disability conditions for DLA when he first claimed and that judgment will benefit from the expertise of a doctor and a disability-qualified tribunal member. It is also because whoever re-makes the decision will need to view the video evidence and take evidence from the various witnesses. That can more conveniently be done by the FTT sitting at the venue nearest the claimant’s home. I have therefore remitted the case to the FTT under section 12(2)(b)(i) of TCEA.

Misrepresentation and material facts

25             There are two further points I wish to mention. They are raised by the Secretary of State’s representative at paragraphs 6 and 7 of her submission to the Upper Tribunal (page 573).

26             The first is that when considering whether the ground for revision in regulation 3(5)(c) has been established, it is necessary to identify some specific, material, primary fact:

(a)             of which the decision maker was ignorant or as to which he was mistaken; and

(b)             which the claimant knew, or could reasonably have been expected to know; and

(c)             which the claimant also knew, or could reasonably have been expected to know, was relevant to the decision.

Similarly when considering whether an overpayment is recoverable, it is necessary to identify some specific, material, primary fact that the claimant has misrepresented or which he has failed to disclose.

27             The Tribunal in this case held that the claimant had misrepresented his needs “in relation to the prospective test”. But, in my judgment, whether the claimant meets the prospective test is not a primary fact that is capable of being misrepresented. Rather it is a secondary fact: an inference of fact drawn from the other, primary, facts in the case. In other words, as the Secretary of State’s representative says, it is a matter of judgment for the decision maker to consider.

28             As importantly, even if the satisfaction of the prospective test is a matter of primary fact, the claimant in this appeal has not made any representations about it at all, let alone any misrepresentations.

29             As the Secretary of State’s representative points out, the claim form did not require the claimant to estimate how long he expected his needs to persist, and—although it is open to the FTT to take a different view from me on this question of fact—so far as I can see, the claimant did not give any such estimate.

30             The FTT was wrong in law to hold that when a DLA claim form is completed “the claimant is indicating that he has had the care and mobility needs for 3 months and will have them for the next 6 months”. When a claim for benefit is submitted, the representations a claimant makes are those that are expressly set out in that form and the meaning of those representations must be judged by reference to the questions asked on the form and the notes to those questions.

31             The mere fact of the submission of a claim for a benefit does not give rise to any implied representation that the claimant satisfies any of the conditions of entitlement to that benefit. Rather, claimants are entitled to put the facts before the decision maker and let him or her decide whether the conditions of entitlement are met. If claimants give incorrect facts, and the decision on entitlement is wrong as a result, then subject in this case to the safeguards in regulation 3(5)(c), the decision can subsequently be revised and the resulting overpayment recovered.

32             I would add this. There may be cases in which a misrepresentation can be inferred on a balance of probabilities from all the facts. But such cases will normally involve documents that have gone missing. For example, if it is clear that the claimant has misrepresented a particular fact in other documents related to benefit claims and then lied about it, the inference that he probably made the same misrepresentation in the document that cannot now be found may be justified.

33             But where, as here, the claim form is available, the FTT should normally be able to specify the number of the page on which it considers the misrepresentation has been made. If it cannot do so, then that is probably an indication that no misrepresentation has occurred. It is certainly an indication that detailed reasons will be required to support the contrary conclusion.

34             In this case, the FTT did not identify the misrepresentation with sufficient clarity and did not adequately explain why it was more probable than not that a relevant misrepresentation had occurred despite its inability to point to it in the papers.

35             Finally, the Secretary of State’s representative is right to say that many of the statements made by claimants about their disability needs when claiming DLA are likely to be expressions of opinion or belief, rather than representations of fact.

I draw the FTT’s attention to what is said at paragraph 7 on page 573 and to the decision of Mr Commissioner Jacobs (as he then was) in CDLA/5803/1999, which now forms pages 574-581 of the appeal papers.