[2007] UKSSCSC CSDLA_612_2006 (06 February 2007)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/612/06

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

ORAL HEARING

Appellant:  		   Respondent:  Secretary of State

Tribunal:  Dundee		                            Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Dundee on 22 March 2006 is erroneous on a point of law.  I set it aside.  I make the decision I see appropriate. It is:

To hold the decisions of the Secretary of State dated 21 February 2005 and 24 March 2005 to be erroneous in law.  They are set aside.  The case is remitted to the Secretary of State to proceed as accords in the light of this decision.  

2.	This appeal came before me for an oral hearing on 1 February 2007.  The Secretary of State was represented by Mr Bartos, Advocate, instructed by Miss Archer, Solicitor, of the Office of the Solicitor to the Advocate General.   The claimant was represented by Mrs Milne of the Angus Council.

3.	The Secretary of State has appealed to the Commissioner against the decision of the tribunal which was to allow appeals against the decision of the Secretary of State, dated 21 February and 24 March 2005.  The decision of the tribunal superseded the claimant’s award of disability living allowance of 17 August 2003, which awarded him the higher rate of the mobility component and the highest rate of the care component from 4 July 2003.  The tribunal did so on the basis of mistake as to material fact.  It found that the claimant was entitled to the care component at the lowest rate with effect from the 21 February 2005 for an indefinite period on the basis of satisfaction of the lowest rate day time attention condition.  It found that he was not entitled to an award of the mobility component at any rate.  The tribunal also found that there was no overpayment of disability living allowance in respect of the period 9 July 2003, to 20 February 2005.  

4.	The award of the allowance to the claimant contained in the decision of 17 August 2003, proceeded upon the basis of evidence presented by the claimant to the Secretary of State in the claim pack signed by the claimant at pages 3 to 38, a short medical report at page 39 from the claimant’s general practitioner and a further report from her, at pages 40 to 44.  

5.	On the 20 January 2005, a statement was obtained by the Department from the claimant.  It was signed by him and witnessed. It is contained at pages 50 and 51.  Following upon that statement, the Secretary of State made two decisions.  The first dated 21 February 2005 was to supersede the awarding decision of 17 August 2003.  It did so on the basis of ignorance as to material fact.  It disallowed the claimant’s award from 4 July 2003.  It was submitted by Mr Bartos that this decision was erroneous in law in respect that such a supersession could not back date the disallowance to the date of the original award.  Mrs Milne did not dispute this, and I accepted this submission.  On 24 March 2005, the Secretary of State made an overpayment decision setting out a recoverable overpayment of £8,578.95 for benefit received during the period 09 July 2003, until 8 March 2005.  That overpayment decision proceeded upon the basis of the supersession made by the Secretary of State in his decision of 21 February 2005.  It follows that if the decision of 21 February 2005 erred in law, then the overpayment decision did so also because the overpayment required to be set up by the decision of 21 February 2005 and this was not effectively done.  These errors are material having held the tribunal’s decision erroneous in law I required to address them when considering my disposal of the appeal, I have done this and set both of them aside.

6.	The claimant appealed the decisions of 21 February and 24 March 2005 to a tribunal.  It is to be noted that in the written submission to the tribunal by the Secretary of State, all the tribunal was asked to do was to consider and decide whether the claimant satisfied the conditions of entitlement for an award of any rate of the mobility component, or the care component of the disability living allowance.  There was no submission made to them in relation to the issues which arise in relation to whether the awarding decision could and should be either superseded or revised and from what date.  Mr Bartos could not direct me in the record of proceedings to any submission on those issues by the presenting officer.

7.	Following upon the tribunal hearing the tribunal gave the decision which I have set out above.  Mr Bartos submitted that the tribunal erred in law in making the decision which they did.  On the other hand, Mrs Milne maintained that the tribunal did not err in law, and that they gave adequate reasons for their decision she also stated that she was content with the decision which the tribunal made even although as from 21 February 2005, the award of the higher rate of the mobility component and the highest rate of the care component was withdrawn.  

8.	Mr Bartos’s submission was that the tribunal by virtue of what was said by Tribunal of Commissioners in RIB2/04 in paragraph 55, were entitled to consider whether there were grounds to revise the awarding decision under and in terms of regulation 3(5)(c) of the Social Security and Child Support (Decisions and Appeals) regulations 1999.  Mrs Milne did not dissent from that proposition and I accepted it, though in doing so, I do note that it was no part of the Secretary of State’s position in the appeal before the tribunal that this regulation should be applied.  Mr Bartos explained to me that the application of this regulation was crucial in the case upon the basis that it was the only means whereby the awarding decision could be altered so as to disallow benefit from the original date of award and give rise to a recoverable overpayment.  It was his submission that the tribunal erred in law by not carrying out a revision under this regulation and that their reasons for not doing so were also erroneous in law.  

9.	In examining whether the tribunal did err in law, it is necessary to set out the basis upon which they proceeded.  What the tribunal said was:

“The issues which the tribunal required to address are whether the Secretary of State had shown that the award of DLA in favour of the appellant should be altered by either statutory route and if so, from what date and whether as a result there was an overpayment of DLA recoverable from the appellant.  The tribunal considered that there were grounds to alter the decision in favour of the appellant but that should be by way of supersession from the date of the decision maker’s decision.  The ground of that supersession was mistaken as to the material fact of the appellant’s disablement.    The tribunal concluded that the award in the appellant’s favour was never correct.  It was always excessive.  He was never entitled to the higher rate of the mobility component nor the highest rate of care component, only the lowest rate of the latter.  The tribunal did not, however, consider that grounds to revise that decision had been shown.  In order to revise the decision the Secretary of State required to show that Regulation 3(5) of the Decisions and Appeals Regulations was satisfied and in terms of Regulation 3(5)(c)(ii), the tribunal had to be satisfied that at the date the decision was made, the claimant knew or reasonably could have been expected to know, the fact in question and that it was relevant to the decision.  For the reasons afterwards explained, the tribunal did not consider that had been established.”

10.	Why the tribunal considered that there was a mistake as to the material fact of the appellant’s disablement and its extent, appears from the statement of reasons to have been dictated by the tribunal’s view of entitlement which was principally based upon their acceptance of the evidence of the examining medical practitioner report carried out on 08 November 2005.  It is to be noted that the claimant’s statement to the examining medical practitioner in relation to the length of time his needs existed, was given as 4 to 5 years and the opinion of the examining medical practitioner in respect the duration of mobility needs and care needs at pages 112 and 126 pre-dated the original award.  It is also clear from the tribunal’s statement at pages 141 to 142, that in respect of the merits as to what elements of what components the claimant satisfied, they did not find either the claimant or his co-habitee to be a credible or a reliable witness.  However, I was not directed to anything said by the tribunal in relation to the credibility or reliability of the evidence presented to the decision maker in the first place as contained in the claim pack and medical reports which gave rise to the award being made.  It is only if that evidence can be shown to have given rise to a mistake by the decision maker, that the grounds for a supersession can be established.  The claim pack and the medical evidence presented with the original claim give a very clear picture of substantial disablement.  That is apparent when one peruses them.  That evidence was clearly accepted by the decision maker and was a proper factual basis upon its acceptance by the decision maker, for the award which was made.  For example, in respect of the claimant’s walking ability out of doors at page 19, it is said that the claimant can walk no distance and is in discomfort all the time.  In relation to night time attention at pages 24 and 25, it is said that the claimant requires attention from his co-habitee: 3 times a night for 10 to 20 minutes, 7 nights a week, in relation to moving in bed, or getting out of bed to try and alleviate the pain by standing or leaning over a chair.  It is also said, that he requires to claimant to assist him out of bed to go to the toilet: 2 times a night at least, for 5 to 10 minutes.  Looking at these examples, it is apparent from page 50, that the claimant’s position in respect of his walking ability is somewhat less restrictive than set out in the claim pack.  In relation to the night time attention condition the tribunal did not accept the claimant’s co-habitee’s evidence that she was up about 3 times a night between 11 and 6a.m, assisting the claimant.  The tribunal went on to say:

“It was accepted that his wife went to bed first and then followed, having to waken her once when going to bed for a very brief period.  For the purposes of the benefit, the night begins when the household goes to bed rather than his partner and the attention was not reasonably required on a repeated or prolonged basis.”

11.	It follows from that, and there are other examples, that the attitude of the tribunal was such that they did not accept that the claimant’s disabilities were as extreme as set out in the claim pack.  It was incumbent upon them in these circumstances to deal with the claim pack and to spell out in terms the basis upon which they took the view that the decision maker made a mistake as to fact, rather than simply set out a different view on subsequent evidence as to whether the claimant satisfied the conditions of the components of the allowance awarded in the original decision.  As the tribunal took the view that the claimant was never entitled to the higher rate of the mobility component and the highest rate of the care component the inevitable inference is that the evidence upon which it was based was incredible, or unreliable or exaggerated.  Thus, in the absence of such an explanation I find that their decision errs in law and must be set aside.  

12.	That error is a different one to that Mr Bartos submitted the tribunal had made.  His submission was based upon an asserted failure of the tribunal to revise the awarding decision.

13.	Regulation (3)(5)(c) of the Decisions and Appeal regulation provides as follows:

	“(5) A decision of the Secretary of State under section 8 or 10 – 
	………..
(c) Where the decision is a disability benefit decision,………..which was made in ignorance of, or was based upon a mistake as to, some material fact in relation to a disability determination embodies in, or necessary to the disability benefit decision………..and 
(i) as a result of that ignorance 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……..knew or could reasonably have been expected to know the fact in question and that it was relevant to the decision,
	may be revised at anytime by the Secretary of State.”

14.	What the tribunal said in respect of this regulation was:

“The final issue which the tribunal required to explain is as to why they did not find that the appellant had been overpaid benefit in respect of the period prior to the date of the superseded decision.  The tribunal did not consider it was reasonable for the appellant to realise at the outset that he was receiving more benefit that that to which he was entitled.  He clearly had back pain, he had a perception of pain, he had been prescribed substantial medication, he had attended pain clinics.  He had limitations with regard to his mobility.  He required some care in the day and received some attention at night as many people might understand that term. It was accepted that his wife went to bed first and then followed, having to waken her once when going to bed for a very brief period.  For the purposes of the benefit, the night begins when the household goes to bed rather than his partner and the attention was not reasonably required on a repeated or prolonged basis.  Accordingly, the appellant had had mobility restrictions and attention needs.  Whilst the tribunal do not accept the extent of his disablement and accept that the decision was given on a mistake as to that disablement (the conclusion from a number of primary facts), this is a complex benefit and the tribunal did not consider it reasonable for the appellant to have known he was being overpaid. It was not reasonable to expect him to understand the subtleties of the minutiae of this complex benefit and how it might affect this entitlement.  The tribunal should also say that they considered the decision maker to be over influenced by the appellant looking after his 2 year old daughter and riding a motor cycle.  The tribunal accepted the evidence of the Chairman of the National Association for Bikers with a Disability, Rick Hulst, that surprisingly riding a motor cycle is quantitively less demanding than driving a car and also that the appellant though he stated that he was alone with his 2 year old daughter all day, in fact had some visitors and help.  It was accepted he had the responsibility for her.  The tribunal accepted he received some help in the day from his mother, daughter [D Mc.M] and neighbour and friend Mr E.N] with domestic chores and some help in looking after the child though less than these witnesses maintained, their evidence being considered to be effected by their relationship with the appellant.  On the foregoing basis therefore the tribunal concluded that it was not reasonable for the appellant to realise initially that he was being overpaid and that his award of DLA should only be superseded from the date of the decision with no prior overpayment.”
It can thus be seen that the basis for their conclusion was that the conditions set out in regulation 3(5)(c)(ii) were not met.

15.	I consider that the tribunal erred in law in their approach to regulation 3(5).  They first failed to spell out why the award was made in mistake as to material fact and why the evidence presented to the decision maker fell to be rejected.  I refer to what I have said in paragraph 11 in that regard.  It is only when that is done that a decision can be articulated as to whether by virtue of mistake the claimant got a more advantageous award that he otherwise might have. 

16.	In any event I also consider that even if they had not otherwise erred in law in relation to their approach to regulation 3(5)(c) they erred in law in their application of sub paragraph (ii).  It is clear from the approach of the tribunal to what is contained in the claim pack and supporting medical evidence, much of which appears to have been derived from what the claimant told the doctor concerned, was either untrue, or exaggerated in a manner which must have been known to the claimant.  The questions in the claim form require direct answers.  It is apparent, for example, that in respect of the night time attention conditions, the tribunal simply did not accept as a matter of fact the extent of the attention which the claimant and his wife has said he required. That in essence means that unless matters had changed since the date of the awarding decision, which has never been asserted the information in the claim pack is not accurate.  The same applies in respect of other answers given in relation to the care and mobility components. These were matters which were directly related to fact and not to what is described by the tribunal as “the subtleties of the minutiae of this complex benefit and how it might affect his entitlement.”  In my view, the insertion of untruthful, inaccurate or exaggerated answers in the claim pack which have been demonstrated to be so, would give the Secretary of State, or the tribunal standing in his shoes, grounds for satisfaction that the claimant knew or could reasonably have been expected to know the true, accurate or unexaggerated state of affairs and that they were relevant to the decision that required to be made.  The answers to questions in a claim pack are obviously relevant. Also, for the purposes of regulation 3(5)(c)(ii) the test is not whether it was reasonable for the claimant to know that the benefit was being overpaid, it was whether the true, accurate and unexaggerated facts in relation to his disablement were known to him at the time the decision was made and were relevant to it.  By expressing the statutory test inaccurately, I hold that the tribunal erred on these grounds also.

17.	Mr Bartos submitted that if I considered the tribunal’s decision to have erred in law, which I do, I should remit the matter to a freshly constituted appeal tribunal for a re-hearing.  He said that I should give directions to that tribunal as set out in paragraph 11 of Secretary of State’s supplementary submission on pages 189 and 190.  I am not prepared to do what he wishes me to do. The Secretary of State in this case gave erroneous decisions both in relation to supersession and overpayment.  No adequate submission was made to the tribunal as to the approach which the Secretary of State wished the tribunal to take, either in the written submission on appeal or by the presenting officer.  There are I consider, limits to the extent which the Commissioner or the tribunal should assist the Secretary of State with poor decision making.  In these circumstances, I have taken the course I have in paragraph 1.

18.	The appeal succeeds. 

					(signed)
					D J MAY QC
					Commissioner
					Date:  6 February 2007