CDLA/705/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Wakefield appeal tribunal dated 10 December 2001.

REASONS

2.	On 7 March 1995, the claimant was awarded the mobility component of disability living allowance from 8 February 1995 for life.  Subsequently the Benefits Agency received from a neighbour of the claimant video evidence, which suggested to them that the claimant was not as disabled as she had claimed to be and, on 30 March 1999, an adjudication officer was asked to review the award of disability living allowance.  On 9 April 1999, an adjudication officer did review the award on the ground that it had been made in ignorance of a material fact and revised it so as to determine that the claimant was not entitled to disability living allowance from the commencement of the award.  This decision was not revised on a further review, carried out on 17 August 1999, and so the claimant appealed by a notice received by an office of the Department of Social Security on 25 August 1999.  On 14 September 1999, the same adjudication officer decided that £7,484.40 disability living allowance had been overpaid to the claimant from 8 February 1995 to 20 April 1999 and was recoverable from her.  On 28 March 2000, the Leeds appeal tribunal also decided that there had been an overpayment of £7,484.40 disability living allowance and that that sum was recoverable from the claimant.  On 14 September 2000, Mr Commissioner Mesher granted the claimant leave to appeal against the tribunal’s decision on the ground, inter alia, that there was a question whether the tribunal had had jurisdiction to consider the decision on recoverability of the overpayment.  The Secretary of State supported the appeal on the ground that the tribunal had not had jurisdiction to consider the question of recoverability because the appeal before them had been brought against the decision of 17 August 1999 and not against the decision of 14 September 1999.  On 26 September 2001, Mr Commissioner Williams allowed the claimant’s appeal against the tribunal’s decision (CDLA/2147/00).  He did not consider the question whether the tribunal had jurisdiction to consider the recoverability of any overpayment, although he was concerned that the tribunal should have considered on what ground the award of disability living allowance should have been reviewed because of the implications that might have for recoverability.  He referred the case to another tribunal for determination and it was in those circumstances that the case came before the Wakefield appeal tribunal on 10 December 2001.

3.	The tribunal noted that there had been no appeal against the decision of 14 September 1999.  The claimant told them that she had not been sent a copy of that decision at the time.  The tribunal made no finding on that issue but took the view that the recoverability decision was not in issue before them and so made no determination on it.

4.	The claimant sought leave to appeal against the tribunal’s decision.  The chairman refused leave and the claimant renewed her application before a Commissioner.  Mr Commissioner Williams directed an oral hearing, which took place before me.  On 20 May 2002, I rejected the claimant’s grounds for seeking leave but I granted leave because I was concerned about the recoverability decision and I raised the following questions:

(a)	Did the Secretary of State invite the [first] tribunal to treat the claimant’s appeal as being one against the recoverability decision ?

(b)	If so, was the tribunal entitled to consider the recoverability question, waiving any requirement there might be for a formal letter of appeal against the separate decision ?

(c)	What should happen when a recoverability decision is made while an entitlement appeal is pending ?

(d)	If the Secretary of State did, and was entitled to, invite the tribunal to deal with the recoverability question, were the second tribunal entitled not to deal with that question, when the claimant’s time for appealing against the recoverability decision had expired (if, contrary to what she has said, notice of the decision was ever sent to her) ?

(e)	If the tribunal were not entitled to deal with the recoverability question, was the Secretary of State obliged to supersede the recoverability decision on receipt of the tribunal’s decision ?

5.	What prompted my first question was that, in the submission to the first tribunal, the adjudication officer drew attention to the decision of 14 September 1999 and invited the tribunal to “take this into account when making their decision”.  The Secretary of State, through his representative Mr David Scholefield, now says that it is unclear what the submission meant and regrets that it may have misled the first tribunal.  However, Mr Scholefield submits that the tribunal had no jurisdiction to consider the recoverability appeal without there being an application for leave to appeal out of time.  If the claimant is right and the decision of 14 September 1999 was never formally issued to her with the required information about her right of appeal, time for appealing would not in fact have started to run, but in any event there should have been an appeal.  The tribunal could have invited an appeal and the claimant could have given written notice there and then and, in the light of what had been said in the submission to them, the tribunal could then properly have considered the recoverability issue, notwithstanding the all too familiar absence of a representative of the Secretary of State.  However, no written notice of appeal against the decision of 14 September 1999 was ever given and, with some reluctance, I accept that the second tribunal were entitled to proceed on the basis that there was no appeal against that decision before them.

6.	Whether or not a tribunal can waive the requirement that an appeal be in writing – and R(SB) 1/95 to which Mr Scholefield has drawn my attention suggests the requirement cannot be waived – it is undoubtedly better practice to ask a claimant to give written notice of appeal.  Where a recoverability decision is made while an appeal against an entitlement decision is pending, it may well be sensible for the Secretary of State and a tribunal to invite an appeal against the recoverability decision so that all matters may be dealt with together by the tribunal.  The issues are often interrelated and this procedure promotes consistency.  It seems to me to be a pity that the Secretary of State does not have the power to refer a recoverability question to a tribunal seized of an entitlement appeal, as could be done by an adjudication officer before the Social Security Act 1998 came into force.

7.	This leaves my last question, which is whether the Secretary of State was bound to supersede the decision of 14 September 1999 on receipt of the tribunal’s decision.  Mr Scolefield says that the claimant could apply for supersession but that it is not for the Secretary of State “to attack the decision of his own volition” and he suggests that in the absence of an application there may be no decision from which an appeal may be brought.

8.	It seems to me that, in practice, the Secretary of State is bound to reconsider a recoverability decision in the light of a subsequent decision of a tribunal on entitlement in order to determine whether any of the findings of the tribunal suggest that the recoverability decision should be superseded.  However, I accept that it is not necessary to issue a supersession decision if the Secretary of State considers it is in fact unnecessary to change the recoverability decision, although, as recovery will have been suspended pending the appeal on entitlement, it might well be appropriate to mark the end of the suspension by the issue of a new decision.  In this, I disagree with CTC/2979/01, where it was said that every reconsideration on the Secretary of State’s own motion must lead to the issue of a decision under either section 9 or section 10 of the Social Security Act 1998.  In this particular case, one virtue of the Secretary of State issuing a new decision on recoverability is that it would answer the claimant’s submission that the decision of 14 September 1999 was never issued to her in the appropriate form.

9.	As Mr Scholefield submits, it is, of course, open to the claimant herself to apply for supersession of the recoverability decision, in which case the Secretary of State will be bound to issue an appealable decision under section 10.  This does somewhat diminish my concern that the second tribunal in this case did not have the recoverability decision before them, particularly as it has now been made clear that findings made in the entitlement decision are not conclusive for the purposes of any further decision on recovery (CIS/1330/02).  Even if the findings of the tribunal sitting on 10 December 2001 are accepted, there may be a question as to whether the Secretary of State has adequately identified a specific misrepresentation of fact so as to justify recovery under section 71 of the Social Security Administration Act 1992 (see CDLA/5803/99).

10.	In any event, I accept the Secretary of State’s submission that the tribunal sitting on 10 December 2001 did not err in not dealing with the question of recoverability.

11.	The claimant’s original grounds of appeal amounted to challenges to the tribunal’s findings of fact.  A Commissioner is not entitled to interfere with a tribunal’s findings in the absence of any error of law.  She did allege that she had not been allowed to make comments on the video recording but I do not accept that.  She may not have made them as effectively as she wished – the record of proceedings indicates that she was upset – but the content of the video recording was discussed at the hearing after it had been watched and I do not accept that the tribunal wrongfully prevented the claimant from giving evidence.  In her further submission, she has drawn attention to CDLA/3875/01.  In that case, I had to consider whether a tribunal had erred in law in their approach to supersession in a case not dissimilar to the present case.  However, it is important to note that there were fundamental flaws in the decision of the tribunal in that case and that, having found the tribunal’s decision to be erroneous in point of law, I went on to consider matters of fact.  In the present case, I am not satisfied that the tribunal did err in law.  They did consider whether there were grounds for review (the predecessor of supersession) and found that the award of benefit had been made in ignorance of the material fact of the true extent of the claimant’s ability to walk.  They were entitled to reach that conclusion because they found that her ability to walk was inconsistent with an award of the mobility component of disability living allowance.  The conclusions they reached were conclusions they were entitled to reach on the evidence before them and, in the absence of an error of law, I cannot interfere with those conclusions. 

12.	The claimant has also drawn attention to CI/1524/00, in which Mr Commissioner Howell QC made observations about the lack of presenting officers in proceedings before tribunals.  There was no presenting officer to assist the tribunal in the present case but, however unsatisfactory that may be, it does not render the tribunal’s proceedings erroneous in point of law.  The claimant also indicated that she would wish there to be an oral hearing before me if there were a representative of the Secretary of State who might answer her questions.  However, as there are no questions she could usefully put that would have any relevance to the question whether the tribunal’s decision was erroneous in point of law, I have not directed an oral hearing of this appeal.  I have, of course, had the advantage of having the claimant’s oral submissions on her application for leave.

13.	I am not satisfied that the decision of the tribunal was erroneous in point of law in any respect.  Accordingly, I must dismiss this appeal.

(signed)	MARK ROWLAND
Commissioner
4 February 2003