AL-v-Department for Social Development (DLA) [2013] 10

Decision No:  C41/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 29 July 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon on 29 July 2011.

2.	For the reasons I give below, I set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998 and I remit the appeal to a newly constituted tribunal with directions for redetermination.

REASONS

	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) on 11 April 1994 on the basis of mobility and care needs arising from osteoarthritis in her ankle joints.  She was awarded the high rate of the mobility component and the low rate of the care component from and including 11 April 1994.

4.	At the relevant time, the applicant was also receiving income support and housing benefit (HB).  On the basis of information which suggested that the applicant was working, the applicant became the subject of an investigation by the Benefit Investigation Service (BIS).  The investigation methods included the recording of surveillance video of the applicant, obtaining a record of earnings from an alleged employer and interviewing the applicant under caution.  The Department made a decision on 8 February 2008, superseding the applicant’s award and deciding that she was not entitled to DLA from and including 27 October 2006.  The significance of 27 October 2006 is that on this date the BIS first recorded surveillance video images of the applicant.

5.	On 7 March 2008 the Department decided that, as a result of the decision that the applicant was not entitled to the sum of £4,077.05 for the period from 1 November 2006 to 12 February 2008, that she had been overpaid this amount and that it was recoverable from her.  The core reason for the overpayment decision is that “As the result of the decision(s) dated 24/07/2006 an overpayment of disability living allowance – Care/ Mob has been made from 01/11/2006 to 12/02/2008 (both dates included) amounting to £4,077.05 as shown on the attached schedule.  On 01/11/2006, or as soon as practicable after, (the claimant) failed to disclose the material fact that she no longer satisfied the condition of entitlement to Disability Living Allowance”.  The use of the date “24/07/2006” appears to be an accidental error in the decision and should probably be taken to be a reference to the decision of 8 February 2008.  The applicant appealed.

6.	Her appeal was considered by a tribunal on 29 September 2009, who decided that the applicant was not entitled to DLA from and including 27 October 2006.  The applicant applied for leave to appeal to the Social Security Commissioner.  On 16 November 2010 the former Chief Commissioner in the decision on file C42/10-11(DLA) set aside the decision of the appeal tribunal on the basis that it followed an unfair procedure at the hearing.  He remitted the appeal to a newly constituted tribunal.

7.	A new tribunal sat on 29 July 2011.  It considered three appeals together in one hearing.  These concerned the question of the applicant’s entitlement to DLA from and including 27 October 2006 (the original supersession decision), the question of the applicant’s entitlement to DLA from and including 12 May 2010 following a new claim and the issue of whether DLA was overpaid and recoverable from the applicant for the period from 1 November 2006 to 12 October 2008.

8.	The tribunal disallowed all three appeals.  The applicant then requested a statement of reasons for the tribunal’s decisions, which was issued on 20 December 2011.  On 16 January 2012 she applied for leave to appeal to the Social Security Commissioner in respect of the overpayment decision only (case reference CN/9696/09/37/D).  Leave was refused by the legally qualified member of the appeal tribunal (LQM) by a determination issued on 31 January 2012.  On 24 February 2012 the applicant applied to a Social Security Commissioner for leave to appeal.

	Submissions

9.	The application for leave to appeal, prepared on the applicant’s behalf by Mr Begley of GR Ingram & Co (Solicitors), submits that:

	(i)	there was no indication of how any of the evidence in relation to the recoverability of the overpayment was assessed;

	(ii)	there was no indication in the statement of reasons of the tribunal’s reasons for its decision on the recoverability of the overpayment;

	(iii)	there was insufficient consideration of the Department’s delay in acting upon information received which contributed significantly to any overpayment;

	(iv)	the tribunal did not make findings on whether the applicant was aware that any relevant change of circumstances had occurred.

10.	On 31 May 2012 the Department was invited to make observations of the grounds of application.  On 27 June 2012 Miss McHugh responded for the Department.  Miss McHugh accepts that there is an error of law in the tribunal’s decision as alleged, in that the reasons for finding the overpayment to be recoverable are not expressly stated.  She submits that the delay in the benefit investigation does not exonerate the applicant from responsibility to notify the Department of changes in her circumstances.  Although she accepts that the reasons are inadequate, she nevertheless submits that the conclusions of the tribunal are sound and asks the Commissioner to substitute a decision to the same effect.

	Directions

11.	I directed an oral hearing of the application.  I further directed the parties to prepare summaries of the case which they intended to present at hearing and to address some particular questions.  Specifically I asked:

	(i)	What was the material fact which the tribunal decided that the applicant failed to disclose?

	(ii)	What evidence of that material fact was before the tribunal?

	(iii)	Where there is evidence of failure to disclose a material fact which can affect entitlement to one component of DLA, and where an award consists of both components, is this a sufficient basis for determining that there was a recoverable overpayment in respect of each component?

	(iv)	What was the statutory basis of the claimant’s duty to disclose in the present case – eg was there a duty to disclose under regulation 32(1) or under 32(1A) of the Social Security (Claims and Payments) Regulations (NI) 1987?

	(v)	Does the relevant duty to disclose require the tribunal to approach the question “Did the applicant fail to disclose?” in a particular way depending on which statutory duty is relied upon?

	Relevant legislation

12.	The main provision governing recoverability of overpaid benefit is section 69 of the Social Security Administration (NI) Act 1992.  As far as relevant this provides:

‘Overpayments – general

69.—(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) any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

(2) Where any such determination as is referred to in subsection (1) above is made, the person making the determination shall in the case of the Department or a tribunal, and may in the case of a Commissioner or a court —

(a) determine whether any, and if so what, amount is recoverable under that subsection by the Department; and

(b) specify the period during which that amount was paid to the person concerned.

(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

(4) In relation to cases where payments of a benefit to which this section applies have been credited to a bank account or other account under arrangements made with the agreement of the beneficiary or a person acting for him, circumstances may be prescribed in which the Department is to be entitled to recover any amount paid in excess of entitlement; but any such regulations shall not apply in relation to any payment unless before he agreed to the arrangements such notice of the effect of the regulations as may be prescribed was given in such manner as may be prescribed to the beneficiary or to a person acting for him.

(5) ...

(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or under regulations under subsection (4) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or has been revised under Article 10 or superseded under Article 11 of the Social Security (Northern Ireland) Order 1998.

…

It is broadly accepted, and I accept, that the duty to make a disclosure of information which can result in a failure to disclose arises from regulation 32 of the Social Security (Claims and Payments) Regulations (NI) 1987, which provides as far as relevant:

Information to be given and changes to be notified

32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner as the Department may determine and within the period applicable under regulation 17(4) of the Decisions and Appeals Regulations such information or evidence as it may require for determining whether a decision on the award of benefit should be revised under Article 10 of the 1998 Order or superseded under Article 11 of that Order.

(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require in connection with payment of the benefit claimed or awarded.

(1B) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall notify the Department of any change of circumstances which he might reasonably be expected to know might affect—

(a) the continuance of entitlement to benefit; or

(b) the payment of the benefit,

as soon as reasonably practicable after the change occurs by giving notice of the change to the appropriate office—

(i) in writing or by telephone (unless the Department determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

(ii) in writing if in any class of case it requires written notice (unless it determines in any particular case to accept notice given otherwise than in writing).

…’

	Hearing

13.	I held an oral hearing of the application.  Mr Begley of Begley Swift solicitors appeared for the applicant.  Miss McHugh appeared for the Department.  I am grateful to the representatives for their helpful submissions.

14.	At the outset of the hearing, on the basis of the written submissions which had been received, I accepted that the applicant had established an arguable case of error of law and I granted leave to appeal.  With the consent of the parties I proceeded to treat and determine the application as if it were an appeal.

15.	Mr Begley outlined the facts of the case and referred to the record of proceedings and statement of reasons of the tribunal.  He accepted that the tribunal was entitled to reach its decision on entitlement but submitted in essence that when it came to the decision on recoverability that it had made insufficient findings and given inadequate reasons.  For that reason it had not complied with the obligation on the tribunal to undertake a rigorous assessment of the evidence as required by C6/08-09(IB).

16.	He submitted that there was no indication that the tribunal had considered the issue of what instructions the applicant was aware of for the purposes of regulation 32(1A) of the Social Security (Claims and Payments) Regulations (NI) 1987.  He submitted that the instructions on the INF4, which he accepted would have been sent to the applicant, were not clear and unambiguous.  He referred to MK v SSWP [2011] UKUT 12 (AAC) which, he submitted, was on all fours with the present case.  He submitted that it was not established by the tribunal on what evidence and on what basis the original award was made.  He referred to two letters from the applicant’s general practitioner (GP) dated 27 November 2008 and 18 August 2009 which, he submitted, indicated no change from 1994.  These were not referred to in the record of proceedings as being before the tribunal, however.

17.	He relied upon C10/07-08(IS) and C56/11-12(DLA), which he submitted was strikingly similar to the present case.  In C56/11-12(DLA), Chief Commissioner Mullan had said that “the appellant was entitled to know through the statement of reasons for the appeal tribunal’s decision the legal and evidential basis on which it was confirmed that there had been an overpayment of DLA and that it was recoverable from her”.  He further submitted that as DLA was comprised of two components, there was a duty to assess recoverability of each component on its own merits.  In the present case, he submitted, the tribunal had not made a clear distinction between the two components.

18.	Miss McHugh responded for the Department.  She candidly accepted that the tribunal had not made findings and given reasons relevant to the issue of recoverability.  She further accepted that the decision of the Department which had been appealed had similar flaws, in that it did not identify what material fact the applicant was said to have failed to disclose.

19.	She submitted nevertheless that regulation 32(1A) of the Claims and Payments Regulations applied, giving rise to an obligation to disclose information to the Department.  She referred to the INF4 form and page 3 in particular which indicated “You must tell us if your doctor tells you your illness or disability will last a longer or shorter time than you have already told us.  Also tell us if you need less or more help with personal care or getting around”.

20.	She referred to the evidence of changes in circumstances before the tribunal in form of the BIS interview records, the DVD evidence, the medical records and the oral evidence of the applicant.  She submitted that, despite the fact that the tribunal had not made adequate findings, I should now make my own findings of fact and correct the decision of the tribunal, making my own decision to the same effect.

	Assessment

21.	It is evident that there is merit on the submissions of Mr Begley.  The tribunal was considering three different decisions on appeal.  Firstly, there was the decision superseding entitlement to DLA, secondly the decision on a fresh claim made by the applicant after the supersession of her previous award, and thirdly the decision to the effect that there was a recoverable overpayment.  Only the last decision was under appeal before me.

22.	It is accepted by the Department, and I believe that it is evident from the statement of reasons, that the tribunal has not made the findings which are necessary to determine the question of recoverability, or at least has not recorded that it has done so.  It has not considered and determined the nature of the duty to disclose which might fall on the applicant in the present case.  It has not determined what material fact the applicant has failed to disclose.  As the conditions of entitlement for each component are quite distinct, I also consider that it has not identified what material fact the applicant has failed to disclose in relation to each component.

23.	As a result the appellant cannot know the reasons for the appeal tribunal’s decision the legal and evidential basis on which it found that there had been an overpayment of DLA and that it was recoverable from her.

24.	Therefore, I consider that the tribunal has erred in law by failing to make adequate findings of fact and failing to give adequate reasons for its decision on the recoverability of the DLA overpaid to the applicant.  I therefore must set aside the decision of the appeal tribunal.

25.	There had been general discussion at the hearing about the subjective nature of much of the self-assessment evidence and whether the concept of material fact attached to such matters as the estimate of walking ability stated by a claimant on a DLA claim form.  The nature of DLA adjudication, where concepts such as virtual inability to walk and reasonable requirement for attention bore more than one valid interpretation was also discussed.  Mr Begley submitted that there was no evidence of change of circumstances in the applicant’s case, but rather that the additional evidence had led to a different decision.  I see some force in these arguments, but I do not need to decide them for the purposes of the present application.

	Disposal

26.	Mr Begley has submitted that I should remit the appeal to a newly constituted tribunal for determination.  Miss McHugh submits that I should make the decision the tribunal should have made, making my own findings of fact on the relevant matters.

27.	As much of the material before the tribunal, such as the medical records, is not before me, and since the appeal tribunal has the benefit of appropriately expert panel members, I consider that this is not a case in which I should make my own decision.

28.	I remit the appeal to a newly constituted tribunal.  The new panel shall have regard to the need to make findings of fact in relation to the question of whether the DLA overpaid to the applicant, following the supersession decision which is not appealed, is recoverable from her.  In order to do so the new tribunal will have to consider, determine and record, among other things:

	(i)	Which limb of regulation 32 of the Claims and Payments Regulations applies to the applicant’s circumstances?

	(ii)	If regulation 32(1A), has she been given clear and unambiguous instructions on the nature of any material facts which she has to disclose?

	(iii)	If regulation 32(1B), is there a material fact in the form of a change of circumstances which she might reasonably be expected to know might affect her entitlement to benefit?

	(iv)	If so, and regulation 32 applies, what is the nature of any material fact which she has failed to disclose?

	(v)	What was the evidence of that material fact?

	(vi)	How did her failure to disclose the material fact have an effect in terms of her entitlement to each component of DLA?

(signed):  O Stockman

Commissioner

25 February 2013