SSWP v LB

Here there was no document that set out the factual findings in 2001. A multi-page decision is in the bundle, in the form of various boxes to be ticked which give the essence of the outcome, but not the reasons; a box on page 97, the final page of that decision, which is headed “Reasons for Decision” said simply “ She is able to self care by day and night. She can be safely left by day and night." That, rather than findings in respect of the decision which was made, is justification for not awarding the care component at above the lowest rate. Critical, then, is the evidence which was before the 2001 decision maker.

I observed in granting permission to appeal that it may not have been the renewal claim pack in isolation which informed the decision maker’s 2001 renewal award; there was earlier evidence from claim packs in 1997/8, and these were in the bundle before the FTT. It is fair to say that they do not really change the position regarding mobility, however the fact that similar matters were repeated in the renewal claim, with the inevitable attendant representation that the functional limitations set out are enduring, may reinforce the perceived evidential value of the claims made.

Claims in relation to mobility whilst legally a distinct component from care, may yet inform a decision on care needs. This is because in general somebody with very significantly impaired mobility is likely to be more in need of assistance in respect of certain aspects of daily living than those who are agile, and that may feed in to the credibility of claims made in respect of a need for attention with the bodily functions used in maintaining appropriate personal care.

As to care, the older claim form referred to problems with personal care and in preparing a meal. It was similar to the 2001 form, but not identical, stating that turning on taps was difficult, as well as using the oven and the grill. The later form referred to problems undoing bottles, but not to taps. The reference to the grill was omitted. Arguably the older documents added something to the picture in relation to care.

The FTT made no reference to the earlier documents in their analysis. That was a mistake, although of itself not fatal to the decision.

As to mobility, significant difficulties were asserted in relation to the claimant’s ability to walk out of doors; she answered “1 yard” to the question "Tell us roughly how far you can walk before you feel severe discomfort…..for example, before you need to stop and rest",but this seems to have been overlooked by the FTT. As I have quoted above the statement of reasons says that "as regards her walking in 2001 we found that she was able to make progress on foot without severe discomfort over a considerable distance and with reasonable balance and gait. This was the position she had maintained was the case in late 2001."(My emphasis).

Arguably the care difficulties set out involved the claim that the appellant was unable to prepare a main meal, albeit that certain facts asserted would not be determinative of an award given the nuances of the legal test. The claim, in general, refers to her having significant functional difficulties in the sort of tasks that are involved in preparing food (undoing bottles etc) in cooking and in washing up. Overall she could be said to be presenting herself as someone who had difficulties in preparing a meal, whereas the FTT found that in fact at that time and subsequently she was quite able to do so.

There is dissonance between the DVD evidence which the FTT found compelling and which was the foundation of the facts they found as to the very limited effect of the appellant's problems on her mobility and general function, and the statements she made in the renewal claim pack of 2001. There is an absence of explanation as to how the majority has reconciled that.

Although not said to have formed part of the reasoning I have considered an argument as to the difference between a representation of fact and a statement of opinion, but it is hard to see how it could apply here, where what is being said in the claim pack is that the claimant was in severe discomfort from the moment that she started to walk. This is not analogous to a claim that someone can walk, say, only 50 yards, a statement which they have based upon being able to walk from and to a particular point which is in fact a rather greater distance than that.

Further, something which is at face value merely an expression of opinion is, if that opinion is not honestly held, a misrepresentation of fact; the dishonest element means that the statement becomes a lie, which is self-evidently a misrepresentation of fact. These are subtle points, but ones with which the tribunal needs to engage.

Judge Rowland deals with what might constitute a representation in JA-v-SSWP cited above. At paragraph 27 he makes the observation

He refers to an illustrative example in that case, citing details from the claim form completed some years earlier, and referring to more recent surveillance evidence which revealed a different picture, and he quoted the tribunal’s account of that evidence in the statement of reasons. The passage that he refers to concludes "in the video evidence the appellant's movements appeared to be fluid and pain-free. She was not using a stick. She was not limping." Further detail followed. He said at paragraph 30

There were a number of aspects of the IUC which required explanation given the conclusions to which the FTT had come. The issue was not only that which surrounded the use of the term "brilliant" in connection with the effect of the spinal injection upon the claimed pain and her subsequently improved function; there were occasions in which she had answered questions about possible improvement in function, and there was the interplay between the interview and the plea of guilty at the Magistrates Court to offences in connection to the failure to disclose apparently on this very issue. This was ignored, save for the statement as to the tribunal not being bound by the criminal conviction because its investigations do not wholly replicate it; that is insufficient where, at least on the face of it, they do. An explanation as to why negligible or no weight was given to the criminal conviction was, in the circumstances, imperative.

There are problems with this of itself and in the explanation.

Although the FTT is entitled as a matter of law to revise the existing supersession decision of the Secretary of State (R(IB)2/04 [55]), section 12 (8) (a) SSA, the statutory provision that they need not consider a matter not raised by the appeal, means that reasons need to be given for the exercise of the discretion to do so: (R(IB)2/04 [94].

As the tribunal's approach would lead to there being no recoverable overpayment consideration should have been given to the possibility of an adjournment to allow representations on the issue, clearly fundamental to the Secretary of State's case, to be made. It may be that the tribunal did consider the point, but there is no reference to that in the statement of reasons; as a discretionary decision it, also, required some explanation as to how the discretion was exercised.

The approach indicated by the statement of reasons as to whether the decision was based upon a mistake of fact was flawed.

The tribunal approached the question of whether or not misrepresentations of fact had been made as to the care award, which was in respect of satisfaction of the main meal test, looking only at the representations made on the part of the form which dealt with that question and using the highly technical criteria for that award in their judgement as to whether or not certain facts were material. For example it was said that because case law shows that it is not necessary to bend to an oven to cook a main meal because such a meal can be cooked on the hob, the representation that the claimant was unable to bend to use the cooker was not a misrepresentation. The FTT might have meant that it was not a material misrepresentation; I use the term misrepresentation in the light of the finding of fact by this FTT that the claimant could in fact bend, given her activities on the DVD, at paragraph 8 where she was said to be able to "bend for items … amounting to quite a heavy load" and their finding that her abilities at that time were the same as her abilities at the date of the renewal form. I use the term because it seems to me that it must flow from their findings; in their terms that must have been a misrepresentation of fact, although they classified it otherwise, or perhaps felt that it was immaterial, given the constraints of the main meal test.

For a representation of fact to be material it does not have to be critical to the legal basis upon which a particular level of award is made. It must be something which is likely to have influenced the making of an award at that level. Accordingly the claim that the appellant could not bend to an oven, whilst of itself not sufficient to satisfy the main meal test given that the meal can be cooked on the hob and therefore without bending, may be put into the balance by the decision maker in relation to the question whether by reason of a combination of significant problems somebody might, overall, be categorised as a person who could not cook a meal for themselves.

Absence of evidence can of itself lead to the representations in the claim pack overall being seen as a misrepresentation of the position. For example to talk in terms of walking difficulties without mentioning, in answer to certain questions, significant walking which is accomplished, is in effect to suppress material facts, which is a misrepresentation of the reality of the situation.

So far as the fresh tribunal is concerned, of course, they are not governed by the findings of the earlier FTT, and must make findings of fact of their own on the evidence that they accept and reject, and they should not take my use of the word misrepresentation as anything more than my way of explaining the flaw in the logic of the first FTT’s reasoning.

I would add one further matter concerning the revision decision of the FTT. I mentioned above that in addition to establishing the mistake of fact, the tribunal, in order to permit the revision, must find that the claimant knew or could reasonably have been expected at the time the decision to be revised was made to know of that fact and that it was relevant to the decision to make the award: regulation 3 (5) (c) and (d) Social Security (Decisions and Appeals) Regulations 1999.

The statement of reasons does not deal directly with this, and although the findings of the tribunal as to the claim and functional abilities at the date of the revision suggest it, once more the finding that she had made no misrepresentations requires explanation in that context.

The provision must be borne in mind by the fresh tribunal should they decide to tread the same path towards revision as the previous FTT.

The FTT found that the renewal award should not have been made in 2001. They revised the decision back to that date substituting the award made for a decision that there was no entitlement to either component.

Technically the Secretary of State's entitlement decision was upheld; that decision had been that there was no entitlement, although from a later date. In the decision notice issued on the day of the hearing the tribunal expressed their decision to be to the disadvantage of the claimant and in statistical terms the Secretary of State was the winner rather than the loser; however the result was also to the Secretary of State's disadvantage in that it fatally undermined the overpayment decision.

The grounds of appeal, was not quite making that point, criticised the basis of the decision. At my invitation the Secretary of State agreed to my considering that decision also. He therefore appeals a winning decision. That counterintuitive possibility is within the terms of section 11 Tribunals, Courts and Enforcement Act 2007 which governs the right of appeal to the Upper Tribunal. The relevant parts read as follows:

any party to a case has a right of appeal, subject to subsection 8

the Lord Chancellor may by order make provision for a person to be treated as being, or to be treated as not being, a party to a case for the purposes of subsection (2).

I mention the qualifying provision, subsection (8) for completeness; it is not material.

The position is really not so unusual; consider the situation in which an appeal is allowed in part, but the litigant wishes to succeed fully, and so, where legal grounds permit, seeks to appeal. This is not quite that situation, but is similar.

I have considered basic fairness in relation to what I propose to do, and in all regards it seems to me to be more fair to the claimant to remit both decisions, and there are grounds to do so, rather than remitting the decision of the Secretary of State which was set aside by the FTT, and leaving the one upon which he apparently succeeded in place.

If I were to remit only that one decision it would not actually tie the hands of the fresh FTT. That is because the findings of the previous FTT in the entitlement appeal, even where they were not disturbed by the Upper Tribunal, would not bind the fresh FTT considering the related overpayment appeal. The fresh tribunal would still have to consider the question of entitlement in order to provide the foundation for any findings that they might make in relation to the overpayment question. Technically it is unnecessary for both appeals to be before the fresh FTT.

The possibility that a fresh FTT might decide the overpayment issue on findings which were wholly different to those in the first FTT's entitlement decision, with both decisions then existing at the same time is not unknown, and it is less than satisfactory.

Further, the Secretary of State could, although there is absolutely no indication that he would, use the decision that no entitlement existed from the initial award in 2002 to found a further overpayment decision for the period 2002 to 2009 in addition to the current decision which deals with the approximate period 2009 to 2012. To remit the entitlement decision is therefore in some sense to protect the claimant, although there seems little if any likelihood that she would be disadvantaged in that way, the Secretary of State maintaining before me his position that the evidence pointed to earlier entitlement followed by an improvement in condition such that the claimant should have notified the Department.

Both decisions will therefore be before the fresh tribunal for their consideration.