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Summary

The claimant was in receipt of PC, including the addition for severe disability (referred to here as the severe disability premium). When the DWP became aware that in fact the claimant had a grown-up son living with her, her award was revised to remove the severe disability premium and make a recoverable overpayment decision, on the basis that she had been overpaid the premium for several years and had misrepresented herself as living alone. However, the relevant form in which the misrepresentation was allegedly made, form PC 10, was no longer available. The First-tier Tribunal noted that the claimant had (without dishonest intent) made similar misrepresentations in the context of two previous claims for income support, and decided on the balance of probability that the claimant had misrepresented her situation on the PC 10 form.

Judge Gray dismissed the claimant’s further appeal. On the facts of the case, there was sufficient evidence in order to reconstruct the missing form, which was what the First-tier Tribunal had done. The claimant’s prior misrepresentations on the same issue were evidence of the sort referred to by Judge Ward in MK v SSWP [2011] UKUT 12 (AAC), where he said that where misrepresentation in a claim form was alleged and the form was not available, there would have to be ‘sufficient secondary evidence’ (paragraph 34). The First-tier Tribunal had decided that the claimant had misrepresented herself on the PC 10 form by making ‘rational deductions’ from the evidence, which was permissible, ‘rather than assumptions, which are not’ (paragraph 46).

The judge rejected an argument from the claimant that it was not permissible to make a finding of misrepresentation in the absence of the form. She also considered the argument that the reasoning of Commissioner (as he then was) Williams in CG/3049/2002 applied. There, he had said that if there was no evidence, the tribunal should not guess or make assumptions. But he also said that the tribunal should do its best to reconstruct the form. The correct question in the present case was therefore whether the tribunal had done that, ‘without resorting to assumption, including the assumption that the Department was less likely to make a mistake than the claimant’ (paragraph 29). The judge also considered the application of the principle of ‘the presumption of regularity’ – ie, so that officials could be supposed not to have made a mistake. Reviewing authority, the judge noted that such a presumption was rebuttable, and was ‘a tool, rather than a key’. On the facts in this case, it was plain that the presumption of regularity was not decisive, rather that the significant factor was the claimant’s prior misrepresentations (paragraph 41).

Comment from CPAG

Clearly, in this case what was important was the facts of the case, the tribunal’s legitimate deductions from those facts and the application of the balance of probability. Although the presumption of regularity was not central to Judge Gray’s decision, it seems clear that in itself that principle should not be used to decide against a claimant.

Summary

The claimant was entitled to the standard rate of the daily living component and the standard rate of the mobility component for a fixed period from 27 June 2013 to 14 January 2017. On 16 January 2016 she was notified of a ‘planned review’ of her award. Following completion of a form and a medical, a decision was made on 31 May 2016 superseding the award and removing all entitlement from the date of the supersession decision. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal held that there were ‘no grounds’ for the supersession and reinstated the award up to the expiry date of 14 January 2017. But it also decided to make a reduced award beyond the expiry date, awarding only the standard rate of the daily living component.

Judge Bano held that the tribunal had erred on holding that there were no grounds for a supersession on 31 May 2016. Under regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381, a supersession ground always exists where the Secretary of State has received medical evidence from a healthcare professional (or other approved person), and it was not necessary to establish a change of circumstances or any other ground for the supersession. That did not of course relieve tribunals in such cases from the need to give an adequate explanation of their decision where they had decided to part from an earlier award (paragraph 7).

There had been no error in also making an award beyond the expiry date of the original decision. Apart from the usual ability only to take into account circumstances down to the date of the supersession decision which is under appeal, the powers of the tribunal in an appeal against a regulation 26(1)(a) supersession decision were ‘not fettered in any way by the terms of the of the decision which has been superseded’. If the original award was for a fixed period which has come to an end prior to the determination of the appeal and the claimant has not made a new claim, there was ‘nothing to prevent a tribunal from making a supersession decision awarding whatever benefit it considers the claimant to be entitled to for a period extending beyond the expiry date of the original award’ (paragraph 8). On the facts of the present case, there was no dispute about the claimant’s lack of entitlement to the mobility component and, given the availability of a supersession ground from 31 May 2016, there was no reason not to remove it from that date, even though the tribunal had not erred in awarding the daily living component for a further period.

Comment from CPAG

It is worth emphasising that although receipt of a new official medical report is in itself a ground for supersession and (where the claimant has not claimed again) tribunals can revisit expiry dates in a decision, tribunals are still obliged to explain why they consider that entitlement should be changed.

Summary

The claimant telephoned the tribunal clerk to request a postponement of her appeal because of a conflicting appointment, and then wrote to ‘confirm the conversation’. The request was passed to an HMCTS tribunal caseworker, who refused the postponement request, saying that no explanation had been given regarding the conflicting appointment and that the claimant’s medical records were now available to the tribunal. The tribunal proceeded in the claimant’s absence (and refused the appeal), explaining that it had ‘sufficient evidence’ to enable it to make a decision and that it was in accordance with the overriding objective to proceed in the claimant’s absence.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal, with directions that an oral hearing should be held on a day on which the claimant was able to attend. The facts (not before the tribunal) were that the claimant had been unable to attend the hearing because she had an urgent medical appointment for cancer treatment. The clerk had made a procedural error in not recording this detail which was very probably included in the telephone conversation with the claimant. But (more importantly) the tribunal caseworker was exercising the judicial power of the tribunal, and should have directed that the missing information about the conflicting appointment be requested from the claimant before deciding the postponement request (paragraphs 16–19). Further, the tribunal’s decision to proceed in the claimant’s absence also involved an error of law. The tribunal had proceeded on the basis that it had ‘sufficient evidence’; but the test under rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Procedure) Rules 2008, No.2685, was whether it is in ‘the interests of justice’ to proceed. At the very least, the tribunal had failed to explain how it was fair (and in accordance with the overriding objective) to proceed (paragraphs 27–32).

The judge suspected that some may think that the claimant, who was unrepresented, should have known that she needed to provide an explanation about the conflicting appointment. But he pointed out that, on the facts, it would have been ‘astonishing’ had she not in fact done that in the context of her telephone conversation with the clerk (paragraph 42). Furthermore, the claimant – ‘in common with many other appellants in the Social Entitlement Chamber’– was ill. A person suffering pain and fatigue ‘cannot necessarily be expected to draft applications to the tribunal with the same thoroughness that she would bring to the task if she were well’ (paragraph 44). Finally, the judge cited his own experience as a district judge of the First-tier Tribunal in observing that many unrepresented claimants (and some represented ones) simply did not understand that a social security appeal is a judicial hearing, and believed that requesting a postponement is just giving notice to cancel an appointment. ‘Such an approach,’ said the judge, ‘should not be held against unrepresented claimants, at least when there is no reason to believe they have been told what is actually required.’ The tribunal had an enabling role and, ‘particularly as many people are better at expressing themselves by word of mouth than they are in writing, allowing claimants to attend hearings and explain their situation in person’ was important (paragraphs 47–49).

Comment from CPAG

This decision shows how inattention to the need for fairness (and concentration on merely progressing business), including by tribunal caseworkers, can lead tribunals astray. The judge’s observations on the realities and perspectives of many social security appellants are a timely and important reminder of the importance of oral hearings.

Summary

The claimant was prelingually deaf and communicated by British Sign Language (BSL). When a DWP compliance officer visited the claimant at home to ask her about evidence regarding her savings, her parents were present and assisted her, but there was no signer present. The claimant, when pressed, provided bank statements regarding all her savings accounts, which showed that her savings were above the capital limit. The overpayment was held to be recoverable. The First-tier Tribunal rejected the claimant’s argument that as no BSL signer had been present, the department was in breach of its duties under the Equality Act 2010 and the claimant put at a disadvantage, so that the evidence gathered at the interview was inadmissible.

Judge Wikeley rejected the claimant’s further appeal. In the circumstances, which included the presence of the claimant’s parents at the interview, that there was no challenge to the accuracy of the claimant’s signed statement and the bank statements, that the DWP already had evidence from its generalised matching service and that the DWP could have in any case applied to the tribunal for a direction that the statements be produced, the tribunal was ‘plainly entitled to come to the view that the evidence in question was properly admissible’ (paragraphs 25–30). It was the case that under section 20 of the Equality Act the department was under a duty to make reasonable adjustments, which could include provision of a BSL interpreter (paragraph 24). Evidence could be excluded under the overriding objective (at rule 15 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685) of dealing with cases fairly and justly (paragraph 28). But even if there had been a breach of the Act (the judge did not say that there had been), it remained that, on the facts, the tribunal had been entitled to consider the evidence admissible (paragraphs 28–32).

The judge also rejected an argument (based on the decision in CSIS/45/1990) that the decision maker and tribunal had erred in only revising (ie, regarding the overpayment) only one decision where there had in fact been a number of decisions in the history of the award. CSIS/45/1990 was made under a previous and now repealed statutory regime. The current statutory test ‘does not require the identification of each and every preceding decision’ (paragraph 36).

Comment from CPAG

This decision illustrates that, while a potential breach of the Equality Act in evidence gathering might be the basis for, for example, complaints and requests for compensation, it does not necessarily follow that the evidence cannot be considered by a tribunal.

Decision in brief

Lump sums paid as reimbursement for salary deductions – to be treated as employment income not as capital – salary payments under a fixed-term employment contract also to be treated as employment income even though claimant did no work under the contract – a contract of employment does not require actual service by an employee and, on the facts, there was no evidence of a ‘sham’ agreement.

Decision in brief

Claimant lost control of bladder during epileptic seizure – this is ‘altered’ consciousness – claimant who loses control of his bowel or bladder while in a state of altered, as opposed to lost, consciousness, cannot score points under the descriptors linked to Activity 9 – CE/1928/2017 approved.

Decision in brief

Where claimant has appealed against such a refusal, s/he is then a person subject to immigration control – fact that reference in section 115(9)(d) of the Immigration Act 1971 is to now revoked provisions is immaterial – applying s17(2) of the Interpretation Act 1978, the reference is now to leave extended under section 3C of the Act, and the effect is the same.

Note from CPAG

The judge also held that where leave was extended under section 3D of the Act (appeal against requirement to leave the UK – since repealed), the person was not subject to immigration control, as held in GO v HMRC (CHB) [2018] UKUT 328 (AAC).

Decision in brief

But ‘giving support to collect medication is self-evidently not assistance with managing medication’ – the keyworker played no part in ensuring the appellant took his medication and no points were to be awarded for that in this activity.

Note from CPAG

Although as a decision of the Northern Ireland Commissioner this is not formally binding in Great Britain, it has been highlighted on the Upper Tribunal website.

Decision in brief

Whether award should be fixed term, and if so what the term is, are aspects of the decision and may in principle be considered and determined by the tribunal on appeal – RS v SSWP [2016] UKUT 85 (AAC) approved.

Decision in brief

Erred in not showing that it considered adjourning – not clear justification for what was effectively an ‘abortive hearing’ – overriding need to deal with case fairly and justly – AM v SSWP (ESA) [2013] UKUT 563 (AAC) applied.