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Decision in brief

Claimant awarded personal independence payment (PIP) but appealed in order to argue for more points – First-tier Tribunal treated the appeal as raising the question of her entitlement to the points she had already been awarded as a matter of course – error of law – section 12(8)(a) of the Social Security Act 1998 provides that tribunal ‘need not’ consider matters not raised by the appeal (such as points already awarded by the Secretary of State) – although there is discretion to consider matters not raised by the appeal, that discretion must be exercised consciously and judiciously – LH v SSWP (PIP) [2022] UKUT 32 (AAC) and EG v SSWP (PIP) [2015] UKUT 275 (AAC) cited and followed – tribunal also erred in not giving claimant a warning that it was minded to remove points already awarded – general warning of tribunal’s powers was not sufficient to ensure fairness – BTC v SSWP [2015] UKUT 155 cited and followed

Decision in brief

First-tier Tribunal refused to allow the claimant or her representative to give evidence or make submissions and went on to dismiss the appeal – error of law in not providing a fair hearing – the First-tier Tribunal referred to Chamber President’s Guidance Note No.7, Taking Evidence from Overseas, which referred to a need to satisfy the tribunal that there was no legal or diplomatic barrier to their giving evidence – but that was guidance and did not override the duty to provide a fair hearing – social security tribunals are required by the overriding objective in their own procedure rules to be flexible and fair – subsequently, the Court of Appeal in Raza v Secretary of State for the Home Department [2023] EWCA Civ 29 has decided that it is lawful to hear evidence from abroad, and although taking of evidence from abroad without the permission of the state concerned might be contrary to the public interest, the sanctions for that were diplomatic not legal

Decision in brief

Tribunal properly directed itself as to the principles (re admission, in exceptional circumstances, of appeals made outside that time limit) in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 – it may be relevant to that test whether claimant had done everything they could to appeal in time – but tribunal erred in using its discretion to strike the appeal out without holding a hearing – should have considered whether it was fair and appropriate to do so

Decision in brief

First-tier Tribunal refused entitlement on basis of its finding that claimant did not have, as required, ‘severe behavioural problems’ – given extensive findings of significant difficulties with behaviour, tribunal erred in not giving adequate reasons for concluding that the claimant did not have severe behavioural problems – decision substituted awarding the high rate of the mobility component via the severe mental impairment route – MG v SSWP (DLA) [2012] UKUT 429 (AAC) and XTC v SSWP (DLA) [2020] UKUT 342 (AAC) cited as considering proper application of the relevant statutory tests

Comment from CPAG

For a wider discussion, see our article DLA mobility and the severe mental impairment route.

Decision in brief

First-tier Tribunal, in refusing the appeal, erred by considering only the 10 documented accidents in the claim forms, and should have considered whether other undocumented incidents were accidents – also erred in failing to give adequate reasons for concluding that the undocumented incidents and routine heading of the ball were effective causes of the claimant’s condition but that the more significant documented head impacts were not effective causes, and perversely concluding that the claimant’s family history of dementia was an effective cause where the evidence for that was limited and the family members concerned were also former professional footballers – remitted to a fresh tribunal

Summary

The claimant had been overpaid IS following undisclosed absences abroad which were of sufficient length to terminate entitlement. A civil penalty of £50 was imposed. The claimant's appeals to the First-tier Tribunal, in which she argued that she was abroad only because the NHS would not give her the treatment she wanted, and that she was not aware that she might lose entitlement while abroad, were rejected. The tribunal (which had refused to adjourn on the basis of the claimant's ill health) said that it followed from its finding that the claimant had caused the overpayment by her failure to disclose her absences abroad that her appeal against the penalty must fail. 

Judge Rowland dismissed the claimant's further appeal on the basis that the overpayments were recoverable from her and that, on the facts, a civil penalty was applicable. The facts showed that the claimant had been clearly advised of her need to report an absence abroad, and she had undoubtedly failed to do so (paragraphs 4-6). However, he also held that the tribunal had erred in considering that the application of a civil penalty was inevitable, and in not considering that the imposition of the penalty was discretionary. But, on the facts of the case, a penalty was appropriate and the claimant had not been disadvantaged by not being able to argue about the civil penalty in person. 

Regarding civil penalties, the relevant legislation was section 115D of the Social Security Administration Act 1992. That provides that a penalty 'may' be imposed where a claimant fails 'without reasonable excuse' to provide required information or evidence, or to report a change in circumstances, an overpayment results, and s/he has not been charged with an offence or cautioned. The judge noted that whether a person has 'reasonable excuse' raises the question of whether the person's actions or inactions were a 'reasonable thing for a responsible person, conscious of, and intending to comply with, his or her obligations regarding benefit but having the experience and other relevant attributes of the person in question... ' (paragraph 11). Also, the word 'may' in section 115D connoted the existence of a discretion. Even if a claimant was partly to blame, 'social security claimants often have low incomes and find it difficult enough to repayment and overpayment without a penalty being added... ' (paragraph 13). The judge was satisfied that there was the right of appeal about all such matters (paragraph 19); but on the facts of the present case was also satisfied that the tribunal had not materially erred in law as 'the overpayment was caused by her fault and no-one else's' (paragraph 22).