DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CSDLA/1282/01 

Decision

1.	The appeal is allowed. I am of the opinion that the appeal tribunal erred in law.

2.	There are principle two errors in the decision. Firstly, the tribunal erred in upholding the Secretary of State’s decision that the claimant’s son, holding a Power of Attorney from his mother, was personally liable along with the claimant. Secondly, having made that error, it is clear that the tribunal failed to apply its mind properly to the question of whether or not the claimant was personally liable to make the repayment.

3.	I therefore remit the claim to a differently constituted tribunal with a direction:

3.1	To find that the Secretary of State erred in the decision in so far as it found the claimant’s son, holding her power of attorney, to be personally liable along with the claimant;
3.2	To consider of new, having regard to what is said in this decision, whether or not the claimant is personally liable to make the repayment of DLA claimed by the Secretary of State.

Background

4.	On 10 January 2001 a decision was made that there had been an overpayment of DLA in favour of the claimant from 4 May 1999 amounting to £1133.55, which required to be repaid. The overpayment was said to arise from the fact that the relevant benefits office had not been notified that the claimant had been admitted to hospital  on 20 January 1999 and subsequently transferred to a nursing home on 22 June 1999. The decision of the Benefits Agency was that the over payment was “Recoverable From [the claimant’s son] and [the claimant]”.

5.	The claimant had granted her son [“P”] a Power of Attorney on 27th February 1997. P has not been appointed an “appointee” by the Secretary of State under Regulation 33 of the Social Security (Claims and Payment) Regulations 1987 [the “1987 Regulations”].

6.	P appealed the decision to the appeal tribunal. In the submission to the appeal tribunal the decision maker made clear [page F “Issues raised in the appeal” at paragraph c.] that the “calculated overpayment … is for the care component only. The overpayment decision takes into account the fact that [the claimant] had a Motability agreement and a Motability car.”

7.	In a letter to the benefits office dated 16 September 1999 P wrote:

“Prior to this, at the end of last year my mother was admitted to Hospital for routine medical conditions.  We did not anticipate that the duration of stay was going to be anymore than routine treatment.  

She was subsequently discharged and then re-admitted to a pchicriatic [sic] ward suffering from clinical depression.  We were at no time aware that the illnesses would be prolonged or should cause us to assume that her entitlement to her DLA should be ceased.  It has only now been highlighted to us that our mother will require to reside in a nursing home establishment, and the current review of her placement has been declared as being permanent, as of to-day’s date.  On that basis the foils up to last month had been cashed and used for her essentials and personal needs and care and other outgoings for her home.  The family had still played and [sic] active role in her feeding and well-being due to the fact she refused whilst ill to let nursing staff feed or dress or attend to her personal hygiene.”

Appeal to tribunal

8.	The grounds of appeal to the tribunal given by P were:

“I/We disagree with your decision.

1.	Disagree with the amount requested/calculated.

2.	Despite the fact my mother was in hospital/respite care recovering from illness.  The hospital staff concerned could not “force” feed my mother.  Also the carers/staff nurses could not meet her religious obligations.  Therefore she would have still required personal attention and care eg feeding from family, bathing etc etc for her well-being and personal care.  The Race Relations Acts states that a person must not be deprived of their religious obligations.  If you take away the care element you deprived her what the act states.  And the family had to provide such care and feed her for that period of illness.

3.	The decision should be upheld.”

9.	Following upon a hearing of the tribunal on 18 June 2001 the tribunal issued the following decision:

“Unanimous Decision of the Tribunal

The Appellant is not entitled:

to an award of Mobility Component of Disability Living Allowance
from and including 04/05/1999

to an award of Care Component of Disability Living Allowance
from and including 04/05/1999

As a result of the appellant failing to advise the DLA unit of his mother being detained in hospital and/or nursing home ther [sic] was an overpayment of DLA from 02/12/1998 to 04/05/1999 amounting to £1133.55.  This overpayment would not have been made but for the appellant’s failure to advise the DLA unit.  The appellant should have made full disclosure but failed to do so.  In the circumstances repayment of the said £1133.55 is required.”

It is of note that the tribunal have determined that the appellant was not entitled to the mobility component of DLA in circumstances, where the Secretary of State’s submission to the tribunal had made it clear that the “calculated overpayment … is for the care component only …”.

10.	The tribunal’s findings in fact and Statement of Reasons for the Decision are in the following terms:

“Facts

1	The appellant is [the claimant’s son] as appointee of his mother [the claimant] whose DOB is 11 April 1927.

2	[The claimant] was found entitled to a higher rate mobility from 8.7.95 and to highest rate care from 1.7.96.

3	On 3 November 1998 [the claimant] was admitted as a patient to Gartnavel General Hospital, Glasgow.  She remained there until 20 January 1999 when she was transferred to Gartnavel Royal Hospital, Glasgow.  She remained in Gartnavel Royal Hospital until 22 June 1999 when she was transferred into a Nursing Home.  The accommodation in the Nursing Home was funded by the local authority.

4.	When [the claimant] was admitted to Gartnavel General in November 1998, her son, the present appointee, contacted the local office of the Benefits Agency at Pitt Street, Glasgow.  He contacted them with reference to her Income Support and Retirement Pension and also with reference to the Child Benefit which she received in respect of her grand-daughter.  He was asked to return her Income Support book (which incorporated both her Income Support and Retirement Pension payments) to the local office.  He did so.  For administrative reasons (or possibly even an error on the part of the Benefits Agency) the Income Support and Retirement Papers in respect of [the claimant] were transferred to the Glasgow Maryhill Office of the Benefits Agency and subsequently to the Glasgow Partick Office.  At no time did the appointee advise the Disability Living Allowance Unit at Blackpool of his mother’s change of circumstances.  He continued to encash the payments in respect of her award of DLA.

5.	On 4 May 1999 the DLA Unit in Blackpool were advised by the local office in Glasgow of the Benefits Agency of [the claimant’s] change of circumstances.  Until then they had received no such notification from [the claimant] or her appointee.

3.	As a result of the failure by [the claimant] and/or her appointee to advise the DLA Unit in Blackpool of the change of circumstances an overpayment of DLA amounting to £1133.55 was made.  This covered the period 2.12.98 to 4.5.99 and the details of the computation are set out in the decision dated 26.10.2000 (page 37 of case papers).

4.	The overpayment was made because of the appointee’s failure to intimate the change of circumstances.  He knew or ought to have known (at very least from the instructions at the beginning of the DLA payment book) that intimation of these change of circumstances should have been made to the DLA Unit.

5.	While [the claimant] was in hospital the appointee and other members of  [the claimant’s] family provided some personal attention for [the claimant] in respect of care needs and in particular by bathing her and helping to feed her.  There was assistance available from the hospital staff to have such services as bathing and feeding carried out but [the claimant] elected to refuse to allow the members of staff to perform the services for her, wishing instead that her family do so.

Reasons

It was not disputed in this case that there had been an overpayment of DLA.  This was acknowledged by the appointee in his letter of 16 September 1999.  He claimed in that letter and repeated to the tribunal that he was unaware that her being detailed in hospital and thereafter in a Nursing Home funded by the local authority would make any difference to the payments of DLA.

He specifically acknowledged to the tribunal that he had never contacted the DLA Unit in Blackpool until they had actually contacted him after being advised of the change of circumstances by the Benefits Agency office in Glasgow.  He considered that because he had advised the Benefits Agency in Glasgow of his mother going in to hospital when he first spoke to them in November 1999 regarding her Income Support and Retirement Pension that this was sufficient intimation to all elements of the Benefits Agency including the DLA Unit.

The tribunal accordingly accepted that there had been no intimation by him despite his obligation to do so.

They had some doubts as to exactly how much had been intimated even to the local office in that he insisted that when he had spoken to the local office in November 1998 and advised him that his mother was in hospital, he was never advised in any way whatsoever that there would be a reduction in her benefit if she were detained in hospital for a substantial period or if she went on later to a Nursing Home.  The tribunal found it difficult to accept that no such intimation at all would have been made to him by the Benefits Agency (although this was not central to the question in this case which deals exclusively with that of an overpayment of DLA).  They also noted in passing that it took a considerable time for him to intimate to the Benefits Agency the fact that a power of attorney had been granted by his mother in his favour as far back as February 1997.

The central elements in this case are that the appointee had an obligation to advise the DLA Unit of his mother’s change of circumstances.  He failed to do so.  It was reasonable to expect him to have made this intimation as this was among other things clearly indicated in the payment book which he held and which he continued to cash.  The DLA was in respect of higher rate mobility and highest rate care.  He could hardly have expected his mother to be able to keep receiving such payments when she was in hospital and thereafter in a Nursing Home.

The tribunal noted the further comments he had made at the end of his letter of 16 September (page 9) and in his letter of appeal (page 40) as to the fact that the family continued to provide personal attention in respect of his mother’s bodily functions, particularly with bathing and eating her meals.  It appeared to the tribunal that part of the reason for this argument being introduced was an acknowledgement by the appointee that he had been aware all along that these payments should not be continuing if his mother’s essential care was being catered for by someone else.

The tribunal in any event did not consider that there was any substance in the argument put forward by the appointee that for personal and religious reasons his mother wished only the family to carry out personal services for her.  The essential position was that hospital (and subsequently Nursing Home) staff were willing and able to carry out all principal necessary functions to assist the appointee’s mother and in particular in washing her and assisting her to eat her meals.  It was his mother’s specific choice not to allow anyone other than family to assist her in this regard.  There was therefore no substance as far as the tribunal were concerned in the argument that the family were entitled to continue to receive the care component of DLA.

Because the tribunal were of the view that intimation of the change of circumstances was expected of the appellant and he failed to do so as a result of which an overpayment took place, repayment was considered appropriate.”

11.	The Decision Notice finds that the “Appellant is not entitled” to DLA. It does not confirm or uphold the decision maker’s decision. It states that “In these circumstances repayment of the said £1133.55 is required.” It would appear from the grounds of appeal to the tribunal and the form of the decision, coupled with the Statement of Reasons, that the questions of P’s personal liability was not properly focused before the tribunal.

12.	 I note that there is no Report of the Proceedings in either the Commissioner’s file or that of the tribunal.

Appeal to the Commissioners

13.	P sought and obtained leave, on behalf of the claimant to appeal to the Commissioners on the following grounds:

“1.	Failed to apply the correct law 

2.	Breached the rules of natural justice

3	Took into account irrelevant matters and did not consider relevant matters

4	Misrepresented what was actually stated

5	Acted ultra-vires.

14.	Accompanying the Notice of Appeal was a letter in the following terms:

“I/We refer to the above appeal held on the 18/6/01 and chairmans statements issued on the 06/8/01.  We now wish to appeal to the commissioner against the tribunals decision, in that they erred in law, failed to apply the correct law, misrepresentation of what was actual stated.  We wish to raise the following concerns and facts;

1.	The appellant is [the claimant] whome [sic] is the claimant for DLA.

2.	[The claimant’s son] is not an appointee as stated, but has Power of Attorney granted by [the claimant].  There is a legal distinction between contractual relationship between his mother and son and the DSS, the latter being nil.  His role is based on good faith and acts accordingly ie to the best of his knowledge and cannot be founded upon.

3.	Making a disclosure to the Benefit Agency where his mothers claim being handled and making specific reference to DLA and other benefits should be enough because you can then reasonably expect the person receiving the information to pass it onto the right person.  It is clear from the DSS submission that they informed the unit not until 4.5.99 that she was in hospital and that a re-calculation of over payment ammended.  [sic]  

4.	[The claimant’s] mental incapacity and illness would inhibit her to advise any DLA unit referred to.  She had actual medical problems and suffered from clinical depression.  This point has not been recorded by the chairman and its implications.

5.	There is important facts to be considered during the transition from hospital to the private nursing home.  [The claimant] was Discharged from hospital (medical ward) to a Respite unit of another hospital ie Timberry House on the 20/1/99.  [The claimant] spent many days and week-ends out from this unit, which has never been accounted for, has the 28 days rule applied in her case.

On the 22/6/99 [the claimant] was discharged to a private nursing establishment at the request of social services and family.  It is clear from the DSS submissions (nos 14 paper) that the award to pay for the establishment was not funded or decided by the local authority.  This was further clarified by the social services on the 12/10/99 (DSS nos 20-24 papers).  It was not until a further enquiry dated 15/2/00 by the DLA to the social services confirmed dated 23/2/00 (nos 25-29 papers) that a decision had been made and BACKDATED TO 22/6/99.  During this crucial period until an award had been decided, no payment was being made by any authority, therefore should the personal care component of DLA have been stopped, until such time actual payment paid in part by the authority.  It can be assumed for that period, that payment was being met by deduction of [the claimant’s] retirement pension and accrued arrears and a pending claim for income support contribution.  Continuous free in-patient treatment would not have applied.  A further observation on the submissions is the inaccurate information given on discharge dates (nos 4 Q.2).  The question arises a discharge had in fact been made from one hospital, is the respite unit a hospital or care facility.  This has not been clarified by the tribunal in its findings.

6.	It is claimed that the personal care component is for [the claimant’s] use for personal comfort or enjoyments ie (care and hygiene, nail and hair grooming, religious obligations and other personal needs) which hospital nursing staff do not provide, apart from essential medical care.  It not a matter of choice for the nursing staff referred to, it is a question of limitation and what the law allows to force a patients human rights and religious obligations.

7.	[The claimant’s son] clearly intimated to the Benefit Agency that he had power of attorney.  It was in fact the DSS reluctance to acknowledge that contract in force.  The chairman has misrepresented what was actual stated.

8.	The chairman led further questions on other benefits from the Benefits Agency, the fact that this had been raised at a tribunal for DLA, mislead the tribunal.

9.	The chairman further mislead the panel by making personal reference to his elderly mother on how her claim had been dealt with by the benefits agency or other persons he had knowledge of, who had also dealt with the DSS.  Acted Ultra-Vires.

10.	Highlighted to the panel information on payment book, this information or copy of book had not been produced as a submission in the papers, in what information is contained in such.  Acted Ultra-Vires in mentioning of a payment book not being presented.

11.	The Chairman did not clarify to the panel how an error in calculation of original sum alleged in overpayment had been reduced to £1133.55, at the instance of the DSS to inform the DLA.

12.	The tribunal had already reached a conclusion prior to hearing [the claimant’s son’s] submissions to the panel, on what they thought had caused the overpayment, this is contrary to what the panel was asked to decide.

13.	The award of Mobility Component of  DLA is not affected when a person is in hospital, also in that a contract hire agreement for a car was in place.  It is the care component of DLA which is being appealed.

CONCLUSION

1.	Failed to apply the correct law.
2.	Breached the rules of natural justice.
3.	Took into account irrelevant matters and did not consider relevant matters.
4.	Misrepresented what was actual stated.
5.	Acted Ultra-Vires.”

15.	The Secretary of State did not support the appeal. The Secretary of State submitted:

“Background

The issue before the tribunal was whether the claimant’s son who has power of attorney failed to disclose the material fact that the claimant was in hospital and was subsequently admitted to a Nursing Home and as a result of which was overpaid benefit from 2/12/98 to 4/5/99 amounting to £1133.55 which was recoverable.  The facts of the case are in the decision-maker’s submission to the tribunal [pages C to D].  For the purposes of this submission I adopt those facts.

Grounds of appeal

The claimant’s grounds of appeal [pages 51 to 52] are essentially that the claimant’s son is not the appointee for the claimant but has Power of Attorney.  It contends that the Benefits Agency should have passed information on to the DLA unit as specific reference to DLA and other benefits was made.  It also contends that the claimant’s mental capacity meant that she could not advise the DLA unit herself.  It contends that no consideration was made of the 28 day rule.

Secretary of State’s submission

I submit that the tribunal have not taken into account any irrelevant matters or failed to consider all relevant matters.  I further submit that they have reached a decision that they were entitled to reach and have given adequate reasons for it.

I submit that the claimant’s son was given power of Attorney under Scottish law in 1997.  As such the PoA does not lapse when the customer becomes mentally incapable unless the deed itself says so.  In this case, the deed did not say this and furthermore, included an acceptable form of wording extending to both the receiving of and the claiming of Social Security Benefits.  As such there was no requirement for appointee action.  I can find no error in law for the fact that the tribunal referred to the claimant’s son as the appointee as the powers he held under the PoA were for Social Security Benefit purposes the same.  I therefore submit that the tribunal were correct in considering that disclosure should come from the claimant’s son.

I submit that the tribunal concluded that the claimant’s son made no disclosure to the DLA unit and that it was reasonable for him to do so.”

The Secretary of State then referred to CG/4494/99 and then continued:

“A person therefore remains capable of making a misrepresentation, which it is long settled requires only that the representation is untrue.  A person also remains capable of a failure to disclose, disclosure being a report made with the purpose of revealing that which so far as the disclosure knows is unknown to the disclosee – see paragraphs 19 and 25 of R(SB)15/87.  It is irrelevant whether, unknown to the discloser, the disclosee already knows the fact.

I submit that in this case, there is no computer link between the DLA unit and the IS section.

I submit that the claimant’s mental incapacity does not matter was the responsibility rested with her son.

I submit that the claimant’s representative has brought up the 28 day rule mentioning that the claimant spent many days and week-ends out of the Respite unit.  This is a matter that was not before the tribunal and as such they cannot be criticised for not considering it.  There is no further information given of the dates when this is alleged to have taken place.  Furthermore, the claimant’s representative has suggested that during the period of the overpayment part of the benefit was withheld pending notification form [sic] the local authority.  The representative has suggested that the personal care component should have been stopped.  I submit that this would not have been possible as at that time the DLA unit were not aware of the hospitalisation, hence the overpayment.  I submit that the tribunal and the Decision Maker carefully considered the issue of personal care.

I am unable to support the appeal on the grounds of natural justice from the information in the papers.  There does not appear to be any evidence that the tribunal breached the rules of natural justice.

However, in the absence of a statement from the chairman or tribunal members, I am unable to make a full submission on this point.  In decision R(M)1/89, a tribunal of Commissioners held that a complaint about an alleged breach of natural justice should be considered if full and sufficient particulars are set out in the grounds of appeal.  It is a matter for the Commissioner’s judgement, given the nature of the extent of the allegation and the circumstances of the case, whether a full investigation of the allegation is required.  Should the Commissioner require a statement from the tribunal or an investigation of the allegation, I respectfully request that he so directs.”

16.	P responded to the Secretary of State’s submissions in the following terms:

“We wish to raise the following concerns and observations:-

1.	The Decision:  The Commissioner should grant appeal in favour of the claimant, in submissions by the claimant against the decision of the appeal tribunal held on the 6/8/01 and dated 03/9/01.  (page 51-52).  And to add to the conclusions; The Secretary of State has no Jurisdiction to recover the alleged overpayment from the Power of Attorney.  Thus reject his submissions.

2.	Background:  The issue before the Tribunal was stated in submission F, in that last para.c “The Tribunal in determining the question;” The facts of the case are contained therein, in particular whether the overpayment is recoverable from the appellant.  We note submissions “adopt those facts” in (pages C to D).  Is it now a contention that B and F not significant for this appeal.  When [the claimant] being the appellant and claimant.

3.	Grounds of appeal:  These are set out on (pages 52-52) (57-58).

4.	Secretary of States submission:  For the benefit of doubt we are making the following observations on behalf of the appellant and claimant.  On that basis set out on the grounds of appeal (pp 51-52).  Further the Secretary of State has not stated under what procedure or rules of the Social Security Act, recovery is due by the Power of Attorney.

1.	The son appears on behalf of his mother at an appeal Tribunal and in that capacity proceeds with the hearing.  During the hearing there is no minute or amendment to the proceedings to allow the son to be a defendant or party litigant.  Nor in the submissions had it been averred that the overpayment due from the Power of Attorney.

It is in effect shifting the burden of proof.  This would give rise to appeal to a court.  The Tribunal have not dispensed with [the claimant’s] appeal in the proper manner.

2.	There is no mention of a failure to disclose in the reasons stated at the Tribunals findings.  Although, “As a result of the appellant failing to advise the DLA unit of his mother being detained;” Decision notice (page 59).  In fact the word advise is used in its entire context.

3.	There is a legal contract between mother and son under Scottish Law ie The Law of Contract and a document in the form of a deed thereof ie The Requirement of Writing (Scotland) Act 1995.  There is consensus between mother and son.

He acts in good Faith and to the best of his Knowledge; “And I further declare … shall always be bound to hold just count and reckoning with me for his intromissions” (page 13).  It is averred that a Breach of Duty could only be claimed by [the claimant].  There is no duty on the son to disclose to the DSS although he did advise his mothers local office of a change in circumstances in good faith.  Further, he cannot be said to have “failed to disclose” a fact you did not know about.  Nor was he asked to disclose a material fact he is not aware of.

4.	[The claimant’s son] is as averred not an appointee as outlined in the Social Security (Claims and Payments) Regulations 1987 reg 33.

Further in the deed there is no specific mention of DSS as averred in the current submissions for the respondent, appointee has no correlation to power of attorney in the legal sense and the drafting of the deed.

In any event there is evidence before the Tribunal that the DSS did not accept its format or that [the claimant’s son] had PoA.  (pages 43-46).

5.	The respondent has made reference to case law, at this point reference is made to the claimants son.  We hereby object as the son is not the claimant, appellant or recipient of DLA.

It would be grossly unjust to the third party to find that he is liable without giving him notice or a chance to be heard.  The adjudication officer must issue a fresh decision against a third party.  Further this could require a request for a Judicial Review Limitation Act 1980 s 10; Civil Liability (Contribution) Act 1978 s2(1).

6.	The respondent averred there is no computer link between the DLA unit and the IS section.  We submit it was reasonable for them to telephone or simply write a memo to the DLA as section do cross check benefits and entitlement for accuracy to a persons claim.

7.	I submit that the claimants mental capacity is crucial, [the claimant] was being treated for a mental illness for the alleged period and thereafter.  The Mental Health Act 1983.  She was mentally ill or vague.

8.	The DSS made appropriate enquiry to hospital records for discharge dates and admissions it would be reasonable to do the same for home visits and days out.

9.	We wish the Commissioner to consider also if personal care component should have continued to be paid until such time actual payment was being made by the Local Authority decision to make payment by the local authority was not made until 23/2/00.  (pages 20-24).  The nursing home was private accommodation when [the claimant] was a resident of that establishment on the 22/6/99 (pages 14-19).  Payment was being made by [the claimant’s son] from 22/6/99-23/2/00 until a decision had been made later (pages 25-29).  In that circumstance personal care up to and including was still being provided by private nursing until such time the authority decided to pay under The Community Care (Scotland) Act 1993.  The social services back-dated the claim to the 22/6/99.

10.	It is averred that personal care was continued whilst [the claimant] time in hospital and the Tribunal accepted this.  Therefore although the writers of the legislation did not take into consideration the implication of the care component when in a hospital.  It could be stated personal care would still be applicable for the appellant for her bodily functions, grooming, haircuts, nail cutting and other personal use what staff in hospitals do not provide as medical care and attension. [sic]  There is a cost to provide these other personal elements.  This is possible where legislation has to be amended to take into consideration a patients ethnic origins also The Race Relations Act 1976: s20(1), s20(2).  Discrimination in the provision of goods, facilities and services, s71 Local authorities; statutory requirement.

11.	The general obligation of a Tribunal is to decide what the facts of the case are and then determine what the law is that applies to these facts.  The tribunal has no discretion to disapply the law in any other circumstances.  What has happened with [the claimant] case, then to introduce the son into the proceeding.

I respectfully request the appeal be upheld in favour of the claimant or to find a statement in favour of the claim to be upheld.”

Issue in this appeal

17.	The following issues appear to be raised by the appeal:

17.1	Whether or not P, having a power of attorney from the claimant, is to be viewed as an appointee under regulation 33 of the Social Security (Claims and Payments) Regulations 1987 and if he is not an appointee, what were his obligations;

17.2	Whether or not it was competent for the Benefits Agency and the tribunal to find P liable along with the claimant.

17.3	Whether or not intimation to the Glasgow Benefits Agency was sufficient intimation when DLA was administered from Blackpool;

17.4	Three factual issues are raised (1) regarding intermittent releases from hospital and whether or not the 28 days rule has been properly considered, (2) that for part of the period in the nursing home was paid for privately, prior to payment being taken over by the local authority and (3) whether or not the claimant was mentally incapacitated and what effect this might have on the claim for repayment;

17.5	Whether the tribunal were correct, having held that the family provided some personal services while the claimant was in hospital, that as such assistance was available from the hospital, this does not give rise to an exception.  The grounds of appeal maintain that the claimant refused the hospital care for religious reasons and insisted that her family provide the services. It is said that the tribunal’s decision contravenes the Race Relations Act, I understand on the grounds of discrimination as no regard has been had to the claimant’s religious convictions.

17.6	Whether of not the tribunal breached natural justice. This ground is not clearly formulated, but appears to be behind the assertions made in paragraphs 8 to 12 of the grounds of appeal.

17.7	Whether the award of the Mobility Component is not affected when a person is in hospital. 

Reasons for my decision

18.	Whether P was “appointee” of his mother - The tribunal have found that the “appellant is [P] as appointee of his mother”.  So far as I can see from the papers there was no evidence before the tribunal that P had been appointed “appointee” by the Secretary of State under Regulation 33 of the 1987 Regulations.

P has power in terms of the Power of Attorney, although not clearly drafted, to deal with benefit claims, including appeals on the claimant’s behalf. The fact that P has a power of attorney does not in my opinion make him an “appointee”. Regulations 33 of the 1987 Regulations provides that under certain circumstances, on a written application of a person, the Secretary of State “may… appoint that person to exercise, on behalf of the person who is unable to act, any right which that person may be entitled and t receive and deal in his behalf with any sums payable to him ….”. A power of attorney may be appropriate evidence to support an application for appointment as an appointee, but in my opinion does not make the person concerned an appointee without the appointment having been made by the Secretary of State in terms regulation 33. Regulation 33(3) provides that “Anything required by these regulations to be done …” may be done by certain persons, which listing does not include a person acting under a power of attorney. This supports my conclusion that a person with a power of attorney is different from an appointee.

I find support for this approach in the decision of Mr Commissioner Jacobs in CA/1014/1999 [* 35/00], where he held that a person holding a power of attorney did not have a duty of disclosure to the benefits agency on behalf of the claimant, where there was an appointee. He held [paragraph 33] that a failure by an attorney to report a change of circumstances to the Secretary of State was “not attributable to the claimant.” In particular he noted, and I agree with this, that a power of attorney allowed the attorney to act on the claimant’s behalf, but did not impose a duty to act.

I therefore hold that the tribunal erred in law in finding that P was “appointee of his mother”. 

If he was not an appointee, this raises the question of whether or not P was under an obligation to inform the benefits agency in Blackpool of the relevant change of circumstances. Mr Commissioner Jacobs held at paragraph 35 of CA/1014/1999 [*35/00] that where there was an appointee that an attorney did not have an obligation under Regulation 32(1) to inform the Secretary of State of the change of circumstances. As noted above he held that while there was a power to act, there was in general not duty to act. If there is a duty to inform the Secretary of State, this must be found in a statutory provision.  There was no “appointee” in the present case so the question must be whether in the absence of an appointee, that P, holding a power of attorney, was under a duty in terms of that regulation to inform the Secretary of State of the change of circumstances.

Regulation 32(1) provides that “every person by whom or on whose behalf sums payable by way of benefit are receivable” are under a duty to “notify the Secretary of State or the board of any change in circumstances which he might reasonably be expected to know might affect the right to benefit.”

If the claimant’s benefit was “receivable” by P under his power of attorney, then the duty would arise under regulation 32(1). I am reasonably clear from the papers that the benefit was in fact not “receivable” by P in terms of that regulation. I note that in the grounds of appeal at paragraph 7 that P states he had “intimated to the Benefits Agency that he had a power of attorney, it was in fact the DSS reluctance to acknowledge that contract in force.” While this statement is not clear, if it means that the benefits agency did not acknowledge the power of attorney, then I hold that from the benefit agency's point of view, the benefit was not “receivable” by P. 

I note from the Facts of the case set out by the decision maker that the first reference by him to the involvement of P with the power of attorney was a letter dated 17 September 1999 regarding the admission to the nursing home. This was 5 months after the local benefits office had informed Blackpool of the hospitalisation of the claimant. He also notes that a letter was received from the solicitors confirming the power of attorney on 19 October 2000, about a year later. There is a letter from the benefits agency dated 18 January 2000 in which it is stated that the earlier submission of a photocopied power of attorney [with the letter of 17 September 1999] was not acceptable. This material makes it clear that the agency could not have accepted that the benefit was “receivable” by P during the period of overpayment.

I therefore hold that P was not under a duty to inform the benefits agency at Blackpool of any relevant change of circumstances.

If I had held otherwise, it would also have to be shown that the change of circumstances was one that P “might reasonably be expected to know might affect the right to benefit.” As P informed the Glasgow benefit office of that his mother had gone into hospital, this might be inferred, but the issue was not examined by the tribunal in relation to the Blackpool office. It might be that the circumstances where the family were still providing services in the hospital, the assertion that the claimant was going in and out of hospital and that initially the family were paying for her nursing home care, might along with other circumstances have taken P outwith that provision. That would have been a matter for the fact finding tribunal.

Having held that it was P’s obligation, as appointee, to inform the benefits agency, the tribunal clearly did not consider, whether or not the claimant had a personal obligation to notify the relevant office or if she had any defence to non notification –  it is suggested in the grounds of appeal that she may have been incapax at the time she went into hospital. If she was incapax, then there may be an issue as to whether or not she had the capacity to know of the facts that had to be disclosed. See CA/1014/1999 at paragraph 24.

This is a question that will have to be determined by the tribunal to which this appeal is remitted.

19.	Liability of P along with the claimant – I am of the opinion that it was not open to the decision maker to hold that P was personally liable along with the claimant for repayment of any sum overpaid, where he held a Power of Attorney, but had not been appointed “appointee”. 

I am of that opinion, whether or not P had a duty under regulation 32(1) or otherwise to inform the agency of a change of circumstances. 

In so far as the claimant or P may have a liability to make the repayment, P’s liability under the Power of Attorney is only to make repayment from the estate of the claimant that is under his control. I am quite clear that he has no personal liability to make the repayment. The Power of Attorney at Clause (Fifth) gives the power “to pay any debts or claims owing by or exigible from me in any manner of way”, but this is a matter between P and the claimant as to whether or not he should exercise this power on her behalf. A person holding a power of attorney is an agent for the grantor. It is a well established principle of law that an agent is not liable for the debts or obligations of a disclosed principle in any transaction in which the agent acted for the principle.

In circumstances where the agency did not know of, or recognise, the power of attorney until well after the period in which the claim for overpayment arose, I cannot see that any personal liability can lie on P.

Having reached that conclusion independently I find support for my views in the decision of Mr Commissioner Jacobs in CA/1014/1999 [*35/00] referred to above.

20.	Notification to Glasgow office - In so far as P put forward in defence, whether or not on his own behalf or that of the claimant, that there had been a notification to the Glasgow office by him as opposed to the Blackpool office, I am quite clear that this is not available as a defence for the claimant. Notification ought to have been given to the Blackpool office and it is not competent, in the absence of special circumstances, to rely on notice to some other office that was not dealing with the particular claim – CG/4494/99.

21.	Personal services rendered by family in hospital - The difficult issue in this case relates to the effect of the fact that the services were rendered to the claimant, while she was in hospital. Was the tribunal correct to hold that it was irrelevant that the claimant chose to have her family carry out services for her in circumstances where the hospital were willing to carry out those services? Is P correct to say that regard should be had to the claimant’s religious convictions that required the claimant to insist that it was her family that should provide the services?

Regulation 8 of the Social Security (Disability Living Allowance) Regulations 1991 provides that:

 “8(1) …its shall be a condition for the receipt of disability living allowance … [care component] … for any period … that during that period he is not maintained free of charge while under going medical or other treatment as an in-patient – (a) in a hospital …”
(2) For the purposes of paragraph (1)(a) a person shall only be regarded as not being maintained free of charge in a hospital … during any period when his accommodation and services are provided under …” certain provisions of the NHS Acts of 1977 or 1978.

Regulation 10 provides that Regulation 8 does not apply for the first 28 days and makes other exceptions, which are not relevant here.

I am of the opinion that the tribunal was correct to reject the submission that DLA should continue, because the family was providing personal services in the hospital. Read short regulation 8(1) provides that a person is only entitled to the care component of DLA during any period when “he is not being maintained free of charge” in a hospital. The word is “maintained” and has nothing to do with whether or not the hospital is providing particular services. Subparagraph (2) provides that a person is “only to be regarded as not being maintained free of charge” if the accommodation and services are being provided under particular provisions of various NHS Acts, which do not apply here. 

As the exceptions provided in subparagraph (2) do not apply, the claimant has to be regarded as being maintained free in hospital under regulation 8(1). What the family might or might not be providing by way of services is not a relevant consideration under the regulations.

In so far as the appeal raises the question of whether or not this is a breach [I presume discrimination is meant] under the Race Relations Act, is not a matter for me. If the regulations are inconsistent with the requirement of the Race Relations Act or indeed of Article 14 [Non discrimination] of the European Convention on Human Rights then that breach has to be taken up in another forum. I have to apply law as it is set out in the relevant benefit statutory provisions and regulations.

I therefore direct that if this matter is again raised before the tribunal to which this appeal is remitted, the tribunal should reject such a submission.

22.	Factual issues and breach of natural justice - In light of my decision that the tribunal erred in law for other reasons and my decision to remit the case back to a differently constituted tribunal, I do not intend to deal with these issues. In so far as it might appear that some of the factual issues were not raised, or may not have been properly focused in the tribunal hearing it will be for the claimant or her representative to ensure that all relevant factual issues that they wish to rely on are brought before the tribunal.

23.	Entitlement to the mobility component of DLA - Although the tribunal have found that the claimant is not entitled to the mobility component of DLA, it is clear from the papers that the sum reclaimed does not include the mobility component that might have been paid for this period. This error or perhaps “misunderstanding” in the tribunal’s decision will require to be corrected by the tribunal rehearing this appeal.

Summary

24.	I therefore uphold the appeal upon the grounds that the tribunal erred in law.  I remit the claim to a differently constituted tribunal for re-consideration in light of the observations that I have made in this case. 

I direct that the tribunal are to find (one) that P did not have a personal liability to make the repayment of the sum claimed and (two) that P did not have a duty to inform the Secretary of State of the change of circumstances.

The tribunal is to consider whether in the whole circumstances the claimant alone is liable to make a repayment. They will have to consider whether or not the claimant was under a duty to inform the agency of the change of circumstances; whether or not the times in and out of hospital came within the 28 days rule in Regulation 10 of the 1991 DLA Regulations; and whether or not the family paid for the nursing home for a period until the local authority took over and if this affects the claim for repayment having regard to Regulations 9  and 10 of the 1991 DLA Regulations.

					(Signed)
					Sir Crispin Agnew of Lochnaw Bt QC
					Deputy Commissioner
					Date:  10 July 2002