THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CG/5631/99

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

			COMMISSIONERS:	KENNETH MACHIN QC
	W M WALKER QC
	S J PACEY 

ORAL HEARING

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.	This claimant’s appeal succeeds.  We hold the decision of the Stevenage appeal tribunal dated 7 April 1999 to be erroneous in point of law and, accordingly, we set it aside.  Because we think it appropriate to do so we ourselves give the decision appropriate to the case in light of the circumstances set out below.

2.	That decision is to allow the appeal from a decision of an adjudication officer reviewing and revising an award of invalid care allowance from and including 1 December 1986 but only to the extent to which that decision found that payments of the allowance in respect of weeks between September 1993 to July 1997 were recoverable.  That recoverability was based upon a finding that the claimant had failed to disclose to the Invalid Care Allowance Unit a material fact.  That fact was that payment of the middle or highest rate care component of disability allowance in respect of the child in her care had ceased on 8 September 1993.  We restrict the claimant’s liability in that regard to the period from 14 July 1995 to 9 December 1996.  We remit the case to the Secretary of State to re-calculate the amount of allowance paid during that period.  Any dispute on the calculation will give rise to fresh rights of appeal.  Otherwise we hold the payment of the allowance during the last mentioned period to have been paid because of the said failure to disclose and so is recoverable by the Secretary of State.  However, it is entirely a matter for the Secretary of State whether, and if so how far, actually to seek recovery.

3.	By direction of the Chief Commissioner this appeal was heard by a Tribunal of Commissioners together with three other cases which seemed to raise similar issues, namely CIS/7182/99, CG/4494/99 and CG/4657/99.  In the event the first of these required a separate decision.  However, the other three cases all raised questions as to whether cases CIS/2498/97 and CIS/5848/99 had been correctly decided.  Our reasons for holding that on the contrary the traditional responsibility for separate disclosure by a claimant to the Secretary of State is still good law is set out in our main decision on file CG/4494/99.  A copy thereof is, for interest, appended to this decision.

4.	In this case the claimant did not appear but was represented by Mr Jones and her husband.  The Secretary of State was represented by Mr Richard Drabble QC, instructed by the Solicitor in the Office of the Child Poverty Action Group.  We are grateful to both for their assistance.

5.	This case raised on its own account two issues upon each of which we have decided in favour of the claimant.  In regard to the first we refer to decision CG/4494/99 which records that we were favoured with certain factual material on behalf of the Department regarding the extent to which it was seeking to provide for some automatic transfer of knowledge to the Invalid Care Allowance Unit team from that dealing with attendance allowance or disability living allowance.  A sufficient award of the latter is a prior qualification for invalid care allowance.  We have to record more fully in this decision that, whilst there was some evidence about material being made available earlier in a somewhat indigestible form, it appears that on 9 December 1996 there was a manual reconciliation of some such material followed by the establishment of an interface between the computers dealing with these benefits so as after that date there would be an automatic notification of changes sufficient to provide, in our view, knowledge in the Secretary of State for invalid care allowance purposes that, where it mattered, a change in the award of attendance or disability living allowance had occurred.  In light of that evidence Counsel for the Secretary of State made a concession that in this case he would not seek recovery for the period after 6 December 1996.  We should explain that loss of the former or reduction to the lowest rate of the care component of the latter were the two factors either of which would disqualify the carer from entitlement to invalid care allowance.  In this case, in the result, and essentially by reason of the concession on behalf of the Department, we are satisfied that there can be no question of recovery after 9 December 1996 because from then onwards the Secretary of State had knowledge of a reduction in disability allowance to the lowest rate of the care component.  It is well established that there can be no failure to disclose something which is already known to the person to whom disclosure might otherwise be owed.  Accordingly, in this case there can be no failure to disclose after the last mentioned date.  The factual material now set out was not available to the tribunal and so, although we hold their decision to be erroneous in law for the reasons set out, no real criticism attaches to the tribunal.

6.	However, there was another issue in this case which was before the tribunal and in which, again, we hold that they have erred.  That issue concerned the recoverability of payments of invalid care allowance from 4 October 1993 to 10 July 1995.  The history of the matter is not entirely clear.  It does appear that disability living allowance, or its predecessor, had earlier been in payment at a rate sufficient to entitle the claimant to invalid care allowance.  The material put before the tribunal by the then acting adjudication officer sought to demonstrate that the disabled person had been informed of the reduction in entitlement to disability living allowance to the lowest rate on 28 September 1993.  If that was correct then a question might have arisen as to whether, and if so how, it could have been established that the claimant knew or should have known of that change apparently only intimated by way of letter issued to her daughter.  Whilst it does appear from document 5 of the bundle that the rate of disability living allowance did change about the time in question, the only evidence about any such intimation was in the form of a computer printout at document 6 of the bundle supported, for what it was worth, by the record of a telephone call within the Department recorded at document 8 of the bundle.  The latter seems to indicate that an officer in the ICA unit contacted the DLA unit and was informed that the change in the rate had been intimated to the “customer” (the daughter) on 28 September 1993.  That would seem to be little more than could have been effected by reading off what is set out at document 6 from a computer screen.  There was no evidence presented to the tribunal that any such letter had actually been sent.  The tribunal found, so far as now relevant, thus – 

“4.	The reduction of DLA from middle to lower rate was notified to the disabled person [the claimant’s daughter] on 28.09.93.

5.	As a result of this reduction of DLA [the claimant] is not entitled to ICA from and including 13.09.93.

6.	[The claimant] confirmed that she was aware that her daughter’s DLA was reduced on this date.  …. She was aware that her daughter’s level of DLA had been reduced.  This is confirmed in a written statement handed to the tribunal before the hearing.”

It is not clear to us that there was adequate evidence for the tribunal to find that the claimant had conceded that she knew about the reduction of DLA from 13 September 1993.  Certainly she knew about it at some stage. 

7.	Document 10 of the bundle records an adjudication officer’s decision, apparently dated 14 July 1995, which bears that thereby there was reviewed the decision of an adjudication officer dated 28.9.93.  That was supposed to be the date when there had been a finding of entitlement to a lesser rate of DLA.  But the 1995 decision goes on to conduct the review of the daughter’s entitlement to disability living allowance upon the basis that the September 1993 decision had been based on a mistake as to a material fact, namely that the daughter’s care needs were likely to continue for a further period.  It then bears, upon a revision within the grounds for that review, that the daughter was found entitled to the care component of disability living allowance – 

“… at the lowest rate only for the period from 2 August 1995 to 1 August 1999 (both dates included).”

It is very unclear why any such decision would be made in August 1995 if there had been a proper and intimated decision having the same reducing effect in September 1993.  The claimant maintained in her statement to the tribunal, at pages 81 and 82 of papers, that it was only the August 1995 decision about which she knew, and that, in vain, she had repeatedly requested a copy of the communication allegedly sent out on 28 September 1993.  In that situation it seems to us that there was not evidence of sufficient clarity or reliability to entitle the tribunal to hold that there had been an intimation in September 1993 far less, of course, that that was one of which the claimant, as opposed to her daughter, had knowledge or could or might be taken to have had knowledge reasonably soon thereafter.  The tribunal did not explain how they reached their conclusion thereon because of what they seemed to think was a concession to them.  Since that matter does not arise on our approach to the issue we say no more about any possible concession.  But, for the reasons above set out and allowing a reasonable interval at the end of the week in which would have been intimated the August 1995 decision, namely to the beginning of the following week, we have determined that no overpayment made on or prior to 14 August 1995 is recoverable because it has not been established that there was anything known to the claimant or which should have been known to her and which she should by then have disclosed to the Secretary of State.  We emphasise that it is not the change in the rate of payment that triggered any disentitlement to ICA in this case: it was the reduction to a particular, namely the lowest, rate of the care component.  

8.	For the foregoing reasons this appeal at least in part succeeds and must be remitted to the Secretary of State for the purpose set out in paragraph 2 above.

						(signed)
						KENNETH MACHIN QC
						Chief Commissioner

						(signed)
						W M WALKER QC
						Commissioner
						
						(signed)
						S J PACEY
						Commissioner

						Date:  19 December 2000