UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC CDLA_3466_2000 (20 December 2001)

 
R(DLA) 6/02


Mr. W. M. Walker QC CDLA/3466/2000

Mr. J. M. Henty

Mr. E. Jacobs

20.12.01

Supersession – whether scope to refuse to supersede and to supersede at same rate

The claimant was in receipt of mobility component of disability living allowance at the higher rate. She applied for a review under section 30(2) of the Social Security Administration Act 1992 on the basis that she was entitled to the care component. A new scheme of decision making was then introduced by the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The claimant appealed to a tribunal against the decision-maker's decision, and in turn to the Commissioner, on the facts of the case. The Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners in view of the importance and difficulty of the issues arising out of the introduction of the new scheme.

Held, allowing the appeal, that:

supersession is authorised by section 10 of the Act and is a process of replacing an earlier decision by a new decision;

regulation 6 of the Regulations prescribes threshold criteria for supersession and is neutral on the correctness of the decision to be superseded;

there is no scope for the Secretary of State to refuse to supersede where an application is properly made;

a supersession decision may contain the same award of benefit as the superseded decision and the new decision takes over as from the effective date;

if there has been a change of circumstances the supersession decision will contain a different award and a new effective date has to be determined under regulation 7 or section 10(5) of the Social Security Act 1998.

[Note: This case was determined at the same time as the case reported as R(I) 5/02.]

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Decision:

1. Our decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Wolverhampton appeal tribunal, held on 10 April 2000, is erroneous in point of law.
3. 2. We set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. We direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision in accordance with our analysis of the adjudication scheme under the Social Security Act 1998. The correctness of the award of the mobility component has not been questioned. So, in practice, the only issue for the tribunal is whether a rate of the care component should be added to the award. That requires the tribunal to answer three questions:

The first question is: did the claimant satisfy a threshold criterion in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999? We direct the tribunal that the answer to that question is: yes, it satisfied regulation 6(2)(a)(i).

The second question is: has the claimant satisfied the conditions of entitlement for an award of the care component? In determining this question, the appeal tribunal must not take account of circumstances that were not obtaining at the date of the decision under appeal (16 November 1999): see section 12(8)(b) of the Social Security Act 1998, as interpreted in R(DLA) 2 and 3/01.

The third question is: what is the effective date of the tribunal's supersession decision? This must be answered by reference to regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and section 10(5) of the Social Security Act 1998. See paragraphs 41 and 42 below.

We were told that the claimant has now been awarded the care component. If the tribunal makes an award of the care component, the period of its award must not extend into the period covered by that award.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr. Commissioner Jacobs.
6. The case raised issues on the new adjudication scheme introduced under the Social Security Act 1998. In view of the importance and difficulty of those issues, the former Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners. It was heard before us at an oral hearing in London on 4, 5 and 6 December 2001 at the same time as the appeal in CI/3700/2000, which raised related issues.
7. The claimant did not attend the hearing. She was represented by Ms. H. Winfield, a Welfare Rights Officer from the claimant's local City Council. Unfortunately, she was not able to attend on the third day of the hearing. The Secretary of State was represented by Ms. N. Lieven of counsel, instructed by Office of the Solicitor to the Department for Work and Pensions.
8. The Child Poverty Action Group asked to be heard on the appeal under regulation 24(6)(g) of the Social Security Commissioners (Procedure) Regulations 1999. That request was granted by Mr. Commissioner Jacobs. As a result, the Group became a respondent: see the definition in regulation 4. Its skeleton argument was prepared by Mr. R. Drabble QC and was presented at the hearing by Mr. S. Wright, the Legal Officer to the Group.
9. We are grateful to all the representatives for their arguments and their responses to our questions. They have greatly helped us in understanding and resolving the issues that arise on the adjudication arrangements under the 1998 Act.

Was the tribunal's decision wrong in law?

10. Yes, it was.
11. Both Ms. Winfield and Ms. Lieven submitted that the appeal tribunal's decision had failed to deal with the evidence of the claimant's falls and their potential consequences. We accept their submissions.

Adjudication issues

12. The claimant was awarded a disability living allowance on 14 January 1993. It consisted of the mobility component at the higher rate, but no rate of the care component. It ran for life from and including the effective date of 29 October 1992.
13. In July 1999, the claimant applied for a review under section 30(2) of the Social Security Administration Act 1992. The basis of her application was that she was now entitled to the care component. Reports were obtained from the claimant's GP and from an examining medical practitioner.
14. Before the application could be determined, the Social Security Act 1998 came into force in respect of disability living allowance. Two transitional provisions were relevant. First, the decision making the award was rebased so that it was treated as if it were a decision made under section 8 of the 1998 Act: see paragraph 4(1) of Schedule 16 to the Social Security Act 1998 (Commencement No. 11, and Savings and Consequential and Transitional Provisions) Order 1999 and our explanation of the equivalent provision in CI/3700/2000, paragraph 25. Second, the application was treated as an application to the Secretary of State for the decision making the award to be superseded under section 10 of the 1998 Act: see paragraph 3(1)(b) of Schedule 16.
15. The Secretary of State gave a decision on Form DMA DEC6, headed Decision to supersede but not to change the decision dated 14/1/93. The decision read:

'The decision dated 14/1/93 cannot be changed. Although this decision supersedes the decision dated 14/1/93 the outcome remains the same.'

16. This is what has become known as a 'supersession at the same rate'. Ms. Lieven refused to use that expression, which she regarded as inappropriate. But it neatly encapsulates the issue for us: is that a proper decision under the Social Security Act 1998? Our answer to that question is that it is a proper decision and that 'supersession at the same rate' is a correct expression. That answer requires explanation.

The Social Security Act 1998

17. The Social Security Act 1998 introduced a new system of adjudication for social security. Some of the terminology is new and some is the same as in the previous scheme. However, where the same terminology has been used, its meaning must be considered afresh in its new context.
18. All decisions are taken by officers (decision-makers) acting in the name of the Secretary of State. If a decision requires the use of medical or other expertise, that is provided as evidence or advice, but the decision is still that of the decision-maker. So, in this case the medical expertise of the examining medical practitioner was made available to the decision-maker.
19. The skeleton of the scheme is this. Claims have to be decided under section 8(1)(a). The decision on the claim may be revised under section 9 or superseded under section 10. That may be done either on application by the claimant or on the Secretary of State's own initiative. The decisions that are appealable to an appeal tribunal are governed by section 12.
20. The statutory authority for supersession is section 10. It provides that:

'(1) Subject to subsections (3) … 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.

…

(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.

…

(5) Subject to subsection (6) and section 27 below, a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.

(6) Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.'

21. The right of appeal against supersession decisions is given by section 12. It provides that:

'(1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which-

(a) is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act;

…

(9) The reference in subsection (1) above to a decision under section 10 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.'

The Social Security and Child Support (Decisions and Appeals) Regulations 1999

22. Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is made under the authority of section 10(3) and regulation 7 is made under the authority of section 10(6).
23. Regulation 6 prescribes the cases and circumstances in which a decision may be superseded. As this case concerns a change of circumstances, we set out only regulation 6(2)(a)(i):

'(2) A decision under section 10 may be made on the Secretary of State's or the Board's 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'.

24. Regulation 7 prescribes the effective date of supersession decisions.

The Secretary of State's argument

25. Ms. Lieven's argument was this.
26. Section 10 authorises only two actions by the Secretary of State. One is to give a decision superseding the earlier decision. The other is to take no action on the application. In practice, the second course involves a letter being sent to the claimant. However, this is only an explanation. It tells the claimant why no action is being taken on the application. It is not a decision. A decision refusing to supersede is not authorised by section 10.
27. A decision superseding a decision is subject to the right of appeal under section 12(1)(a). Section 12(9) makes clear that an appeal lies only against a decision to supersede. If the Secretary of State takes no action on the application, there is no right of appeal. The only right of challenge is by way of judicial review. She accepted that in practice that form of proceeding is likely to deter many claimants from challenging the Secretary of State's refusal to act on the application.
28. She supported her argument by reference to statements of Ministers in Parliamentary debates and argued that a different interpretation was neither permissible nor required under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms or section 3 of the Human Rights Act 1998.
29. Turning to the Regulations, she argued that 'relevant change of circumstances' covered a wider category of cases than under the interpretation given to that expression in the former scheme by the Court of Appeal in Saker v Secretary of State for Social Services, reported as R(I) 2/88. She argued that it covered cases in which there was a change that was relevant to the conditions of entitlement to a benefit.

CPAG's argument

30. Mr. Wright's argument was this.
31. A refusal to supersede is a permissible decision under section 10. A decision in that form is appealable. There are alternative arguments to avoid the apparent meaning of section 12(9). One involves reference to Article 6(1) of the European Convention or section 3 of the Human Rights Act, even though the decision had been taken before that Act came into force. This involves reading words into section 12(9), an argument that is always difficult to sustain. The other relies on section 8(1)(c), which provides for the Secretary of State 'to make any decision that falls to be made under or by virtue of a relevant enactment'. Section 10 is a relevant enactment. A refusal to supersede falls within section 8(1)(c) and is, therefore, appealable under section 12(1) as a decision made under section 8. On this argument, section 12(9) is merely concerned with decisions to supersede; it does not prevent an appeal against a decision refusing to supersede.
32. He challenged the admissibility of the Parliamentary debates, pointed out that the comments of the Ministers were contradicted by comments made by other Ministers in other debates and argued that judicial review was not an adequate remedy under Article 6(1).

The claimant's argument

33. Ms. Winfield's argument was this.
34. A decision at the same rate is permissible under section 10 and appealable under section 12. It is not necessary for a new claim to be made in order for a change of circumstances to be taken into account. Having heard Mr. Wright's arguments, she argued that if a supersession at the same rate is not permissible, the proper decision in this case was a refusal to supersede that fell within section 8(1)(c) and was appealable.

Our analysis

35. In short, our analysis produces the result sought by Mr. Wright and Ms. Winfield by adopting, with slight modification, the analysis of Ms. Lieven.
36. Three days of detailed analysis of a small number of provisions left us with the indelible impression that there had been a confusion in, or perhaps a change of, policy, probably in the course of the passage of the Bill through Parliament and certainly between the passing of the Act and the making of the Regulations. We have tried to make the best business sense we can of the legislation as a whole. By that we mean that we have sought an interpretation that produces a result that is rational, coherent and workable. We interpret the adjudication scheme introduced by the Social Security Act 1998 as a new scheme. It must be interpreted in that light, without carrying over concepts from the former scheme that are out of place in the new and giving proper weight to the new context in interpreting expressions that may appear to reproduce concepts that are familiar from the former scheme.
37. We reach our conclusion on an analysis of the adjudication scheme as a whole and on the interpretation of regulation 6. In view of the conclusion we have reached, the Parliamentary debates were not admissible and no human rights issue arises.
38. We broadly accept Ms. Lieven's analysis of sections 8, 10 and 12 of the Act. Section 10 authorises the supersession of decisions. Supersede means replace. It refers to a process. There is no implication that the decision superseded must be wrong in fact or law, out of date, or deficient in any other respect. That leaves no scope for a refusal to supersede. It follows that section 8(1)(c) cannot cover refusals to supersede. It also follows that section 12(9) merely makes clear what was the case anyway.
39. This analysis does not result in a violation of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. The reason is found in the Regulations and in the availability of judicial review.
40. Regulation 6 prescribes threshold criteria, not outcome criteria. By that we mean this. It prescribes cases and circumstances in which an application is brought within the scope of section 10. That is in accordance with our interpretation of supersession as a process that is neutral on the correctness of the decision that has been superseded. It does not prescribe criteria that determine whether a new outcome is appropriate. That is not governed by regulation 6. It is left to be determined, without prescription, by reference to the facts of the case and the conditions of entitlement.
41. The first question for the Secretary of State when a letter is received from a claimant who has an award is: is this an application for a supersession? The Secretary of State is entitled to treat a letter that contains no more than abuse or irrelevance as not amounting to or containing an application. This covers two categories of letter. The first category consists of cases where the letter contains nothing that is relevant to the benefit that the claimant has been awarded. An example is the claimant who asks for in increase in income support because the price of cat food has gone up. The second category consists of cases where the claimant already has the maximum award of benefit. An example is the letter asking for an award of disability living allowance for a period earlier than the date of claim. Those two categories are linked by this common thread, that no further investigation of fact or law could possibly produce a different award from the one that has been made. The Secretary of State is entitled to keep those cases out of the adjudication scheme. Judicial review provides an adequate procedure for challenging this limited class of case in which the claimant has no possibility of success. There is no violation of Article 6(1) in this regard.
42. If there is no application, the Secretary of State is not required to give a decision on it and need do no more than explain to the claimant why that will not be done.
43. In all other cases there will be an application. It will contain an assertion, for example that there has been a change of circumstances. That is sufficient to satisfy a threshold criterion for entry into the supersession procedures. Once within those procedures, the Secretary of State has to investigate and determine the facts. The Secretary of State then supersedes the earlier decision. The decision given will depend on the facts found.
44. If the Secretary of State finds that there has been no change of circumstances, the supersession decision will contain the same award. The Secretary of State must identify an effective date for the supersession decision either under regulation 7 or, if the case is not covered by that regulation, under section 10(5). In the case of a change of circumstances, there are detailed provisions in regulation 7 that turn on whether the change is advantageous or disadvantageous to the claimant. They are appropriate to cases where a supersession decision changes the terms of the award. If there is no change in the terms of the award, the case falls more naturally into section 10(5), which fixes the effective date as the date of the decision or of the application. The point is not of practical significance, because the change of circumstances asserted by the claimant has not resulted in a change in the award. So, the determination of the effective date can no doubt be taken shortly by the decision-maker.
45. If the Secretary of State finds that there has been a change of circumstances, the supersession decision will contain a different award. A new effective date has to be determined. In this case, a change of circumstances asserted by the claimant in the application has led to a new award. So, it falls naturally into regulation 7(2)(a).
46. Our analysis covers more cases than Ms. Lieven's suggested interpretation. In particular, it includes within the supersession process cases in which there is an alleged change of circumstances which is rejected by the Secretary of State on consideration of the evidence.
47. We have explained our analysis in terms of a supersession on an application that confirms or increases an award. However, it applies also to supersessions decisions that reduce or terminate an award and to supersessions on the Secretary of State's own initiative.
48. The supersession of a decision automatically brings it to an end and closes the award that it contains. The supersession at the same rate decision then takes over the award from and including its effective date. That is nowhere stated, but it is inherent in the nature of a supersession.
49. Any decision given on supersession is subject to the right of appeal under section 12(1) and (9).
50. Although we have set out our reasoning in relation to a change of circumstances, it applies also to the other cases and circumstances prescribed in regulation 6. It explains those provisions which identify cases and circumstances in which a new outcome would not necessarily be appropriate. One example is regulation 6(2)(e) (award of one benefit to a person receiving another benefit) and another is regulation 6(2)(g) (new medical evidence relevant to a personal capability assessment). In neither of those cases would a decision in different terms necessarily be required or justified.

Section 8(2)(b)

51. We accept the argument of Mr. Wright and Ms. Winfield that a new claim is not necessary in order for a change of circumstances to be taken into account. Our reasons are given in CI/3700/2000, paragraphs 27 to 32.

CI/1132, 2087 and 2088/2000

52. Some of the issues covered by our decision were considered in CI/1132, 2087 and 2088/2000. In so far as the reasoning differs, the reasoning in those cases must not be followed.

Summary

The decision of the appeal tribunal was wrong in law and must be set aside. It is not expedient for us to determine the claimant's entitlement to a disability living allowance, because further investigation and assessment of the evidence by experienced panel members is needed. We direct a rehearing of the case.

Date: 20 December 2001 (signed) Mr. W. M. Walker QC

(corrected 31 January 2002) Commissioner

Mr. J. M. Henty

Commissioner

Mr. E. Jacobs

Commissioner