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Summary

The claimant was entitled to disability living allowance (DLA). But in November 2018 the DWP decided to supersede the award on the basis that following a change in circumstances the claimant was no longer entitled from 5 November 2014 and that an overpayment had occurred which was recoverable from him. (Although the decision lacks detailed facts about the change, it is clear enough that they related to an alleged improvement in his condition.) The claimant’s appeal was dismissed by the First-tier Tribunal. 

Judge Hocking allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to consider regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991. That provided an exception to the general rule that the effective date of a supersession for a change in circumstance is the date on which it is made. Under this exception, where (as here) the decision is not advantageous to the claimant and is a disability or incapacity benefit decision, the effective date is earlier where the claimant failed to notify a change in circumstance which regulations required him to notify and he knew or could reasonably have been expected to know that the change should have been notified. For the overpayment to have been raised in this case, it was required that the effective date was established under regulation 7(2)(c)(ii). 

The new tribunal would have to consider that. The judge explicitly agreed with (as had Judge Ward in granting permission to appeal) the decision of Judge Poyner in SM v SSWP [2021] UKUT 119 (AAC). There, Judge Poynter had said that the rule was intended to provide a safeguard for claimants and had to be considered by tribunals, as questions about whether a claimant’s condition had improved often involved opinion rather than primary fact. Judge Hocking agreed with the finding in SM that it was not enough for the claimant reasonably to be expected to know that notification might be ‘desirable or prudent’; rather, ‘they must know (or reasonably be expected to know) that they have no choice but proactively to notify’ (paragraph 13). However, that did not also mean that SM established that the claimant must know or reasonably be expected to know that it was a legal requirement to notify; ‘all that is required is that they know (or should [sic] reasonably be expected know) that they were under a requirement to notify, not the nature or origin of that requirement’ (paragraph 15). 

Comment from CPAG

This decision applies SM with a caveat, so that although the claimant must indeed know or reasonably be expected to know that they are under an obligation, it is not required that they must have been told that is a legal obligation or have had specific rules about that cited to them. Tribunals will still need to address what the claimant knew or could be expected to have known about their obligations.

Summary

The claimant applied for and was refused personal independence payment (PIP) on three separate occasions in 2017, 2018 and 2020. The claimant did not challenge the refusals. The refusal of the 2017 claim (but not the other two) was in 2021 the subject of a ‘LEAP’ (Legal Entitlement and Administrative Practices) review by the Secretary of State. That was because the 2017 decision (unlike the 2018 and 2020 decisions) had been taken before the issue of new official guidance regarding some relevant PIP test cases (MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12; and RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 105 (AAC), reported as [2017] AACR 32). The claimant was invited to request a mandatory reconsideration of her ‘PIP claim(s)’. That resulted in a mandatory reconsideration of the 2017 refusal, dated 25 June 2021, which reconsidered the decision but again declined to award any PIP. The claimant appealed, and the First-tier Tribunal awarded the claimant the standard rate of the mobility component, from the start date of the 2017 claim, for an unlimited period. In its written reasons, the tribunal explained that was because the claimant’s condition was unlikely to change.

Judge Wikeley allowed the Secretary of State’s further appeal, and substituted a decision that the award of the mobility component made by the tribunal ran only until the date of the claimant’s second claim for PIP made in 2018. The tribunal had erred by failing to specify an end date of the award in circumstances where the claimant had, in 2018, made a second and unsuccessful application for PIP. Decisions were (subject to revision, supersession, appeal or judicial review) final, with the effect that there were not to be two decisions in respect of the same benefit for the same person for the same period. A line of authority from the Upper Tribunal had adopted that principle with the effect that a tribunal cannot make an open ended award where there has been a later decision on a later claim for the same benefit. Representatives for the claimant accepted that, if this was ‘straightforward’ case, the period under consideration would have been limited by the date of the subsequent 2018 claim (paragraph 23). 

However, it was argued for the claimant that, in the circumstances, she should be regarded as having made a valid appeal against all three refusals of PIP, having made (in 2021) timely mandatory reconsideration requests regarding all three. Under regulation 9 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (the ‘Decisions and Appeals Regulations’), a decision can be revised at any time where it arose from ‘official error’. It was argued that all three decisions arose from official error and so were capable of revision at any time. Judge Wikeley rejected that. It was the case that (as submitted by the Secretary of State), the claimant had in 2021 made a valid any time revision request of the 2017 decision. The LEAP review was on the basis that that decision arose from official error, as it was taken before the issue of the official guidance in 2018, with DWP staff at that time – as Judge Wikeley put it – ‘labouring under a misapprehension as to the true position under PIP law’. But that context meant that, under the LEAP review, only the 2017 decision fell to be reconsidered (the later decisions were made after the publication of the guidance). Aside from that, applying the decision in PH and SM v SSWP (DLA)(JSA) [2018] UKUT 404 (AAC), reported as [2019] AACR 14, the judge thought there was some force in the Secretary of State’s argument that the claimant’s 2021 mandatory reconsideration request, ‘cannot be said to raise any issue of official error, whether explicitly or implicitly’ in the 2018 and 2020 refusals (paragraph 51). 

In the alternative, it was argued for the claimant that the time limit for revisions of the 2018 and 2020 decisions on any grounds had in fact not started to run at all, as the notifications of the PIP refusals had only given the basic one-month time limit for applying, and had not mentioned the possibility of a late application – ie, within the absolute time limit of 13 months. The 2021 request for mandatory reconsideration, therefore, included such requests regarding those decisions. Rejecting that, the judge held that the requirement in regulation 7 of the Decisions and Appeals Regulations to state the time limit for a mandatory reconsideration merely required statement of the basic time limit itself, and not the possibility of extending that time limit, which is what the absolute time limit was. The claimant’s arguments did not ‘address the conceptual distinction between a time limit and an extension to a time limit’ (paragraph 70). There was nothing in the claimant’s attempt to argue that the Secretary of State’s approach was to breach the right to a fair trial in Article 6 of the European Convention on Human Rights, as that applied to appeals but not to ‘the Secretary of State’s decision making processes’, and in any event, on the facts of the present case, the claimant could not be said to have been denied access to a relevant tribunal ‘in any meaningful sense’ (paragraphs 78 and 79). 

Comment from CPAG

As Judge Wikeley says, this case illustrates the additional complexity involved in LEAP processes. It also illustrates, regarding appeal rights, the difficulties that may arise for claimants once the time limit for an ‘any grounds’ revision has passed. It holds that decision notices do not need to have stated the possibility of a late request for such a revision, and (regarding any time revisions for official error) endorses the finding in PH that requests must at least implicitly raise the issue of official error. CPAG represented the claimant and has been granted permission to appeal to the Court of Appeal.

Summary

The claimant had anxiety, depression and borderline personality disorder and had both medication and counselling regarding those. She appealed against a decision that she was not entitled to personal independence payment (PIP). The First-tier Tribunal refused the claimant’s appeal and said at various points in its written reasons that the evidence given by the claimant at the hearing, in the form of responses to questions put to her by the tribunal, was ‘vague’. 

Judge Scolding KC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Judge Scolding agreed with the Secretary of State that the tribunal had used ‘closed’ questions to the claimant, requiring ‘yes’ or ‘no’ answers, and had not followed these up to explore or clarify the claimant’s answers. In the circumstances, the tribunal had ‘made material errors of law’ in the way it questioned the claimant, ‘with such amounting to procedural unfairness’ (paragraph 25). The context was the ‘vitally important’ requirement at rule 2 of Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chambers) Rules 2008 for tribunals to be ‘flexible’ and to ensure that parties to an appeal are able to ‘participate fully’ in the proceedings (paragraph 9). In addition, having listened to the audio recording of the hearing, the judge agreed that in fact the tribunal had wrongly characterised the claimant’s answers as ‘vague’ when in fact they were clear.

The circumstances of this case included the claimant’s anxiety and reported dyslexia, meaning that she often had difficulty in explaining things and answering questions. There was relevant evidence in the papers about such problems, including from healthcare professionals as well as the claimant and her mother. Judge Scolding considered that this suggested that the claimant would have greater difficulties in answering questions, and that the tribunal should have given consideration to how she could be best facilitated to give such evidence, as set out in e President’s Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses, paragraph 6, issued on 30 October 2008. In RT v SSWP (PIP) [2019] UKUT 207 (AAC), Judge Poynter had observed that the definition of a ‘vulnerable’ witness was likely in fact to cover nearly all appellants in health and disability appeals, and that all benefit tribunals were supposed to act in an inquisitorial, enabling manner anyway; so the test of whether a theoretical failure to follow the Practice Direction was whether the failure was actually a material error on the facts of the individual case. In the present case, Judge Scolding considered that there was no indication that the tribunal had considered the Practice Direction on the facts, ‘despite there being considerable evidence from the papers that this may need to be considered’ (paragraph 19). That failure was therefore a material error in this case, amounting to procedural unfairness. 

Comment from CPAG

All tribunals, whatever the individual facts, are supposed to act fairly and justly, including by giving claimants a chance to participate fully, and are supposed to act inquisitorially to get at the truth. Given that, it is very arguable that any tribunal that uses ‘closed’ questions demanding ‘yes’ or ‘no’ answers that it then fails to explore or clarify, will have erred in law, irrespective of the further requirements in the Practice Direction. That said, in the present case the claimant’s well-documented difficulties in giving oral evidence clearly did require the Direction to be considered. Arguably therefore, the tribunal’s (additional) failure to do that may, in the context of showing an error of law, be considered as the cherry on the cake

Summary

The claimant made his claim for UC on 29 March 2020. On 23 April 2020, he requested that his claim be ‘backdated’ to 24 March, on the basis that he had been self-isolating and it to obtain an isolation sick note from his GP, and that the overloading of the online system during the first days of the first coronavirus lockdown meant that the ‘official computer system’ was rendered ‘inoperative’ for the purposes of backdating under regulation 26(3)(d) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013. The First-tier Tribunal dismissed the appeal. 

Judge Church dismissed the claimant’s further appeal. Neither of the claimant’s arguments satisfied the relevant tests in regulation 26. His argument regarding the isolation sick note was under subparagraph (3)(c) – ie, that he had ‘supplied the Secretary of State with medical evidence that satisfies the Secretary of State that the claimant had an illness that prevented the claimant from making a claim’. The tribunal had found that the coronavirus symptoms that the claimant was experiencing were not such as to have prevented him from making a claim. Judge Church held that the tribunal had ‘a wide ambit of discretion’ in making that finding, and given the ‘mild symptoms’ reported by the claimant, it was entitled to find that they would not have prevented the claimant from telephoning or using the online system for claiming earlier than he did (paragraph 14). 

Regarding subparagraph (3)(d) and the allegedly ‘inoperative’ official computer system, the claimant had pointed to descriptions in the media of the UC system being (among other things) ‘overwhelmed’ and ‘crashed’. The Secretary of State had accepted before the tribunal that the telephone lines were very busy at the relevant time, but submitted that there was no outage of the website. Judge Church held that the question of whether the computer system was ‘inoperative’ was a question of fact. The tribunal had made clear what the Secretary of State had accepted and that was sufficient to provide adequate reasons for its decision. The tribunal’s findings of fact that although traffic on the website had been very high and that it sometimes took several hours to complete a claim, it had nevertheless been possible to make a claim for UC at the relevant time, were open to it on the evidence. More widely, said Judge Church: ‘There may well be circumstances in which the level of traffic on a website is such as to render it “inoperative”, but I do not consider it appropriate to set down any hard and fast rules as to what number of users in a queue, or how many hours’ wait, would tip the balance from a system being properly characterised as “operative but very busy” to “inoperative”. That is a matter of judgement for the tribunal of fact when considering all the circumstances’ (paragraph 23).

Comment from CPAG

The finding that it would be wrong to specify ‘hard and fast rules’ about when the system should be regarded as inoperative is unexceptionable; but it is arguably somewhat harsh to allow that a system in which it could take several hours to make an online claim could reasonably be described as operative. It remains open to other tribunals to find otherwise.

Summary

This case concerned entitlement to the care component of disability living allowance (DLA), where the claimant and her mother (both British nationals) were resident in the UK, but her father was working as a self-employed person in Belgium. In the Upper Tribunal decision in this case (AH v SSWP [2020] UKUT 53 (AAC)), Judge Jacobs had held that Belgium was the competent state for payment of sickness benefits (such as the care component of DLA), and therefore the claimant was not entitled to DLA, as the relevant European co-ordination rule provided that the state in which the family member was working was the competent state. 

The Court of Appeal unanimously allowed the claimant’s further appeal. The competent state was the state in which the claimant (and her mother) was resident, and that was not altered by the fact that her father was working in another member state. The relevant European rules were in Regulation (EC) No.883/2004. Article 11 provided that there could be only one competent state. Initially at least, Article 11(2)(e) provided that the UK was the competent state for the claimant, as the state of residence. Giving the lead decision, Lord Justice Lewis held that, firstly: ‘…the appellant falls within Article 11(3)(e) and she is subject to the legislation of the member state of residence, that is the United Kingdom. The appellant is, therefore, an insured person as she satisfies the conditions required under the legislation of the competent member state (the United Kingdom) to have the right to benefits’ (paragraph 41). 

The next question was whether there was any rule of priority by which the claimant fell instead to be subject to the legislation of another member state. In the Upper Tribunal, it had been held that there was – at Article 21 – and that, as a result, Belgium was the competent member state. But that was incorrect: ‘The wording and purpose of Article 21 do not suggest that that article was intended as a rule of priority which displaces the legislation that would otherwise be applicable applying Article 11 of the Regulation. Article 21 is not expressed as a rule of priority unlike other articles of the Regulation such as, for example, Article 32. Rather, Article 21 is intended to prevent an insured person, and his or her family members, from being denied cash benefits because they are resident in a state “other than the competent state”. Thus, for example, if an insured person is employed in one member state, so that is the competent state, that person and his or family members will be entitled to sickness benefits under the legislation of that state. They do not lose their entitlement under the legislation of that state because the insured person, or the family members, are resident in a different state. The competent state remains responsible for providing the cash benefits payable in accordance with its legislation’ (paragraph 44). The history of the relevant provisions also indicated that: ‘... it is the legislation of the state of residence that has priority in cases involving payment of cash sickness benefits such as the care component of disability living allowance’ (paragraph 45). Further, ‘... there is nothing to indicate that the European Union legislature was intending to effect a significant shift so that a family member would no longer be entitled to receive cash benefits in the state where he or she resided (as was formerly the case) but instead would receive cash benefits from the state where the parent worked or was self-employed’ (paragraph 49). Therefore, the claimant was entitled in her own right to the care component of DLA, and the UK (as the state of residence) was the competent state, with no priority arising from any rights derived from her father in the state in which he was self-employed.

Summary

The claimant was entitled to ‘old-style’ contributory ESA. Following conviction,  he was in prison between 3 January 2020  and 21 December 2020. He was disqualified from receiving payment while in prison,  but no decision was taken to terminate his entitlement during that time (termination  had been possible, based on being treated  as not having limited capability after being disqualified for more than six weeks). On his release from prison, the claimant applied for payment of his ESA to be reinstated. Instead,  it was decided in a supersession decision  that he had lost entitlement to his ESA while  in prison (ie, after more than six weeks of disqualification), so would now have to make a new claim – ie, a claim for ‘new-style’ ESA under the UC system. His appeal was upheld by the First-tier Tribunal, who held that he had not been disqualified from ESA while in prison and so payment could resume on release. 

Judge Rowland held that, on a supersession for change of circumstance the claimant had indeed lost entitlement to contributory ESA while in prison, but also that the Secretary of State must also (ie, without a new claim) decide the claimant’s entitlement to ESA from 22 December 2020. It was an error for the Secretary of State not to have done that when carrying out the supersession. Although the tribunal had erred in its reasons as to why the ESA had not terminated while in prison (it wrongly held that imprisonment was not a ‘penalty’ for the purposes of disqualification and therefore subsequent loss of entitlement), it was nevertheless the case that his entitlement had not been brought to an end by the Secretary of State during that time, and so at the time of the supersession he still had a current award, and simply could not make a ‘new’ claim. Further, the supersession had to consider his entitlement not only during the past period in prison but also his entitlement subsequent to his release – ie, down to the date of the supersession decision itself. The claimant might still be entitled to old-style ESA at the date of the supersession decision (although that was probably no longer the contributory form, as his period of limited capability for work had been broken while in prison and so the relevant contribution years had changed. But it was possible he was entitled to the income-related form).  

The key was that the claimant had an extant award of contributory ESA at the time of the supersession decision – ie, because (for some reason) the Secretary of State had not brought entitlement to an end in prison after the claimant had been disqualified for six weeks. Because of that, it was simply not possible  for the claimant to make a new claim. Judge Rowland said: ‘A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended.  A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having  been made’ (paragraph 27).

Comment from CPAG

Although the term is not used in  the decision, this is an example of a circumstance in which a so-called ‘closed period supersession’ should be carried out – ie, a supersession which can encompass a loss of entitlement for a limited past period, where entitlement has not actually been brought to an end, and has arisen again (or  at least may have arisen again) by the date of the supersession.

Summary

The claimant claimed ‘old-style’ contributory ESA in March 2018. He said that he was due to start getting an occupational pension, and was instructed to report when the pension started to be paid. He did not do that. The ESA continued unadjusted until the DWP noticed on 12 August 2018 that the pension had started to be paid in late March 2018. A decision was issued that the claimant had been overpaid ESA from that point and that it was recoverable from him on the basis that he had failed to disclose the commencement of the pension. On appeal to the First-tier Tribunal, he argued that the ESA office had a computerised real-time information (RTI) feed from HM Revenue and Customs (HMRC) which would have told them about commencement of the pension, and so that  he had not failed to disclose. His appeal was dismissed.

Judge Church dismissed the claimant’s further appeal. The First-tier Tribunal had not erred in holding that he had been under a duty to disclose the commencement of his occupational pension, he had failed to carry that out, and that had been the cause of the overpayment, which was therefore recoverable from him under the terms  of section 71(1) of the Social Security Administration Act 1992. There was no dispute that the claimant had not in fact reported the commencement of the pension. HIs argument before the Upper Tribunal was that there had been evidence before the First-tier Tribunal that an ‘RTI scan’ indicating the pension was available to the ESA office well in advance of the August date on which the Secretary of State said the office became aware of it, so that the claimant could not have ‘failed’ to disclose something already known to the office. Further, the First-tier Tribunal had  erred in failing to make a finding of fact about when the office became aware of the pension, and in failing to analyse the chain of causation regarding the overpayment.

Rejecting those arguments, Judge Church took into account evidence (which had been before the First-tier Tribunal) about the DWP internal arrangement for use of the RTI scan from HMRC. That was that a data feed is received from HMRC, but the scan itself is not commenced until that the feed is accessed and the scan run by inputting DWP data – which in this case was not until 28 August 2018. Although the tribunal had not made  a specific finding on the date the office became aware of the pension starting, it was sufficiently clear overall that the tribunal considered that to have been on 12 August 2018. Information that was available to office via the data feed was not the same as information known to them as a result of the scan, which was not conducted until August. On causation, the judge cited relevant caselaw authority (in particular, SSWP v SS (SPC) [2013] UKUT 272 (AAC)), to the effect that  the existence of a computer interface could, even in cases where the claimant had strictly speaking failed to disclose, mean that some other cause (such a DWP failure to act on information) had caused the overpayment. But that was entirely dependent on the particular facts and what in common sense terms had caused the overpayment. In the present case, the judge considered that there had been no DWP failure: ‘The First-tier Tribunal found as a fact that the claimant was told that he needed to notify the Secretary of State when he  started receiving his pension, and the First-tier Tribunal did not find that the Secretary of State had knowledge of the pension coming into payment prior to 12 August 2018. On this basis I am not persuaded that the claimant was, prior to the Secretary of State gaining actual knowledge of the payments on 12 August 2018, relieved of his obligation to notify the Secretary of State of the commencement of the payments, or that the Secretary of State came under a duty to investigate all sources  of information to which he had access (including the “RTI” data) to ascertain whether payments had started’ (paragraph 50).

Comment from CPAG

Note that although on the facts the existence of a computer interface did not avail the claimant, the judge did not depart from other authority holding that in other cases such arrangements might be relevant. For more on the possible effect of computer interfaces and failure to disclose, see the article in Bulletin 295, p7.

Summary

The claimant had third-party deductions made from her income-related employment and support allowance (ESA) for fuel and water debts. The Court of Appeal considered an appeal by the Secretary of State against the preceding decision of the High Court in this case ([2022] EWHC 2392 (Admin), 23 September 2022). In that decision, the High Court held that the official guidance regarding third-party deductions for fuel and water debts from legacy benefits was unlawful, in that it failed to make clear to decision makers that claimants should be offered the opportunity to make representations and/or provide relevant information before the third-party deduction decision was made. The Court of Appeal unanimously rejected the Secretary of State’s further appeal.

All the Secretary of State’s arguments were dismissed. Those arguments included that the High Court had misapplied the approach taken to fairness in Bank Mellat v HM Treasury [2013] UKSC 38; [2013] UKSC 39, where the Court of Appeal had considered the scope of the common law duty to give advance notice and an opportunity to make representations to an individual against whom it was proposed to exercise a draconian statutory power. Giving the lead opinion in the present decision, Lord Justice Edis rejected that and said: ‘In my judgement, the regulations, by framing the decision making as they do, require a consideration of the interests of the individual claimant and their family. Under the guidance, however, the decision maker has the option  of contacting them, or of investigating their benefit records, but the guidance allows a decision to be made where the claimant or their family has been given no opportunity  to supply information beyond what the utility company puts in the spreadsheet. This appears to me to be obviously unfair’ (paragraph 66). Other arguments, which included that the judge in the High Court had misread the guidance and had made two perverse findings of fact, were also dismissed.

Comment from CPAG

As per the decision of the High Court, in strict terms this decision is regarding relevant deductions in the legacy benefit scheme and not in the universal credit scheme (where the rules are differently worded). It remains arguable that the principle upheld in it should also apply in that scheme.

Summary

The claimant had been entitled to disability living allowance (DLA) at the highest rate of the mobility component (for an indefinite period) and the lowest rate of the care component. On transfer to personal independence payment (PIP), the decision maker refused both components. That was upheld on appeal (after a face-to-face hearing) by the First-tier Tribunal, which included in its decision that it did not consider the claimant to be a credible witness on the basis of various alleged internal inconsistencies in his evidence.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case to a fresh tribunal. On the facts of the case, the tribunal had erred in effectively treating the claimant’s claim for PIP as an entirely fresh claim, and ignoring the content and evidence of the previous award of DLA. Applying CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC), reported as [2019] AACR 11, although it was not always essential for a tribunal to refer to the previous DLA award, depending on the facts it may be in the particular case. In the present case, there was a ‘stark difference’ in the previous award of the high rate of the mobility component of DLA for an indefinite period and the tribunal’s refusal to make any award of the mobility component of PIP. The tribunal ‘was required, as a component of its overall duty to give adequate reasons for its decision, to explain that divergence’ (paragraph 10).

In obiter comment, the judge also addressed two other issues raised in the appeal. Firstly, the claimant’s representative argued that the tribunal had erred in not putting its concerns about alleged inconsistencies in the claimant’s evidence to the claimant in the hearing. Judge Hemingway noted that in CIS/4022/2007 it was said that, subject to the requirements of natural justice, ‘there is no obligation on the tribunal to put a finding as to credibility to a party for comment before reaching a decision’. If, by contrast, the claimant in the present case was arguing that a tribunal always had a duty to put a concern about any inconsistency to the claimant, that was ‘simply unrealistic’. There is no such duty in every case. ‘The key,’ said the judge, ‘is whether a failure to put such points or concerns would breach the rules of natural justice and that is a matter of fact, degree and evaluation’ (paragraph 13). Secondly, the judge raised the question of whether there is always a specific duty on the tribunal to explain how it had applied the criteria (regarding the ability to carry out tasks repeatedly, safely, reliably and in a reasonable manner) in regulation 4(2A) of the Social Security (Personal Independence Payment Regulations) 2013 No.377. Although not trying to lay down hard and fast rules, the judge considered that it would not always be fatal not do so, but ‘since the criteria is, generally speaking, of importance and often of real significance in at least some PIP cases, an awareness of the criteria and a statement to the effect that it has been applied, is likely to be good practice in virtually all cases’ (paragraph 16).

Comment from CPAG

Although the remarks about alleged inconsistencies in a claimant’s evidence and regulation 4(2A) are obiter (and so not strictly binding), many will consider them uncontroversial and of general application. Also, however, many will think that the caveat regarding the need for natural justice in dealing with alleged inconsistencies will apply in many such cases, certainly wherever the inconsistency might reasonably be ascribed to confusion or illness.

Summary

The claimant was entitled to disability living allowance (DLA) at the highest rates of both the care and mobility components from 2008. In 2018, following a change in circumstances, the DWP decided to supersede the award on the basis that the claimant had ceased to be entitled to DLA at any rate from 9 September 2012, a year after he underwent an operation. A decision about a recoverable overpayment was also made regarding dates between September 2012 and May 2017. The claimant’s appeals against those decisions were rejected by the First-tier Tribunal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to consider that the 2018 decision was a decision on a supersession, rather than a simple decision on entitlement. That was important because there were rules both on the grounds for a supersession and on the effective dates for supersessions (ie, when they come into effect) that the tribunal had missed. That was important because, as the judge had observed in RH v SSWP (DLA) [2015] UKUT 453 (AAC) in the analogous context of revisions, the law did not allow the Secretary of State to reduce or remove a claimant’s entitlement retrospectively unless certain safeguards were observed.

The general rule, at section 10(5) of the Social Security Act 1998, is that the effective date of a supersession is the date on which it is made. So, for example, a supersession made in March 2018 becomes effective in March 2018, not before. That applied to DLA supersessions for a change in circumstance that was not advantageous to the claimant and related to the disability conditions. However, one of the exceptions to that general rule, set out in regulation 7(1)(b) and (2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991, concerns decisions not advantageous to the claimant following a change of circumstance which the claimant did not notify but, under specified regulations, knew (or could reasonably have been expected to have known) should have been notified. If that is made out, then the effective date of supersession is the date the change ought to have been notified – ie, potentially years previously. However, the tribunal had failed to attend to the conditions in regulation 7 and so had failed to properly address how the claimant knew, or should have known, his responsibilities under the law. It had also failed to address the criteria about the date on which he ought to have notified the change. These were material errors, the judge considered, as ‘special rules about the effective date of certain superseding decisions in DLA cases are there to provide safeguards for claimants and it would not normally be right for the Upper Tribunal to diminish the protection of those safeguards by upholding the decision of a tribunal that had ignored them’, and ‘the reason that safeguards are necessary is that issues around whether a claimant’s condition has improved often involve matters of judgment or opinion rather than matters of primary fact’ (paragraphs 22–23).

Comment from CPAG

The decision should serve as a useful reminder of the safeguards not only to tribunals but also to decision makers. Although the regulation invoked by the judge concerns disability benefits other than personal independence payment (PIP), a similar (although not identically worded) safeguard applies to PIP (Part II of Schedule I to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381).

Summary

The claimant was refused personal independence payment (PIP). On appeal, some points were awarded by the tribunal, but not enough to bring about entitlement to benefit. That included the award of four points regarding the mobility component, on the basis of the tribunal’s finding that the claimant could walk for more than 50 metres but not more than 200 metres. On further appeal, the claimant argued via her representative that that was an error of law by being based on a mistake of fact. The claimant’s representative at the Upper Tribunal supplied evidence obtained via Google Maps (not submitted to the First-tier Tribunal by the claimant’s different representative there) that the tribunal had significantly mistaken the distance between the claimant’s home and the local shops and so misjudged her walking ability.

Judge Church allowed the claimant’s further appeal and remitted the case to a fresh tribunal. He accepted that the claimant’s new evidence demonstrated a material error of fact by the tribunal, which rendered its decision erroneous. The new Google Maps evidence could, in the context of the case, be admitted by the Upper Tribunal.

The judge first noted that rule 15(2)(a) of the Upper Tribunal Rules provides wide powers that the Upper Tribunal may ‘… (a) admit evidence whether or not – (i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker.’ Regarding the demonstration of a mistake of fact causing an error of law, he referred in particular to the decision in E and R v The Secretary of State for the Home Department [2004] QB 1044. There, Carnwath LJ had said: ‘…First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.’ Judge Church then noted that to show that a tribunal has made a mistake of fact, it will usually be necessary to present new evidence to the appellate authority. In Ladd v Marshall [1954] 1 WLR 1489, Denning LJ said at p1491: ‘In order to justify the reception of fresh evidence […], three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’

Moving on to the case in hand, the judge held that, given broad discretion for the Upper Tribunal to admit evidence under rule 15 of the Upper Tribunal rules, the Ladd v Marshall principles ‘need not be applied strictly’, and the decision whether to admit the new evidence, ‘will be made on the basis of what the Upper Tribunal determines justice requires’ (paragraph 31). Although it might be argued that a ‘professional representative’ before the First-tier Tribunal could have obtained the Google Maps evidence, it should be remembered that: ‘the social security system is designed, in the words of Lady Hale in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 (reported as R(DLA) 5/06), to “ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less”’ (paragraph 32). For this very reason, the Secretary of State supported the appeal, ‘having no interest in sustaining a decision on a claimant’s entitlement that was based on incomplete evidence’. The judge was therefore satisfied that, bearing all that in mind, the new evidence should be admitted, that all four tests in E and R were satisfied, that the tribunal’s factual error amounted to a material error of law (paragraphs 33–35).

Comment from CPAG

Given the wide discretion to admit new evidence in rule 15 of the Upper Tribunal rules and the focus on correct entitlement to be applied in social security appeals, the admission of new evidence to the Upper Tribunal should be possible in many cases. However, the weight and materiality of that new evidence will always be important in establishing whether there was an error of law. It would seem that a failure by a representative to supply the evidence to the First-tier Tribunal need not be fatal, but the particular facts may be significant here.

Summary

In 2018, the Secretary of State made a series of decisions removing the claimant’s entitlement to personal independence allowance (PIP) and before that to disability living allowance (DLA) going back to 2003, and raising recoverable overpayments amounting to nearly £100,000. On appeal, the First-tier Tribunal, at the outset, told the claimant that he could consider his entitlement even from before 2003 and (depending on the facts) potentially make an overpayment decision about that period too, and asked the claimant if he wanted to seek independent advice. After a short adjournment in which the claimant spoke to members of his family, he decided to proceed. The tribunal upheld the overpayment decisions and further held that he had been overpaid DLA since 1998.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by breaching the rules of natural justice. On the facts of the case, said the judge, ‘as a matter of natural justice the tribunal, if it was contemplating that it might go back beyond 2003, should have imposed an adjournment to another day, irrespective of whether the claimant wanted “to get on with it”’ (paragraph 32). The judge emphasised that he was not deciding on whether or not there had in fact been overpayments, or whether or not they were recoverable, rather it was that the tribunal erred in not ordering an adjournment in order to give the claimant a proper opportunity to respond to the possibility of the tribunal making a significantly more adverse decision.

In so holding, the judge was influenced by a number of facts in the case. The tribunal had a ‘compelling’ set of facts and reasons for its decision, which included that the claimant had become a ‘fully self-caring’ student in 1998, regularly travelled to football matches, and been appointed to teaching positions in 2003. But it was also the case that the claimant was unrepresented, that it was ‘no trifling matter’ to extend the overpayment period back almost four years, and that the tribunal was aware that there was still the possibility of the claimant being prosecuted for fraud (paragraph 28). He agreed with the Secretary of State that the claimant had needed a proper chance to think about his own condition more than 20 years ago, and to get advice about his legal position – in particular the issue of whether his PIP award could properly be revised on the basis of misrepresentation (paragraphs 26–27, 34–37). The judge had reference to several authorities on the need for tribunals to observe natural justice and adopt a cautious approach in this context, including C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC).

Comment from CPAG

The judge was keen to set out his reasoning ‘as this type of case plainly continues to pose problems for tribunals in practice’ (paragraph 22). It is of a piece with C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC) in advocating a cautious approach to tribunals considering making a less favourable decision than the one under appeal. The finding of a need to impose an adjournment to another day is consistent with such an approach, but also stems from the particular facts of the case, including in particular an unrepresented client and a very serious extension of the overpayment period involved.