PA v Secretary of State for Work and Pensions (DLA)

A refusal to revise an earlier social-security decision may also be treated as a refusal to supersede it. The resulting appeal is in time if brought within the time limit for that refusal. A late supersession cannot retrospectively alter entitlement during a deceased claimant’s lifetime, but it may determine whether an historic overpayment remains recoverable.

Under regulation 12A of the Social Security (Disability Living Allowance) Regulations 1991, full NHS funding of a properly staffed nursing home supported the inference that the resident was receiving relevant treatment as an in-patient. A Court of Protection deputy who receives benefit payments must disclose a material funding change once aware of it. An overpayment before that awareness is not recoverable for non-disclosure.

The administrator of a deceased disability living allowance claimant’s estate appealed from a First-tier Tribunal decision of 4 March 2014. The tribunal had found an overpayment between 3 October 2007 and 2 December 2008, recoverable from the estate.

The claimant lived in a nursing home. A primary care trust stated that it would fund her placement from 30 July 2007. The administrator contended that the home was not a hospital or similar institution for regulation 12A purposes and disputed both the overpayment and its recoverability.

The Upper Tribunal also had to decide whether the appeal could proceed despite the late challenge to the 2009 decisions, and whether the claimant’s deputy had failed to disclose a material fact.

1. Appeal allowed in part. The First-tier Tribunal’s decision was set aside. Its appeal jurisdiction arose because the Secretary of State’s purported refusal to revise of 17 May 2012 could also be treated as a refusal to supersede under regulation 6(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The appeal against that refusal was timely.

2. A supersession of the 3 June 2009 entitlement decision could not assist the claimant. Under section 10(5) of the Social Security Act 1998, it could not take effect for a period before the post-death application. However, a supersession of the recoverability decision could determine the Secretary of State’s continuing right to recover an historic overpayment.

3. Regulation 12A of the Social Security (Disability Living Allowance) Regulations 1991 applied. The contemporaneous evidence established that the primary care trust fully funded the nursing-home fees from 30 July 2007. The home employed nurses and could provide nursing care. It was proper to infer that the claimant received treatment in a hospital or similar institution. The social-security authorities need not investigate the adequacy of that care or any procedural defect in the funding assessment.

4. The claimant was overpaid the mobility component from 29 August 2007 to 2 December 2008, totalling £1,150.70. No payments were made after the latter date.

5. Recovery under section 71 was limited. The deputy first became aware of the primary care trust’s funding no earlier than receipt of the care-home letter, before 2 April 2008. Until then he could not be expected to disclose the fact. Thereafter, as the person receiving benefit and a solicitor acting as deputy, he was required to report the change. The overpayment from 2 April 2008 to 2 December 2008, £620.60, was recoverable from the estate.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal in part and substituted a superseding decision.

• First-tier Tribunal: on 4 March 2014, allowed the administrator’s appeal in part and held that an overpayment from 3 October 2007 to 2 December 2008 was recoverable from the estate.

• Secretary of State: on 17 May 2012, declined to alter the overpayment decision of 17 June 2009.