judge increased an overpayment

I had an appeal where the DWP had decided that the client had a recoverable overpayment of DLA going 18 months back, because they had surveillance footage of her walking her dogs across a park and so she was clearly not ‘virtually unable to walk’. They calculated the overpayment from the earliest date for which they had surveillance footage. At the hearing, the judge said she was going to change the DWP’s decision and look at having the client charged with an overpayment going five years back. She didn’t offer an adjournment for the client to get further advice. She then went on to increase the overpayment by taking it back to 2005, the date the client first claimed DLA.

I have looked at the judge’s written reasons for doing this, I can’t see that she has any. The only thing she mentions to support the decision is a section of the transcript of the client’s interview under caution, where the judge has decided she was lying. There is no independent documentary evidence as to the client’s mobility problems or how or when they might have changed other than the surveillance footage.

Also, I can find nothing in the tribunal rules that allows a judge to override a decison of the DWP on an overpayment in this way. Can anybody tell me what part of the law allows a judge to make a decision like this? Have I missed something?

[Incidentally, I advised the client from the off not to try to get her HR mobility back again because she doesn’t qualify. She decided not to take the advice and went ahead anyway, with a relative representing her at the hearing.]

The judge would probably be relying on CDLA/3255/2008.

A tribunal can do this as it stands in the shoes of the decision maker and can re-make the decision as the one it thinks the DM should have given.  However, it might be an error of law if the tribunal raised the issue for the first time at the hearing and did not offer an adjournment in order for the claimant to prepare argument on the point.

If the appeal only concerned the section 71 overpayment decision, and not the entitlement decision, the tribunal could not have increased the overpayment.  However, if the entitlement decision was before the tribunal, it could have made a decision less favourable to the appellant, leading to a higher overpayment, although the grounds for the overpamyent would have had to change from “failure to disclsoe” to “misrepresentation” if the tribunal decided the initial decision to award DLA was wrong.

The tribunal could I think have increased the recoverable amount of the overpayment (but not the total amount of the overpayment) even if they were not also dealing with the entitelment decision, since the case would be about recoverability and the Tribunal might take a different view of the circumstances - or even the calculation of amounts and periods where there was doubt about whether all the OP was recoverable.

Point taken Ariadne, and in general I would agree, but I was working on the assumption that the effective date of the supersession in the entitlement decision, and start of the recoverable overpayment period, were one and the same, which is likely to be the case with DLA because of regulation 7(2)(c)(ii) of the SSCS (Decisions and Appeals) Regulations