England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand London, WC2
		12th May 2005

1. LORD JUSTICE PILL: Lord Justice Chadwick will give the first judgment.
2. LORD JUSTICE CHADWICK: This is an adjourned application for permission to appeal from a decision of the Social Security Commissioners (Mr Commissioner Henty) dated 17th July 2003, with the appeal listed to follow if permission is granted.
3. The applicant, Sukaina Abbas, is now aged 16. She has acted in this litigation through her father and litigation friend, Mr Adam Abbas. Mr Abbas has appeared before the court today, but has not felt well enough to take an active part in presenting the appeal. He has been assisted by his wife, Sukaina's mother, Mrs Zara Abbas. She has sought, on behalf of her husband, an adjournment of the application and the appeal. In support of that application, she has put before us a doctor's letter of 9th May 2005, indicating the doctor's view that Mr Abbas is not well enough to attend court. We had to consider as a preliminary matter, therefore, whether this application should be adjourned. We decided that it should not be adjourned; having regard to the interests of the applicant herself.
4. The matter came before Ward LJ a little over a year ago, on 1st April 2004. He then indicated, as a preliminary view, that there was substance in the criticism of the Commissioner's failure to deal with the application to renew the applicant's claim for disability living allowance. Having expressed that view, Ward LJ directed that the application for permission to appeal be adjourned to come on with notice to the Secretary of State; with the appeal to follow if permission were granted. He indicated, also, that the Secretary of State and his advisers should consider carefully whether there was force in the point which he had identified; and, if so, whether some offer in relation to renewed allowance should be made. The Secretary of State responded to that suggestion by making an offer to which I shall refer in due course.
5. Following Ward LJ's direction, the matter was listed for hearing in December 2004. Ward LJ had encouraged Mr Abbas to seek help from the Citizens Advice Bureau to see if counsel would accept instructions pro bono. But Mr Abbas has not obtained representation. What seems to have happened is that Mr Abbas sought legal assistance from solicitors, but not on a pro bono basis. By November 2004 his public funding certificate was under an embargo, so that further work was not being done under it. It was in those circumstances that on 29th November 2004 he requested an adjournment of the hearing then fixed for 9th or 10th December 2004. That application was refused by Kennedy LJ on 1st December 2004. It was refused on the basis that the information then provided did not indicate whether there had been any steps to reinstate the public funding certificate; nor, if so, when a final decision on such an application would be likely to be taken. Kennedy LJ said this:

"I am not disposed to grant an open-ended adjournment, but if firm information can be provided an adjournment to a fixed period can probably be granted."

6. That led to a letter of 6th December 2004 indicating what the timescale was then thought to be; in particular it disclosed that review by the funding review committee would be likely to have taken place by the end of January 2005. That further information led Kennedy LJ to grant an adjournment on 6th December 2004; but he directed that the matter should be relisted from the end of January 2005.
7. The application with appeal to follow were relisted for hearing before another constitution on 21st April 2005. On 8th April there was a further application for an adjournment; that was made on the grounds that Mr Abbas should have a further opportunity to seek representation, notwithstanding his lack of success to date. Ant that was in a context where the matter was already one year past the date on which Ward LJ had given his directions. My Lord, Lord Justice May, refused that application for an adjournment on 8th April 2005. He noted in his decision that the applicant had had a full year in which to arrange representation, it was unfortunate that he had been unable to do so, but the matter could not be allowed to drag on interminably.
8. Notwithstanding that refusal, Mr Abbas made a further application for an adjournment on or about 15th April 2005. The grounds for an adjournment put forward on 15th April were that Mr Abbas had two medical appointments scheduled for the 21st April. That hearing date had been fixed for some time. Mr Abbas accepted, it seems, that the medical appointments had been made after he had known of the hearing date; but he offered no explanation as to why that had occurred. Nevertheless, on the basis that Mr Abbas could not be in two places at once - and that he should be able to keep his medical appointment - Lord Justice May adjourned the hearing fixed for 21st April, with a direction that the matter be relisted as soon as possible. It was relisted for hearing on 12th May.
9. A further application for an adjournment was made on or about 6th May. The grounds for that adjournment was that Mr Abbas had suffered a head injury, for which he had received treatment in the accident and emergency unit at Royal London Hospital. I refused that application, on the grounds that the medical evidence then provided gave no indication whether or not the applicant would be fit to attend court on 12th May, or whether an adjournment (and, if so, of what duration) would enable him to do so within a foreseeable period.
10. On being notified of that refusal, Mr Abbas then obtained (or, if he had it already, then sent to the Civil Appeals Office) the letter from his general practitioner on which he now relies. For my part - given the history of this matter - I have no confidence that a further adjournment, which is now sought for an indefinite period, would lead to Mr Abbas presenting this matter before the court within a foreseeable period in the future. It seems to me much more likely that some other problem will intervene if this matter is fixed for hearing before the summer. If the matter is not fixed before the summer, then the period of delay is becoming intolerable.
11. It is necessary to keep in mind that the applicant is not Mr Abbas himself, but his daughter, Sukaina, for whom he acts as father and litigation friend. The conclusion to which I am led is that he is really not in a position to act on her behalf and in her best interests, having regard to his history over the last year. But we have before us extensive submissions in writing on her behalf; and we have had the benefit today of help from Mrs Abbas - and from Mr Abbas through the representative of the Personal Support Unit - for which we are grateful.
12. We were satisfied that we had had all the help that we are likely to receive in understanding what is the case to be advanced on behalf of the applicant, Sukaina Abbas; and that we were unable to have any confidence that an adjournment for an indefinite period would lead to any further help in that respect. So we reached the conclusion that, in the interests of the applicant herself, this application needed to be heard.
13. The decision of the Social Security Commissioner was made nearly two years ago. It was an appeal from the decision of an Appeal Tribunal made on 8th February 2002. That decision was made on an appeal from a decision of the benefits agency, made as long ago as September 2000, on an application for renewal of benefit made on 10th August 2000. More than four and a half years have gone by since the claim and the decision which have given rise to the present application. It is, in my view, high time that the applicant's entitlement to benefit is resolved, so that she may know where she stands and monies due to her (if any) can be paid.
14. The applicant suffers from asthma, eczema and hay fever. In July 1992, when she was then just three and a half years old, she was awarded the care component of a disability allowance under section 72 of the Social Security Contributions and Benefits Act 1992.
15. That section must be read in conjunction with section 71 of that Act. Section 71 provides that disability living allowance shall consist of a care component and a mobility component. A person may be awarded either component for a fixed period; and the weekly rate is prescribed from time to time. Section 72(1) is in these terms, so far as material:

"(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which--

(a) he is so severely disabled physically or mentally that--

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); ...

(ii) ... ;

(b) he is so severely disabled physically or mentally that, by day, he requires from another person--

(i) frequent attention throughout the day in connection with his bodily functions; ...

(ii) ... ; or

(c) he is so severely disabled physically or mentally that, at night--

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; ...

(ii) ..."

16. Section 72(2) provides that a person shall not be entitled to the care component of a disability living allowance unless he has satisfied one or other of the conditions mentioned in subsection (1)(a)-(c) throughout a period of three months immediately preceding the date on which the award would begin, or throughout some other period of three months as may be prescribed; and, further, that he is likely to continue to satisfy one or other of those conditions throughout the period of six months beginning with that date. There is no dispute in the present case that if the conditions are satisfied, or were satisfied at the relevant time, then that time condition in section 72(2) was also satisfied.
17. Section 72(3) provides that three weekly rates of the care component shall be prescribed. Section 72(4) then goes on to explain the basis upon which those rates are to be awarded. Subsection (4) is in this terms:

"The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be--

(a) the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;

(b) the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and

(c) the lowest rate in any other case."

18. Put more simply, the position therefore is this. The three conditions in subsection (1) comprise a night condition (paragraph (c)); a frequent attention day condition (paragraph (b)) - satisfied where the person requires frequent attention throughout the day in connection with his bodily functions; and a less rigorous attention condition under paragraph (a) - where it is not necessary that he should require frequent attention, but simply attention for a significant portion of the night or day.
19. To attract an award at the highest rate it is necessary to satisfy both the night condition under subsection (1)(c) and the frequent attention day condition under subsection (1)(b). If only one of those two conditions - the night condition and the frequent attention day condition - are satisfied, then an award can be made at the middle rate. But if neither the night condition nor the frequent attention day condition are satisfied, then the award can only be made at the lowest rate. So in a case where attention is required for a significant portion of the day, but not required frequently throughout the day and not required at night, then the lowest rate is the rate which can be awarded under section 72.
20. I should refer also to section 72(6)(b), which modifies the requirements in relation to a person who is under the age of 16. In such a case, the additional test is that his requirements for assistance or attention are substantially in excess of the normal requirements of persons of his age.
21. The award in July 1992 was of the care component at the highest rate. As I have said, Sukaina was then only three and a half years old. The period of that award was for 12 months to 2nd July 1993. Over the years 1993 to 1997, that award was renewed - on one occasion following an appeal to an Appeal Tribunal. The most recent renewal was made pursuant to a decision dated 25th September 1997, and was for a period of three years ending on 23rd January 2001. Again, the award of the care component was at the highest rate. Faced with the position that that award would expire in January 2001, a further renewal claim was made on the appellant's behalf on 10th August 2000. In context, that was a renewal of a claim for disability living allowance from 24th January 2001, when the existing award would come to an end.
22. The response to that claim was notified to the claimant on two forms, each signed by the same decision-maker and each dated 20th September 2000. The more informative of the two is form DMA DEC2. That is expressed to be a decision on "supersession - disability only" of the decision dated 25th September 1997. The decision recorded on that form (DMA DEC2) was that the claimant was not entitled to disability living allowance care component from and including 20th September 2000, the date on which the decision was made. The reason for the decision was expressed to be:

"C in C improvement. Asthma mild & stable. Eczema is mild to moderate. Good response to treatment, on self-medication with parental super required 3/day. Overall not enough to qualify for DLA."

In that context "C in C" is an appreciation for "change in circumstances", and "super" is an abbreviated form of "supervision". "3/day" may be read as "three times a day".

23. That decision, as appears from the boxes ticked under the heading "Law", was made under section 10 of the Social Security Act 1998, and regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). Section 10(1) of the Social Security Act 1998 is in these terms, so far as material:

"Subject to subsections (3) and (4) and section 36(3) below, the following, namely--

(a) any decision of the Secretary of State under section 8 above or this section, whether as originally made or as revised under section 9 above and

(b) any decision under this Chapter of an appeal tribunal or a Commissioner,

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative."

Subsection (3), to which that power is made subject, provides that regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under the section.

24. The Regulations made under section 10(3) of the 1998 Act are the 1999 Regulations, to which I have just referred. Regulation 6 is in these terms, so far as material:

"(1) Subject to the following provisions of this regulation, for the purposes of section 10 [that is section 10 of the 1998 Act], the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

(2) A decision under section 10 may be made on the Secretary of State's own initiative or on an application made for the purpose on the basis that the decision to be superseded -

(a) is one in respect of which -

(i) there has been a relevant change of circumstances since the decision was made; ..."

As the notice of 20th September 2000 made clear, the decision to supersede under section 10 of the 1998 Act was made on the basis of a change of circumstances, as set out in regulation 6(2)(a)(i); that is to say, a relevant change in circumstances since the date of the decision of 25th September 1997.

25. It is clear from section 10 of the 1998 Act that it is envisaged that an earlier decision may be superseded by the later decision made by the Secretary of State under section 10(1). It is accepted on behalf of the Secretary of State that the later decision is one to be made in accordance with the provisions in section 72 of the 1992 Act. So that the scheme is that the Secretary of State may make a new decision in the light of the requirements of section 72 of the 1992 Act which, when made, will supersede the existing decision, notwithstanding that the period for which the award was made under the existing decision has not come to an end. But that power - to substitute a new decision in supersession for an existing decision - is one to be exercised subject to the Regulations; and in the present context the Regulations require that there has been a relevant change of circumstances since the existing decision was made.
26. The other of the two forms dated 20th September 2000, form DBD575, contains notification that the claimant is not entitled to disability living allowance care component from 20th September 2000, for the reason identified by code C50 and elaborated by the words "see Dec 2". That, I think, must be taken to be a reference to the change in circumstances reasons set out in form DMA DEC2, to which I have already referred. That decision, in form DBD575, is expressed to be made under section 72 of the Social Security Contributions and Benefits Act 1992. It follows, necessarily, from the supersession decision of the same day. If the Secretary of State were entitled to supersede the existing 1997 order on the grounds that a change in circumstance made disability living allowance no longer available, then that conclusion would apply, not only for the remainder of the period covered by the 1997 award, but also to the future following the expiration of that period.
27. The claimant sought reconsideration of those decisions of 20th September 2000; but they were not varied on a review. On 21st February 2001 she appealed from the decisions of 20th September 2000 on a form which refers to the date of those decisions, and which is accompanied by a letter of 21st February 2001, sent on her behalf by her father, Mr Abbas. It is accepted on behalf of the Secretary of State that the appeal was against both the decision to supersede the existing 1997 award and the decision not to renew an award with effect from 24th January 2001.
28. The hearing before the Appeal Tribunal took place on 8th February 2002. The Tribunal (by a majority) decided that the applicant was not entitled to the care component of disability living allowance from 20th September 2000. Their decision was given at the hearing on 8th February 2002. But the reasons for that decision did not follow until some nine months later, in a statement dated 11th November 2002.
29. It is clear from that statement of reasons, first, that the Tribunal (and, I think, all its members) accepted that there was no requirement for prolonged or repeated attention at night; so that an award of the care component at the higher rate was not available. The condition in section 72(1)(c) was not satisfied; and so the condition under section 72(4)(a) could not be satisfied. In reaching that conclusion, the Tribunal looked at the evidence that was before them; and, in particular, at the evidence of the doctors.
30. The Tribunal came to the conclusion, also, that Sukaina did not usually require frequent attention in connection with her bodily functions during the daytime; so that the condition in section 72(1)(b) was not satisfied and the middle rate care component was not applicable. Again, they came to that conclusion after reviewing the evidence. They relied upon the evidence of Dr Douglas. They preferred that evidence Over a letter from Dr Dobbing, on which (as they said) they placed no weight.
31. The Tribunal differed, however, on the question whether or not the condition in section 72(1)(a) was satisfied; that is to say, whether there was a need for attention for a significant portion of the day. The majority took the view that Sukaina did not need attention for a significant part of the day; with the consequence that none of the conditions in section 72(1) of the 1992 Act were satisfied and no award of the care component could be made. The minority view was that she would need attention to help put in eye drops; and that the proper application of hydrocortisone would be beyond her capabilities. That view led to the conclusion that the condition in section 72(1)(a) was satisfied and to the possibility of an award at the lowest rate.
32. Mr Abbas, on behalf of his daughter, appealed that decision of the Tribunal to the Social Security Commissioner. He made it clear that he was appealing on the grounds that the decision was erroneous in law, because the Tribunal failed to make sufficient findings of fact or to give adequate reasons for their decision. But, as a further ground, he submitted that the Tribunal erred in law because the terms of its decision did not demonstrate that the issue of supersession had been addressed. As he put it in his grounds:

"Their statement of reasons does not address the supersession criterion ..."

and he then set out why he relied upon that ground. In particular, he criticised the Tribunal for failing to address, in terms, the question whether there had been a change in circumstances sufficient to meet the requirement in regulation 6(2)(a)(ii). As I have said that was a threshold requirement for the exercise of the power to supersede an earlier decision by a new decision.

33. That appeal came before the Commissioner in 2003. His powers were set out in section 14 of the Social Security Act 1998. Subsection (1) provided that an appeal lay to a Commissioner from any decision of an Appeal Tribunal on the ground that the decision of the Tribunal was erroneous in point of law. But section 14(8) was in these terms:

"Where the Commissioner holds that the decision appealed against was erroneous in point of law, he shall set it aside and--

(a) he shall have power--

(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact or

(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them and

(b) in any other case he shall refer the case to a tribunal with directions for its determination."

So the first question for the Commissioner, as he recognised, was whether the decision of the Appeal Tribunal was erroneous in point of law. Unless he were to hold that there had been an error in law, he did not have power to go on to make further findings, or fresh findings, of fact, or to substitute a decision of his own for the decision under appeal.

34. The Commissioner came to the conclusion, after directing himself correctly in accordance with the provisions to which I have just referred, that there had been an error of law in the decision of the Appeal Tribunal. The error can, I think, be identified in these terms: that the Appeal Tribunal had failed to direct themselves expressly that they needed to find a change between the circumstances as they were at the time of the 1997 decision and the circumstances as they were in September 2000.
35. Whether or not that conclusion by the Commissioner might be open to challenge on the facts in this case is not a matter which we are asked to decide. The applicant, of course, relies on the Commissioner's finding that the Appeal Tribunal erred in law; and the Secretary of State has made it clear that there is no cross-appeal against that finding. In those circumstances, it is unnecessary to express any view on whether a challenge to the Commissioner's decision that there was an error of law would succeed. We proceed on the basis that the Commissioner satisfied himself that the Appeal Tribunal had erred in law and that that decision on that point is not challenged by either party.
36. In those circumstances, therefore, the Commissioner had power under section 14(8) of the 1998 Act to go on to make findings of fact, if he thought necessary, in order to exercise his power to give a fresh decision in place of the Appeal Tribunal's decision. He reviewed the evidence of the doctors. He agreed that the night condition had not been made out on that evidence; so that there was no case for higher rate care component in the disability living allowance. It is clear, also, that he was not persuaded that frequent attention during the day was required, so as to satisfy the day condition under section 72(1)(b). But he did accept that the condition under section 72(1)(a) was satisfied. In that he agreed with the minority view in the Tribunal. He said this in the course of his decision - in the penultimate section under paragraph 9:

"I do not myself share the confidence of the tribunal that a girl of 11 could control scratching when her skin itches. It is difficult to do for anyone and often people do, in fact, scratch themselves during their sleep. But I take a different view to that of the Tribunal and sympathise with the minority view. It seems to me that the main evidence is (a) Dr Douglas's report; and (b) Dr Webster's letter when he itemises all the various medications with which the claimant is treated. Dr Douglas made the important rider as to the claimant's self medication 'but requires parental supervision'. It is not a statement that parental supervision might occasionally be required. It [is] that it is usually required, even if only out of caution. But I have little doubt that a child of 11 would need to be reminded about the various medications which, as Dr Webster says, number eight different forms of medication requiring, in the aggregate, something like 21 applications. I have, therefore, come to the conclusion that the [decision-maker] was entitled to supersede, but that the threshold criteria was only satisfied to the extent as to permit an award of the care component at the lowest rate. It seems to me that the sheer number of applications and the multitude of the different medications must itself require parental assistance, and that assistance seems to me must be required for a significant period of the day."

37. On that basis the Commissioner decided that the power to supersede was exercisable because there had been a relevant change of circumstances since the 1997 decision; but that, if exercised, it had to be exercised with the requirements of section 72 of the 1992 Act in mind; and that, taking account of those requirements, the decision that could be substituted by way of supersession was a decision that the care component be awarded at the lowest rate.
38. In reaching that decision, the Commissioner rejected the criticisms which Mr Abbas had made of the Appeal Tribunal's reasoning in relation to the medical evidence said to support the contention that higher rate care component was allowable because of the need for frequent night care.
39. The Commissioner, in substituting his own decision for the decision of the Appeal Tribunal in relation to supersession, made an award of care component at the lowest rate for the remainder of the period covered by the 1997 award; that is to say, the period from 20th September 2000 to 23rd January 2001. But he took the view that any award of benefit after that date would depend on any further renewal claim made. He thought that the appeal before him was concerned only with the residue of the period covered by the 1997 order; and that there was no appeal in relation to the refusal of the renewal claim which had been contained in the form DBD575.
40. It is accepted on behalf of the Secretary of State - in the light of the observations made by Ward LJ last year - that the Commissioner was wrong to take that view. On 4th June 2004 the Secretary of State made an open offer to award DLA care at the lowest rate from 24th January 2001. The true position was that, once he had decided that some care component could be awarded for the residue of the earlier period, it was necessary to go on to decide whether that care component could continue in relation to the subsequent period in relation to which a claim had been made. He had that power under section 14(8)(a)(ii) of the 1998 Act - that enabled him, if he considered it expedient, to give such decision as he considered appropriate in the light of the findings that he had made. In the light of the findings that he had made, it was plainly expedient to consider what the position should have been after 23rd January 2001; and the Commissioner's failure to do so is accepted to be an error in law which founds an appeal to this court.
41. In those circumstances, we granted permission to appeal. For my part, I would allow the appeal to the extent of setting aside the decision of the Social Security Commissioner not to consider any award from 24th January 2001; and, in consequence, not to set aside the Appeal Tribunal's decision not to make any award from 24th January 2001. I would not allow the appeal in relation to the Commissioner's decision that the appropriate rate in the period for the residue covered by the 1997 order was the lower rate, for the reasons which he gave. In my view, no error of law in those reasons has been shown.
42. The question, then, is what to do about the position from 24th January 2001, which has continued until the present day. One course would be to remit the matter to an Appeal Tribunal. But it is not necessary to take that course, because the Secretary of State is content to give an undertaking to issue a new decision awarding the care component at the lowest rate from 24th January 2001 until the end of the present calendar year, 31st December 2005. That will enable the benefit due to the claimant over the past four years or more to be paid; and for her to be in receipt of benefit for the remainder of this year. She can then apply, in the ordinary way, for a renewal of benefit with effect from 1st January 2006; and that application will be dealt with according to its merits on the basis of current evidence.
43. So, I would allow the appeal to the extent necessary to set aside the decision of the Appeal Tribunal to refuse renewal of benefit from 24th January 2001; but on the basis of the undertaking that has been offered by the Secretary of State, I do not think it necessary to remit that question for further determination.
44. LORD JUSTICE MAY: I agree entirely with what my Lord has said, and I only wish to add just a few words about the question of an adjournment.
45. I entirely agreed and agree with the decision that there should not be an adjournment, despite the fact that Mr Abbas has been unable to address the court and Mrs Abbas has scarcely been able to do so, for understandable reasons. The reasons for this, in my judgment, are, first and foremost, that the applicant is not Mr Abbas himself but his daughter. It is not in her best interests that the matter should go off again, especially since she will benefit from the appeal going ahead because of the concession made by the Secretary of State, and because of the decision with which I concur. Her interest does not lie in a yet further adjournment.
46. Secondly, I, like my Lord, have no confidence that if there were to be a further adjournment there would not be some further reason or reasons advanced for putting things off into the yet more distant future.
47. Thirdly and importantly, the court has the benefit of extensive written submissions by Mr Abbas on his daughter's behalf, and I am confident that he has written down everything that could be urged and which he wanted to urge in support of this appeal.
48. LORD JUSTICE PILL: I agree with both judgments.

ORDER: Appeal allowed to the extent of setting aside the decision of the Social Security Commissioner not to make any award after 24th January 2001, and, in consequence, not to set aside the appeal tribunal's decision not to make any award after 24th January 2001; on the basis of the Secretary of State's undertaking to issue a new decision awarding the care component at the lowest rate from 24th January 2001 until the end of the present calendar year, 31st December 2005, this matter is not remitted for further determination; no order for costs.

(Order not part of approved judgment) ______________________________