PLH                                                                         Commissioner's File:  CDLA 5076/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Middlesbrough
Tribunal Case Ref:  	U/44/234/2001/00567
Tribunal date:		5 October 2001
Reasons issued:		24 October 2001

1.	This claimant’s appeal is dismissed, as in my judgment there was no error of law in the decision of the Middlesbrough appeal tribunal sitting on 5 October 2001 that based on the concessions of fact made on behalf of the claimant by her appointee and receiver at the hearing, the sum of £5,895 overpaid disability living allowance for the period 19 July 1995 to 29 December 1998 was recoverable from her.  
2.	The consequence is that the Secretary of State is entitled under section 71 Social Security Administration Act 1992 to recover that amount against the claimant (a lady now aged 30, who suffers from learning disability and lives in residential care) to the extent of her own assets, if any.  As rightly held by the tribunal he is not entitled to recover it against her appointee and present receiver (the Head of Support Services, Stockton on Tees Borough Council, acting under the order of the Court of Protection dated 9 April 1999 at pages 120 to 121).  Any question of his proceeding to try and obtain actual recovery against the claimant or her assets of all or any of the amount so recoverable was and is outside the scope of the appeal to the tribunal and this present appeal to me; but it will be subject to the jurisdiction of the Court of Protection, as the claimant remains a patient whose property and affairs are under the control of that Court.
3.	The Secretary of State is I think fortunate in having his case to establish a recoverable overpayment upheld by the tribunal at all, when he failed to attend the hearing to make out the basis of his claim and the written material he submitted fell well short of anything I would myself have regarded as acceptable to prove a sum of nearly £6,000 as legally due against a disabled person unable to manage her own affairs.  As the tribunal rightly noted, his written submission and such materials as he provided in support gave only the most garbled explanation even of the decision or decisions that had given rise to the appeal, and very little more of practical use on the crucial questions of how the alleged substantial overpayment of benefit had arisen, and how the factual case to make it recoverable in terms of section 71 for alleged material non‑disclosure by the claimant or someone bearing a relevant responsibility on her behalf was made out.  
4.	I would myself have been strongly tempted to throw out such an inadequately prepared and presented case altogether, and no tribunal could possibly have been criticised for doing so.  Tribunal appeals in overpayment cases are legal proceedings involving the recovery of money, with the burden of proof of recoverability on the Secretary of State, and at least some minimum standards in such litigation have to be observed: the normal rule applicable in this context is that a party seeking to recover money who fails to set out and prove his case properly by evidence, or even attend to explain it, should lose automatically.  
5.	However I am not of course concerned to conduct a rehearing of this case on the facts: my function is only the more limited one of determining whether the tribunal fell into any error of law in the findings it made about them and the decision it gave, which depended very largely on the factual concessions made on behalf of the claimant at the hearing by the Stockton Welfare Rights representative who appeared for her on the instructions of her appointee and receiver.   As the tribunal recorded in the statement of reasons issued to the parties on 24 October 2001 at pages 95 to 96:
	(1)	The decision under appeal was that during the period 19 July 1995 to 29 December 1998 the claimant had been residing in residential accommodation funded by a previous local authority, but that change of circumstances affecting her running entitlement to disability living allowance had not been notified to the benefits agency either by the claimant or her appointee responsible for her social security affairs at the time: as a result the care component of her DLA (not payable for persons in such accommodation) had continued to be paid in full in error, and was now recoverable.  
	(2)	It was not in dispute that the claimant, who is learning disabled, had been in residential accommodation during that period; and the amount alleged to have been overpaid as a result was also confirmed as being accurate.
	(3)	The tribunal therefore found as a fact that the claimant had been in local authority funded residential accommodation for that period and a total overpayment of £5,895 disability living allowance had been made in respect of the care component to which she had not actually been entitled. 
	(4)	There was no dispute that during the period of the overpayment (all of it before the Stockton on Tees social services department took over her social security affairs in December 1998) the claimant had had an appointee dealing with matters on her behalf, even though it was not clear from the material before the tribunal who the actual appointee or appointees had been.
	(5)	The tribunal expressly found as a fact that these previous appointees had failed to inform the benefits agency of the claimant’s residential home placements at the material time: the failure by her appointee(s) which had thus given rise to the overpayment of £5,895 was to be attributed to her. 
	(6)	In consequence they held that amount recoverable from her, though not from any of the appointees: in particular not from the Stockton on Tees appointee whose involvement dated only from after the overpayment period so that he was not responsible for any failure.
6.	Although deciding expressly that the overpayment was repayable by the claimant, the tribunal added a note in the final paragraph of their statement of reasons (apparently on the basis of information given to them by the appointee) that the benefits agency was not proposing recovery from the claimant herself due to her financial circumstances.  In that it appears that both they and the appointee were factually mistaken, as the Secretary of State’s representative has confirmed on this appeal that it is indeed intended to pursue (or at least not to relinquish) the question of actual recovery from the claimant herself and any assets she has.  As rightly pointed out by the Secretary of State’s representative, that was not in any case a matter within the tribunal’s jurisdiction, and any factual misunderstanding about it cannot affect the substance of the tribunal’s decision that the overpayment was a recoverable one.
7.	I am unable to see any error of law in the decision on that issue, given on the basis of the tribunal’s factual findings and in view of the concessions about the past history, there being no reason to think these were other than correctly and responsibly made on the facts.  Although she herself has at all material times suffered from learning disability such that she is unable to manage her own affairs and has had to be made a patient of the Court of Protection, the tribunal were in my judgment entitled to rely on the concessions as duly made on behalf of the claimant whose appeal they were hearing.  On that basis, the findings that at the material times she had had an appointee dealing with her social security affairs, she had been in local authority funded residential accommodation so that the care component was not payable, and that there had been a “failure” on the part of her appointee or appointees to disclose the fact that she had gone into such accommodation (that being a disclosure obviously required of them because of its relevance to her continuing entitlement to be paid the allowance) were in my view justified on the case as presented to the tribunal.  Contrary to the grounds of appeal and submissions now put forward on the claimant’s behalf by her representative, I do not find any lack of clarity in the tribunal’s reasoning.  The relevant questions were those just identified, all of which are in my view sufficiently spelt out by the tribunal; and if the facts were as they thus found, the conclusion that the overpayment was recoverable from the claimant was the correct one as a matter of law: R(SB) 28/83, R(IS) 5/00. 
8.	The claimant’s appeal is accordingly dismissed.

(Signed)
P L Howell
Commissioner
3 June 2003