IN THE UPPER TRIBUNAL	Appeal No.  CDLA/540/2008
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision:  The claimant’s appeal is allowed.  The decision of the Bolton appeal tribunal dated 16 November 2007 is set aside and the case is remitted to a differently constituted First-tier Tribunal for reconsideration.

REASONS FOR DECISION

1.	This is another case where neither the Secretary of State nor the appeal tribunal has appreciated the extent to which issues that arise when considering whether an overpayment of disability living allowance should be recovered may also arise when considering whether an award of benefit should be superseded retrospectively.

2.	In this case, the Secretary of State decided on 17 April 2007 that the claimant’s award of the mobility component of disability living allowance should be superseded with effect from 3 August 2004 and that she had not been entitled to either component from that date.  Subsequently, he decided that £5,981.80 overpaid between those dates was recoverable from her.

3.	The tribunal had before it appeals against both the supersession decision and the recoverability decision.  It dismissed the supersession appeal, without having regard to regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), to which the Secretary of State had failed to draw its attention.  It adjourned the recoverability decision on the ground, I am told, that the Secretary of State’s submission was inadequate.  The claimant now appeals against the decision on the supersession appeal, with my leave and the support of the Secretary of State.

4.	It ought to be second nature for a tribunal hearing an appeal against a supersession decision to consider the date from which the supersession should be effective, particularly where it knows that recovery of an overpayment may be an issue.  In disability living allowance cases where supersession is on the ground of a change of circumstances, that requires consideration of regulation 7(2)(c)(ii) or (iv) of the 1999 Regulations.  Regulation 7(2)(c)(ii) was relevant in this case and required consideration of whether the claimant could reasonably have been expected to know that the change of circumstances should be notified.  As I have observed in CDLA/1823/2004 and R(A) 2/06, this is very similar to the question that arises where it is sought to recover an overpayment on the ground that the claimant has failed to disclose a material fact.  It seems likely that whatever inadequacy in the material available to the tribunal in respect of the recoverability appeal there was in this case was equally relevant to the supersession appeal and that that too should have been adjourned.  The claimant’s representative had always sought to have the two appeals heard together.

5.	In any event, the tribunal plainly erred in law in failing to consider the issues raised by regulation 7(2)(c)(ii).  I allow the appeal on that ground and it is unnecessary for me to consider the other points raised by the parties.

MARK ROWLAND
16 April 2009