IN THE UPPER TRIBUNAL	Case No.  CDLA/134/2011
ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

Decision:  	The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 2 August 2010 is set aside and the case is remitted to the First-tier Tribunal for reconsideration.

Directions:	I direct the Secretary of State to provide to the First-tier Tribunal, within one month of this decision being sent to his representative, all evidence in his possession relevant to the question whether any authorisation required by the Regulation of Investigatory Powers Act 2000 in respect of the surveillance of the claimant that resulted in the evidence relied upon in this case was given by an officer of appropriate seniority.  

	I direct that, if possible, this case be heard at the same time as the claimant’s appeal against the Secretary of State’s decision of 10 May 2011, whereby a new claim for disability living allowance was disallowed.

These directions may be varied or set aside by a judge of the First-tier Tribunal.

REASONS FOR DECISION

1.	This is an appeal, brought with my permission, against a decision of the First-tier Tribunal which, on 2 August 2010, dismissed the claimant’s appeal against a decision of the Secretary of State to the effect that she was not entitled to disability living allowance from 31 January 2009 and that disability living allowance amounting to £2008.75 had been overpaid to her since that date and was recoverable from her.  The Secretary of State’s decision involved a supersession of an award of the highest rate of the care component and the lower rate of the mobility component of disability living allowance.

2.	The Secretary of State concedes that the appeal should be allowed on the two grounds I identified when giving permission to appeal.

3.	The first was that, while the First-tier Tribunal’s statement of reasons dealt adequately with the effect of the claimant’s physical problems on her entitlement to the care component and with the effect of her mental health on her entitlement to the mobility component, it was arguable that the First-tier Tribunal ought to have considered whether the claimant still reasonably required some attention in connection with bodily functions arising from her mental health at home, given the way the case was put before the First-tier Tribunal, the doctor’s evidence and the First-tier Tribunal’s findings that the claimant still suffered from obsessive compulsive disorder and agoraphobia.  I accept the Secretary of State’s concession that the First-tier Tribunal did indeed err in that respect although, as I indicated when granting permission, I have some doubt as to whether the disability arising from the claimant’s mental health would give rise to entitlement to more than the lowest rate of the care component at the material time.

4.	The other ground upon which I granted permission to appeal was concerned with the date from which the award was superseded and therefore with the amount of the overpayment.  Again, I accept the Secretary of State’s concession that the First-tier Tribunal did indeed err in that respect.  Under regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991), as amended, the date from which the award fell to be superseded was the date on which the claimant “knew or could reasonably have been expected to know that the change of circumstances should have been notified”.  If a condition is variable or subject to a gradual improvement, pinpointing that date may not be easy.  In this case, in retrospect, the date from which the change was taken to have occurred was in January 2009, but it did not follow that the claimant should have realised that a material change had taken place at the time.  The most striking change in the claimant’s condition was in her physical mobility but that was not actually material, given that there had been no award of the higher rate of the mobility component.  The change in the ability of the claimant to move her upper limbs was more relevant and required reporting, but the claimant could be expected to report it only once she realised it might be a medium-term improvement.  Moreover, if it were accepted that the claimant still needed the presence of someone for reassurance when outdoors or for at least a significant portion of the day (as to which the First-tier Tribunal made no finding), the question would arise as to whether the claimant could reasonably have been expected to realise that mere presence does not amount to guidance or supervision and that such improvement in her mental health as there had been was significant and should also be reported.  In my judgment, the First-tier Tribunal did not adequately consider the issues material to decisions under regulation 7(2)(c).

5.	The Secretary of State, in a very thorough response, has also argued that the First-tier Tribunal erred in other respects.  It is unnecessary for me to deal with those submissions save for one.  The Secretary of State submits that the First-tier Tribunal erred in law in failing to make findings as to whether surveillance had been properly authorised for the purposes of the Regulation of Investigatory Powers Act 2000.  reference is made to CIS/1481/2006 and DG v Secretary of State for Work and Pensions (DLA) [2011] UKUT 14 (AAC).  It is not necessary for me to express a view as to whether that submission is correct or whether it carries with it an implication that evidence of proper authorisation ought to be provided as a matter of course to the First-tier Tribunal in every case where surveillance evidence of any type is relied upon by the Secretary of State.  However, if the First-tier Tribunal did err as alleged, the error is only material if the lack of investigation would, or might, have resulted in a finding that the surveillance was not properly authorised.  Since the evidence necessary to show whether proper authority was given should all be in the possession of the Secretary of State, it seems to me that the Secretary of State ought generally to produce that evidence when submitting to the Upper Tribunal that the First-tier Tribunal has erred in failing to obtain it.  Nonetheless, given that this case must, as both parties submit, be remitted to the First-tier Tribunal on other grounds, it is unnecessary for me to insist on this evidence being produced before me.  Instead, I direct the Secretary of State to provide the evidence to the First-tier Tribunal, who must make of it what it will in the light of the authorities cited.  

6.	I have been helpfully informed that the claimant made a new claim for disability living allowance on 23 February 2011, that the claim was disallowed on 10 May 2011 and that the claimant has appealed against the new decision.  It would obviously be desirable for that appeal to be heard by the First-tier Tribunal at the same time as this case. 

Mark Rowland
17 August 2011