Secretary of State for Work and Pensions v LB (DLA): [2016] UKUT 251 (AAC)

Upper Tribunal Administrative Appeals Chamber decision by Judge Gray on 9 May 2015.

Read the full decision in CDLA/1469/2015.

Judicial Summary

Reviews, revisions and supersessions Subcategory: mistake as to material fact 1. Where there are linked appeals in relation to entitlement and overpayment, and the decision of the FTT is to dismiss one appeal and allow the other, either party may appeal both decisions, including the decision in which they succeeded (which may be a technical or inadequate win) and the Upper Tribunal may remit both for rehearing if appropriate [61-66]. 2. It is an error of law to consider whether misrepresentations of fact have been made to look only at the representations which deal specifically with the award made, and using the highly technical criteria for that award in the judgement as to whether or not certain facts were material. For a representation of fact to be material it does not have to be critical to the legal basis upon which a particular level of award is made, merely likely to influence the making of an award.[52] Claims made in relation to mobility, whilst legally a distinct component from care, may yet inform a decision on care needs. Documents which predate those relating to the actual award which may have been before the decision maker may be relevant. [35-38] 3. Something which is at face value merely an expression of opinion (the distance she could walk) is, if it is found that the opinion was not honestly held, a misrepresentation of fact; the dishonest element means that the statement becomes a lie, which is self-evidently a misrepresentation of fact. [43] Absence of evidence can of itself lead to the representations in the claim pack overall being seen as a misrepresentation of the position.[53] For example to talk in terms of walking difficulties without mentioning, in answer to certain questions, very significant walking which is accomplished, is in effect to suppress material facts, which amount to a misrepresentation. (Includes Case Reference: CDLA/1470/2015)

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