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Cite as: [1992] UKSSCSC CIS_428_1991

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[1992] UKSSCSC CIS_428_1991 (02 December 1992)

R(IS) 11/93

Mr. D. G. Rice CIS/428/1991

Review - revised decision sought from 1979 - whether tribunal entitled to revise decision from 1973

The claimant had been in receipt of supplementary benefit since 25 April 1973. The claimant's appointee asked for a review of her supplementary benefit with effect from 15 January 1979. She asked for payment to cover the extra baths and laundry needs arising from the claimant's incontinence. The adjudication officer awarded additional requirements for baths and laundry from 24 November 1980, the date that prescribed payments for these needs were introduced.

On appeal the tribunal went further than had been initially requested and trade an award retrospectively from 25 April 1973. But they reduced the number of extra baths because the claimant's father was in receipt of a concessionary fuel allowance. The claimant's appointee appealed to the Commissioner.

Held that:

the tribunal should not have had regard to the concessionary fuel allowance when awarding an allowance for baths (para. 4);

an award of supplementary benefit or income support continues in force until that award is reviewed and revised. The revised decision replaces the original decision on the award and benefit is paid on the basis of that revised decision. A claimant's entitlement to the relevant benefit is determined by the decision currently in operation (para. 5);

a decision which has been reviewed and revised ceases to have any effect for the purposes of current entitlement. That decision remains open to review, providing grounds to review are established, and a revised decision may be made covering the period during which that decision operated (para. 5);

the tribunal were entitled to review the decision of 25 April 1973 as a question first arising on appeal, under section 36(1) of the Social Security Administration Act 1992. In doing so they, like the adjudication officer, were bound to consider the effect of regulations 69 and 72 of the Social Security (Adjudication) Regulations 1986 (paras. 6 and 7).

The appeal was allowed the Commissioner substituted his own decision to the effect that the award was reviewed and revised from 25 April 1973.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 13 November 1990 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide:

(i) that the claimant is entitled to additional requirements for laundry and baths from 24 November 1980, and

(ii) that she is also entitled from 25 April 1973 to 23 November 1980 to "exceptional circumstances additions" to cover the cost of extra baths (at the rate of one per day) and laundry, and also extra clothing damaged through tearing.

This is an appeal by the claimant, brought with my leave, against the decision of the social security appeal tribunal of 13 November 1990. In view of the difficulty of this case I directed an oral hearing. At the first hearing, which took place on 15 October 1992, the claimant, who was not present, was represented by Mr. A. Kershaw from the Barnsley Welfare Rights Office, whilst the adjudication officer appeared by Mr. S. Jones of CAS. After the hearing, further problems presented themselves to me, and it became necessary for me to direct a second hearing. This took place on 6 November 1992 when the claimant was neither present nor represented. The adjudication officer appeared by Mr. M. Jenking-Rees of the Solicitors' Office of the DSS. I am particularly grateful to him for his submissions.

The claimant's appointee asked for a review of her award of supplementary benefit with effect from 15 January 1979. She sought a payment of various sums to cover the extra baths and laundry needs required by the claimant by virtue of her incontinence. On 24 January 1989 the adjudication officer awarded additional requirements for baths and laundry as from 24 November 1980, the date from which there was, under the relevant statutory provisions, specific authority to make such an award. In due course, the claimant appealed to the tribunal, seeking further backdating, and contending that the award in respect of extra baths and laundry fell within the term "exceptional circumstances additions". The tribunal accepted this contention, but went further than had been initially requested, and made an award retrospectively from 25 April 1973. But, in reaching that decision, the tribunal took into account the fact that the claimant's father was in receipt of a concessionary fuel allowance, and in consequence reduced the number of extra baths to be allowed from one a day to twice a week. The claimant's appointee contends that the tribunal should not have had any regard for the concessionary fuel allowance and as a result have erred in point of law.

I agree with the above contention and on that ground I must set aside the tribunal's decision. However, I do not consider it necessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision.

Nevertheless, the matter is not as simple as it might at first appear. Unfortunately, there is a technical difficulty which has to be fairly faced. Can the award be backdated to 25 April 1973, when initially a review was only sought from 15 January 1979? This involves an analysis of the effects of an original award and all subsequent reviews. When under the supplementary benefit legislation supplementary benefit was awarded, and now under the income support provisions income support is granted, the relevant award continues until reviewed and revised. The revised decision replaces the decision making the original award, and benefit is paid on the bass of the revised decision. That position continues until such time as the latter decision is reviewed and revised, when the new revised decision will take its place, and so on. Accordingly, at any one moment of time a claimant's entitlement to the relevant benefit will be determined by the decision currently in operation. The earlier decisions will have ceased to have any effect for this purpose. However, they are not dead for all purposes. Any one of them is open to review (assuming, of course, the circumstances so justify), and a revised decision may be made covering the period during which that particular decision operated. An obvious illustration of the application of this principle arises where the decision in question was given as a result of a misrepresentation or a failure to disclose, and recovery of the overpayment is sought.

Now, in the present case, it would seem that the original award of benefit was made on 25 April 1973. Presumably, the original award was reviewed and revised from time to time, although there are no details in the papers. Accordingly, when the claimant asked for a review from 15 January 1979, such a review would have related to the awarding decision then in operation. I do not see how it could apply to the earlier decision from 25 April 1973 in the absence of a specific request that the latter decision be the subject of review. Certainly, there was nothing to suggest that the only decision ever made awarding supplementary benefit was the one dated 25 April 1973, and in asking for a review as from 15 January 1979 such request presumably related to a later decision than that of 25 April 1973. Accordingly, I do not see how the tribunal were ever entitled to backdate their revised decision to 25 April 1973, at least without resort to some device to overcome the difficulty referred to above. I understand Mr. Kershaw, in order to meet the problem, submitted to the tribunal that they themselves could review the original award as from the earlier date in reliance on section 102(1) of the Social Security Act 1975 (now section 36(1) of the Social Security Administration Act 1992). The tribunal will appear to have adopted that suggestion, and thereby rectified the omission on the part of the adjudication officer himself to review the award from the earlier date. I consider the tribunal entitled to take this course pursuant to the principles laid down in CSB/1272/1989. Moreover, I myself can likewise make good the omission in reliance on section 102(1).

However, the tribunal had, of course, as had the adjudication officer before them, to deal with the effect of regulation 69 of the Adjudication Regulations which imposed a twelve months limit on backdating. But, like the adjudication officer, they were content to accept that, on the facts, the limitation imposed by regulation 69 could be lifted by virtue of regulation 72(1)(a). I agree with their view. Accordingly I formally review the original award as from 25 April 1973, and I reinstate the tribunal's decision with the modification that the number of extra baths to be taken into account be one each day, and not be limited to merely two a week.

My decision is as set out in paragraph 1.

Date: 2 December 1992 (signed) Mr. D. G. Rice

Commissioner

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