DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the Coventry First-tier Tribunal dated 1 March 2010 under file reference 032/09/00772 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 appeals against the Secretary of State’s decisions dated 27 November 2008 and 5 December 2008 are remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

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 tribunal that considered this appeal at the hearing on 1 March 2010.

(3)	If the appellant 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 for the new tribunal which explains in detail how both the DLA entitlement supersession decision (dated 27 November 2008) and the overpayment recoverability decision (dated 5 December 2008)  under appeal are justified by reference to regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and section 71 of the Social Security Administration Act 1992 respectively; this supplementary submission should be sent to the regional office of the Tribunals Service within one month of the issue of this decision.  

(5)	The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  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 may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

REASONS FOR DECISION

Summary of Upper Tribunal’s decision

1.		The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the Coventry First-tier Tribunal on 1 March 2010 involves an error on a point of law.  That tribunal decision is set aside. The case – which means the appellant’s combined appeals against the disability living allowance (DLA) entitlement supersession decision and the overpayment recoverability decision – needs to be reheard by a new tribunal.  

2.		The appellant’s appeal to the Upper Tribunal has been supported in a detailed submission by Mr Wayne Spencer, the Secretary of State’s representative in these proceedings, who is based in the specialist Decision Making and Appeals office in Leeds.  At the First-tier Tribunal the case was handled by a different office, namely the Disability and Carers Service in Blackpool, in conjunction with Jobcentreplus fraud investigators. Ms Rachel Wilcox, the appellant’s representative, does not consent to the Upper Tribunal issuing a decision without reasons.  She believes it will be helpful for the new First-tier Tribunal to have the reasons for the Upper Tribunal’s decision.  I agree with her on that point.
	
	3.		This appeal concerns the First-tier Tribunal’s decision, confirming decisions by the Secretary of State, that the appellant was not entitled to DLA for a past period and that the consequential substantial overpayment of benefit is recoverable from him.  It is therefore a purely civil matter and subject to the civil standard of proof.

The parallel criminal proceedings

4.		The file makes it clear that there are parallel criminal proceedings pending.  The details of the charges are not clear from the file. There is doubtless some overlap with the evidence in the present case.  However, the law of evidence in criminal proceedings is very different, as of course is the standard of proof.  So the outcome of the present civil proceedings may in practice have an impact on the criminal proceedings, but is certainly not determinative.

5.		It appears from the file that a date for the criminal trial has been set for 29 March 2011 and that the appellant’s solicitors in that matter are applying to the criminal court on 17 March 2011 for an adjournment pending the outcome of these civil proceedings. For the benefit of all concerned, I have therefore expedited consideration of this appeal in these civil proceedings.  It would obviously be wrong for me to express any view on the parallel criminal matter, and both parties’ representatives will doubtless be making their representations to the criminal court in due course.  The First-tier Tribunal rehearing will need to be arranged by the Tribunals service office in Birmingham, but quite obviously will not take place before 29 March 2011.

6.		I simply observe that should, at some later date, the First-tier Tribunal have to consider whether or not to adjourn these civil proceedings for the outcome of the criminal case, the tribunal should have regard to the principles set out by the Court of Appeal in Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324 (also reported as Social Security Commissioner’s decision R(IS) 4/08).

A brief history of the DLA claim

7.		For the benefit of the new tribunal, I summarise the history of the DLA claim as follows.  The following account may not be comprehensive.  All page numbers (“doc”) refer to the Upper Tribunal file, which comprises the First-tier Tribunal file plus supplementary papers.

8.		On 18 September 1996 the appellant made a new claim for DLA (docs 4-58), stating that he suffered from hypertension, arthritis and diabetes.  He described his mobility as extremely limited (doc 20).

9.		On 29 October 1996 a Departmental examining medical practitioner (EMP), Dr Grawal, visited the appellant and prepared a full report (docs 59-83).  That official report, on the face of it, justified an award of the higher rate mobility component of DLA and the lowest rate care component of that benefit.

10.		On 1 November 1996 a Departmental decision maker in fact duly made an award of DLA in those terms (doc 85-87).  The award was unlimited in time.  I suspect that had the same matter arisen today, the award would have been fixed term in nature, but nothing may turn on that.

11.		On 17 July 2000 the Department wrote to the appellant asking him about the work which he had been doing since 1998 (docs 88-91).  I interpose that a person’s working status is in law irrelevant to entitlement to DLA; many working people quite lawfully claim and receive DLA, which is solely focussed on care and mobility needs and is not means-tested.  The appellant replied that he had worked from August 1998 to March 2000 as a bus driver (the employer provided details at docs 129-140).

12.		On 26 October 2000 the appellant completed a DLA review form (docs 92-128).  This painted a picture of extensive care and mobility needs, not least because of blackouts.

13.		On 28 December 2000 a different Departmental EMP, Dr Pathan, visited the appellant and prepared a full report (docs 141-165).  The terms of his report were not as favourable as regards entitlement to DLA as the earlier report by Dr Grawal.  It is certainly questionable whether that report necessarily supported an award of the higher rate mobility component of DLA, although I accept that there were indications of problems with falls (see doc 155 and 161).  It seemed that the main meal test (for entitlement to lowest rate care component of DLA) was not satisfied, at least in that doctor’s opinion (doc 155). 

14.		On 5 February 2001 a decision maker made a supersession decision.  The new award was for higher rate mobility (again unlimited in duration) but no award was made of the care component (docs 167-169).  The appellant lodged an appeal (docs 170-173).  The Department asked the appellant’s consultant and GP for more information; while the former’s report was non-committal (unsurprisingly as the consultant was treating the appellant for sleep apnoea, rather than e.g. arthritis), the latter’s report could reasonably be seen as supporting an award of higher rate mobility, but not lowest rate care (docs 174-184).  It appears that the appellant withdrew that appeal and the Department took no further action, so higher rate mobility remained in payment (see para 5.17 at doc E of the original submission to the tribunal).

15.		So as from 5 February 2001 the appellant had an award of the higher rate mobility component of DLA but no award of the care component.  There appears to have been no further action or review of the case for the next 7 years.

The background to the present DLA appeal to the First-tier Tribunal

16.		In 2008 the Department’s fraud investigation team, based in Jobcentreplus, conducted an inquiry into the appellant’s DLA claim and award. The tribunal file includes copies of statements made by DWP investigators and bus company staff, along with DVLA and bus company documentation and a lengthy interview under caution (docs 186-278).

17.		On 27 November 2008 a decision maker made a new supersession decision (or the “DLA entitlement supersession decision”; see docs 279-283).  That decision was that the appellant was not entitled to either component of DLA with effect from 14 January 2003.  That date was apparently chosen as being the date on which the appellant had restarted work as a bus driver, given the distances that had to be walked as a necessary part of that job (doc 283).

18.		On 5 December 2008 a different decision maker decided that as a result there had been an overpayment of DLA amounting to £12,753 over the relevant period which was recoverable from the appellant. This was said to be because he had allegedly “failed to disclose the material fact that his mobility needs had decreased” (the “DLA overpayment recoverability decision”: docs 288-291).

19.		The appellant lodged an appeal against both the DLA entitlement supersession decision (docs 1-2) and the DLA overpayment recoverability decision (doc 3).  His representative put in a detailed submission (docs 302-305).  The appeal was adjourned on 1 July 2009 (docs 310-311).  Further written statements and evidence were submitted by both sides about the distances the appellant would have walked as a bus driver at the depot in question (docs 313-328).

The First-tier Tribunal’s decision and the appeal to the Upper Tribunal

20.		The First-tier Tribunal heard both appeals on 1 March 2010. The appellant attended with his representative. A presenting officer attended for the Department along with various witnesses. The tribunal undoubtedly undertook a detailed examination of the evidence, judging from the length of the Record of Proceedings (docs 329-368). 

21.		The tribunal dismissed the appeal and confirmed the Secretary of State’s decisions (doc 369). The tribunal judge later issued a Statement of Reasons (docs 371-376).  The appellant applied for leave to appeal (docs 377-381). The Regional Tribunal Judge refused permission to appeal (doc 382).

22.		I subsequently granted permission to appeal (docs 392-394) in these terms (the views expressed were, of course, entirely provisional and without the benefit of detailed argument, but were designed to give a steer to the parties):

“1.	The grounds of appeal are, in part at least, arguable. I give permission to appeal with some misgivings, as questions of credibility are fundamentally matters of fact for the First-tier Tribunal to determine.  The tribunal in the present case explained why it was unable to place great weight on the appellant’s evidence and I cannot interfere with that judgement unless the tribunal misdirected itself in law in some way.  It is certainly not the task of the Upper Tribunal to tell the First-tier Tribunal how to weigh and evaluate the evidence or whom to believe.   
	
2.	I also acknowledge that the First-tier Tribunal has taken considerable care over its decision, which in many ways is detailed and comprehensive.  I acknowledge also the point made by the Regional Tribunal Judge when refusing permission at first instance, namely that a tribunal’s Statement of Reasons cannot be read with the exactitude of a contract and need not cover every single point raised by the case.	

3.	I recognise furthermore that there are aspects of the case which, on any reading, appear to do the appellant little credit.  On the face of it he appears to have been less than frank in either (i) his disability living allowance claim forms or (ii) his application for a PSA licence and in his job applications, or possibly both at different times.

4.	However, having considered the various points made by the appellant’s representative, and having considered the full file before the First-tier Tribunal, I have concluded that the grounds of appeal are arguable in certain respects.  This does not mean that I think it is certain that the appellant would succeed on an appeal to the Upper Tribunal – just that he has an arguable case that the First-tier Tribunal may have erred in law.

5.	The points made by the appellant’s representative about the tribunal’s reasons for the supersession, disentitlement and overpayment aspects of the decision may have some merit.  In particular, are the tribunal’s reasons adequate as regards (a) supersession for the whole of the period from 14 January 2003 and also (b) as to the recoverability of the overpayment?

6.	As regards (a), the supersession and disentitlement decision, the Secretary of State had known in August 2000 that the appellant had been driving a bus full-time for some 18 months from August 1998 to March 2000 (see doc 91).  Of course, being in full-time work is not a bar to receipt of disability living allowance, but the nature of the work may have a bearing on whether the conditions of entitlement are met. Furthermore, the Secretary of State had done nothing at that stage in 2000 either to withdraw the appellant’s award of the higher rate of the mobility component or to seek recovery of any overpayment for the past period when he had been working.  Clearly the subsequent decision was based on the assessment that his walking had improved, not that he was driving a bus.  However, the improvement in walking ability on which the Secretary of State now relies was based entirely on evidence as to how far the appellant could walk to get to and from the bus which he was driving which, had the matter been investigated in 2000, might have been the same.  Moreover the EMP in 2000 expressed the view that “in my opinion client can walk 100 metres on the flat, without stopping” (doc 154), a statement of opinion which surely would cast some doubt on an award of higher rate mobility, yet the Secretary of State’s subsequent 2001 supersession decision only affected the care component, and not the mobility component (doc 168).

7.	As regards (b), the recoverability of the overpayment, the tribunal does not appear to have made specific findings with regard to the overpayment decision (as opposed to the supersession and disentitlement decisions).  However, reading the Statement of Reasons as a whole, and bearing in mind the Regional Tribunal Judge’s well-made points, it seems reasonably clear that the tribunal came to the conclusion that the appellant had not reported that his mobility needs had decreased.  Certainly the Secretary of State’s original decision was based on an alleged failure by the appellant to disclose a change of circumstances (see doc 289) with effect from 14 January 2003.

8.	Put simply, however, and as referred to above, the Secretary of State knew in 2000 that the appellant had been working full-time as a bus driver and it had apparently not affected his entitlement to higher rate mobility.  Is there evidence that there was anything else to make the appellant think that it might affect his entitlement to benefit in 2003?”

23.		Mr Spencer, who acts for the Secretary of State in these proceedings before the Upper Tribunal, has taken up and developed those points with his customary expertise and precision. Mr Spencer supports this appeal (docs 395-399 plus attachments at docs 400-412). I emphasise this appeal (i.e. the appeal to the Upper Tribunal).  For the avoidance of doubt, I should make it clear that Mr Spencer is not necessarily conceding that in the final analysis the Secretary of State did not have valid grounds for superseding and ending the award of DLA. He is, however, in agreement that the tribunal in question on 1 March 2010 erred in law and so its decision should be set aside and the appeal re-determined by a fresh tribunal.

24.	That said, it must be recognised that Mr Spencer writes in excoriating terms about the quality of the original decision making in this case on behalf of the Secretary of State.  In my judgment he is right to do so.  The problem is that those inadequacies also infected the way in which the First-tier Tribunal handled the appeal.  A copy of Mr Spencer’s extremely helpful submission to the Upper Tribunal (with attachments) should be made available for the assistance of the new tribunal that is going to re-hear the appeal. I trust that will avoid a repetition of those mistakes. (I merely add that the reference in Mr Spencer’s submission on doc 297, four lines from the foot of the page, to paragraph 5(b) appears to be a typographical slip and should be a reference to paragraph 5(a)).

25.	So what went wrong in this case?  In short, the problem was this.  The Secretary of State’s original DLA entitlement supersession decision wholly failed to address the requirements of regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991 and as amended).  The tribunal’s decision did not adequately remedy that defect and so fell into error of law. 

26.	In the present case the DLA entitlement supersession decision at issue was taken on 28 November 2008 (see paragraph 17 above).  The normal rule (where the claimant has not made an application for a supersession) is that the supersession takes effect as from the date on which the new decision is made by the Secretary of State (Social Security Act 1998, section 10(5)).  However, regulations provide for various exceptions (see section 10(6)).

27.		Regulation 7(2)(c)(ii) of the 1999 Regulations is one such exception.  It is not drafted in user-friendly terms. In something approaching (if not attaining) plain English, its effect may be summarised as follows.  The general rule is that supersession in a DLA case is not retrospective where the change of circumstances involved relates to a “disability determination” as defined by regulation 7A of the same 1999 Regulations.  However, there is an exception where the claimant was both required to notify the change of circumstances in question and knew or could reasonably have been expected to know that the change of circumstances should be notified to the Department.  The effect is that, unless the claimant has clearly been at fault, there is no overpayment and so any question of the recoverability of such an overpayment simply does not arise.  

28.		It follows that such a case requires the decision maker, and on appeal the tribunal, to give careful consideration to both (i) the law governing the requirement to notify changes (see regulation 32 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), which imposes two different tests, depending on the circumstances) and (ii) the evidence as to the nature of the instructions given to the claimant at various times (and their degree of precision).  This will also involve consideration of whether the conditions of entitlement to DLA were made out at all material times.  Assuming that the Secretary of State had made a valid supersession decision with effect from 14 January 2003, the tribunal should then have considered whether the requirements of section 71 of the Social Security Administration Act 1992 were satisfied as regards the recoverability of any overpayment.

29.		In the present case, unfortunately, those various steps were not taken and so the tribunal’s decision involves an error of law. I suggest that the new tribunal follows the guidance contained in Mr Spencer’s submission in order to guide it through this procedural thicket.

What happens next following the Upper Tribunal’s decision

30.		For the reasons explained above, the decision of the First-tier Tribunal in Coventry involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for rehearing by a new First-tier Tribunal subject to the directions listed above (section 12(2)(b)(i)).  

31.	I wish to stress that I am making no decision, or even expressing any view, on the issue of whether the Secretary of State has in fact made out a case to support both the DLA entitlement supersession decision and the overpayment recoverability decision.  I am certainly also not expressing any view either way on whether the appellant is entitled to any award of DLA at the material time. These are all matters for the judgment of the new tribunal, which includes members with the necessary expertise on issues other than law.

32.	So, at the end of this process, the new tribunal may actually end up coming to the same final conclusion as the previous tribunal and in effect (having remedied earlier defects in the decision making process) ultimately dismiss the appellant’s appeal against the Secretary of State’s decisions.  Alternatively it may decide that the Secretary of State was wrong (and so was the outcome of the previous tribunal) and that the award of DLA should not have been superseded with effect from January 2003 and/or there was no recoverable overpayment of DLA.  It is for the new tribunal to decide which is the appropriate and legally correct outcome, having reviewed the relevant evidence, applied the law outlined above (and explained in more detail in Mr Spencer’s submission) and made its own findings of fact.

Conclusion

33.		For the reasons explained above, the decision of the Coventry First-tier Tribunal involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal.  The case must be remitted for re-hearing by a new tribunal subject to the directions above.  The fate of the allied criminal prosecution is for others to determine.

Signed on the original				Nicholas Wikeley
on 7 March 2011					Judge of the Upper Tribunal