BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
UK Social Security and Child Support Commissioners' Decisions |
||
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2007] UKSSCSC CDLA_671_2007 (21 September 2007) URL: http://www.bailii.org/uk/cases/UKSSCSC/2007/CDLA_671_2007.html Cite as: [2007] UKSSCSC CDLA_671_2007 |
[New search] [Printable RTF version] [Help]
CDLA/671/2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Background
The entitlement decision
(i) Power to revise or supersede
(ii) The merits
(1) the report of the examining medical practitioner dated 4 May 1989 in connection with the claim for mobility allowance (pages 5 to 8);
(2) a letter dated 28 January 2005 from the claimant's GP, who had been his GP for 22 years (pages 130 and 131);
(3) a letter dated 2 February 2005 from a specialist hospital registrar (page 132);
(4) a medical report dated 21 September 2005 from a hospital consultant (pages 113 to 116), prepared at the request of the claimant's solicitors for use in court.
"Using his crutches he can [walk] about 20-30 yards before resting due to pain in my [sic] good leg. "
He expressed the view it was unlikely to change.
"In 1995 I recorded that he could walk 50 years before getting severe pain in his left calf. However after a rest he could walk on for another 50 yards and his condition remains (sic) stable until last year when he developed circulation problems in the right leg so that for the past 6 months his walking distance before pain in the right leg is down to 20 or 30 yards at best. "
The GP explained that because of his right leg problems the claimant had been referred to hospital. He noted a change of drug treatment in 2001. He mentioned the claimant's breathlessness, but said it was not the main cause of his mobility problems. He also said:
"Since 1989 his walking has always been slow. I feel the improvement from being housebound in 1992 was gradual. "
"Clearly this patient does have bilateral disease affecting both legs, hence it is very conceivable that this would cause him a lot of disability… My opinion given the entire picture is that his walking distance would fit with what he says, which is that he can only walk between 50 and 60 yards before pain sets in his calf . . . It is also clear on talking to the patient that there was some improvement in 2001 when he started on the new drug Plavix. This is a new antiplatelet drug which could have helped him from that period onwards…
I do note that the DHSS have got video evidence. I think I would find it difficult to see how he could be filmed walking half a mile without stopping. Clearly given the current state of his vessels, I do not think this would be possible without stopping. I think this entire case is quite a difficult one but believe that certain points raised by [the claimant] to me today are quite valid. Obviously if there is clear-cut video evidence then this would be difficult to refute and I would be happy to be corrected. "
(1) the claimant's evidence was unreliable. Attention was drawn to a number of inconsistencies;
(2) they were not limited by the period for which the criminal prosecution had been brought. That was on the advice of solicitors and in any event there was a higher burden of proof on the prosecution in a criminal case;
(3) it was appropriate to correct what the consultant said, as he recognised, in the light of the video evidence;
(4) the GP's evidence quoted in the first part of paragraph 24 was of assistance. Since the ability to walk 50 yards was said to have been "recorded" it had presumably been observed by or mentioned to the GP and was not a mere guess.
In substance, it was being said that the video provided accurate evidence of the claimant's walking ability in March 2004, that the evidence of the claimant and his wife was unreliable, as particularly demonstrated by its inconsistencies and its conflict with the video evidence as to his ability in March 2004 and that the best, and reliable, evidence was that of the GP. The tribunal's final conclusion was that "more likely than not the appellant more often than not was not entitled to DLA" from 1 January 1995.
(1) "I have to question their findings of fact and reasons for decision as I do not feel that a walking capacity of 50 yards before getting severe pain in my left calf was necessarily outside the 'virtually unable to walk' criteria at that time";
(2) there are no detailed findings by the tribunal on the question of time, speed distance and manner of walking capacity.
"his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk. "
These particular legislative requirements applied also to mobility allowance. The words "at that time" in the claimant's grounds of appeal do not bring in any additional considerations.
"I accept that, ultimately, the question whether facts found by a tribunal are capable of supporting a conclusion that a claimant is not virtually unable to walk is a question of law and that an error of law will be shown if, on the facts they have found, a tribunal have reached a conclusion that is wholly unreasonable. However, it is not for a Commissioner to attempt to lay down a precise formula for determining whether or not a claimant is unable to walk when the legislation does not do so. The legislation allows adjudication officers and tribunals a margin of appreciation. It is possible that not every tribunal would have reached the conclusion that someone with the present claimant's limited walking ability was not virtually unable to walk. I do not consider that a tribunal concluding that the claimant was virtually unable to walk would have erred in law, but, equally, I can detect no error of law in the present tribunal's decision. The question whether the claimant was virtually unable to walk was a matter for the judgment of the tribunal and, this being something of a borderline case, they were entitled to decide it either way provided they had regard to the relevant factors. "
The overpayment decision
"(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –
(a) a payment has been made in respect of a benefit to which this section applies; or
(b) …
the Secretary of State shall be entitled to recover the amount of any payment which he would not have made … but for the misrepresentation or failure to disclose."
Under subsection (11) section 71 applies inter alia to benefits as defined in section 122 of the Social Security Contributions and Benefits Act 1992, which include disability living allowance.
(1) there was no medical evidence to suggest his condition improved to any significant extent "over the period in question";
(2) the November 1994 claim pack made clear that he did some walking;
(3) the papers before the tribunal did not give any information about the details provided to him as to notification requirements;
(4) he had a life award and, not having clear notification of the criteria for such an award, he does not see what he needed to report or when, given that his medical condition had not gone away and his walking capacity had not significantly improved "due to medical intervention".
"(1) … every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State … may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State … may require …, and in particular shall notify the Secretary of State … of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence …"
It has now been held by a Tribunal of Commissioners in CIS/4348/2003 that it is regulation 32 which imposes the obligation.
(1) a duty to furnish documents or other information as required by the Secretary of State; and
(2) a duty to notify the Secretary of State of any change of circumstances which the claimant might reasonably be expected to know might affect the right to benefit.
In neither type of case is there a further requirement that disclosure itself might reasonably be expected. The decision of the Tribunal was upheld by the Court of Appeal in B v Secretary of State for Work and Pensions [2005] EWCA Civ 929; [2005] 1 WLR 3796; R(IS) 9/06. The Court of Appeal, however, was concerned with a question under the European Convention on Human Rights and with the issue whether the suggested further requirement existed. It did not analyse in detail the different types of obligation.
"The appellant initially received his benefit via an order book. The requirement to report any relevant changes in his condition contained therein would have also been referred to in annual 'up rating' letters that would have also been sent to the appellant and also in the explanation of the Mobility Agreement that was sent to him on 14/10/98 regarding the mobility car he was then awarded.
At no relevant time since being awarded benefit did the appellant report any improvement in his walking ability which – at page 82 – he conceded in his interview he had 'at a time' thought he should perhaps do (although in his evidence to us the appellant told us he could not remember so thinking, having, shortly beforehand, informed us that his 'memory is not very good'). "
The first of those paragraphs does indeed appear to proceed on the basis that the first duty is relevant. The second, however, in introducing what the claimant might or might not have considered he ought to do, seems to point rather to the second duty. Like Mr Commissioner Jacobs, I find myself uncertain which duty the tribunal were considering and accordingly unable to be clear what elements they regarded as necessary to make the overpayment recoverable and the reasons for which they found those elements to be present. Again like Mr Commissioner Jacobs, I find that that was an error of law and set the decision aside.
Summary
(1) that the claimant's appeal against the entitlement decision is dismissed;
(2) that the claimant's appeal against the overpayment decision is allowed and the decision is set aside, but that I substitute my own decision to the same effect.
(signed on the original) E. Ovey
Deputy Commissioner
21 September 2007