CDLA/671/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against two decisions of the Derby Appeal Tribunal given on 12 December 2006 and set out in a single decision notice. By their first decision, the tribunal allowed to a limited extent the claimant’s appeal against the decision of the decision maker made on 3 June 2004 that the claimant was not entitled to mobility allowance from 4 January 1992 to 5 April 1992 and was not entitled to the higher rate of the mobility component of disability living allowance from 6 April 2004 to the date of the decision. The tribunal substituted a decision entitling the claimant to the mobility component at the higher rate from 6 April 1992 to 31 December 1994. By their second decision the tribunal decided that an overpayment of the mobility component had been made to the claimant and was recoverable. The matter was to be referred back to the tribunal if the relevant amount could not be agreed between the parties. The tribunal in effect upheld the decision of the decision maker to that effect made on 6 October 2004, subject to the alteration necessary to give effect to their decision on entitlement.

2.	The first of those decisions gives rise to the difficulty that on its face it maintains the decision that the claimant was not entitled to mobility allowance from 4 January 1992 to 5 April 1992. It is clear, as I shall explain below, that that was not the substance of what the tribunal decided; the tribunal accepted that he was so entitled. As the substance is clear and in my view the decision was correct, I conclude that the decision was not erroneous in point of law and, for the reasons given below, I dismiss the appeal.

3.	The second of those decisions, again as I shall explain below, has technical flaws as a result of which it is erroneous in point of law and must be set aside. In the circumstances of this case, however, the tribunal has made sufficient findings of fact for me to be able to exercise my power under section 14(8) of the Social Security Act 1998 to substitute my own decision. In the exercise of that power, I substitute a decision to the same effect as the tribunal’s decision, namely, that the disability living allowance paid to the claimant for the period 1 January 1995 to 3 June 2004 was an overpayment and is recoverable.

Background

4.	The background to the case is as follows. The claimant claimed mobility allowance by a claim form received on 21 April 1989. In accordance with the procedure applicable to such claims, he was medically examined on 4 May 1989. On the basis of the examining medical practitioner’s report he was awarded mobility allowance by a decision made on 15 May 1989. The decision itself is not in the papers but it is not in dispute that it was made or that that award was converted into a lifetime award of the mobility component of disability living allowance at the higher rate when disability living allowance replaced mobility allowance with effect from 6 April 1992.

5.	By a claim form received on 14 November 1994 the claimant applied for the care component of disability living allowance in addition. On 22 November 1994 the adjudication officer decided that there had been a relevant change of circumstances in that the claimant had stated care needs, but that his care needs were insufficient to satisfy the conditions for a further award. It was expressly stated that the adjudication officer had not considered the entitlement to the mobility component, which had already been awarded and was not under review.

6.	There matters rested until 2004. The Department of Work and Pensions then received information that the claimant’s walking ability was greater than he had stated and a surveillance operation was undertaken. Video evidence was obtained which, according to the witness statements from the investigators in the papers, appeared to show the claimant walking for half a mile to his local pub in about ten minutes. He was interviewed under formal caution and a transcript of the interview was before the tribunal. In the course of his interview he said that he had had an operation on 4 January 1989 to remove gangrene and had had difficulty in walking for the next three years. As appears from the terms of the decision (page 87 in the bundle of papers), the maker of the decision of 3 June 2004, having concluded that the video evidence showed that the claimant was able to walk normally, used that information as a basis to conclude that as from 4 January 1992 the claimant had not been either unable or virtually unable to walk. 

7.	The claimant appealed against the entitlement decision by appeal notice received on 6 July 2004 stating that he could only walk a very short distance without severe discomfort and raising again the question of care needs. When he received the overpayment decision he appealed against that also, by appeal notice received on 29 October 2004, on the grounds that the entitlement appeal was in progress and that he did not believe he misrepresented or failed to disclose any material facts.

8.	The appeal was very slow in coming on, not least because ultimately the claimant was prosecuted for the offence of failing promptly to notify a change of circumstances, contrary to section 111A(1A) of the Social Security Administration Act 1992. The particulars of the offence (page 133) make clear that the charge was limited to the period 1 December 2001 to 1 June 2004. The claimant pleaded guilty and was convicted on 26 April 2006 (page 121).

9.	Despite this history, it is not suggested that the claimant does not suffer from various medical conditions, the most relevant one for present purposes being arterial disease which has in the past seriously affected his left leg. There is clear medical evidence that he has had problems, and indeed continued to have problems up to and beyond the time of the two decisions. It does not follow, however, that he is necessarily entitled to benefit.

The entitlement decision

10.	The record of proceedings shows that at the start of the hearing before the tribunal the claimant agreed that he was not pursuing an appeal in respect of the care component of disability living allowance. He also conceded, inevitably in view of his guilty plea and conviction, that he was not challenging the entitlement decision for any period from and after 1 December 2001. The Department of Work and Pensions in turn conceded that it did not seek to have the claimant’s claim to benefit disallowed for any period before 1 January 1995. It appears from the claimant’s application for leave to appeal dated 15 January 2007 (page 183) that the latter concession may have been at the tribunal’s prompting on the basis that there was no available medical evidence for any earlier period (other than the evidence on the basis of which mobility allowance was originally awarded).

(i)  Power to revise or supersede

11. 	An initial technical point arises in relation to the entitlement decision which does not appear to have been before the tribunal but which was very helpfully and properly raised by the Secretary of State on the appeal. As I have said, the original award to the claimant was an award of mobility allowance. Under the provisions of regulations 7 and 8 of the Social Security (Introduction of Disability Living Allowance) Regulations 1991, SI 1991 No 2891, that award was terminated on 5 April 1992 and the claimant was treated as having been awarded the mobility component at the higher rate. Regulation 14 then had the effect that the review and revision provisions of the social security legislation as they then stood could be applied to the award which was treated as made. 

12. 	Regulation 16 provided that where a claimant had an award of one component of disability living allowance as a result of the provisions of the Regulations, he might make a claim relating solely to the other component and if made after 4 April 1993 that claim should be treated as an application for review of the award of disability living allowance in force at the time the claim was made. That regulation applied to the claimant’s 1994 application, with the effect that he was treated as applying for a review under section 30 of the Social Security Administration Act 1992, that being the relevant provision at the time of the application.  Under section 32(2) of the Act, the adjudication officer was authorised, on such an application, not to consider the question of entitlement to the component which had already been awarded.  This clearly covered the course taken in 1994, as described in paragraph 5 above. 

13. 	When the 1992 Act was largely replaced by the provisions of the Social Security Act 1998, it was necessary to make provision for reconsidering by some means decisions made before the new regime came into force.  The revision and supersession provisions of the 1998 Act, however, in terms extend only to decisions made under that Act itself. The power to revise or supersede a decision made under the old regime was contained in relation to the various benefits in the Commencement Order which brought the 1998 Act into force as respects that benefit. For disability living allowance, the relevant Order was the Social Security Act 1998 (Commencement No. 11, and Savings and Consequential and Transitional Provisions) Order 1999, SI No 2860, which came into force on 18 October 1999. It provides by paragraph 4(1) of Schedule 16, in summary, that a decision on a claim for a relevant benefit made before 18 October 1999 is to be treated as a decision made under section 8 of the 1998 Act.  Under article 2(1), “relevant benefit” includes disability living allowance. 

14. 	The difficulty with this for present purposes is that the definition of “relevant benefit” does not include mobility allowance. The question therefore arises on what basis the decision maker could, as he purported to do, either revise or supersede the decision of 25 May 1989.  A similar point arose in CDLA/2999/2004, a decision of Mr Commissioner Lloyd‑Davies, in which he considered the Secretary of State’s power to supersede in January 2004 a decision dated 15 August 1986 renewing an award of mobility allowance.  After a careful review of all the statutory provisions, he concluded that there was no such power. I follow that decision for the purposes of this case.  Indeed, its correctness is effectively assumed by the Social Security Act 1998 (Commencement Nos.  9 and 11) (Amendment) Order 2006, SI No. 2540, which inserts with effect from 16 October 2006 an additional definition of “relevant benefit” which covers mobility allowance. That amendment, however, cannot assist here, since the relevant decision was made before the amendment came into force. 

15. 	The decision in CDLA/2999/2004 also considers and rejects the argument that the provisions of regulation 8 of the Introduction of Disability Living Allowance Regulations, by which the claimant was treated as having an award of disability living allowance, mean that at the time of the introduction of disability living allowance there was a decision on a claim to that benefit which, as such a decision, would attract the operation of paragraph 4(1) of Schedule 16 to the Commencement Order. Again I follow that decision. 

16. 	A further element, however, was introduced into the equation by the decision of Mr Commissioner Turnbull in CDLA/1570/2004. That case concerned an award of mobility allowance made on a renewal application in January 1987. As in the present case, in 1994 the claimant applied for an award of the care component of disability living allowance. That award was made, it being again stated in the decision that the mobility component had not been considered. In about 2002 it was discovered that the claimant had been in work from 1983 onwards and she was observed engaged in various activities. In May 2002 a decision was made, purportedly by way of supersession of a 1997 decision made on a further review application by the claimant relating to the care component, to the effect that the claimant’s entitlement to the mobility component was removed with effect from 20 September 1984 and her entitlement to the care component was removed with effect from 10 August 1994. 

17. 	Clearly the decision in CDLA/2999/2004 presented a serious difficulty as respects the mobility component. Mr Commissioner Turnbull, however, accepted a submission on behalf of the Secretary of State that the 1994 decision operated not only as an award of the care component but as an award of the mobility component also. As already explained, the application for the care component operated as an application for review and under section 32(1) of the Social Security Administration Act 1992 an award of disability living allowance on review replaced any award which was the subject of review.  Since disability living allowance is one benefit and an award was made in 1994, the effect was that the award made then comprised both an initial award of the care component and a re-award of the mobility component. There was thus an actual award in relation to which the provisions of the Commencement Order could operate. The Secretary of State accordingly had power to review or supersede the mobility component decision from and after 1994. 

18. 	The question in the present case is whether DLA/1570/2004 applies here, although the care component was not awarded, or whether the case continues to be governed by CDLA/2999/2004. It was held by a Tribunal of Commissioners in R(A) 5/89 that when a decision was reviewed “on any ground” (meaning that no specific ground had to be established before the power to review arose), the decision on review replaced the reviewed decision even if the review did not lead to a revision, changing the substance of the earlier decision. The Tribunal expressly left open, however, the issue whether the same principle would apply if a specific ground for review had to be made out. 

19. 	That issue now has to be decided for the purposes of the present appeal. The effect of the transitional regulation 16, referred to in paragraph 12 above, was that the application could be made on any ground if made within a prescribed period of three months of notification of an award of disability living allowance or on a specified ground at any time. (This resulted from applying the provisions of section 100A(1) and (2) of the Social Security Act 1975, which became section 30(1) and (2) of the Social Security Administration Act 1992 and which contained the review powers, and regulation 26A of the Social Security (Adjudication) Regulations 1986, SI 1986 No 2218, prescribing the three month period.) It is clear that the 1994 application did not satisfy the “on any ground” requirements, so this is a case in which the claimant had to show a ground for review, as indeed the decision letter of 22 November 1994 (page 60) recognises. 

20. 	I have come to the conclusion that if in such circumstances a ground for review was made out, the principle of R(A)5/89 would  have applied to the reviewed decision as it applied to a reviewed decision following an “on any ground” review. In both cases the existing decision was then reconsidered on its merits. If, however, an adjudication officer on an application for review found that there was no power to review the decision because a specific ground for review was required and none had been made out, there was no new decision on the merits and nothing to replace the existing decision on the merits. In those circumstances, in my view, the principle would not have applied. 

21. 	In the present case it is clear from the decision letter that the adjudication officer decided that a ground for review, namely, a relevant change of circumstances, was shown, although the decision was not revised. I therefore decide that the case falls within the principle of CDLA/1570/2004 and is not caught by CDLA/2999/2004. That being so, the tribunal had power to revise or supersede the decision made on 22 November 1994, although it did not have, and the decision maker on 3 June 2004 did not have, power to revise or supersede the original mobility allowance decision of 25 May 1989. 

(ii)  The merits

22. 	I turn now to the merits of the entitlement decision. The tribunal had before them medical evidence consisting of:

(1)	the report of the examining medical practitioner dated 4 May 1989 in connection with the claim for mobility allowance (pages 5 to 8);

(2)	a letter dated 28 January 2005 from the claimant’s GP, who had been his GP for 22 years (pages 130 and 131);

(3)	a letter dated 2 February 2005 from a specialist hospital registrar (page 132);

(4)	a medical report dated 21 September 2005 from a hospital consultant (pages 113 to 116), prepared at the request of the claimant’s solicitors for use in court. 

23. 	The examining medical practitioner noted that the claimant used elbow crutches and assessed his walking ability as follows:

“Using his crutches he can [walk] about 20-30 yards before resting due to pain in my [sic] good leg. ”

He expressed the view it was unlikely to change. 

24. 	The GP’s letter stated that the claimant had had “quite severe” problems with his circulation since at least 1989 and in 1989 and 1990 had been housebound for several months. He had had an ulcer which took a very long time to heal and the district nurse attended for several months. Once the ulcers healed the claimant was able to leave the house again and his circulation “improved from a severe problem to a moderately severe one”. The report continued:

“In 1995 I recorded that he could walk 50 years before getting severe pain in his left calf. However after a rest he could walk on for another 50 yards and his condition remains (sic) stable until last year when he developed circulation problems in the right leg so that for the past 6 months his walking distance before pain in the right leg is down to 20 or 30 yards at best. ”

The GP explained that because of his right leg problems the claimant had been referred to hospital. He noted a change of drug treatment in 2001. He mentioned the claimant’s breathlessness, but said it was not the main cause of his mobility problems. He also said:

“Since 1989 his walking has always been slow. I feel the improvement from being housebound in 1992 was gradual. ”

25. 	The registrar’s letter was written fairly shortly after the referral to hospital. It said that on the clinic letter it was stated that the claimant was able to walk 50 to 100 yards for a few years and then over the past six months it had become reduced to 30 yards. On clinical review the claimant was found to have severe peripheral vascular disease with the ability to walk between 20 and 30 yards. The change of medication in 2001 was again noted. This is, of course, consistent with the GP’s letter of 28 January 2005, not surprisingly, since the GP no doubt wrote the referral letter. It provides no direct evidence of the claimant’s mobility from 1 January 1995 to 3 June 2004. 

26. 	The consultant’s report gave some more details. Its essential features, however, were first that the claimant required regular nursing care for three years from 1989 to 1992, following his surgery in 1989. It was then stated that between 2002 and 2004, before the referral, the claimant was limited to a distance of about 30 yards. After setting out clinical findings in relation to the claimant’s legs, the consultant continued:

“Clearly this patient does have bilateral disease affecting both legs, hence it is very conceivable that this would cause him a lot of disability…  My opinion given the entire picture is that his walking distance would fit with what he says, which is that he can only walk between 50 and 60 yards before pain sets in his calf . . .  It is also clear on talking to the patient that there was some improvement in 2001 when he started on the new drug Plavix. This is a new antiplatelet drug which could have helped him from that period onwards…

I do note that the DHSS have got video evidence. I think I would find it difficult to see how he could be filmed walking half a mile without stopping. Clearly given the current state of his vessels, I do not think this would be possible without stopping. I think this entire case is quite a difficult one but believe that certain points raised by [the claimant] to me today are quite valid. Obviously if there is clear-cut video evidence then this would be difficult to refute and I would be happy to be corrected. ”   

27. 	In addition to this material the tribunal had oral evidence from the claimant and his wife and had a transcript of what the claimant had said at interview, as well as a copy of the certificate of conviction and the indictment. The tribunal also saw the video evidence and had the claimant’s 1994 claim pack. 

28. 	In the course of his evidence the claimant said his condition had improved gradually after a change in medication. He had stopped using crutches three or four years after his operation but for three years had never left the house and had daily nursing care. His mobility had improved (as I read the note) gradually and slowly. The doctors had always told him to push the pain barrier. On a good day he could do 50 yards. He used to walk around the green by his house. He had started going to the pub seven to ten years earlier. His son usually took him but in March 2004 the son’s car had been involved in an accident. He then took painkillers before going to the pub. His condition improved with the change of medication in 2001, so that he could go 50 to 60 yards on a good day without it hurting so much. 100 yards was the top he could do in 1995. There were not many good days in 1995 and he did not really know how far he could walk on an average day because he did not walk far. He did mention the painkillers at the 2004 interview, but possibly off the tape. His memory was not very good. In 1997, when the Labour government was elected, he could only walk a few yards. Sometimes he could go the full way round the green with his wife, which would be about 25 or 30 yards. He was walking around the green regularly in 1995. In his interview he did not mean he had been walking to the pub for three or four years; it was a couple of years. 

29. 	The claimant’s wife said that his walking ability did not really alter until he went to see the specialist and the medication was changed in 2001. He had to stop after a short distance and wait before he could walk again. When he was able to walk again, he could walk up to say 25 yards before he started to get pain. She did not agree with the claimant’s GP that he would have been able to walk 50 yards in 1995. 

30. 	In his self-assessment set out in the 1994 claim pack, the claimant made clear that he walked with sticks and estimated his walking ability as 10/15 yards in four or five minutes. He said he went out for walks each day on his doctor’s advice, but could not go far. The effect of what he said at the 2004 interview, before seeing the video evidence, was that he could do at most say 30 yards, and that that would take at best four or five minutes. 

31. 	The tribunal’s findings of fact were essentially that from 1 January 1995 the claimant had not been virtually unable to walk considering the distance, speed, manner and time he was able to walk without severe discomfort.  They found that the video evidence confirmed that in March 2004 his walking ability was very significantly greater than he had claimed in the 1994 claim pack and regarded it as relevant to their assessment of the available evidence. They found it implausible that the occasions on which he had been filmed were the only ones on which he had walked and regarded his ease of walking as inconsistent with his claim normally to have used a walking stick at that time. The tribunal also referred to his statement at the interview, at which he was accompanied by a benefit advice worker, that he had been able to walk half a mile to the pub for some years. 

32. 	The tribunal’s reasons may be summarised as follows:

(1)	the claimant’s evidence was unreliable. Attention was drawn to a number of inconsistencies;

(2)	they were not limited by the period for which the criminal prosecution had been brought. That was on the advice of solicitors and in any event there was a higher burden of proof on the prosecution in a criminal case;

(3)	it was appropriate to correct what the consultant said, as he recognised, in the light of the video evidence;

(4)	the GP’s evidence quoted in the first part of paragraph 24 was of assistance. Since the ability to walk 50 yards was said to have been “recorded” it had presumably been observed by or mentioned to the GP and was not a mere guess. 

In substance, it was being said that the video provided accurate evidence of the claimant’s walking ability in March 2004, that the evidence of the claimant and his wife was unreliable, as particularly demonstrated by its inconsistencies and its conflict with the video evidence as to his ability in March 2004 and that the best, and reliable, evidence was that of the GP. The tribunal’s final conclusion was that “more likely than not the appellant more often than not was not entitled to DLA” from 1 January 1995. 

33. 	The claimant was given leave to appeal against both the entitlement and the overpayment decision by the district chair on 26 January 2007. The grounds of appeal on entitlement describe the GP’s report as “the only reliable medical evidence the tribunal had to go on” and do not suggest that the tribunal was not entitled (as in my view it plainly was) to reject the evidence of the claimant and his wife to the extent that a lesser walking ability than claimed by the GP was asserted. The claimant makes two points:

(1)	“I have to question their findings of fact and reasons for decision as I do not feel that a walking capacity of 50 yards before getting severe pain in my left calf was necessarily outside the ‘virtually unable to walk’ criteria at that time”;

(2)	there are no detailed findings by the tribunal on the question of time, speed distance and manner of walking capacity. 

34. 	Fortunately, there have been no relevant changes in the legislation governing the claimant’s entitlement over the period with which I am concerned. To be entitled to the mobility component of disability living allowance at the higher rate, a claimant must be suffering from physical disablement such that he is “either unable to walk or virtually unable to do so”, unless he is either blind and deaf or severely mentally impaired and satisfies other conditions:  section 73(1)(a) of the Social Security and Contributions Act 1992. Regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991 No 2890, provides that a person satisfies section 73(1)(a) only in certain specified circumstances, of which the relevant one is set out in paragraph (a)(ii), namely:

“his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the  manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk. ”
These particular legislative requirements applied also to mobility allowance. The words “at that time” in the claimant’s grounds of appeal do not bring in any additional considerations. 

35. 	In considering the claimant’s first ground of appeal, it is important to remember that I have jurisdiction to set the tribunal’s decision aside only on the ground of an error of law. It would not be sufficient for me to agree with the proposition that a walking capacity of 50 yards before getting severe cramp is not necessarily outside the meaning of the statutory expression “virtually unable to walk”. I could only set the decision aside if I were to hold that the tribunal could not properly have found in all the circumstances that such a walking capacity was outside those words. 

36. 	The mistaken formulation of the ground of appeal relied on by the claimant is very similar to that found in Mr Commissioner Rowland’s decision CDLA/717/1998, to which the Secretary of State has referred in his submission dated 22 June 2007 on this appeal. That was a case in which the tribunal had found that the claimant was unable to walk more than about 25 metres before having to stop for one minute to rest owing to pain in his left leg. He could then walk a further 25 metres or so. In total he could walk about 100 metres, which would take him about five or six minutes. He walked with a limp on his left side and with the aid of a left elbow crutch. Mr Commissioner Rowland said:

“I accept that, ultimately, the question whether facts found by a tribunal are capable of supporting a conclusion that a claimant is not virtually unable to walk is a question of law and that an error of law will be shown if, on the facts they have found, a tribunal have reached a conclusion that is wholly unreasonable. However, it is not for a Commissioner to attempt to lay down a precise formula for determining whether or not a claimant is unable to walk when the legislation does not do so. The legislation allows adjudication officers and tribunals a margin of appreciation. It is possible that not every tribunal would have reached the conclusion that someone with the present claimant’s limited walking ability was not virtually unable to walk. I do not consider that a tribunal concluding that the claimant was virtually unable to walk would have erred in law, but, equally, I can detect no error of law in the present tribunal’s decision. The question whether the claimant was virtually unable to walk was a matter for the judgment of the tribunal and, this being something of a borderline case, they were entitled to decide it either way provided they had regard to the relevant factors. ”

37. 	That decision, as well as the other decisions referred to in it, strongly supports the submission made by the Secretary of State that a claimant who has the ability to walk 50 yards before the onset of severe discomfort does not necessarily satisfy the requirements of section 73(1)(a) and so it does not follow that there must have been an error of law on the part of a tribunal which decided that such a claimant was not entitled to the mobility component at the higher rate. A similar point is made in Mr Commissioner Jacobs’ decision CDLA/1389/1997, in which the tribunal found that the claimant could walk 50 to 60 yards in one and a half minutes before the onset of severe discomfort and decided, by a majority, that he was not entitled to benefit. After referring to a number of previous decisions, he held that there was no error of law on the part of the tribunal. 

38. 	In those circumstances, I find no error of law on the part of the tribunal unless it can be said that they failed to make sufficient findings of fact as to the distance, speed, time and manner of the claimant’s walking. The point is made in CDLA/1389/1997 that a claimant satisfies the requirements of section 73(1)(a) if he is unable to walk having regard to any of the elements of distance, speed, time or manner (from which it would logically follow that each ought to be considered in case the claimant satisfies the section having regard to that element, or that element in conjunction with others), but Mr Commissioner Jacobs went on to say that it is not necessary for the tribunal to deal with an element which did not arise in evidence or argument before it. Reference is made to the decision of the Tribunal of Commissioners in R(M)1/83 in support of that proposition. 

39. 	The Tribunal in that case pointed out that distance is a product of time and speed and stated that it would be common for a consideration of distance to comprehend the time and speed factors. It certainly appears that the Tribunal took the view that separate findings on time and speed were necessary only where a particular point was taken about them. More recent cases have laid more emphasis on considering all four factors in order to obtain a complete picture of the claimant’s walking ability. In particular, it has been said that the direction to have regard to time involves having regard to the length of time for which the claimant may need to rest after walking a certain distance:  see the decision of Mr Commissioner Rowland in CDLA/4388/1999 (which, incidentally, is another example of a decision in which the tribunal was not found to have gone wrong in law in so far as it concluded that a claimant who could walk 50 yards slowly and with a limp was not virtually unable to walk). It appears, however, that the need to rest was a matter on which the claimant had put some, although not “great”, emphasis. I do not regard this decision as altering the position stated in CDLA/1389/1997. 

40. 	In the present case the tribunal faced the difficulty that the claimant’s evidence was found to be unreliable and the medical evidence available relating to the relevant period was scanty. There was no basis on which the tribunal could make detailed findings of any precision about all four factors. It is clear that what in substance the tribunal did was to accept what was said in the GP’s letter as the best available evidence of what the position was in 1995. That is in effect recognised in the grounds of appeal. In the circumstances, the tribunal did not fall into error in not making further detailed findings of fact. 

41. 	I have considered whether the tribunal ought to have dealt further with the alleged improvement in the claimant’s condition after the 2001 change in medication and in particular whether it explained the substantial ability to walk shown by the video evidence. I have concluded, however, that it was not necessary for the tribunal to do so. A baseline that the claimant had already ceased to satisfy the requirements of section 73(1)(a) had been established and the question whether his ability to walk improved further thereafter did not require consideration. 

The overpayment decision

42. 	The statutory provision entitling the Secretary of State to recover an overpayment of benefit is section 71 of the Social Security Administration Act 1992. It reads, so far as material:

“(1)	Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure – 

(a)	a payment has been made in respect of a benefit to which this section applies; or

(b)	…

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made … but for the misrepresentation or failure to disclose.”

Under subsection (11) section 71 applies inter alia to benefits as defined in section 122 of the Social Security Contributions and Benefits Act 1992, which include disability living allowance. 

43. 	It is clear that a claim to recover an overpayment may be made either on the ground of misrepresentation or on the ground of failure to disclose. The first point taken in the claimant’s grounds of appeal in relation to overpayment is that the tribunal did not make clear whether it was proceeding on the basis of misrepresentation or failure to disclose. The point is made that the decision of 6 October 2004 referred to misrepresentation. I note that the offence to which the claimant pleaded guilty was an offence of failing to notify promptly a change of circumstances. 

44. 	In my view, this criticism is not borne out by reference to the tribunal’s statement of reasons. It is there said that recovery had been sought on the basis of failure to disclose an improvement in walking ability. Even if that does not correctly reflect the basis of the initial decision, it shows what the tribunal believed to be the issue. That is consistent with the tribunal’s focus in their findings of fact on documents requiring the claimant to report relevant changes and their finding that the claimant had failed to disclose a material fact. It is also consistent with their conclusion that the improvement in the claimant’s walking ability prior to 2001 was sufficient to warrant his notifying the Department of it. I regard it as clear that the tribunal proceeded on the basis of a failure to disclose. I agree with the tribunal that that was the correct approach. 

45. 	The claimant’s further grounds of appeal as respects failure to disclose may be summarised as follows:

(1)	there was no medical evidence to suggest his condition improved to any significant extent “over the period in question”;

(2)	the November 1994 claim pack made clear that he did some walking;

(3)	the papers before the tribunal did not give any information about the details provided to him as to notification requirements;

(4)	he had a life award and, not having clear notification of the criteria for such an award, he does not see what he needed to report or when, given that his medical condition had not gone away and his walking capacity had not significantly improved “due to medical intervention”. 

46. 	Before I consider those grounds of appeal, it is convenient to outline the law relating to the question what constitutes a failure to disclose. First, it is to be noted that although section 71 does not require a failure to disclose to be fraudulent, it is well established that it connotes a breach of an obligation to disclose. This has now been recognised by the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16; [2005] 1 WLR 967; R(IS) 7/05. 

47. 	The next step is to consider the source of any such obligation. As Hinchy shows, there have been two possible candidates: an implied obligation to be found in section 71 itself and the express obligations in regulation 32 of the Social Security (Claims and Payments) Regulations 1987, SI 1987 No 1968. So far as material, that regulation read, until 5 May 2003:

“(1)	… every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State … may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State … may require …, and in particular shall notify the Secretary of State … of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence …”

It has now been held by a Tribunal of Commissioners in CIS/4348/2003 that it is regulation 32 which imposes the obligation. 

48. 	It was further held in that decision, in line with the analysis in Hinchy, that regulation 32 imposes two duties of different kinds:

(1)	a duty to furnish documents or other information as required by the Secretary of State; and

(2)	a duty to notify the Secretary of State of any change of circumstances which the claimant might reasonably be expected to know might affect the right to benefit. 

In neither type of case is there a further requirement that disclosure itself might reasonably be expected. The decision of the Tribunal was upheld by the Court of Appeal in B v  Secretary of State for Work and Pensions [2005] EWCA Civ 929; [2005] 1 WLR 3796; R(IS) 9/06. The Court of Appeal, however, was concerned with a question under the European Convention on Human Rights and with the issue whether the suggested further requirement existed. It did not analyse in detail the different types of obligation. 

49. 	The changes to regulation 32 made with effect from 5 May 2003 as mentioned in paragraph 47 above have in substance split the previous regulation 32(1) into paragraphs (1A) and (1B). For present purposes, the change is immaterial. The Secretary of State in his submission has drawn my attention to a decision of Mr Commissioner Jacobs, CDLA/2328/2006, discussing the difference between the two paragraphs. Where the first duty is in issue, the claimant is under an obligation to give any information the Secretary of State has requested. The claimant is not concerned to form a view on the materiality or otherwise of the information; he simply has to provide it if it is asked for and he is aware of the fact itself.  Where the second duty is in issue, the question is not only whether the claimant knew the fact, but also whether he might reasonably be expected to know it might affect his right to benefit. Requests for information from the Secretary of State may provide a helpful indication of what the claimant might reasonably be expected to know would affect his claim, but do not define it. 

50. 	The case before Mr Commissioner Jacob was another case about entitlement to the mobility component of disability living allowance. After being entitled to the award for many years, the claimant underwent a hip replacement operation which reduced his disability. He did not report that fact to the Department for Work and Pensions. Like the present claimant, following an allegation from a member of the public he was placed under surveillance and later interviewed under caution. His entitlement was removed from three months after the operation and it was decided that the overpayment was recoverable.  The tribunal affirmed that decision. Unfortunately, the tribunal did not make clear whether they regarded the claimant as coming under the first or second duty, or possibly had run the two together. For that reason, the tribunal’s decision was set aside. 

51. 	The Secretary of State submits in the present case that the claimant was under the first duty and there was no error of law in the tribunal’s decision.  The material part of the statement of reasons, however, reads as follows:

“The appellant initially received his benefit via an order book.  The requirement to report any relevant changes in his condition contained therein would have also been referred to in annual ‘up rating’ letters that would have also been sent to the appellant and also in the explanation of the Mobility Agreement that was sent to him on 14/10/98 regarding the mobility car he was then awarded. 

At no relevant time since being awarded benefit did the appellant report any improvement in his walking ability which – at  page 82 – he conceded in his interview he had ‘at a time’ thought he should perhaps do (although in his evidence to us the appellant told us he could not remember so thinking, having, shortly beforehand, informed us that his ‘memory is not very good’). ”

The first of those paragraphs does indeed appear to proceed on the basis that the first duty is relevant. The second, however, in introducing what the claimant might or might not have considered he ought to do, seems to point rather to the second duty. Like Mr Commissioner Jacobs, I find myself uncertain which duty the tribunal were considering and accordingly unable to be clear what elements they regarded as necessary to make the overpayment recoverable and the reasons for which they found those elements to be present. Again like Mr Commissioner Jacobs, I find that that was an error of law and set the decision aside. 

52. 	The question remains whether I must then remit the case to another tribunal. As stated at the outset of this decision, I have concluded that I am able to substitute a decision of my own. 

53. 	If the overpayment is to be held recoverable on the basis of a breach of the first duty on the part of the claimant, it is clearly necessary to show a requirement made by the Secretary of State to the claimant to furnish information which the claimant did not furnish. Further, if the overpayment is to be recoverable from 1 January 1995 onwards, it is necessary to show a requirement made on or before that date. The substance of the claimant’s third ground of appeal as summarised in paragraph 45 above is that there was no proper evidence to that effect before the tribunal. 

54. 	I accept, in broad terms, that submission on the part of the claimant.  The case put to the tribunal by the Secretary of State on this aspect largely appears from the extract from the tribunal’s statement quoted above. The annual uprating letters were said to go back to 25 April 1997 and a record of letters sent was before the tribunal. So was a specimen letter, apparently of 2004 vintage (although there is no clear statement of its date of publication) and what seems to be a specimen leaflet which may or may not have been sent to the claimant (it is dated April 2004 and so postdates the investigation period). There was no example of an order book instruction before the tribunal, nor was there any indication of what was said in the explanation of the motability agreement. 

55. 	In making the above points as to the documentation before the court, I bear in mind the acceptance by the Court of Appeal in B v.  Secretary of State for Work and Pensions at [8] of the willingness of the Tribunal of Commissioners to assume that routine documents had reached the claimant unless the contrary was asserted. I also bear in mind that the tribunal will have been broadly familiar with the order book instructions at least, since they are routinely referred to in similar cases. The question is, however, whether, no later than 1 January 1995, the claimant had received an instruction in terms which covered improvements to his walking ability. I am not prepared, on the material before me, to find as a fact that that was the case, not least since it is not clear for how long the claimant continued to be paid by order book.  

56. 	There remains the second duty, the duty to report a change of circumstances which the claimant might reasonably be expected to know might affect his entitlement to benefit. I approach this on the footing that a claimant who is granted a benefit named mobility allowance at a time when he is housebound and on crutches might reasonably be expected to know that his lack of mobility is the basis on which the award is made and a significant improvement might therefore affect his entitlement. 

57. 	The claimant’s approach to this, as shown by his first ground of appeal, is to contend that there was no medical evidence of a significant improvement during the relevant period. Evidence does not, of course, necessarily have to be medical. There was, however, medical evidence from his GP, as already mentioned, that he had improved from being housebound by 1995 and that his condition had remained stable from 1995 to 2004. This is obviously inconsistent with any considerable improvement in the claimant’s condition as a result of the change of medication (or indeed for any other reason in 2001) and there is no suggestion in the GP’s letter that there was any such improvement, although the change is referred to. The evidence of the video, as explained in the documents on the file and in particular in the witness statement of Mr Campbell (pages 134 to 135) showed that in March 2004 the claimant could walk half a mile to his local pub without stopping in a reasonable time. It is wholly unrealistic to suggest that that did not represent a significant improvement from the claimant’s condition in May 1989 and that is recognised by the claimant’s guilty plea to the offence with which he was charged. Indeed, the charge was that “knowing there had been a change of circumstances that would affect” his entitlement, he “dishonestly” failed to give prompt notification. 

58. 	It follows that there was ample evidence of a significant improvement by March 2004 and medical evidence that that improvement had occurred by 1995. The tribunal’s decision on the entitlement question, as already noted, amounted to an acceptance of that medical evidence. I conclude that this material is sufficient to establish a breach of the second duty. It can hardly be said that the claimant could not reasonably be expected to do what it was dishonest of him not to do. The only issue is when the improvement occurred and the tribunal’s decision, which I have already upheld, was that the improvement had occurred by 1995.  

59. 	This disposes also of the claimant’s fourth ground of appeal, that he was not aware of the criteria for mobility allowance and that as his condition had not improved due to medical intervention he does not see what he had to report. He recognises that by December 2001 he ought to have reported an improvement; it cannot be said that he does not see that he ought to have reported such an improvement by 1995, given that it had occurred by then. 

60. 	The claimant’s second ground of appeal is that the November 1994 claim pack made clear that he did some walking. He says that there was no misrepresentation or failure to disclose and if the adjudication officer had felt it put his entitlement to the mobility component at the higher rate in question some action should have been taken at the time. It is clear that the adjudication officer did not feel that the claim pack put his entitlement in question, no doubt because the claimant’s self-assessed ability to walk only 10 to 15 yards in four or five minutes would certainly have been viewed as virtual inability to walk in the light of the authorities. It is not necessary for present purposes to enter upon the question whether that statement was in fact a misrepresentation. The reference to walking has no relevance, in my view, unless it can be said to have amounted to disclosure of the improvement. 

61. 	I find it impossible to regard the sort of reference to walking made by the claimant in the claim form as disclosure of a significant improvement, given the totality of what he said in the form. There was a clear and specific statement that the claimant’s walking ability was extremely limited, albeit that he had advanced to walking out of doors and with a stick rather than on crutches. In the absence of the specific statement, the argument might have had more weight, but it fails in the present circumstances. 

Summary

62. 	For those reasons, I have decided:

(1)	that the claimant’s appeal against the entitlement decision is dismissed;

(2)	that the claimant’s appeal against the overpayment decision is allowed and the decision is set aside, but that I substitute my own decision to the same effect. 

63. 	For the avoidance of doubt, I should state expressly that the period of the overpayment is from 1 January 1995 to the date at which payment ceased. (It appears from page 90 that the last payment made in fact covered the period to 1 June 2004.)  If the amount of the repayment 
cannot be agreed, the matter must be referred back to the tribunal, as the tribunal directed.  	

	(signed on the original)	E. Ovey
		Deputy Commissioner

							          21 September 2007