PA v Secretary of State for Work and Pensions (DLA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Rowland |
| Neutral Citation | [2016] UKUT 428 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA,AA,MA: general,Recovery of overpayments,MA: general - accommodation costs,Recovery of overpayments - liability of third parties,Rowland,M |
| Date | 26 September 2016 |
| Published date | 01 December 2016 |
PA v Secretary of State for Work and Pensions (DLA)
[2016] UKUT 0428 (AAC)
CDLA/3773/2014 1
IN THE UPPER TRIBUNAL Case No. CDLA/3773/2014
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
The administrator of the claimant’s estate appeared in person.
The Secretary of State was represented by Mr Jeremy Heath, solicitor.
Decision: This appeal is allowed in part. The decision of the First-tier Tribunal
dated 4 March 2014 is set aside and there is substituted a decision superseding the
decision of the Secretary of State dated 17 June 2009 on the ground that it was
made in ignorance of the material facts that no payments of disability living allowance
were made to the claimant after 2 December 2008 and that the claimant’s deputy had
not been aware until 2 April 2008 that her care home fees were being funded by a
primary care trust from 30 July 2007. The claimant was overpaid disability living
allowance amounting to £1,150.70 from 29 August 2007 to 2 December 2008 and the
overpayment from 2 April 2008 to 2 December 2008, amounting to £620.60, is
recoverable from her estate.
REASONS FOR DECISION
1. This is an appeal, brought by the administrator of the estate of the late
claimant with permission granted by the First-tier Tribunal, against a decision of the
First-tier Tribunal dated 4 March 2014 allowing in part an appeal brought by the
administrator after a decision of the Secretary of State dated 17 May 2012 and
deciding that the claimant had been overpaid disability living allowance from 3
October 2007 to 2 December 2008 and that that overpayment was recoverable from
her estate.
The facts and procedural history
2. The claimant suffered from pre-senile dementia as a result of Alzheimer’s
disease and also from other conditions, including epilepsy. As she was incapable of
managing her own affairs, a deputy (originally a receiver but I will use the term
“deputy”) had been appointed by the Court of Protection to manage them for her. A
new deputy was appointed in September 2009. The claimant had long been entitled
to both the middle rate of the care component and the lower rate of the mobility
component of disability living allowance but payment of the care component had
ceased from 31 May 2000 following her admission on 30 April 2000 to the care home
where she lived until her death on 9 October 2009. Because the claimant had not
been assessed as requiring “Continuing NHS Healthcare” but could not afford to
meet all of the fees for her accommodation, the local authority contributed to the fees
– possibly paying them all from April 2007. However, on 3 October 2007, the local
NHS primary care trust wrote to the claimant at the care home, saying –
PA v Secretary of State for Work and Pensions (DLA)
[2016] UKUT 0428 (AAC)
CDLA/3773/2014 2
“Your need for health care has recently been assessed by an NHS Registered Nurse,
and it has been found that at this time you are eligible to receive Continuing NHS
Healthcare. This means the NHS will be responsible for paying your nursing home
placement fees from 30/07/07.”
The implication was that the local authority’s liability ceased on 29 July 2007.
3. No-one told the Department for Work and Pensions in 2007 about the
apparent change in funding and it found out only on 24 March 2009. The
Department’s computer records an entry made on that date –
“508 TO MU73 RE CUST NHS FUND U3T4CB”.
It appears from the record of proceedings before the First-tier Tribunal that a “508” is
a form for recording information received by telephone and that “MU73” is the office
of the Department in Blackpool that administers disability living allowance.
4. The information appears to have led to the immediate suspension of payments
and to the primary care trust being contacted on 8 May 2009 so that it could confirm
the funding. On 3 June 2009, the Secretary of State made a decision set out in a
letter addressed to the claimant’s deputy to the effect that the claimant – presumably
in fact the deputy or someone else on her behalf – had contacted the Department on
24 March 2009 about a change of circumstances and that from 29 August 2007 she
was entitled to the lower rate of the mobility component and the middle rate of the
care component of disability living allowance. What presumably was also decided
was that the mobility component had ceased to be payable to the claimant from 29
August 2007. The Secretary of State told the First-tier Tribunal that that would have
appeared on the second page of the letter of which only the first page was before the
First-tier Tribunal and is before me. In any case, it can clearly be inferred from the
making of the subsequent decision to the effect that there had been an overpayment
that the decision of 3 June 2009 terminated payability. There was probably also a
reference at the end of the letter to regulation 12A of the Social Security (Disability
Living Allowance) Regulations 1991 (SI 1991/2890), as amended, paragraphs (1)
and (2) of which then provided –
“12A.—(1) Subject to regulation 12B (exemption), it shall be a condition for the receipt
of a disability living allowance which is attributable to entitlement to the mobility
component for any period in respect of any person that during that period he is not
maintained free of charge while undergoing medical or other treatment as an in-
patient—
(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of
1978 or the NHS Act of 1990; or
(b) in a hospital or other similar institution maintained or administered by the
Defence Council.
(2) For the purposes of paragraph (1)(a) a person shall only be regarded as not
being maintained free of charge in a hospital or similar institution during any period
when his accommodation and services are provided under section 65 of the NHS Act
of 1977, section 58 of, or paragraph 14 of Schedule 7A to, the NHS Act of 1978 or
paragraph 14 of Schedule 2 to the NHS Act of 1990.”
The decision probably also said that the care component was not payable from 29
August 2007 by virtue of regulation 8, rather than regulation as had previously been
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