DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the claimant.

The decision of the Colchester First-tier Tribunal dated 26 August 2009 under file reference 134/08/00812 involves an error on a point of law and is set aside.  The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 5 September 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

The further decision of the First-tier Tribunal dated 5 October 2009 under file reference 134/08/00812 also involves an error on a point of law but is not set aside.

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing will be at an oral hearing. 

(2)	The new tribunal should not involve any tribunal judge or other member who sat on the tribunals that have previously considered this claimant’s appeals or applications on 26 November 2007, 19 March 2009, 26 August 2009, 5 October 2009 and 18 June 2010 (or indeed on any other dates which are not apparent from the Upper Tribunal file).

(3)	If the claimant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the Tribunals Service within one month of the issue of this decision.  

(4)	The Secretary of State should provide a supplementary submission to the regional office of the Tribunals Service within one month of the date of issue of this decision.  That submission should deal with the issues identified at paragraphs 55-56 below.

(5)	The new tribunal should consider in particular the guidance in paragraphs 57-75 below.

(6)	The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  It should consider the burden of proof at all times.  Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

These directions, with the exception of Direction (2) (5) and (6), are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

REASONS FOR DECISION
Introduction

1.		This appeal is about the decision by the Department for Work and Pensions (DWP, or “the Department”) that it can recover the sum of £12,139 paid to the claimant, a man now aged 61 (“Mr G”), by way of payments of the higher rate component of the mobility component of disability living allowance (DLA) for a period between 2001 and 2006.

2.		For the reasons explained below, the decision of the First-tier Tribunal that there was a recoverable overpayment of DLA involves an error on a point of law and is set aside.  The case has to go back for a rehearing. The First-tier Tribunal, of course, has the advantage of seeing and hearing the claimant and any witnesses at first hand in the context of all the evidence in the case.  It must consider all the evidence afresh and in the light of the Directions above and the guidance that follows.

3.		I must say at the outset that the Department’s original written submission to the First-tier Tribunal was wholly inadequate and quite possibly, despite strong competition in some other cases, the worst I have seen in nearly 20 years’ experience of hearing social security appeals.

4.		The inadequacy of that submission was unfair in at least three ways. It was unfair on the claimant, who was not really given a clear idea of the case against him.  It was unfair on the tribunal, which was given precious little assistance in finding its way through the evidence.  It was also unfair in terms of the wider public interest.  As Baroness Hale of Richmond explained in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 (at paragraph 41) “the benefits system exists to pay benefits to those who are entitled to them... the system is there to ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less.”  

The background to the original award of DLA in 2000 

5.		In October 2000 the claimant completed a DLA claim form with his wife’s assistance (documents 49-81).  He stated that he suffered from back pain and had problems with walking which dated from 1990.  The Department received the DLA claim form on 24 October 2000.

6.		It appears that the Department then sent a questionnaire to the claimant’s GP.  I say “appears” advisedly, as the tribunal bundle includes a page listing eight detailed and bespoke (rather than standard form) questions (including “How far can the patient usually walk at their normal pace before the onset of severe discomfort?”: see doc 82) and a page which includes the GP’s signature, dated 14 November 2000, and which appears to be page 5 of a 5-page form, but is otherwise blank (doc 83).  The GP’s answers (if any) to the eight questions are not included in the bundle.  To date this omission does not appear to have been picked up at any stage of the proceedings.  The relevant pages are also missing from the original version of the bundle on the Tribunals Service file.

7.		On 21 November 2000 one of the Department’s decision makers made an award of benefit (docs 84-93).  She decided that the claimant was entitled to an award of the higher rate component of the mobility component of DLA for an unlimited period from 31 January 2001, but disallowed the claim for the care component.  The award was said to be made (at least on the basis of the boxes ticked) on the basis of the claim pack and the GP’s report.  The reasons that were given by way of free text related to the disallowance of the care component rather than to the award of the mobility component.  It is unclear from the record of the decision why the award was made with effect from 31 January 2001 rather than, for example, the date of the DLA claim pack or indeed the date of the request for that form.  Nothing may turn on that point now.

The DLA (dis)entitlement and overpayment decisions in 2006 and 2007

8.		In 2006 the Department apparently received an allegation that the claimant was not as disabled as he claimed to be.  A counter fraud officer employed by the Department conducted surveillance of the claimant on several dates in July and August 2006.  The claimant was seen variously working on his car in the drive of his home, visiting other addresses and walking while out shopping.  The counter fraud officer used a camrecorder to video the claimant and on 8 September 2006 prepared a comprehensive statement detailing what he had observed (docs 94-104).

9.		On 11 September 2006 the same counter fraud officer and a colleague interviewed the claimant under caution for over an hour (docs 105-136).  At the close of that interview the claimant was warned that he might be prosecuted under section 112A of the Social Security Administration Act 1992 for failing to notify a change of circumstances.  It is not clear from the file whether any such criminal proceedings have been taken.

10.		On 27 October 2006 one of the Department’s decision makers superseded the original awarding decision of 21 November 2000.  The decision maker concluded on the basis of the officer’s statement and the video evidence that the claimant was no longer virtually unable to walk and removed entitlement to the mobility component of DLA as from 25 July 2006 (the date of the first observation as part of the surveillance operation).

11.	On 13 February 2007 a decision maker made an overpayment decision to the effect that there was a recoverable overpayment of DLA amounting to just over £600 for the period from 26 July 2006 to 31 October 2006.

The appeal against the DLA (dis)entitlement decision: Tribunal 1

12.		Although the full papers relating to the proceedings before Tribunal 1 are not in the present bundle, it is clear that the claimant lodged an appeal against the decision to remove his entitlement to DLA.  It appears that at the first hearing of that appeal in 2007 the tribunal took the view, on the basis of the evidence on file, that there was a possibility that the claimant had never been entitled to DLA at all.  If so, the decision awarding benefit should have been revised (and so removed) from the outset rather than superseded but just with effect from July 2006.  The tribunal therefore very properly gave the claimant a “health warning” to that effect and adjourned the appeal for the claimant to take legal advice. 

13.		The tribunal sat again on 26 November 2007 to hear the appeal.  The tribunal’s decision notice (doc 14) and statement of reasons (docs 15-16) but not its record of proceedings are in the current bundle which was before Tribunal 2.  The tribunal (Tribunal 1) dismissed the claimant’s appeal.  It viewed the video which it said “provided compelling evidence of [his] ability to walk”.  The tribunal noted the claimant’s claim that his walking ability was now worse than in 2001, but decided that there had been no change in his condition since that time.  The tribunal considered that the 2000 claim pack had been “completed on the basis of his condition on his very worst days, when he cannot get out of bed.  He did not specify how often he has such a bad day and we infer that such days are rare”.

14.		The tribunal concluded that “on the basis of his own evidence he cannot reasonably be said to be virtually unable to walk and equally cannot therefore be said to have been virtually unable to walk in 2001 when the award was made.”  The tribunal thus decided that the claimant was not entitled to the mobility component of DLA for the period from 31 January 2001 (the start date of the original award) to 29 May 2007.  The tribunal referred the issue of any overpayment back to the Secretary of State.  There was no appeal by the claimant to the (then) Social Security Commissioner against the decision of Tribunal 1.

The DLA overpayment decision in 2008

15.	On 5 September 2008 a decision maker made a new overpayment decision based on the decision of Tribunal 1.  The revised decision (doc 7) was that the claimant had been overpaid DLA for the period from 31 January 2001 to 31 October 2006 amounting to £12,139.  This sum was said to be recoverable from the claimant on the basis that “on 31/01/2001” he had “misrepresented a material fact when declaring that he was not unable to walk”.  I return later to the nature of the alleged misrepresentation.

16.		The claimant’s solicitors lodged an appeal on 22 September 2008, arguing that the overpayment was not legally recoverable as it was caused neither by the claimant’s misrepresentation nor by any failure to disclose relevant facts (docs 1-2). The Department’s decision was reconsidered but confirmed on 26 September 2008 (doc 13). 

The appeal against the DLA overpayment decision: Tribunal 2

17.		As indicated above (see paragraph 4), the Department’s written submission on the claimant’s appeal was wholly and woefully inadequate.  The substance of the submission ran to less than two pages of generously spaced text.  The “facts of the case” were summarised in four very brief paragraphs, the longest of which ran to just two short sentences.  The “reason for the decision” was simply said to be, rather unhelpfully, “overpayment recoverable”.

18.		The passage headed “The Submission”, which is intended to set out the Secretary of State’s analysis of the appeal, was no more illuminating.  It read simply (and in full) as follows:

		“Issues raised by the appeal

A.	[Mr G] misrepresented a material fact when applying for benefit on 31/01/2001 when declaring that he was not unable to walk.

The tribunal is asked to consider and decide the following issues

1.	Whether the overpayment is recoverable from [Mr G].”

19.		I repeat the points made at paragraph 4 above as to the unfairness involved to all concerned.

20.		The appeal against the DLA overpayment decision was initially considered by a tribunal on 19 March 2009.  That tribunal was unable to proceed as one of the members had sat on Tribunal 1.  The tribunal sensibly adjourned the appeal with detailed directions, including a direction that the Department provide “video evidence, the claim pack and GP notes”.

21.		The tribunal bundle for the final hearing before Tribunal 2 certainly included the claim pack and the video evidence.  It did not include the GP’s notes, although it is clear that Tribunal 1 had previously had sight of the claimant’s medical records (see its statement of reasons, doc 16, paragraph 13).

22.		The appeal was relisted for 26 August 2009 before Tribunal 2. The Department (commendably) sent a presenting officer as well as both fraud officers in the investigation as witnesses.  The appellant did not attend.  According to the judge’s note in the record of proceedings (doc 147), the tribunal “waited until 14.40 for hearing listed for 14.00. Proceeded in absence of Appellant. Appellant was aware of hearing date as had reserved disabled parking space”.  Tribunal 2 dismissed the appeal against the Secretary of State’s decision dated 5 September 2008.  Tribunal 2 issued a short decision notice by post the same day.  In the later statement of reasons the tribunal judge added that she had also been sitting on 28 August 2009 and was not made aware that the claimant had attended on that date by mistake (the possible significance of this will become apparent shortly).

Tribunal 3’s refusal to set aside Tribunal 2’s decision 

23.		On 2 September 2009 the claimant’s solicitors wrote asking for the decision of Tribunal 2 to be set aside.  They explained that the claimant’s non-attendance had been a straightforward mistake – the notification of the tribunal hearing date had been misread by the claimant’s wife, who organised the family diary, as 28 August rather than 26 August.  The solicitors pointed out that the claimant had a good record of attending previous hearings and that given the sum of money and the issues involved it was in the interests of justice for Tribunal 2’s decision to be set aside and a fresh hearing directed.

24.		On 5 October 2009 a District Tribunal Judge considered the set aside application on the papers (Tribunal 3).  He refused that application on the basis of the tribunal judge’s note that a disabled parking space had been reserved at the venue: “Clearly the appellant or [Mrs G] had to be aware of the hearing date to book the parking space” (doc 153).

The appeal to the Upper Tribunal

25.		The claimant appeals with my permission to the Upper Tribunal.  He has appealed against the decisions of both Tribunal 2 and Tribunal 3.  His solicitors have drafted detailed grounds of appeal, some but not all of which I accept.  The appeal to the Upper Tribunal is supported by Mr Wayne Spencer on behalf of the Secretary of State in a very helpful submission.  Mr Spencer suggests that it is not necessary to consider the validity of Tribunal 3’s decision, as there are errors of law in Tribunal 2’s decision which mean the case must go back for re-hearing before a new tribunal in any event.

26.		Whilst I can see the force of Mr Spencer’s suggestion, it is appropriate to deal with the appeals against both tribunal decisions, not least as the claimant’s solicitors have advanced detailed arguments on both matters.  I shall deal with them in reverse order.

The appeal against Tribunal 3’s refusal to set aside Tribunal 2’s decision

27.		There is no right of appeal against a First-tier Tribunal decision to set aside an earlier decision of that tribunal, as that is an “excluded decision” (see section 11(5)(d)(ii) of the Tribunals, Courts and Enforcement Act 2007). The reason for this is presumably that there will inevitably be a further right of appeal against the substantive decision at the rehearing following the set aside.  In principle, however, there is a right of appeal against a tribunal’s refusal to set aside an earlier tribunal decision (see M P v Secretary of State for Work and Pensions (DLA) [2010] UKUT 103 (AAC); AH v West London Mental Health Tribunal and SSJ [2010] UKUT 264 (AAC) and now LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC)).    

28.		The claimant’s solicitors have put forward several arguments by way of challenge to Tribunal 3’s decision which I reject.  For example, I do not accept that Tribunal 3 was under any obligation to hold an oral hearing of the claimant’s set aside application (see by analogy K P v Hertfordshire County Council (SEN) [2010] UKUT 233 (AAC)).  Nor do I accept that the Upper Tribunal itself has the power under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) to set aside a decision of the First-tier Tribunal.  Quite simply, the power in rule 43 is confined to setting aside decisions of the Upper Tribunal, not the First-tier Tribunal (see the heading to Part 7 of the 2008 Rules).

29.		I am, however, satisfied, on balance, that Tribunal 3’s decision involves a breach of natural justice.  I reach this conclusion with some hesitation, as tribunal judges rightly have a considerable degree of discretion in determining such applications.  They may often need to take a robust approach in the interests of justice both in the case in question and more generally.  In the present case, the District Tribunal Judge based his decision solely on Tribunal 2’s record that a parking space had been reserved and that therefore the claimant must have been aware of the correct date (and so presumably, having reserved the space, took a later and conscious decision not to attend).  To my mind, there are at least two difficulties with this approach.  

30.		First, it was based on an understandable but untested assumption that in booking the parking space the appellant must necessarily have both been actively aware of and referred to the correct hearing date when booking the parking space with the tribunal administrative team.  That may or may not have been the case.  It is perhaps unlikely but conceivable – and indeed this is the argument now advanced by the claimant’s solicitors – that the claimant or his wife rang up to book a parking space and were asked simply for the name or reference number, which could have been enough administratively to secure the booking for whatever the date of the hearing was.  On that basis the conversation could possibly have taken place without any mention of the actual date. The claimant’s failure to attend on the true date, as noted by Tribunal 2, arguably takes matters no further forward, as by then he had presumably received the decision notice, realised his mistake and contacted his solicitors.

31.		Second, and more significantly, Tribunal 3 did not directly address the arguments advanced by the claimant’s solicitors as to the interests of justice.  This consideration is an essential requirement for a set aside application to succeed (see rule 37(1)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), “the SEC Procedure Rules”). I accept, of course, that the statutory requirement as to the giving of reasons does not apply to decisions under Part 4, such as decisions on set aside applications (see rule 34(1) of the SEC Procedure Rules).  However, it may well be good judicial practice to give brief reasons (see K P v Hertfordshire County Council (SEN) [2010] UKUT 233 (AAC)), especially in a case such as this where specific and reasoned points had been made on behalf of the claimant.  There is no indication that Tribunal 3 really engaged with those issues.  In fact, the claimant’s solicitors had made a number of points in that regard which were, on the face of it, simply disregarded altogether.

32.		I repeat that a tribunal may well be entitled to take a robust approach.  However, if a robust approach is taken to a party’s non-attendance at a hearing, then, depending on the circumstances, it may be appropriate to be more discerning and flexible in considering a subsequent application for a set aside.  As the Employment Appeal Tribunal has put it, “it would appear to be a necessary concomitant of the more stringent attitude [to non-attendance] ... that there be the less stringent attitude on a review if a party who has not attended comes forward with a genuine and full explanation and shows that the original hearing was not one which from which he deliberately absented himself” (see Cooke v Glenrose Fish Co [2004] ICR 1188 at paragraph 21(1)).  That principle applies here, where a considerable sum of money was at stake and yet the party’s explanation as a simple misreading and misunderstanding as to dates has been ignored on the basis of an untested assumption about what may or may not have been known and said when reserving a parking space and without apparently taking on board the solicitors’ detailed arguments as to the interests of justice in the case.  

33.		For those reasons I conclude on balance that there was a breach of natural justice and the decision of Tribunal 3 involves an error of law (Tribunals, Courts and Enforcement Act 2007, section 12(1)).  If I were to set Tribunal 3’s decision aside, I must then either remit it to the First-tier Tribunal for reconsideration or re-make the decision myself (2007 Act, section 12(2)(b)).  Given that the claimant’s real challenge is to the decision of Tribunal 2, which I am setting aside in any event, either course of action would be fruitless.  I therefore find Tribunal 3’s decision to involve an error of law but exercise my discretion not to set it aside (2007 Act, section 12(2)(a)).

The appeal against Tribunal 2’s decision on the DLA overpayment appeal

34.		Mr Spencer, for the Secretary of State, submits that Tribunal 2’s decision, dismissing the claimant’s appeal against the Secretary of State’s 2008 DLA overpayment decision, is flawed for three reasons.  The claimant’s solicitors naturally concur with those arguments.

(1)	The tribunal’s decision to proceed with a hearing in the claimant’s absence

35.		First, Mr Spencer argues that Tribunal 2 had a discretion to proceed in the claimant’s absence under rule 31 of the SEC Procedure Rules, which specifically directs the tribunal to consider whether “it is in the interests of justice to proceed with the hearing”.  This is a discretion which must be exercised consciously and judicially (see e.g. JF v Secretary of State for Work and Pensions (IS) [2010] UKUT 267 (AAC) and by analogy MA v Secretary of State for Work and Pensions [2009] UKUT 211 (AAC)).   As Judge Lane explained in JF v Secretary of State for Work and Pensions (IS) (at paragraph 13):

“A decision on whether it is in the interests of justice to proceed requires an exercise of judicial discretion.  Under the Rules, this is informed by Rule 2(1), which states that the overriding objective of the Rules is to enable the tribunal to deal with cases fairly and justly.  The factors which are included in that assessment are set out in rule 2(2).  These serve to focus the tribunal’s mind on matters relevant to that consideration.  Not every factor will be appropriate to the circumstances of every case.  At the end of the day, the question under rule 2(1) is whether the tribunal has dealt with a case fairly and justly.” 

36.		When granting permission to appeal, I indicated that I remained to be persuaded that Tribunal 2 should have put in train enquiries (e.g. by instructing the clerk to telephone the claimant or his solicitors) before deciding to proceed with the hearing in his absence.  As I pointed out, it is not for the Upper Tribunal to second guess case management decisions where the First-tier Tribunal properly has a broad discretion.  However, Mr Spencer submits that Tribunal 2 gave no explanation as to why it decided that it could reach a decision without hearing from the claimant and gave no express consideration to the interests of justice.  The tribunal simply referred to the fact that the claimant was aware of the hearing.

37.		In the present case the best practice would certainly have been for the tribunal to check the master file to see if there was any indication from the claimant that he intended either to attend, or not to attend, and if the former then to ask the clerk to make a telephone call to establish whether he was in fact coming or e.g. had been taken ill or had had a change of heart.  I am not suggesting that making such a call is always necessary, or that the failure so to do amounted to an error of law in this case, but in the circumstances of this case it would certainly have been advisable.  In other cases it may well be sufficient simply to wait 10 minutes and then proceed with the hearing, without asking the clerk to make a call, having considered whether it is right to go ahead within the terms of rule 31.

38.		Furthermore, I agree with both parties’ representatives that Tribunal 2’s failure when deciding to proceed to address the issues concerning the interests of justice adequately under rule 31 amounts to an error of law in this case.  In this context I bear in mind particularly the size of the overpayment at stake, the claimant’s good attendance record at precious hearings, the inadequacy of the Department’s written submission in this appeal and the apparent absence of potentially significant evidence from the tribunal bundle, as noted above.

(2)	The tribunal’s view on whether it could go behind the DLA entitlement decision

39.		It will be recalled that Tribunal 1 held that the claimant had no entitlement to the DLA higher rate mobility component from the date of the original award in January 2001.  It remitted the issue of any consequential recoverable overpayment to the Secretary of State.

40.		The record of proceedings for Tribunal 2 shows that the judge and members first watched the video, and then heard submissions from the presenting officer.  The first such submission was recorded as “cannot go behind entitlement decision”.  This was repeated in Tribunal 2’s statement of reasons: “The Tribunal were reminded by the presenting officer that they could not go behind the entitlement decision that had been dealt with by the previous Tribunal”.

41.		The presenting officer’s submission was potentially misleading and the tribunal’s adoption of that proposition amounts to an error of law.  It is well established that in a case such as this Tribunal 2 certainly could not change the decision of Tribunal 1, so the conclusion that there had been an overpayment of benefit could not be changed.  However, crucially Tribunal 2 was not bound by any findings of fact made by Tribunal 1 (see section 17 of the Social Security Act 1998).  It was quite possible for Tribunal 2 to make different findings of fact, even on the same evidence.  The result may be that while Tribunal 1 may have decided that there was an overpayment of benefit, Tribunal 2 might have properly concluded that despite Tribunal 1’s decision the overpayment was not recoverable, having taken a different view on the facts relevant to the entitlement issue (see Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 428 (AAC) at paragraphs 42-52).

42.		I acknowledge Mr Spencer’s point that it may be that Tribunal 2 did in fact address the factual issues afresh, and untrammelled by Tribunal 1’s factual conclusions as to the claimant’s ability to walk.  However, given the stark terms of the proposition as recorded by the tribunal, I also agree with Mr Spencer that there is more than a lurking doubt that the tribunal actually regarded itself as bound by the factual findings of Tribunal 1.  At the very least it may well have started from the position that there was a presumption that those findings were correct and that the burden then lay on the claimant to disprove that.  This uncertainty amounts to an error of law on the tribunal’s part.

(3)		The tribunal’s acceptance of the video surveillance evidence

43.		Tribunal 2, like Tribunal 1, watched the video evidence and reached the conclusion that it demonstrated that the claimant’s walking ability was such that he did not meet the criteria for the award of the mobility component of DLA.  That may or may not be right but is ultimately a factual issue for the First-tier Tribunal.

44.		In reported decision R(DLA) 4/02 Mr Commissioner Jacobs (as he then was) rejected an argument that similar covert surveillance necessarily involved a breach of the right to private and family life under article 8 of the European Convention on Human Rights. It was a matter of degree and in applying for benefit the claimant had accepted interference by the Secretary of State necessary to check that she continued to satisfy the conditions of entitlement and this could include observation and videotaping (R(DLA) 4/02 at paragraphs 17-20).  On the facts of that case, “the film showed no more than would have been apparent to any member of the public who happened to be passing or, for that matter, to a tourist who happened to be filming in the street at the time” (at paragraph 19).  Accordingly, “The decision to investigate, the extent to which the claimant was investigated, the manner in which the investigations were carried out, the use that was made of the material collected, and the retention of that material for adjudication purposes were all consistent with showing respect for the claimant’s private life” (at paragraph 20).

45.		Mr Spencer, however, has very properly drawn attention to the subsequent decision of Mr Commissioner Williams (as he then was) in CIS/1481/2006. That case involved covert surveillance of a female claimant who was allegedly living with a man as husband and wife, but the underlying principles should be the same.  Mr Commissioner Williams examined the regulatory regime put in place by the Regulation of Investigatory Powers Act (RIPA) 2000, which was not in force when the events at issue in R(DLA) 4/02 took place.  The Commissioner summed up his conclusions on the effect of the 2000 Act at paragraph 50:

“50	More generally, where there is a challenge under Article 8 of the European Convention against evidence produced by the Secretary of State, or the conduct or results of surveillance are otherwise challenged before an appeal tribunal, RIPA now provides effective answers. If the Secretary of State provides the tribunal and the claimant with a copy of the application and authorisation for the surveillance, and it is clear that the authorisation covers the surveillance, then the tribunal will usually need to take matters no further. The tribunal may properly take the view that the Secretary of State can rely fully on the evidence obtained from the surveillance without further investigation by itself. If the claimant has continuing or other concerns, then he or she may take them to the investigatory powers tribunal.  With that in mind, I suggest that the Secretary of State should, in cases such as this, produce the proper documentation about surveillance to an appellant and the tribunal together with the evidence from the surveillance on which the Secretary of State seeks to rely.”

46.		I agree with Mr Spencer that the tribunal erred in law in simply accepting the video evidence in this case without further enquiry.  It should have made a finding as to whether the covert surveillance in question was properly authorised for the purposes of RIPA 2000.

47.		It may well be, of course, that the surveillance in question had been properly authorised and the relevant paperwork could have been produced.  Even if no such proper authorisation was in place, the video evidence was not necessarily inadmissible, although the weight to be attached to it might well be less.

Other challenges to Tribunal 2’s decision

48.		The claimant’s solicitors raise a number of other challenges to the decision of Tribunal 3.  Given my conclusions above, I do not need to deal with these in any detail.

49.		One ground of appeal is that the tribunal failed to deal adequately with the issue of variability, especially at the time of the original award of DLA.  Mr Spencer submits that the tribunal dealt appropriately with this, while the claimant’s solicitors argue to the contrary.  I do not need to resolve this issue, although of course the new tribunal may have to consider the question of variability carefully at the rehearing.

50.		A further ground of appeal is that Tribunal 1’s comment that the claimant “did not notify any change of circumstances, [and] we accept that he did not consider that his circumstances had changed” created a legitimate expectation that no subsequent tribunal would make a finding of fact contrary to that statement.  The claimant’s solicitors argue that Tribunal 1’s comments led the claimant to decide not to appeal Tribunal 1’s decision and that Tribunal 2’s decision breaches that legitimate expectation.  I do not accept this argument.  The public law doctrine of legitimate expectations requires a clear and unambiguous representation upon which it was reasonable for the representee to rely (see Secretary of State for Work and Pensions v LC (CA) [2009] UKUT 153 (AAC)).  I do not think the comments of Tribunal 1 meet that criterion, not least given the provisions of section 17 of the Social Security Act 1998, discussed above (at paragraphs 39-42). 

51.		In their submissions the claimant’s solicitors rely on Merritt v Peterborough Magistrates’ Court [2009] EWHC 467 (Admin).  However, that case involved criminal charges and sentencing powers, where rather different considerations may be in play.  The present case is much more akin to an authority in the social security field, R(IS) 1/04, where Mr Commissioner Mesher (as he then was) found that “I do not think that there is any question of legitimate expectations (rather than a mere hope that the threat of repayment might go away or be forgotten) having been created in the present case” (at paragraph 25).

Conclusion on Tribunal 2’s decision on the DLA overpayment appeal

52.		My conclusion is that Tribunal 2’s decision on the DLA overpayment appeal involves the three errors of law identified at paragraphs 38, 42 and 46 above.  I therefore set aside the decision of Tribunal 2 (and so need take no action with regard to the decision of Tribunal 3: see paragraph 33 above) under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

53.		I am not able to make a decision on the actual merits of the appeal against the Secretary of State’s 2008 decision on the recoverability of the overpayment of DLA.  That is a matter which must go back to be considered afresh by a new tribunal, subject to the Directions above and to the guidance below.

Directions and Guidance to the new tribunal

54.		I draw the parties’ attention to the directions at the head of this Decision.

55.		I particularly draw the Secretary of State’s attention to Direction (4).  The Secretary of State’s further submission should spell out the precise nature of the misrepresentation which is alleged (see further below).  It should also include as an annex a set of all the papers that were before Tribunal 1, assuming they are still available.  This may involve some duplication of material, but equally experience in other cases suggests that there is the distinct possibility that relevant material was before Tribunal 1 but not Tribunal 2.

56.		In particular the Secretary of State should ensure that the following documentation is made available to the new tribunal:

	(1) a full copy of the complete GP factual report dated 14 November 2000;

(2) a copy of the claimant’s GP records, which were clearly before Tribunal 1 although apparently not produced to Tribunal 2 despite the adjourned tribunal’s directions;

(3) a copy of the application for, and authorisation of, covert surveillance of the claimant under RIPA 2000.

57.		In reaching its decision on the claimant’s appeal against the Secretary of State’s decision dated 5 September 2008 the new tribunal should bear in mind the following directions and guidance:

(1)	The ultimate issue for the new tribunal is whether an amount of DLA has been overpaid to the claimant as a result of his misrepresentation of, or failure to disclose, a material fact (but there appears to be no suggestion of a failure to disclose);

(2)	The new tribunal should make a formal finding as to whether a revision or supersession sufficient to satisfy section 71(5A) of the Social Security Administration Act 1992 has been carried out.  I note that to date there appears to be no suggestion other than that the decision of Tribunal 1 meets the requirements of section 71(5A);

(3)	The key point at issue is whether or not the claimant provided a factually accurate description of his walking ability on his claim form in 2000.  The new tribunal will need to consider carefully the actual words used or adopted by the claimant on the claim form, along with the terms of the declaration that he signed at the end of the claim pack;

(4)	It follows that the new tribunal will need to make clear and precise findings as to:

(i)	what the claimant represented on the 2000 claim pack;
(ii)	what the actual facts of the matters covered by the claimant’s representations were; and
(iii)	whether there are any substantive and material discrepancies between the two.

(5)	In making those findings the new tribunal is not bound by the findings of fact made by either Tribunal 1 or Tribunal 2.  The new tribunal must consider the evidence afresh and make its own findings of fact;

(6)	The new tribunal may take into account the written and indeed oral evidence of the counter fraud officers, along with the video evidence derived from the covert surveillance, if it finds that the surveillance was properly authorised under RIPA 2000.  If no such authorisation is produced, the tribunal may well decide to attach little or no weight to such evidence.  If the claimant has lodged a complaint with the investigatory powers tribunal, and that tribunal orders the destruction of such surveillance evidence, then it must be excluded from consideration (see CIS/1481/2006 at paragraph 48);

(7)	If the new tribunal finds that the claimant did misrepresent a material fact, it should go on to consider whether that misrepresentation (or any failure to disclose) was at least one cause of any DLA overpayment.  It should also make findings as to the amount of, and the period covered by, the overpayment.  It should bear in mind that the Secretary of State is entitled to recover such an overpayment from the claimant regardless of whether the misrepresentation was innocent or not;

(8)	The new tribunal should bear in mind that the burden of proof is on the Secretary of State to demonstrate that the alleged overpayment is recoverable within the terms of section 71.  The standard of proof is the normal civil standard of the balance of probabilities;

(9)	The actual decision on whether or not recovery is to take place, assuming section 71 is satisfied and recoverability is established, is a matter for the discretion of the Secretary of State and not the decision of the First-tier Tribunal.

58.		It will be apparent from the previous paragraph that the new tribunal will have to consider carefully the claimant’s statements on the DLA claim pack in 2000 and consider whether they were representations of material fact.  The tribunal must be careful to distinguish between a statement of opinion and one which is a (mis)representation of a material fact. Only the latter can give rise to a recoverable overpayment. 

59.	The new tribunal must also remember that the claimant’s statements on the DLA claim pack cannot be read in isolation.  They must be read in the context of the questions which he was actually asked.  For example, one of the key questions on mobility asked “Tell us roughly how far you can walk before you feel severe discomfort.  For example, before you need to stop and rest.”  His answer was “13 yards, some days are worse than others”.  In answer to the further question “Tell us how long on average it takes you to walk this far” he answered “1½ minutes”.    

60.	However, people’s estimates of time and distance are notoriously unreliable. By way of context the report on Research on Road Traffic (HMSO, 1965) found that the average walking speed of adult pedestrians on level ground was about 3.4 mph (1.52 metres per second) and that the age and sex influence walking speed (see further CDLA/2423/2007).  I have to say that many tribunals, when faced with a DLA claim pack on a fresh claim stating that a person could only walk 13 yards (say 12 metres) in 1½ minutes, and with no other persuasive evidence, would almost certainly dismiss the appeal on the basis that the statements were “so exaggerated as to be inherently implausible”.  

61.	In the present case, and taking the statements in the claim pack at face value, the claimant was saying that his walking speed was 520 yards an hour.  Put another way, he was stating that his walking speed was 0.13 metres per second or approximately 0.3 miles per hour, or less than one-tenth the average speed of an adult.  This is arguably not so much implausible as incredible.  If accurate, it reflects not so much a walking speed as a shuffle.  

62.	It may be helpful for the new tribunal to approach the issues in the following way.  Did the claimant make a representation of material fact about his walking capability (i) believing it to be untrue (a deliberate misrepresentation), (ii) having no idea as to whether or not it was true and not caring (a reckless misrepresentation); or (iii) believing it to be true (an innocent misrepresentation), perhaps because he is a very poor judge of distance and time?  There is, of course, a degree of purported factual precision in the reference to 13 yards in 1½ minutes, only slightly modified by the statement that “some days are worse than others”. 

63.	Alternatively, did the claimant’s answers amount to no more than a statement of opinion by the claimant as to his walking capability?  The question he was asked, of course, was in effect not “how far can you walk and in what time?” but rather “how far roughly can you walk and in what time before you feel severe discomfort?”  Those qualifications might be considered in some cases to render any response as more by way of a statement of opinion than a representation of fact.  In this context, the claimant’s solicitors have referred in their submission to the decision of Mr Commissioner Jacobs in CDLA/5803/1999.  I agree that the new tribunal should bear in mind the Commissioner’s observations at paragraphs 44-50:
“Did the claimant misrepresent a material fact?
44.	The adjudication officer and the tribunal decided that the claimant misrepresented the material fact that on a good day he could walk 35 yards before the onset of severe discomfort. Were those statements of fact? 

45.	It is notoriously difficult to judge time and distance. That is self-evident from common experience, even to Commissioners: see the remarks of the Commissioner in CM/80/1988, paragraph 5. A claimant's statement of distance in the mobility section of a claim pack cannot be read as a precise distance. The claimant probably has in mind a particular route, such as that from the bus stop to the doctor's surgery. What is stated on the claim pack is an estimate of that distance. 

46.	The estimate becomes even more unreliable when severe discomfort is taken into account. The claimant is asked to state 'how far you can walk before you feel severe discomfort'. What precisely constitutes severe discomfort cannot be defined with precision. Inevitably, the form does not give the claimant any guidance. So, the answer can only be based on the claimant's own view of when severe discomfort begins. 

47.	Taking together the difficulties in judging time and distance and the vagueness and uncertainty over severe discomfort, produces this result. The claimant's answers to the mobility section of the claim pack can usually only fairly be interpreted as statements of the claimant's honest opinion. (The terms of the answers may, of course, show that they are more than that, but that is not the position in this case.) 

48.	The claimant signs a declaration that the 'information given' is correct and complete. That information is the claimant's genuine belief as to the matters stated. There will be a misrepresentation, if the claimant does not genuinely believe that the information given is correct. 

49.	Whether the claimant did genuinely believe the answers given is a question of fact for the tribunal. It is not for a Commissioner to tell an appeal tribunal how to set about answering a question of fact or assessing the credibility of a claimant's credibility. However, I make three points in order to avoid any misunderstanding. First, the tribunal does not have to accept the claimant's word that the answers given were honest. Second, the tribunal will have to determine the extent of the claimant's mobility. The more that differs from the claimant's own statements, the more likely it is that the claimant did not believe the information given in the claim pack. Third, the fact that a claimant has made different statements for different purposes will be relevant, although the terms of the questions asked must be taken into account. 

50.	I have not overlooked that a misrepresentation may be entirely innocent. What I have decided is that as a matter of interpretation, the statements in the mobility section of the claim pack are usually only statements of honest belief.”

64.	The claimant’s solicitors also suggest that if the answers on a claim form were plainly inconsistent and ambiguous then the Secretary of State was under a duty to make further investigations (see CIS/222/1991).  However, it may be that CIS/222/1991 does not particularly assist the claimant on the facts of this case.  In CIS/222/1991 there was a flat contradiction in the claimant’s answers on the form: she had said both that she paid ground rent and that the property was leasehold, two answers which were mutually incompatible.  In the present case, the new tribunal may well form the view, for the reasons above, that the claimant’s statements were not inconsistent and ambiguous but rather unbelievable.  However, the tribunal will still need to satisfy itself that there were misrepresentations of material fact rather than statements of opinion.

65.	The new tribunal must also bear in mind the terms of the claimant’s signed statement at the end of the DLA claim pack to the effect that “I declare that the information I have given on this form is correct and complete.”  On the face of it that statement is less generous to claimants than the other formulation which sometimes appears in claim forms, namely “I declare that the information I have given on this form is correct and complete as far as I know and believe” (emphasis added).

66.	The discussion above only serves to emphasise the inadequacy of both the Secretary of State’s 2008 DLA overpayment decision and the Department’s submission to Tribunal 2.  This was to the effect that the sum of more than £12,000 was said to be recoverable from the claimant on the basis that “on 31/01/2001” he had “misrepresented a material fact when declaring that he was not unable to walk”.  The difficulties with this particular assertion are manifest.  

67.	First, there is simply no evidence at all in these papers that the claimant made any representation on 31 January 2001 about his walking ability, let alone any misrepresentation.  He may or may not have made some such statements when he completed the DLA claim form in October 2000.

68.	Second, the formulation of the alleged misrepresentation is hardly a model of clarity.  Indeed, if the Department’s case is simply that the claimant misrepresented a material fact by in effect declaring that he was virtually unable to walk, then this looks very like a statement of secondary fact or an assertion of mixed fact and law rather than a (mis)representation as to a material fact.  The Department needs to be much more precise about the material fact that the claimant is alleged to have misrepresented.

69.	Assuming for the present that the new tribunal finds that there was a misrepresentation of a material fact in the 2000 claim form, it will then have to consider the issue of causation.  In the present case, as is often the way, the awarding decision gave reasons for the refusal of the care component but no reasons for the award of the higher rate mobility component other than the code “M30”, which simply refers to an indefinite award of the higher rate mobility component on the basis of the claimant being virtually unable to walk.

70.	As noted above, the awarding decision also simply referred to the DLA claim pack and the GP factual report, which is why it is important that the new tribunal has sight of the complete factual report.  In that context the new tribunal will doubtless also find helpful the following further observations of Mr Commissioner Jacobs in CDLA/5803/1999:

“33.	If an award is made and the only evidence before the adjudication officer was the claimant's estimate of walking ability, the award must have been based on the claimant's evidence. 

34.	If evidence is obtained from a GP (or other source) that differs significantly from the claimant's evidence, it is reasonable to assume that the award was based solely on the other evidence and that the claimant's evidence was rejected. 

35.	If evidence is obtained from a GP (or other source) that is broadly the same as the claimant's evidence, it is more difficult to identify the evidence relied on. There are four possibilities. First: the adjudication officer relied on the claimant's evidence, because it was corroborated by the other evidence. Second: that the adjudication officer relied on the other evidence, because it was more independent and objective that the claimant's. Third: the adjudication officer relied on both. Fourth: the adjudication officer relied only on the claimant's evidence, because the other evidence did no more than record what the person had been told by the claimant. Depending on the circumstances, some of these possibilities may be more likely than others. 

36.	Although it is difficult to identify the evidence relied on by the adjudication officer, causation may be more easily established. If the claimant's was the only evidence relied on, the claimant caused the overpayment. If the claimant's evidence was part of the evidence relied on, it was a cause of the overpayment; it is irrelevant that there was also an additional cause: see the decision of the Court of Appeal in Duggan v. Chief Adjudication Officer (reported as an Appendix to the decision of the Commissioner in R(SB) 13/89), which has been followed in Scotland in Riches v. Secretary of State for Social Security [1994] Scottish Law Times 730 at page 734. The only circumstance in which the claimant will not have caused the overpayment is if (a) the other evidence was the only evidence relied on and (b) it did more than merely report the claimant's evidence.”

71.	In the light of those remarks, the nature of the GP’s responses to the Department’s eight questions may be very significant.  If the GP simply said “don’t know” or “not observed”, then the likelihood is that the claimant’s evidence was relied on in making the award.  However, if the GP gave detailed answers suggesting that the claimant had very seriously restricted mobility, albeit not to the extent suggested by the evidence on the claim pack, then it may be that the award was actually based on the GP’s report and the claimant’s evidence was not materially causative.  There may well be other possibilities.  The new tribunal, of course, will need to bear in mind that the burden of proof is on the Secretary of State.

72.	I have referred above to what may be the inherent implausibility of the statement that the claimant’s walking ability was confined to 13 yards in 1½ minutes.  If that statement was nevertheless relied on by the decision maker making the award, was that an official error which broke the chain of causation?  I have explained above that CIS/222/1991 may not assist the claimant in this regard.  The new tribunal may find it more helpful to consider the decision of Miss Deputy Commissioner Ovey (as she then was) in CDLA/2203/2007.  In that case the claim pack included grossly exaggerated statements as to the effects of the disability in question and the claimant was granted an indefinite award of disability living allowance.  The Secretary of State subsequently sought to recover a large overpayment.  The tribunal limited the period of the overpayment to one year, on the basis that the original award should only have been for that limited period.

73.	However, the Deputy Commissioner allowed the Secretary of State’s appeal in CDLA/2203/2007, ruling that in the circumstances of that case “The decision [to award benefit] was one which the decision maker could reasonably have made in the light of the available evidence and so there was no failure to deal fairly or properly with the claim” (at paragraph 36).  She continued as follows:

“37.	If that conclusion is correct, there is no question of a break in the chain of causation.  The misrepresentations in the claim pack led to a reasonable decision on entitlement which in turn led directly to the overpayment.  But even if I am wrong in my view on the reasonableness of the decision and a failure to weigh the evidence properly led to the decision that the award should be for an indefinite period, the question remains whether the decision maker’s error was sufficient to destroy the causal connection with the claimant’s misrepresentations.  In my view it was not.  This is a case in which the claimant’s misrepresentations, even if innocently made, were so extreme that she herself described the claim pack as ridiculous when giving evidence to the tribunal.  It is not a case of one statement which was wrong but of a whole string of inaccuracies giving a completely false picture of her condition when she was not suffering from a flare up.  It is not realistic to assert that the continued overpayment after 2nd January 2004 is to be taken to have been caused entirely by the alleged error by the decision maker, to the complete exclusion of any causal connection with the claimant’s misrepresentations.”  
74.	In the present case the new tribunal may well need to consider whether the circumstances of the present case are similar to, or materially distinguishable from, those in CDLA/2203/2007.  Having sight of the GP’s full factual report may provide the key to answering that question.

75.	There is one final point I should deal with.  The claimant’s solicitors argue that in seeking to establish his case that there is a recoverable overpayment the Secretary of State is subject to the “higher civil standard required to prove fraud”.  I reject that argument for two reasons.  The first is that section 71 applies where “it is determined that, whether fraudulently or otherwise, any person has misrepresented…”.  The second is that the Supreme Court has reaffirmed that the test for the civil standard of proof is “the balance of probabilities, nothing more and nothing less” (Re S-B (Children) [2009] UKSC 17 at paragraph 34; see also Re B (Children) [2008] UKHL 35 at paragraph 35). 

Conclusion

76.		For the reasons explained above, the decisions of both Tribunal 2 and Tribunal 3 involve errors of law.  I therefore allow the appeal and set aside the decision of Tribunal 2 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for re-hearing by a new tribunal subject to the directions and guidance above (section 12(2)(b)(i)).  I allow the appeal against the decision of Tribunal 3 but for the reasons above there is no point in setting aside that decision.

Signed on the original				Nicholas Wikeley
on 12 January 2011					Judge of the Upper Tribunal