IN THE UPPER TRIBUNAL Case Nos: CDLA/3690/2012

ADMINISTRATIVE APPEALS CHAMBER CDLA/1378/2013

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: His friend, Mr D

 

For the Respondent Mr H James, solicitor

 

Decision:  The appeals fail in the result.  The decision of the First-tier Tribunal sitting at Exeter on 13 April 2012 under reference SC194/11/00685 (the entitlement decision) did not involve the making of an error of law. The decision of the same tribunal under reference SC/194/11/01186 (the overpayment decision) did involve the making of errors of law and is set aside.  Having made further findings of fact, I remake the decision in identical terms.

 

REASONS FOR DECISION

 

1. Put shortly, this case particularly concerns (a) whether in evaluating evidence relating to a meeting said to have occurred between the DWP and the appellant, the tribunal erred by failing to note the legislative background underpinning such meetings and (b) whether the tribunal properly deployed the range of powers available to it in order to ensure that its inquisitorial jurisdiction was lawfully exercised.  It also raises issues of the adequacy of the tribunal’s reasons.

 

2. The appellant had claimed disability living allowance on 21 September 2004.  He has non Hodgkin’s lymphoma which is now, but was not then, in remission.  An award was made of the higher rate of the mobility component and the highest rate of the care component.  The award was made on the footing that the appellant was “terminally ill”.  That expression is defined for the purposes of the relevant benefits in section 66(2) of the Social Security Contributions and Benefits Act 1992:

 

“a person is ‘terminally ill’ at any time if at that time he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within six months.”

 

This meant that the appellant automatically satisfied the condition of entitlement for the highest rate of the care component (1992 Act, s.72(5)). In relation to mobility component the effect was different: while there is some modification of the qualifying periods (1992 Act, s73(9) and (12)), he still had to satisfy the general qualifying condition of being “virtually unable to walk” and it was decided that he did on the basis of what he had written in the claim form and a short medical report from his GP.  The rules applicable to people who are terminally ill (as defined) are conventionally referred to as the “Special Rules”.

 

3. The award decision was superseded by a decision made on 12 October 2010 (as revised on 24 November 2010).  Entitlement to mobility component was removed from 28 March 2005 and entitlement to care component from the later date of 12 October 2010.  (The DWP subsequently made something of a last-ditch attempt to recover care component from an earlier date, but that was abandoned at or immediately before the First-tier Tribunal.)

 

4. On 9 December 2010 a decision was taken that on or around 28 March 2005 the appellant had failed to disclose that his mobility needs had decreased and that in consequence he had been overpaid DLA of £13,210.50 which was recoverable from him.

 

5. The appellant is an amateur golfer. His playing handicap record is in evidence.  It shows that while his golf had been interrupted for a period of some 8 months, towards the beginning of which the date of his claim fell, with only two recorded games, from 28 March 2005 (on which the appellant appears to have played two rounds) he was playing regularly- hence the DWP’s choice of date from which it argued that entitlement to the mobility component ceased.  He was playing on a course of just under 6,000 yards.  There is no suggestion that he was reliant on a golf buggy.

 

6. His case was that in the period 2005/6 he had attended an interview at the Tiverton Jobcentre because it had been reported that he was playing golf and had been told that that was in order, as his DLA was being received under the Special Rules and that as long as his condition stayed as it was, he was entitled indefinitely.  He was able to give a description of the woman to whom he had spoken.  As he was also on incapacity benefit, he had been required to attend work-focussed interviews: these, he said, had been held only at Exeter.

 

7. The tribunal first sat on 20 January 2012.  Two presenting officers attended for the DWP, while Mr D attended with the appellant and represented him, as he has done before me.  The proceedings were recorded.  I have listened to those parts of the recording which I have been invited to listen to and odd other parts, but by no means all of it.

 

8. The appellant gave evidence as to the interview at Tiverton Jobcentre.  He explained that he had applied for a record of that interview but had received a reply (dated 7 October 2011) from the DWP’s Data Protection Officer that despite an extensive search there were no existing records of any interviews held with him at Tiverton Jobcentre in 2005 and 200[6] (there is a typo in the letter): see file 1378/p36.

 

9. A lengthy discussion ensued between the judge, the presenting officers and the appellant and Mr D.  There were two main threads to it. The first concerned the nature of the claimed interview.  If, as the appellant alleged, it had been held in response to a report by someone that he was playing golf while in receipt of DLA, the DWP indicated that would take the form of a “compliance interview”, in the course of which a statement would be taken and sent to the section dealing with DLA (which is handled not in local offices but by a central unit based in Blackpool).  Conversely, for a work-focussed interview (“WFI”), while the fact of their having been held is normally recorded in the Labour Market System (“LMS”), no record of what was discussed is maintained.  The second thread concerned the adequacy or otherwise of the records search which the DWP had conducted.  The presenting officer was unable to say what had been done and merely opined as to what “would have been done” or what he would “expect to have been done”.  There was particular uncertainty as to what steps had or had not been taken to check DLA records and these points were evidently, and understandably, of concern to the judge.

 

10. The tribunal accordingly rose and, having done so, on its return indicated to the parties that it proposed to adjourn with directions.  It indicated its concerns that (a) the position should be made clear about whether there was to be a prosecution of the appellant or not; (b) that the appellant’s daughter in law should attend as a witness; and (c) that the vagueness in the search so far undertaken should be addressed .  These were in due course recorded in directions (File 3690/p273).  As regards the search, the respondent was directed to

 

“(a) conduct a thorough search of all files/activities, data bases etc for records   pertaining to a meeting which the Appellant reports he had at the Tiverton Job Centre   in the period 01/01/05 to 31/12/06 inclusive

(b) submit a signed statement from the individual responsible for the search confirming the steps taken to locate this information and the results achieved.”

 

11. Following the tribunal’s indication of its concerns, Mr D asked the tribunal if a Mr Harrison could be called.  (Mr Harrison is a benefit fraud investigator who had been involved in conducting an interview under caution (file 3690/p132)).  Mr D gave his grounds as being that the tape and transcript were very disjointed and the recording inaudible in places.  The judge refused the application on the basis that the tape and transcript were not untypical in the tribunal’s experience, that nothing sinister was to be attributed to their state and that she did not consider it was relevant to call Mr Harrison.  No other application was made to the tribunal on this occasion.

 

12. In reply to the directions, the DWP filed a witness statement from a Mr Foster, who worked in the Exeter Job Centre, explaining that he had checked the systems for income support and incapacity benefit and the LMS.  He had also checked the available papers for income support but had been unable to obtain those for incapacity benefit.  On the LMS there was reference to a work focussed interview with the appellant having been conducted in February 2015 and the name of the staff member who had conducted it, who no longer worked for the department.  (Whether this person corresponded to the description given by the appellant was not stated.)

 

13. Mr Foster said nothing about a search of DLA, which had been the tribunal’s primary concern, but the DWP also filed a submission from a Mr Gowdy, a decision maker based at Warbeck House (the DLA office in Blackpool).  The submission, inter alia:

 

a. explained the nature of a work focused interview and indicated that “there is not usually a formal record of this interview as it’s more of a discussion to see if the officer can offer them advice with current employment opportunities. Certainly there would not be a need for a permanent record of the interview.”

 

b. indicated that when a customer (sic) is asked to attend the office to discuss an allegation casting doubt on their ongoing entitlement, they would only be seen by either a compliance officer or a fraud investigator. A permanent record of the interview would be made in the form of a statement which the customer would be given to sign.

 

c. indicated that if the appellant had been called into a departmental office to be interviewed about playing golf, there would be a permanent record now held in his DLA file and there was none.

 

14. The tribunal reconvened on 13 April 2012.  The presenting officer indicated that the DWP had been able to identify an officer corresponding to the description provided by the appellant who had worked at Tiverton at the material time.  The appellant said all his WFIs had been at Exeter, not Tiverton.  The officer he had met had introduced herself as a compliance officer, he believed.  No statement had been taken because, he assumed, she had not considered there was a problem.  The presenting officer accepted that it was possible that the compliance officer had not passed the information on but the nature of such interviews was formal rather than being a “cosy chat” (and so, by implication, though the possibility could not be ruled out, it was unlikely).

 

15. The tribunal upheld the DWP’s decisions both as to entitlement and as to recoverability of the overpayment.  In its statement of reasons, the tribunal noted the parties’ contentions as to the nature of the meeting, concluding (at para 19 of its statement of reasons on the overpayment appeal – emphasis in original: file 1378/p88):

 

“The Tribunal do not accept the Appellant’s account of the meeting at the Tiverton Job Centre…These events occurred a long time ago, and we consider that the Appellant’s memory of the meeting is faulty. We prefer the explanation provided by the Respondent as to the nature of the meeting.  We find it inherently improbable that the Appellant’s entitlement to DLA would be discussed at a meeting, which was not minuted.  On the balance of probabilities, it is more likely that the meeting was a work-focused interview, for the purposes of Incapacity Benefit.  The Tribunal find it implausible that a Job Centre staff member would have told the Appellant that his entitlement to DLA was based on his diagnosis, as opposed to his needs.  However, even if we were to accept that a conversation such as the Appellant describes had taken place, this would not obviate his duty to report the fact that he no longer had mobility needs to the Blackpool office. …”

 

16. The appellant sought an oral hearing of his application for permission to appeal to the Upper Tribunal and the files were subsequently transferred to me for hearing in Exeter.  Following that hearing on 31 January 2014, the appellant was required to particularise the parts of the recording he wished me to listen to.  I granted limited permission to appeal, refusing it on several further grounds.  I set out the grounds on which I was giving permission in the following terms:

 

“9. My understanding is that in 2005-6, a transitional process was being gone through with regard to work-focused interviews, with the jobcentre plus scheme (which was taking over from what had gone before) being expected to cover the whole country by 2006 (see e.g. CPAG’s Welfare Rights and Tax Credits Handbook 2005/6 at p1093).  It is further my understanding that at any rate in 2003/4 the relevant Jobcentre Plus offices which operated work-focussed interviews were known as Jobcentre Plus Pathfinder Offices or “Jobcentre Plus Work-focused interview extension sites”(and so, by implication, not every jobcentre was involved): see CPAG Handbook for 2003/4, p1034.  Particularly given [the appellant’s] insistence that whenever he went to a work-focused interview, it was in Exeter, ought the tribunal to have called for evidence that Tiverton was operating work-focussed interviews at the relevant time?

 

10. Work-focussed interviews were a matter of law: see the Social Security (Jobcentre Plus Interviews) Regulations 2002 No 1703.  Did the tribunal in assessing the DWP’s evidence err in law by failing to have regard to reg 11 of the 2002 Regulations, which exhaustively defined what amounted to taking part in a work- focussed interview, on pain of sanctions, as it would appear almost impossible for the DWP to operate the sanctions without maintaining a record of the content of the interview?

 

11. Given that the DWP had been able to identify an individual working at the Tiverton jobcentre at the relevant time who answered the description given by [the appellant], ought the tribunal to have called for evidence as to her job description and duties?  Whether she was authorised to conduct compliance interviews and/or work-focussed interviews (assuming Tiverton was allowed to at all) was clearly material.  Ought the tribunal to have called for the production of guidance to those conducting compliance interviews as to the procedures to be followed and/or details of the training /guidance provided to officers in jobcentres regarding DLA, a benefit administered from elsewhere, especially as this was a “Special Rules” case, which a person not handling DLA regularly might be less likely to come across?  Ought the tribunal to have endeavoured to call the individual concerned (if traceable)?

 

12. In the context of a Special Rules case, where entitlement as to care component and the waiver of qualifying periods as to mobility component does depend on diagnosis (and prognosis) rather than need, was the tribunal entitled to reach the conclusion as to implausibility which it did in para 19 of its statement of reasons?

 

13. In saying in para 19 that even if such a conversation had taken place, [the appellant] was under a clear and overriding duty to inform Blackpool, did the tribunal fail to consider that a duty may be modified by oral representation on behalf of the Department?”

 

These were of course all matters which went to the recoverability of the overpayment, rather than to entitlement.

 

17. An exchange of submissions ensued in which, inter alia, the appellant indicated he sought an oral hearing and the respondent sought to rely on, among other matters, the DWP’s document retention policy.  I gave further Directions for additional material to be produced, which following two extensions of time, reflecting the difficulty in tracking down some of the material, the respondent complied with. The matter was then set down for oral hearing at Exeter on 24 April 2015.

 

18. The Social Security (Jobcentre Plus Interviews) Regulations 2002 No. 1703 (“the 2002 Regulations”) remain in force.  I do not believe they are referred to anywhere in the papers that were before the tribunal, nor has any suggestion been made that they were mentioned at the oral hearings.  Regulation 2(3) provided:

 

“Except in a case where regulation 16(2) applies, …regulations 3 to 15 apply in respect of a person who makes a claim for a specified benefit on or after 30th September 2002 at an office of the Department for Work and Pensions which is designated by the Secretary of State as a Jobcentre Plus Office  or at an office of a relevant authority (being a person within section 72(2) of the Welfare Reform and Pensions Act 1999) which displays the ONE logo.”

 

19. According to the Queen’s Printer’s copy of the 2002 Regulations, offices designated as Jobcentre Plus Offices were identified in two lists and offices displaying the ONE logo in a further list, each obtainable from the DWP’s offices at Quarry House, Leeds.

 

20. Regulation 4 provides that continuing entitlement to a specified benefit (which included incapacity benefit) was dependent on an interview. Regulation 6 conferred a power to waive the requirement for an interview.

 

21. Up to 30 October 2005 regulation 11 provided as follows:

 

“11.— Taking part in an interview

 

(1) The officer shall determine whether a person has taken part in an interview.

 

(2) A person shall be regarded as having taken part in an interview if and only if—

(a) he attends for the interview at the place and time notified to him by the officer; and

(b) he provides answers (where asked) to questions and appropriate information about—

(i) the level to which he has pursued any educational qualifications;

(ii) his employment history;

(iii) any vocational training he has undertaken;

(iv) any skills he has acquired which fit him for employment;

(v) any paid or unpaid employment he is engaged in;

(vi) any medical condition which, in his opinion, puts him at a disadvantage in obtaining employment; and

(vii) any caring or childcare responsibilities he has.

...”

 

From 31 October 2005 the above requirements were increased. 

 

22. Regulation 12 introduced a sanctions regime, including that a person required to take part in an interview pursuant to regulation 4 but who did not do so in the sense which regulation 11 required and who could not show good cause would suffer a deduction for potentially protracted periods of time (reg 13) of 20 percent of the applicable amount for a single claimant over 25.

 

23. The 2002 Regulations were potentially significant to the appeal for two reasons:

 

(a) if only some jobcentres were operating work focussed interviews at the material time and Tiverton was not, it would undermine the DWP’s version (see para 9 of the grant of permission to appeal); and

 

(b) that their definition of what “taking part” meant and the existence of the sanctions regime called into question the DWP’s claim that no   record would have been created of a WFI and thus that the lack of a record of the interview was more consistent with it having been a WFI than a compliance interview.

 

24. I consider that the tribunal did err in law in not referring to the 2002 Regulations.  It was not made easy for it by the lack of mention made by the DWP in the tribunal papers or, it appears, at the hearing, but it was nonetheless required to apply the law.

 

25. I directed the respondent to provide copies of the lists of participating offices referred to in [19] above.  He could not do so, but an email was provided from  the manager of the Tiverton Jobcentre indicating that it did carry out WFIs and was rolled out as a Jobcentre Plus office in approximately 2001/02.  I accept that evidence and conclude that while the tribunal did err in its failure to consider the phased roll-out of the WFI scheme to jobcentres that was enshrined in legislation, having set its decision on the overpayment appeal aside on this and other grounds, I am able to make a finding of fact in the terms of the manager’s evidence recited above.

 

26. As to the impact of the 2002 Regulations on whether there would have been no record of a WFI (despite the assertions in Mr Gowdy’s evidence), Mr James accepted before me, entirely realistically, that it would indeed be surprising if no record was kept of a WFI.  In my view it would be an exercise of singular futility to ask all the questions about a person’s background and circumstances with a view to helping them find work and then not to maintain a record of the answers so that they could be taken into account in devising suitable steps and a surprising waste of time if in the absence of such a record the questions had to be re-asked at the next such interview.  Further, it would be clearly impossible to operate the sanction regime in the way in which it is constructed by regulations 11 and 12 without maintaining a sufficient record of questions asked and answers given or not given to allow a decision to be taken (and, potentially, examined on appeal) as to whether a person had done enough to amount to taking part in an interview or not.  And if the information was so important as to attract a sanction if it were not provided, it appears wholly inconsistent to suggest that no record would have been made of it.

 

27. I do not accept the validity of the distinction Mr James invited me to make based on the law being, as it were, only tangentially relevant inasmuch as it went to the practice one might expect to have been followed.  If therefore the tribunal materially relied for its conclusion, reached in apparent unawareness of the 2002 Regulations, on the assertion that no record would be made of a WFI, then I consider it further erred in law.  I return to this issue below.

 

28. So far as I am aware, it has never been suggested that more than one meeting took place at Tiverton at the material time.  The tribunal clearly proceeded on the footing that there was one, and only one, such meeting and the issue was its nature.  No challenge was made to this in the grounds of appeal, which refer (3690/p336) to (in the singular) “the meeting I attended at Tiverton Jobcentre”. While the tribunal made no finding as to the name of the officer recorded by the DWP as having conducted the claimed WFI or as to whether he/she corresponded to the description given by the appellant of the person who had interviewed him,  I proceed on the basis that they were one and the same meeting and that the officer recorded as having conducted it was the person described by the appellant.

 

29. If there was only one meeting, the evidence tending to suggest that it was a work-focussed interview and not a compliance interview consisted not merely of the explanations of how compliance interviews operated and in particular that they would involve the taking and preservation of a signed statement which had not happened here but also of the very fact that the interview had been recorded as a WFI on the LMS.  As will be apparent from the discussion of the 2002 Regulations above, ensuring that people underwent WFIs and participated adequately in them was clearly a matter of considerable concern to the legislator around that time and it is not likely that the DWP would have been inclined to record as a WFI something which in reality had not been one.

 

30. It is difficult to disentangle the factors which influenced the tribunal.  It said that it preferred the explanation provided by the respondent as to the nature of the meeting (statement of reasons, para 9) and that explanation had included (statement of reasons, para 7) the asserted practice of not making a record of a WFI.  While I consider that the tribunal’s approach to that evidence is open to criticism for the reasons above, I consider that ultimately it makes no difference.  Part of the material directed to be provided to the Upper Tribunal was the DWP’s document retention policy.  The evidence suggests that under that policy WFI interview documents would fall to be classed as “ephemeral” documents, unless used to review the benefit decision, or unless specifically marked or identified as exceptions.  As “ephemeral documents”, they would fall to be destroyed after 4 weeks.  Odd though this is for reasons similar to those given above, it is what the evidence before me shows and I so find.  It follows that whether or not it was because (as submitted by the DWP originally) no record of a WFI was generated in the first place or because if one had been generated and merely resulted in the continuation of benefit, it would have long since been discarded, the apparent non-existence by the time of the tribunal hearing of any record of the WFI does not cast any doubt on the DWP’s stated reason why no record of any compliance interview could be produced (because there had not been such an interview).

 

31. Further, it should not be overlooked that the claimant’s own evidence was that he did not believe a statement had been taken at the meeting.  That such was the practice was clearly in evidence before the tribunal.

 

32. I therefore conclude that the tribunal, in considering the nature of the meeting, ought to have considered the 2002 Regulations.  This is a further point on which the tribunal’s overpayment decision was erroneous in law.  With the benefit of the DWP’s document retention policy, which was not in evidence before the tribunal, it is clear however that the outcome on this issue is the same.

 

33. In my view the tribunal was not required to order production of the individual’s job description or the other documents to which I referred in para 11 of the grant of permission nor to call her to give evidence.  The tribunal does have wide powers under its rules of procedure to require the attendance of witnesses and the production of documents.  Like all its powers under the rules, the tribunal is required, when exercising those powers, to seek to give effect to the overriding objective of ensuring cases are dealt with fairly and justly.  Those powers enable a tribunal to act of its own motion as well as on the application of one of the parties.  However, it had sufficient evidence for the conclusions it reached, for the reasons I have given, by the time it had received a response to the directions it had given on adjourning and there was no longer an evidential gap calling to be plugged.  Further, it is not irrelevant that the appellant could have made applications himself for any of these steps, but did not do so. The appellant and Mr D, though they may not have had much experience of tribunals, are both men of some intelligence. The appellant had been well able to make application to the DWP’s data protection officer.  More telling still, when the tribunal had adjourned part-heard, there had been the session when the tribunal had canvassed with the parties the directions it was proposing to make and Mr D had actually applied for a witness (Mr Harrison) to be ordered to attend. The appellant and his representative were not people who were unable to apply for what they believed was required. A tribunal of fact is, as Mr James submitted, entitled to a degree of latitude as to where it draws the line in matters of case management and in my judgment, by stopping where it did, it did not trespass outside the latitude it is allowed.

 

34. For the reasons in the previous paragraph, the tribunal did not err in law in this regard.  While I am setting aside its overpayment decision on other grounds and remaking it and thus can seek further evidence myself, I have done so.  The officer’s job description is however no longer available.  The appellant confirmed that the officer had been said at the First-tier Tribunal to be no longer traceable and that was not challenged before me.  I conclude that there is no further step in relation to the provision of further evidence which I can usefully take at this stage.

 

35. I turn to whether the tribunal was entitled to find it implausible that a jobcentre staff member would have told the claimant that entitlement to DLA was based on diagnosis, as opposed to his needs (grant of permission, para 12.)  Mr James resiled from what might be interpreted as a concession by the respondent at paras 14 and 15 of the submission at file 3690/p356.  In my view however the tribunal should have clearly indicated whether it found that no conversation concerning DLA took place at all or not the asserted one that DLA was based on diagnosis and (in either case) why.  The interview took place in February 2005, long before any query had arisen regarding the claimant’s DLA and thus before there was any reason to make any distinction between the care and mobility components.  A short description of the “Special Rules” is set out at [2] above.  Particularly as regards the care component, diagnosis (and the prognosis which goes with it) are important rather than needs – the latter being effectively assumed from the existence of the former.  Whether because of a lack of familiarity with rules which only come up once in a while or perhaps a degree of awkwardness in addressing a situation which only arises in a case where terminal illness has been indicated, I would not find such a formulation by an officer who was not a DLA specialist, if it were made, particularly surprising.  However, I am not the tribunal of fact and the First-tier Tribunal was quite entitled to reach a different view (as Mr James submitted, its view could not be categorised as perverse), but if that was its position, in my view it needed to explain it more than by the bare conclusion it stated.

 

36. However, it is implicit in what the tribunal says that it found that the conversation in the form asserted by the appellant did not occur.  I agree, but for different reasons.  On the footing that what was involved was a work-focussed interview, the contents of the interview were effectively mandated by the 2002 Regulations.  There was simply no need for an officer conducting a WFI to opine about the basis of entitlement to DLA in a Special Rules case in order to address with a claimant the factors at reg 11(2), which is concerned with a host of other matters which would have taken up time, and I therefore find on the balance of probabilities that the officer did not do so.

 

37.The tribunal’s position that even if the conversation alleged by the appellant had taken place he had a clear and overriding duty to inform the Blackpool office is, subject to materiality, in error of law: see R(A) 2/06.  Mr James accepts that the duty to notify may be qualified by oral representations given by an officer of the Department.  However, as I have concluded for the reasons I have given above, that the conversation did not take place as alleged by the appellant, though an error, it is not a material one.

 

38. It follows that, although in what was a difficult case, I consider there were errors of law in the tribunal’s decision as regards the overpayment appeal, having made further findings of fact as necessary, I consider that it was correct in the result.

 

39. I acknowledge the appellant has experienced very difficult personal circumstances, going beyond matters canvassed in this decision, and regret any additional difficulty this decision may cause him.  It is open to him, if he

sees fit, to make representations to the respondent about whether the sum now confirmed by this decision to be recoverable should be recovered and if so how and at what rate, but those are matters over which the Upper Tribunal

has no jurisdiction.

 

 

 

 

CG Ward

Judge of the Upper Tribunal

16 June 2015