PLH                                                                        Commissioner's File:  CDLA  2160/03

	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: 	Hull 
Tribunal Case Ref:  U/01/006/2002/02040
Tribunal date:	6 March 2003
Reasons issued:	27 March 2003

     1.     	The decision of the Hull appeal tribunal given on 6 March 2003, confirming the termination of the claimant’s disability living allowance from 9 May 2002 and the refusal of her further claim on 18 June 2002, is conceded by the Secretary of State to have been erroneous in point of law and I set it aside.  
     2.     	Following the further concession by the Secretary of State in the written submission dated 18 November 2003 at pages 230-232 that the claimant in fact continued to meet the statutory conditions for her award of higher rate mobility component at all material times, I substitute the decision I am satisfied it is expedient to give in place of the tribunal on that basis, namely that the claimant remained entitled to the higher rate mobility component originally awarded to her from 29 June 1998 at all material times, including the period from 9 May 2002 for which it was purportedly removed, and from 18 June 2002 from which it was refused on her fresh claim, down to and including 5 March 2003.   After that last date she has in any event a fresh entitlement to it under a subsequent award as recorded in the very helpful submission of Mr Miller, the claimant’s representative, dated 13 August 2003 at pages 225 to 227.  
     3.     	Despite Mr Miller’s submissions I am not however persuaded that there was anything wrong in the tribunal’s findings on the evidence before them on 6 March 2003 that the claimant did not meet the statutory medical conditions for an award of the care component of disability living allowance at any of the three rates.  Accordingly on the basis of those findings my substituted decision as regards that component is to confirm that of the tribunal that she was not entitled to any rate either from the date of her original claim on 29 June 1998 for which she had never been awarded it, or from the date of her fresh claim on 18 June 2002 for which the Secretary of State had refused it.
     4.     	The claimant is a lady now aged 52, whose main problems as recorded by the examining doctor who visited her in 1998 are arthritis, a serious back problem likely to be ankylosing spondylitis, and asthma.  He noted that her walking had deteriorated and she really kept mobile by using her bicycle, although she found this very difficult.  He described her as a “sensible thin gutsy lady” whose medication had been less than successful.  Her walking ability assessed at no more than 50 metres and very slow because of pain.  He added that she was “very genuine”:  see pages 32 to 61.  
     5.     	On the basis of that report the claimant was awarded the higher rate of mobility component on a continuing basis from 29 June 1998, but nothing for the care component because the doctor’s report showed that the claimant was actually managing her own care needs quite well: see the adjudication officer’s decision of 21 August 1998 awarding the benefit, at pages 62 to 63.  That decision was given in full knowledge of the facts as recorded in the doctor’s report, which included the specific information that despite her difficulties the claimant was still able to go out to work for part of the time as a cleaner at the university, managing to get there by bike so long as she took her time.
     6.     	Early in 2002 the department received routine information that the claimant was currently working for some 16 hours a week while drawing benefit.  Whether they checked this at all against the information they already had is unclear, but in any case they suspected it showed the claimant was exaggerating her mobility difficulties, rather than just being a very strong willed and genuine person as the doctor had found.  They sent fraud investigators to interview her and on 9 May 2002 a decision was issued purporting to “supersede” and remove her entire entitlement to mobility component all the way back to 29 June 1998:  see pages 98 to 102.  
     7.     	That decision was doubly wrong.  It purported to be given on the ground of “ignorance or mistake of material fact” at the time of the 1998 decision, when there was really nothing to support that as the fact of her carrying on work was there on the record all the time.  Moreover it purported to take away her existing entitlement from an earlier date than that of the fresh decision itself, despite there being no authority under section 10 Social Security Act 1998 for the Secretary of State to do that.  That latter point at least was realised fairly quickly within the department, and the consequence was that a further decision was made by the Secretary of State on 7 August 2002, by way of a “revision” replacing the decision of 9 May 2002 with another one: pages 148-152.  This cured the second error by confirming the claimant's entitlement from 29 June 1998 to 8 May 2002, but repeated the first by still taking it away from 9 May 2002 despite the lack of any real evidence of “ignorance or mistake of material fact” to justify it.  
     8.     	The claimant appealed to the tribunal against that decision.  In addition, she had in the meantime as a precaution put in a fresh claim for disability living allowance from 18 June 2002, which was likewise disallowed in respect of both components by a separate decision of the Secretary of State dated 7 August 2002, at pages 143 to 146. The claimant appealed against that refusal as well.  Both appeals came before the tribunal on 6 March 2003 and were dealt with together. 
     9.     	The tribunal’s decision on the two combined appeals, set out in the decision notice at page 168 issued to the claimant on the day of the hearing, was to dismiss both of them and thus confirm the two decisions by the Secretary of State under appeal.  The decision notice goes on to confirm in entirely correct terms the net effect of that, namely that the claimant was not entitled to mobility component from and including 9 May 2002, or to care component at all for any of the period back to her original mobility component award on 29 June 1998.  However as noted in my earlier direction of 30 October 2003 rejecting an application by the Secretary of State for the entire case to be deferred on procedural grounds, the statement of reasons at pages 169 to 172 issued by the tribunal on 27 March 2003 demonstrates a measure of confusion and variance from their actual decision.   Section II under the heading “our decision” purports to set out a different decision by the tribunal that the claimant had not been entitled to higher rate mobility component at any time from 21 August 1998, saying in paragraphs II.5-6 that 
“She is not entitled to higher rate mobility component from 21 August 1998.  By removing entitlement from the outset, we have confirmed the Secretary of State’s decision of 9 May 2002 and amended the decision of 7 August 2002.”
     10.     	As noted in my direction, it would have been outside the tribunal’s jurisdiction to do any such thing, as the appeal was only against the removal from 9 May 2002 under the revising decision given later in August.  The earlier one given in May, acknowledged by the Secretary of State to be incorrect, had been completely replaced and was of no continuing effect.  Consequently as correctly summarised in Mr Miller’s submission on behalf of the claimant at page 227, the issues on the present appeal to me against the tribunal’s combined decision are not procedural, but substantive.  They are whether the tribunal correctly dealt with the case before them on (1) whether the claimant should have had her higher rate mobility component for an indefinite period from 29 June 1998 taken away from her at all on 9 May 2002; and (2) whether she should have been awarded any new entitlement from 18 June 2002, in particular to care component. 
     11.     	On the mobility component the claimant’s case for reinstatement of her higher rate award is now as I say conceded by the Secretary of State:  rightly so, because in my judgment there was never a proper ground for taking it away under the pretext of “ignorance or mistake of material fact” at the date of the original award in 1998.  That award was made after taking into account all the facts perfectly truthfully disclosed by the claimant at that time; and all that can really be said is that someone in the department finding she was still working regularly some four years later must have taken the view that the original doctor’s assessment of how badly restricted she was by pain was too generous.  That of course is quite insufficient to justify superseding the earlier decision on the purported ground of “ignorance or mistake of material fact”. There is all the difference in the world between a decision made on an incorrect factual basis and one which somebody else looking at the same factual basis thinks should have led to a different assessment.  I therefore accept the concession of the Secretary of State and substitute the decision already set out reinstating the claimant’s higher rate mobility award at all material times from 9 May 2002 onwards, on an indefinite basis so there was no need for any further claim or award to maintain entitlement on and after 18 June 2002. 
     12.     	As regards the care component however I also accept the Secretary of State’s submission that there is no ground for challenging the tribunal’s finding on the evidence before them, that the claimant had not been shown to meet the statutory conditions for an award at any rate at the date of the decision under appeal, 7 August 2002. As they recorded in paragraphs 14-16 on page 218, her own evidence at the hearing on 6 March 2003 was that in her present state, which was the worst she had been, she could attend to all her own personal care needs in respect of bodily functions.  Although the tribunal accepted that she was experiencing increasing difficulty with weakness in her right hand, they noted she could still operate the hoover and carry it upstairs, and their finding was that she remained capable of planning, preparing and cooking a main meal for herself.  
     13.     	Those were matters of fact and degree for the tribunal hearing and seeing the evidence to determine, and the conclusions reached were open to them as a reasonable tribunal on the evidence to which they referred.  I cannot therefore see that there is any ground in law for interfering with them, so my decision on the care component follows that of the tribunal.  If the claimant’s problems with her right hand do go on getting worse, she may of course be able to reapply for a further assessment of her care needs.
(Signed)

P L Howell
Commissioner
			               12 February 2004