IN THE UPPER TRIBUNAL	Case No.  CIB/2451/2010
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Burnley on 8 July 2010. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal. 

I give the following directions in relation to the rehearing (which are without prejudice to any additional or different directions which may be made by a First-tier Tribunal Judge):

	(1)	Within 6 weeks of the date of issue of this decision the Secretary of State must provide to the First-tier Tribunals Service a further written submission in the appeal, taking into account the matters referred to below;

	(2)	The Claimant may respond to that in writing within one month of the date when it is sent to her or her representative by the Tribunals Service;

	(3)	The rehearing is not to take place until the time limit for the Claimant’s further submission has expired. 

2.	The Claimant is a woman now aged 58 who suffers from anxiety and depression. 

3.	Down to May 2001 she was working full time for Lancashire County Council (“LCC”), performing a number of duties in relation to one or more of its schools, namely general cleaning duties, cooking and as a “lollipop” lady. However, she was unable to continue work from 10 May 2001, and was paid statutory sick pay and then, from 25 November 2001, incapacity benefit. 

4.	However, on 16 June 2003 the Claimant returned to her duties as a “lollipop lady”, working some 9 hours a week. That work of course only took place during term time. 

5.	The Claimant attended a number of medicals, for the purpose of determining whether she still satisfied the personal capability assessment. At a medical on 22 February 2006 the examining doctor recorded: “currently doing permitted work as lollipop lady for 6 hours per week.” 

6.	It appears that the Claimant must have passed the personal capability assessment at that and the preceding medicals, given that incapacity benefit continued to be paid. 

7.	However, in June 2007 the DWP received information from the Inland Revenue suggesting that the Claimant was working for LCC. (Precisely what that that information was is not revealed by the papers, and does not appear to matter). 

8.	The DWP sought earnings details from LCC, which provided them on 15 August 2007. On 2 October and 21 November 2007 the Claimant was interviewed by an officer of the DWP. The first was ineffective because the Claimant was not in a condition to proceed with it. For present purposes the points to note from the second interview are that the Claimant stated (i) that she had told the tax credits authority that she had started to do some work (ii) that she had been told by Welfare Rights that she could do up to 16 hours’ work a week without affecting her benefit and (iii) that when she went for a medical at “Brun House” she told the doctor that she had gone back to work. 

9.	On 21 January 2008 LCC supplied further details of sick absence and school holiday dates. 

10.	On 18 February 2008 a decision maker made a decision superseding the award of incapacity benefit on the ground of a change of circumstances, namely that the Claimant had started work. The replacement decision was extremely complex. The first date of non-entitlement was 22 September 2003, and the last date of non-entitlement was stated to be 14 October 2007. I do not need to describe that decision in any more detail, because it was subsequently revised. 

11.	On 28 May 2008 a further decision was made to the effect that, as a result of the decision on 18 February 2008 overpayments of incapacity benefit totalling £10,462.48 had been made in respect of the period 22 September 2003 to 19 October 2007 which were recoverable from the Claimant on the ground that she had failed to disclose the fact that she was working. However, the decision stated that the failure to disclose was “on 12 August 1997, or as soon as practicable thereafter”. That was plainly nonsense. The reference was presumably intended to be to 16 June 2003. 

12.	On 23 June 2008 the Claimant appealed against the decision of 28 May 2008, contending as follows:

	“My general practitioner suggested I try to go back to work for six months and signed me off. As a result of this I rang job centre and told them I was going back to work and did not send in any more sick notes. I have been called in for medicals at Brun House 3 times since I went back to work. The last of these was on 18 December 2007. 

	I cannot see how this overpayment is my fault when the jobcentre has been fully aware I have been in employment.

	I attended JC last June 07 to try and get a job with more hours – they were fully aware of my situation.”

13.	On 14 October 2008 the decision of 18 February 2008 was revised. In the Secretary of State’s written submission to the Tribunal it was stated that the reason for this revision was that, whereas from 10 April 2006 a person could be treated as being engaged in “permitted work higher limit” (“PWHL”), without any prior application having been made, for a period of 12 months, the decision of 18 February 2008 had only allowed a period of 6 months. The terms of the decision of 14 October 2008 are again very complex, in terms of the replacement outcome decision. But it is clear that there is a period between 6 April 2006 and 22 April 2007 when, under this revised decision, the Claimant is not treated as having been capable of work. 

14.	On 28 April 2009 the overpayment decision of 28 May 2008 was revised. On the basis of the schedules attached to this decision, the total overpayment was put at £10,837.41, for the period 22 September 2003 to 19 December 2007 – i.e. a slightly larger total overpayment than under the May 2008 decision. The reason seems to have been that the overpayment period did not cease until 19 December 2007, so presumably actual payment of incapacity benefit went on until then. This decision again stated that the failure to disclose was “on 12 August 1997, or as soon as practicable after”. 

15.	However, the decision went on to state that the sums overpaid after 21 June 2007 were not recoverable because the paying office found out about the overpayment on that date. The total found to be recoverable was therefore reduced to £9466.08. 

16.	On 28 May 2009 the Claimant appealed against the decision of 28 April 2009, contending:

	“I notified incapacity benefit  when going back to work attended all medicals at Brun House. Interviews at Jobcentre Plus and council tax office were aware I was in receipt of incapacity benefit  and working.” 

17.	Under the “permitted work” rules in reg. 17 of the Social Security (Incapacity for Work)(General) Regulations 1995, as for the time being in force, so far as material to the facts of this case: (i) down to 10 April 2006 the Claimant’s work would have been permitted work, for a maximum period of 52 weeks, if she had disclosed it to the DWP before or within a short time of beginning it; (ii) from 10 April 2006 her work was capable of being permitted work for a period of 52 weeks. 

18.	In the Secretary of State’s written submission to the First-tier Tribunal it was conceded that the overpayment decision of 28 April 2009 was still wrong, for the following reason:

	“……had [the Claimant] reported the work at the due time PWHL would have been accepted for 26 weeks. I submit therefore that the overpayment is not recoverable for the period of 26 weeks from when [the Claimant] started work on 12 August 2003. Furthermore, as [the Claimant] did not report the work her benefit was disallowed to 19 December 2003 thus breaking the Period of Incapacity for Work and she could therefore have made a fresh application for Permitted Work when she restarted work on 5 January 2004. I submit therefore that a Period of Permitted Work could have been accepted from 5 January 2004 for 26 weeks if application had been made within the due time. I submit therefore that the overpayment of Incapacity Benefit from 22 September 2003 to 5 July 2004 (both dates included) amounting to £2681.95 is not recoverable from [the Claimant]. There remains therefore an overpayment of Incapacity Benefit amounting to £6784.13 from 6 July 2004 to 11 June 2007 …” 

19.	At the hearing before the First-tier Tribunal the Claimant was represented by a representative from the local CAB. The Record of Proceedings records the Claimant’s evidence as including the following:

	“On 22 February 2006 went for med. Assessment re incapacity benefit  before Dr.     I told him I was working as lollipop lady. ……….. I had personal adviser at Jobcentre. In 2003 onwards I had meetings every 2 months to see how I was coping with depression. ……….. I did not mention to my personal adviser that I had restarted work. I got note from Dr to say I was going back to work. I sent note to incapacity benefit  department. ……… I can’t say when I sent the dr’s note to the Dept. I sent Dr’s note to department on day I received it. I made telephone calls both to incapacity benefit Dept and child tax credit dept. I told them I was now back at work. Nobody actioned these phone calls. During my IUC [interview under caution] I agreed that I only telephoned child tax credit dept. Not incapacity benefit Dept. I thought notifying child tax credit dept would be sufficient.” 

20.	The First-tier Tribunal’s Decision Notice reads as follows:

	“The appeal is disallowed. 

	The decisions of Secretary of State issued on 14 October 2008 and 28 April 2009 are confirmed. 

	The Tribunal found that the Appellant had failed to disclose a relevant change of circumstances that she had resumed work for [LCC].

	The Respondent is to liaise with the Appellant’s Representative to justify the amount of any overpayment claimed.” 

21.	That last, on the face of it somewhat strange, sentence in the Decision Notice 
is explained as follows in the Statement of Reasons:

	“The Tribunal was concerned that there were issues over the complex calculation of the overpayment claim and the fact that a presenting officer was not available to assist the tribunal in this respect. Consequently it was also directed by the tribunal that the Appellant’s representative ….. should liaise with the Department with a view to determining the appropriate calculation for the overpayment of benefit.” 

22.	The First-tier Tribunal made clear in the Statement of Reasons that it rejected 
the Claimant’s evidence that she had informed the local office directly, both in writing an orally, that she had returned to work. It also rejected her evidence that she had informed the child tax credit department. “Moreover, the tribunal also found that the Appellant’s disclosure to the examining doctor during her personal capability assessment did not amount to adequate disclosure to the Department.” 

23.	The sole ground for this appeal is that the First-tier Tribunal erred in law in holding that the disclosure to the examining doctor did not amount to disclosure to the Department. 

24.	It is submitted on behalf of the Secretary of State that 

	“disclosure to the health care professional conducting a PCA does not amount to disclosure to a decision maker. Health care professionals receive specific training to enable them to make an assessment of the functional effects of a health condition or disability on an individual’s capability for work, and relate this to the relevant legislation in order to provide advice/reports to decision makers. Therefore, even though it has been held by Commissioners in the past that an examining medical practitioner acts on behalf of a party to the proceedings, namely the Secretary of State (see for example CDLA/2961/2004, paragraph 7), it is submitted that the disclosure in this case to the examining doctor does not meet with the necessary requirements.” 

25.	It must be remembered that the payments in respect of the period from 10 April 2006 to 9 April 2007 (approximately) have been found not to be overpayments, by reason of the permitted work rules: see para. 13 above. The payments in respect of the period after 21 June 2007 have been found not to be recoverable because the Department found out (from HMRC) on that date that the Claimant was working: see para. 15 above. As I understand it, therefore, this reliance by the Claimant on disclosure to the examining doctor is only capable of affecting the recoverability of the payments made in respect of the periods between 22 February 2006 and 9 April 2006, and between 10 April 2007 and 21 June 2007. 

26.	It is also material to note at this point that the information provided by the Secretary of State to claimants which is relied upon by the Secretary of State as having given rise to the obligation on the part of the Claimant to disclose the fact that she was starting work is a leaflet IB40 which it is said is routinely provided to persons to whom incapacity benefit is awarded. The copy in evidence was printed in April 2009, but the Secretary of State’s evidence was that previous versions were similar.

Analysis and conclusions
27.	In the course of writing this decision I have reminded myself of the decision of the Court of Appeal in Hooper v SSWP R(IB) 4/07. What emerges from the facts set out in that decision, and decisions of Commissioners referred to in it, is that in March 2002 incapacity benefit recipients were sent a factsheet explaining the new rules for exempt work which then came into force. It was held in Hooper that that factsheet did not, on a proper reading of it, contain a requirement that the claimant notify the local office of work falling within the new rules. There was no consideration in those decisions of the possible significance of a leaflet such as IB40. It is apparent that, if there was such a thing as IB40 in November 2001, when the Claimant was awarded incapacity benefit, it must have been in radically different terms, so far as permitted work is concerned, from the one which is in evidence before me. 

28.	It therefore seems to me that, in upholding the Secretary of State’s decision (as it was presumably intended to be, the reference in the decision to a failure in 1997 being clearly nonsense) that there was a failure to disclose when the Claimant started work, the First-tier Tribunal was acting in ignorance of important facts which should have been placed before it by the Secretary of State, and also of the decision in Hooper. That is in my judgment sufficient to render the First-tier Tribunal’s decision wrong in law. 

29.	Unlike the position in Hooper, and the decisions of Commissioners Mesher and Howell referred to in it, the Claimant in this case continued to work, without the work having been disclosed, for more than a year – the maximum continuous period for which the work could have been permitted work under the then reg. 17. It is not clear to me whether, on the assumption that there was no obligation to disclose the work in 2003 when the Claimant started it, she then became under an obligation to disclose it 6 months or a year later. That may be a difficult question, to which the other information provided to the Claimant (such as the then equivalent of the IB40, and matters such as order book notes), may be material. I cannot sensibly attempt to provide any guidance about it. 

30.	I have considered whether, before reaching this decision, I should give the Secretary of State the opportunity to respond to what I have just said.  However, because I am merely remitting the matter to a fresh First-tier Tribunal, to which the Secretary of State will have to make a further submission, I do not consider that it is necessary to do so. I do not see what answer the Secretary of State could have to my conclusion that the necessary facts were not before the First-tier Tribunal.

31.	I consider that the First-tier Tribunal’s decision was also wrong in law in (a) not incorporating the Secretary of State’s concession (see para. 18 above) that the amount which had been decided to be recoverable was too large and (b) giving the cryptic Direction contained in the last sentence of the Decision Notice. It was permissible for matters of calculation to be remitted to the decision maker, provided that the First-tier Tribunal gave sufficient direction as to matters of principle in issue, and subject to a right to re-apply to the First-tier Tribunal. 

32.	It is unclear to me whether, in the light of the Secretary of State’s further submission to the new tribunal, the issue of the significance of the disclosure of the work to the examining doctor in 2006 will still arise. It is quite possible that it will. However, I do not think that it would be sensible for me to attempt to give any direction to the new tribunal on it. That is because the question whether the Claimant made an adequate disclosure by telling the examining doctor must be judged in the light of the precise terms of the information which was provided to the Claimant as to what (and how) she should disclose. 

	33.	However, on the assumption that the information was unspecific as to how the disclosure should be made (e.g. “you should tell us if ……..), I incline to the view that disclosure to the examining doctor was not sufficient, even on the (presumably very unusual) footing that the medical in fact took place in the same building (Brun House) as that from which the Claimant’s incapacity benefit was administered (as appears may well have been the case). The reason for that is that, although the Claimant would have been entitled to assume that the doctor would record what she said about doing work, and that the doctor’s report would come before a decision maker, she was not in my judgment entitled to assume that the decision maker would read the statement about work. That is because, if the doctor’s view is that the claimant scores the necessary 15 points, the decision maker is not usually, as a matter of common sense, going to need to scrutinise the report in any detail. It would be an unusual case where the decision maker would feel unable to agree with the doctor’s opinion that the Claimant scores the necessary 15 points, even where the claimant has been able to undertake some work. It seems to me that it would be very questionable even to a claimant without detailed knowledge of the benefit system whether an examining doctor’s record of a claimant starting work would actually be read by the decision maker. Whether proper disclosure to the Secretary of State has been made must be considered in the light of all the circumstances of the case, including those which I have just mentioned. 	 

Charles Turnbull
Judge of the Upper Tribunal 
16 June 2011