SSWP v LB

A tribunal may revise an earlier social-security award for a mistake of fact only if it establishes more than a different assessment of the evidence. Where the earlier decision-maker’s factual findings are unavailable, it must determine whether the facts now found are such that no reasonable decision-maker could have made the earlier award.

For revision based on ignorance or mistake of fact, the conditions in the Social Security (Decisions and Appeals) Regulations 1999 also require findings that the claimant knew, or could reasonably have been expected to know, the relevant fact and its relevance to the award. Representations are material if they were likely to influence the award, even if they were not independently sufficient to meet the legal test.

The Secretary of State appealed two linked decisions of the First-tier Tribunal, made on 30 October 2014 under references SC 034/13/04670 and SC 034/13/04671.

The First-tier Tribunal found that the claimant had not been entitled to disability living allowance from 2002, because the renewal award had been made under a mistake of fact. It nevertheless held that no overpayment was recoverable, finding no material misrepresentation or failure to disclose and no significant improvement after spinal injections.

The central issues were whether the tribunal had lawfully revised the earlier award for mistake of fact, and whether it had adequately explained its treatment of the renewal evidence, the interview under caution and the criminal conviction.

1. Appeal allowed. The Upper Tribunal set aside both First-tier Tribunal decisions for material errors of law and remitted both linked appeals to a differently constituted First-tier Tribunal for a fresh oral hearing.

2. The First-tier Tribunal had impermissibly substituted its own assessment of the evidence for that of the 2001 decision-maker. A revision for mistake of fact requires more than a later tribunal reaching a different conclusion from the evidence available. In the absence of a record of the earlier factual findings, the tribunal had to decide whether, on the facts now found, no reasonable decision-maker could have made the earlier award.

3. The tribunal had not adequately justified its conclusion that the 2001 award resulted from a mistake of fact. It failed to engage with earlier claim material, overlooked a material answer concerning walking ability, and did not explain the apparent conflict between the claimant’s renewal representations and the functional ability found from the DVD evidence.

4. Its conclusion that there had been no material improvement following the injections was also inadequately reasoned in light of the evidence as a whole. That included the interview under caution and the claimant’s criminal conviction for failing to disclose an improvement. The Upper Tribunal did not determine that issue because doing so could prejudice the rehearing.

5. The tribunal also had to address the statutory conditions for revision under regulation 3(5)(c) and (d) of the Social Security (Decisions and Appeals) Regulations 1999. It had to make findings on the claimant’s knowledge, or reasonable expected knowledge, of the relevant fact and of its relevance to the award. A representation may be material if likely to influence the award, although it does not by itself establish entitlement; omission of material information may equally misrepresent the true position.

6. The First-tier Tribunal could revise the Secretary of State’s supersession decision, but had to give reasons for exercising that discretion under section 12(8)(a) of the Social Security Act 1998. Its reasons did not show that it had done so, or that it had considered whether the Secretary of State should have an opportunity to make representations on that fundamental issue.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was allowed. The decisions of the First-tier Tribunal were set aside and both matters remitted for a fresh hearing before a differently constituted tribunal.

• First-tier Tribunal (Social Entitlement Chamber): On 30 October 2014, it found no entitlement to disability living allowance from 2002 but held that no overpayment was recoverable.