2012 09 Welfare Benefits

Monday 1 October 2012

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Welfare benefits work covered by legal aid after April 2013

In a Written Ministerial Statement published on 18 September, the Government announced that legal aid would not be available for

  • Appeals to the First-tier Tribunal where the Tribunal reviews its own decision because there has been an error in law; and
  • Appeals on a point of law to the Upper Tribunal and onwards appeals on a point of law to the Court of Appeal and the Supreme Court.

All other welfare benefits work, previously delivered under the 2010 Civil Standard Contract, will not be covered by legal aid from 1 April 2013During the debate on legal aid on 17 April 2012 the Government undertook (17 April 2012: Hansard column 226) to consider whether to extend legal aid for advice and assistance to welfare benefits cases in the first-tier tribunal where these involved a point of law. The Government said that where these could be identified by an independent person they would consider making legal aid available and introduce regulations to make legal aid available. In a Written Ministerial Statement published on 18 September, the Government announced that legal aid would not be available for such cases because "a system of independent verification is not feasible".

The Government went on to say that legal aid would only be made available for cases where the first-tier tribunal has identified an error of law in its own decision. Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) provides that on receipt of an application for lpermission to appeal a FTT can undertake a review of its own decision and set it aside if it is satisfied that there is an error of law in the decision (hence avoiding the need to refer the case to the Upper Tribunal).

Hence legal aid should be available to those claimants who have pursued an appeal to a FTT and then applied for permission to appeal (all without the assistance of legal aid) and the decision is subsequently set aside under this rule. Kafka would have been proud.

Mr Wright's statement on legal aid in welfare benefit cases is available from Hansard (click here).

See also CLS News for details of the tender for this contract (click here).

Case law

In CS v Secretary of State for Work and Pensions (DLA) [2011] UKUT 509 (AAC) (Deputy Judge N.J. Warren), the Upper Tribunal considered whether there were grounds to supersede an award of disability living allowance (DLA) retrospectively, and whether any overpayment was recoverable. The claimant, who was 48 years old, had a long-standing history of arthritis and had worked in a large supermarket for fifteen years as a check out operater. Her doctor had encouraged her to remain at work to keep her mobile and to keep her muscles strong. She was prescribed strong pain killers but these had not been helpful. In 2002, the claimant had completed a claim form for disability living allowance (DLA). In the claim form she indicated that she did a fair amount of walking – for example she went round a supermarket leaning on a trolley, and she could manage to go to the bank – but she felt severe discomfort when doing so. She estimated that she could only walk 25 yards before feeling severe discomfort. In response to a request from the Secretary of State her GP stated that the claimant found walking painful and when asked to estimate her usual walking ability before the onset of severe discomfort, ticked “0-50 metres”. The claimant was awarded the higher rate of the mobility component for an indefinite period.

In October 2003 the claimant was promoted to check out supervisor with responsibility for 25 tills. She said that this was in fact an easier job for her to do because if she sat at a check out she tended to stiffen up. This was supported by the medical evidence. Her GP confirmed that although her walking distance had increased, the pain in her joints had also increased due to progression of her arthritis.

In 2009 the DWP conducted some observations of the claimant walking a distance of about 60 yards without apparent discomfort. In February 2010 the DWP decided that there had been a relevant change of circumstances and that the claimant was not entitled to DLA from October 2003. A month later the DWP made an overpayment decision to the effect that the appellant must repay £13,756.45 because she had failed to disclose that “her mobility needs had decreased”. The DWP also brought a prosecution for failure to notify a change of circumstances but the claimant was acquitted at the magistrates' court.

In her appeal before the FTT the claimant relied upon her acquittal in the criminal proceedings. The FTT dismissed her appeal and confirmed that the claimant was not entitled to DLA from October 2003 (when she was promoted to check out supervisor). They also confirmed the overpayment decision. The FTT said that the claimant's case was not assisted by the fact that she had been acquitted of criminal charges relating to the payment of benefit because of the different standard of proof, and in the overpayment proceedings it did not matter whether the failure to disclose was fraudulent or wholly innocent.

The Upper Tribunal held that the FTT had erred in law for the following reasons:

  • Whilst it is settled law that under Section 71 of the Social Security Administration Act 1992 that the recovery of overpayments extends to cases of innocent misrepresentation and of non-fraudulent failure to disclose, this did not apply to a case involving a disability condition of DLA as this was to overlook the important rules relating to supersession. These provide that unless the claimant has clearly been at fault, then there is no overpayment, and so the question of recoverability does not arise (Social Security and Child Support (Decisions and Appeal) Regulations 1999 (SI 1999/991) reg 7(2)(c)(ii)). The FTT had therefore been wrong to act on the basis that it did not matter whether a failure to disclose was “wholly innocent”.
  • The FTT had adopted the wrong approach to whether the DWP had established grounds for superseding the award. In particular, its finding that the relevant change of circumstances had taken place in October 2003 was erroneous because it relied throughout on their own view of what amounted to 'virtually unable to walk'. They had therefore failed in their reasoning to give proper protection to the judgement of the original decision maker:

"It is by no means obvious that a person who says that she walks through severe discomfort; can go to the bank and post office alone; and can walk round a supermarket using a trolley is incapable of the comparatively short burst of walking, with stops, entailed in the job of supervising even a large number of checkouts. I am left guessing as to what was the change in the appellant's condition that the tribunal identified." (paragraph 25)

  • There was insufficient evidence before the FTT of the content of the claimant's alleged duty to notify the DWP of any change in circumstances. The appeal papers contain a typical motability letter, this indicates that the changes which the appellant was required to notify are set out in a separate leaflet, but no copy of that leaflet was in the papers.

Having set aside the FTT's decision as erroneous in law, the UT Judge decided to re-make the decision himself. The Judge said that from the circumstances which surrounded the original award in 2002 he concluded that much of the walking which the claimant was doing was accompanied by severe discomfort. The Judge noted that it was common ground that the claimant is now walking longer distances and that this is helpful to her condition and that the claimant maintains that she is in permanent pain, especially in her back, and that the pain has not reduced. The Judge said this assertion was supported by her doctor to the effect that although her walking distance had increased the pain in her joints had also increased:

If this be so, what then is the relevant change of circumstances? The test is the claimant’s ability to “make progress on foot without severe discomfort”. Given the range of walking ability on which the appellant based her original claim; the acceptance in 2002 that some of her walking was accompanied by severe discomfort; and the evidence that although distance has increased, pain has increased as well, I cannot say, that I am satisfied that there has been a relevant change of circumstances. On the whole, I am satisfied, taking an overall view, that the estimate of the appellant’s walking ability before severe discomfort given by her GP in 2002 still holds good (paragraph 31).

The outcome was that the original award of DLA higher rate mobility component from and including 27 February 2002 remained in force. (For transcript click here).

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