Decision No: C1/06-07(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 April 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 13 April 2005 of an appeal tribunal sitting at Belfast.  The decision was a composite decision covering two appeals against two decisions of the Department.  I also give one decision covering the two appeals covered by the tribunal’s composite decision. My decision is given in the final paragraph.  The two departmental decisions were as follows:

(1)	A decision dated 20 September 2004 superseding an earlier decision of 20 May 1994 and terminating the claimant’s entitlement to both components of disability living allowance (DLA) from and including 2 December 2003.

(2)	A decision dated 1 October 2004 deciding that there had been an overpayment of DLA totalling £4083.16 which was recoverable from the claimant as she had failed to disclose a relevant change of circumstances ie an improvement in her condition.

2.	The tribunal in its composite decision upheld both decisions.  The claimant appealed. The grounds of appeal were contained in an OSSC1 form received in the Commissioners’ Office on 4 November 2005.  The grounds of appeal were as set out therein and essentially were as follows:

(1)	That the legally qualified panel member had dated the written record of proceedings of the tribunal some three months post-hearing and this was prejudicial to the claimant as regards her ability to establish the background to the case before appealing.

(2)	That the tribunal should either not have proceeded without the presence of the Fraud Investigation Officers or should have disregarded their evidence.

(3)	That the tribunal had failed to consider the disabilities that the claimant did have and whether she was entitled to any lower rate of the components of DLA than those to which she had previously been awarded.

(4)	That the tribunal erred by finding that the amount of walking and other activity carried out by the claimant was not compatible with severe discomfort in that it had no medical evidence to enable it to judge this.

(5)	The Fraud Investigation Officers observed the claimant over a period of time of six months and on several occasions and on this basis the tribunal was not entitled to make a finding as to what her normal walking ability was.

	All these grounds were opposed by the Department but the Department did indicate that there was an error on the tribunal’s part in that it had not established what were the notes and declarations applicable throughout the whole period of the overpayment ie from 3 December 2003 to 21 September 2004.  It had established that certain declarations and notes were in use from May 2004 onward but it had erred in not establishing that same were in use throughout the whole period.  In relation to this last matter, which was the reason why I granted leave to appeal, I have ascertained in subsequent correspondence that the notes in the Order Books were in fact in use throughout the entire period.  Any error of law in that respect does not therefore vitiate the decision.  While the tribunal did err in not establishing that the notes to the Order Books were in use throughout the relevant period this error is of no consequence and I would not set the decision aside because of it.

3.	I come now to deal with the more substantive grounds of appeal and in this connection it is relevant to mention some parts of the record of proceedings.  The claimant was represented at the hearing by Mr Curran, Solicitor, of Messrs Paul K Nolan & Company, Solicitors and the Department was represented by Mr Doherty.  (Before me Mr Curran continues to represent the claimant with Ms McHugh of Decision Making Services branch for the Department).  At the outset of the tribunal hearing Mr Doherty sought an adjournment to have the Fraud Investigation Officers attend.  This was opposed by Mr Curran who is recorded as stating that the claimant was happy to proceed and opposed the application for adjournment.  He further stated that the accuracy of Fraud Investigation Officer reports was accepted as factual but they did include judgments on pain etc and their opinions were not accepted.  He stated that the opinion parts were easily identifiable and that he accepted the facts as to what they saw and was agreeable to proceed on this basis.  

4.	The tribunal did so proceed having given some consideration to the matter.  It is quite apparent that its decision was based in part on the Fraud Investigation Officers’ reports and in part on the medical evidence.  The tribunal had before it the claimant’s General Practitioner records which included some hospital reports.  In particular treadmill testing is mentioned.  The tribunal also deals with the claimant’s contention that the walking which she was seen doing by the Fraud Investigation Officers (and which she did not dispute was done) was done with severe discomfort.  The tribunal specifically rejects this.  It states the amount of walking and other activity observed is not compatible with severe discomfort.  In this connection it is worth mentioning that the other activities observed included getting in and out of cars, working in a shop, jogging across roads, mounting kerbs, standing talking to other persons, browsing in a supermarket, carrying various items.

5.	I come first to deal with ground (1).  It does not appear to me that the delay in the drawing up of the typed record of proceedings is in any way prejudicial.  The record is dated 20 July 2005 but it is quite apparent that it was a typed version of a contemporaneous note of what took place at the hearing and indeed its accuracy has not been contested.  The claimant was not in any way prevented from making an application for leave to appeal to the Commissioner as the time limit of one month in which to make said application begins from the date of issue of the statement of reasons.

6.	As regards ground (2) and the attendance of the Fraud Investigation Officers, as indicated above the claimant herself strongly opposed an application for adjournment in relation thereto albeit stating that this was because she was in some financial difficulties.  While it would undoubtedly have been desirable to have had the officers there I do consider that the tribunal did not err in law in proceeding without the officers being present.  It has obviously relied on the factual element of the officers’ investigations and the medical evidence to reach its conclusions and I do not consider that there is any violation of the rules of natural justice or the right to a fair hearing in the tribunal proceeding without the Fraud Investigation Officers attending.

7.	As regards ground (4), as the Department submits, it does not appear accurate to say that the tribunal did not give consideration to the possibility of the claimant being entitled to lower rates of the various components of DLA than those which she had been receiving.  The tribunal specifically records:

“The picture that emerges from the Fraud Investigation Officer reports and medical reports is of a very small (4ft 6ins) rather overweight and very active lady, who has had normal cardiology and urology investigations, with some variable aches and pains but no severe disabilities.  She is fit to travel to England, Gran Canaria and Tunisia and to work part time in a Charity shop.  Even the medical reports she has handed in are not terribly supportive for Disability Living Allowance purposes in that eg they refer to early morning stiffness for 45 minutes only, able to walk for 10-15 minutes, mobility that is “a bit impaired” on formal treadmill testing, and at its height a need for “attendance (sic) of others from time to time”.  This does not to us sound like what we would expect to read about someone who was on highest rate care and high rate mobility 1993 – 2004. …

Of course we accept that she is entitled to a reasonable level of social activity and that she is entitled to make full use of her motability car and should not be penalised for doing so.  Nevertheless, and bearing in mind the other points made by her on her behalf, we still feel that the Department was justified in superseding on the basis that taking a broad view most of the time she is not virtually unable to walk or reasonably requires any attention or supervision or help with cooking needs, including reassurance, encouragement, motivation etc.  She clearly does not need guidance or supervision on unfamiliar routes as in her own evidence she stated she can to [sic] out on her own and can ask for and follow directions. …”

	It is quite clear that the tribunal was considering whether there was any other rate of either component to which the claimant could be entitled.  Its language in the reasons is clearly referable to the conditions of entitlement for the other rates.  It is also very clear that the tribunal did not consider that, because the claimant had been able to travel to Tunisia, England and Gran Canaria, this alone barred her from receipt of the allowance.  It is quite obvious that the tribunal did not rely solely on this.  It mentioned it, as the Department has submitted, merely as a part of the overall picture of the level of the claimant’s disabilities.  

8.	As regards the ground relating to severe discomfort I consider that the tribunal was entitled to its conclusion that the movement and activities of the claimant were not being carried out with severe discomfort.  It is quite apparent from the observations of the Fraud Investigation Officers that the claimant was moving freely and fluidly was able to carry things and to talk to various people.  The tribunal was quite entitled to conclude that the activities observed were not being carried out with severe discomfort.  It is highly unlikely that a person in severe discomfort would behave as the claimant was observed to do.  No medical evidence was required on this matter but indeed much of the medical evidence was not supportive of the level of disability which the claimant asserted she suffered.

9.	As regards the question of whether or not the tribunal was entitled to conclude that the claimant’s ability as observed was the normal walking ability, I consider that it was entitled to its view that the walking ability most of the time was as observed.  The observations were carried out over a period of some six months and were also carried out on days when the claimant was not benefiting from the injections she stated gave her pain relief.  The tribunal was, in my view, quite entitled to consider that this was the normal walking ability.

10.	I therefore consider that there is no error in that part of the decision relating to the supersession of the existing award.  The Department had clearly shown that there was no entitlement to DLA from and including 2 December 2003.

11.	I come then to deal with the matter of the overpayment.  As the Department has submitted DLA is a disability benefit. It falls within regulation 7(2)(c)(ii) of the Social Security and Child Support (Decision and Appeals) Regulations (Northern Ireland) 1999. For the supersession to take effect from a date earlier than the date on which it was made (and consequently to form the basis of an overpayment) the Department (or the tribunal) had to be satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision the claimant failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify and the claimant or payee, as the case may be, knew or could reasonably have been expected to know that the change of circumstances should have been notified.  The tribunal in this case concluded that:

“With regard to the overpayment decision, Mr Curran argued that while she must report a relevant change of circumstances, her condition can fluctuate from day to day and she is not required to report every change.  This is correct.  She is only required to report any relevant change ie a change that might affect the rate of benefit payable to her.  She would have been aware that she was originally granted high rate mobility in 1993 because she said she could walk only 50 yards in 10-15 minutes, and she was allowed indefinitely in 1994 when she said she could walk 10-15 yards in 5 minutes so we think it would have been reasonable to expect her to have reported an improvement in her walking ability by 2.12.03 when she was observed jogging and walking 120 yards in 1 or 2 minutes, so that at the very least the Department would have had an opportunity to consider how to proceed.  We think the overpayment is recoverable because she failed to do so.  We have hesitated over this but only because it seems arguable that she should not have been allowed in 1993 when the Examining Medical Practitioner (20.8.93) reported she was able to walk 200 yards without pain or discomfort in 4 minutes, with her feet everted and taking small shuffling steps; she had told the Examining Medical Practitioner she could walk ¼ mile in 20-30 minutes.”

12.	It is quite apparent that the tribunal found there to have been a relevant change from the walking ability which the claimant claimed she had when she was allowed the mobility component indefinitely in 1994. She then said she could walk 10-15 yards in 5 minutes.  Her walking ability as observed was obviously considerably greater and the tribunal was quite entitled to consider that this was without severe discomfort.  

13.	I consider that the tribunal was entitled to its conclusion that there was an improvement in the claimant’s mobility and ability to self-care and that this was a relevant change of circumstances.  With regard to whether or not there was a failure to disclose so as to found recoverability of any benefit, the tribunal was, in my view, entitled to the conclusion that had the claimant disclosed the improvement in her condition the award of benefit would not have continued.  This improvement was certainly a material fact and it was not disclosed.  If the claimant failed to disclose it and the overpayment was made as a consequence of that failure then it was recoverable.  

14.	The operative date of the supersession decision was, in my view, correctly fixed by the tribunal as 20 December 2003.  If therefore the claimant failed to disclose this material fact any resulting overpayment from that date was recoverable.  It is not in contention that the claimant did not disclose any changes.  She was after all the one who was carrying out the various activities.  She must have known that her walking ability was considerably in excess of that which she had asserted in 1994 as was her ability to self- care.  The case of B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 indicates that the legal duty to disclose is founded in regulation 32 of the Claims and Payments Regulations 1987.  The decision is a decision of the Court of Appeal in England and Wales.  The Northern Ireland equivalent is regulation 32 of the Claims and Payments Regulations (Northern Ireland) 1987.  Regulation 32(1B) provides, so far as relevant to DLA, that everyone in receipt of such an award is to notify the Department of any change of circumstances which he or she might reasonably be expected to know might affect the continuance of entitlement to the benefit as soon as reasonably practicable after the change occurs.  In my view the tribunal was quite entitled to conclude that the claimant could reasonably be expected to know that such an improvement in her walking ability might affect the continuance of entitlement to DLA and that her ability to self-care might affect the award of the care component.  In my view therefore the tribunal was entitled to conclude that the duty to disclose had not been fulfilled and that the Department was therefore entitled to seek recovery of the benefit which had been overpaid as a result.  There has been no issue raised in relation to the amount of benefit overpaid and I can see no error in relation thereto.

15.	In short therefore while I do consider that there was an error in the tribunal’s decision in relation to the evidence of the declarations, I consider the decision itself is not in error of law.  The appeal is dismissed.

(signed):  M F Brown

Commissioner

1 September 2006