[2002] UKSSCSC CIS_1997_2002 (14 October 2002)

1.	My decision is that the decision of the appeal tribunal was erroneous in point of law.  I set it aside and remit the case for re‑hearing in front of a freshly constituted tribunal.

2.	This is an appeal with leave granted by me from the decision of an appeal tribunal dated 22.1.2002.

3.	The claimant has suffered from mental health problems since 1990.  These are helpfully described in the letter of the Community Psychiatric Nurse of the 15.1.02 (38/40).  The claimant was in receipt of income support being within a prescribed category namely as a person who is incapable of work under para 7, Schedule 1B to the General Regulations.  

4.	However, during the period 1.11.98‑1.3.2001, it was alleged that he was engaged in work, albeit of a somewhat informal nature and probably not continuous.  In his statement of 18.1.2002, prepared in connection with his appeal to the tribunal, (31/35) he states:-

	“	4.	… friends and family members then occasionally allowed me to carry out minor repairs to their cars on my driveway and they would sometimes buy me a drink or some tobacco in return.  However I would only carry out work in relation to any of my projects which I was doing to help my recovery from my mental health problems when I felt able to do so.  On some days I would be able to do more than on others but very often there were days when I could not do any work at all …

		“9.	… during the interview I had explained that I was certainly not running a business but that on some occasions I would do minor repairs such as fixing a handbrake cable or headlight for a friend or family member who would sometimes buy me a drink in return.  I would like to make it clear that I do not fix cars on a regular basis.  In fact I do not fix cars at all during the winter or when it was raining or snowing or on cold days.  I would also not do this on very hot or sunny days because the sun causes me to get migraines.”

The claimant made a statement to the Benefits Agency’s officers on 8.3.01 which tells a somewhat different story, and which I will consider below.  

5.	The DM determined that for the period 1.11.98‑1.3.2001, the claimant was overpaid income support in the sum of £19,951.33 on the basis of misrepresentations made each time he signed the declaration in his order book – see para 8 of section 6 of the DM’s decision (1G).  

6.	That would certainly appear prima facie to being justified, and it was prima facie up to the claimant to show that the work he was doing was exempt.

7.	The appropriate provisions are to be found in reg 17(1)(a)(i) – and, on the evidence of the Community Psychiatric Nurse arguably under (ii) as well.  But both those sub‑paragraphs have a precondition of their application, namely that the work had to be done on the advice of a doctor.  The provision is quite specific and the Community Psychiatric Nurse is not a doctor.  On my interpretation, that advice cannot be given retrospectively.  The only evidence from a doctor is that contained in the GP’s letter of 13.9.01 (41):-

	“As early as October 1995 my medical record suggests some form of occupational therapy.  Periodically I have encouraged him to engage in some therapeutic work.  Following encouragement from his community psychiatric nurse [the claimant] did attempt some voluntary work on an ad hoc basis.  Unfortunately this appears to generate more anxiety related symptoms.”

As to this the tribunal commented:-

	“[The GP] says ‘periodically I have encouraged him to engage in some form of therapeutic work’, but he was not specific.  It was not evident that in respect of the period in question [the claimant] undertook the work he was doing specifically on the advice of his doctor …”

Rather it would appear that the work during the period in question, was encouraged by the Community Psychiatric Nurse.  

8.	Was the activity undertaken by the claimant work?

Against his statement of 18.1.2002 there was the statement of 8.3.01 (11/12) prepared at the interview.  The claimant disputes that it was accurate and, moreover at the interview, he said he was very distressed and that may be accepted.  That statement is considerably more specific than the statement of 18.1.2002.  In it the claimant is recorded as having said:-

	“Since 1 November 1998 I have been working repairing cars on my driveway at the above address.  There are days when I could be working on 2 cars there and there are days when there are no cars there.  The jobs in the main include changing brakes and general services.  Small jobs generally.  I do receive payment.  The payments were raised from £5 to £25.  If no money changes hands then the owners pay me the balance in tobacco or beer in the pub.  This work ceased on 24 February 2001 … To try and be more precise over the period of a year I would say per week I would work 8 hours. This takes into account weather and all the periods when there are no cars to work on …  My earnings if averaged out every year would amount to £30 per week.”

The tribunal resolved the conflict thus:-

	“	11.	The burden of proof is on [the claimant].  The standard of proof is the balance of probability.  I find it more likely than not that the information given in the interview of 8 March 2001 is correct.  It is more consistent than [the wife or the claimant’s] oral evidence with the recorded observations of the Benefits Officer who saw [the claimant] at home on a number of occasions at the beginning of March 2001 and with the recorded information that he obtained from neighbours.  It was more consistent with the original allegation which triggered off the investigation.”

I sit in an appellate jurisdiction.  There is an appeal to a Commissioner only on a point of law and I do not find that finding was based either on no evidence, or that it was unjustified, being perverse.  During the relevant period, the claimant was therefore prima facie working although there may be weeks in which he was not.  

9.	I have already alluded to the provision in regulation 17(1)(a)(i) of the Incapacity for Work General Regulations and the tribunal dealt with this in para 12 of the statement.  In his submissions to me of 26.7.2002 (98/101) the Secretary of State submits:-

	“	13.	However, the fact remains that there is no evidence that the claimant had obtained prior permission from his doctor to do the work for this particular period.  Indeed, in a letter from the doctor (page 42 of the bundle), he states that in his opinion he did not think that the claimant was capable of doing any paid employment during the past 10 years.

		“14.	Therefore, I submit that the tribunal were deciding within the regulations and with regard to the evidence they reached the correct decision.  I submit the tribunal could not reasonably conclude that because the claimant’s doctor had periodically advised that occasional work was therapeutic, the same applied on this occasion. Further, I submit that permission ought to be sought from a doctor at the start of each new job, in order that the doctor can consider the hours or type of work involved.  In the present case the doctor has stated [page 41 of the bundle] that he although he had advised therapeutic work in the past, this appeared to generate more anxiety related symptoms.  Therefore I submit that the tribunal were right to conclude the permission from the doctor had not been obtained.”

I have already to some extent indicated that I agree with these submissions and I accept them.  

10.	Accordingly, prima facie, the overpaid sum claimed is repayable.  But in his submissions the Secretary of State submits that when an award of income support is ended, the DM must consider whether the claimant satisfies any other conditions of entitlement.  He submits that the tribunal erred in law in not considering this, and I accept that submission.  In this case, the Secretary of State refers me to regulation 6(4) of the General Regulations 1987 which provides that in the case of a person who is mentally or physically disabled and by reason of his disability his earnings are reduced to 75% of normal or his working hours are similarly reduced, he is not to be treated as engaged in remunerative work.  I think that the Secretary of State should in his submissions to the new tribunal expressly deal both (a)(i) and (a)(ii).  But this provision only applies only during the weeks in which the claimant was working:  not to the weeks in which he was not.  In CIS/15/97 the Commissioner agreed with a submission made to him on behalf of the claimant to that effect.  I also accept that.  

11.	Some attempt will have to be made at the re‑hearing to guage in which weeks of the relevant period the claimant was working and if, as I suspect he will, satisfy one or other of the relevant provisions in regulation 6(4), evidence should be forthcoming and, during that period, no overpayment will be recoverable.  I appreciate that it may be extremely difficult at this length of time for the claimant to be able to recall in which weeks he worked at the end of say 1998 or even at the beginning of 2001, unless he kept some form of written record eg. in a diary, but this is a matter which, in the end, will have to be left to the good sense of the parties and the tribunal.  

12.	My decision is therefore as set out in para 1 above.

					(Signed)	J M Henty
							Commissioner

					(Date)		14 October 2002