UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Manchester appeal tribunal, held on 16^th July 2001 under reference U/40/072/2001/01096, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Heald.

The history of the case

3. The claimant made a claim for a disability living allowance. It was treated as made on 29^th June 2000. Before deciding the claim, the Secretary of State obtained a report from the claimant's GP. That report was not supportive of the claim. When it was received, the claim was considered and refused. The claimant exercised her right of appeal and produced hospital evidence in support. However, the tribunal dismissed her appeal on 19^th November 2000.
4. Meanwhile, the claimant had submitted another claim for a disability living allowance. This was treated as made on 6^th September 2000. Again a report was obtained from the claimant's GP. This time it was written by a different GP and was much more supportive than the one written for the earlier claim. An award was made. It consisted of the mobility component at the higher rate and the care component at the highest rate. It ran for the inclusive period from 6^th September 2000 to 5^th September 2003. The award was made on 15^th November 2000. That was four days before the hearing of the appeal on the earlier claim.
5. When the Secretary of State learned of the tribunal's decision, an officer wrote a memo asking:

'Please register as an S. of S. reconsideration.'

That request was made on 28^th November 2000. The reason was this. An award cannot begin unless a claimant has been sufficiently disabled for three months. In the case of the second claim, the three months ran from 6^th June 2000. But part of that period was covered by the decision of the appeal tribunal, which found that the claimant was not sufficiently disabled for an award to be made. Before a decision was made on supersession, a report was obtained from an examining medical practitioner. When it was received, the claimant's award was terminated from and including 3^rd January 2001. That was the date when the decision was made. It was recorded as a supersession.

6. The claimant exercised her right of appeal against the Secretary of State's decision terminating her award. However, the tribunal dismissed her appeal. The appeal against the tribunal's decision is now before me.

Procedural issues

7. The case first came before Mr deputy Commissioner Wikeley. He issued a direction. He drew attention to the memo of 28^th November 2000 and to the fact that it was written within one month of the date of the Secretary of State's decision making the award. In those circumstances, he asked: Could there be a supersession within one month of a decision? Was not revision the proper procedure? Could a tribunal give a revision decision in place of the supersession decision?
8. In response, the Secretary of State has submitted that the Secretary of State's supersession was of no force or effect, but that the tribunal and the Commissioner can and should substitute a revision decision terminating the award from and including 6^th September 2000.
9. Can a tribunal change a supersession into a revision? I dealt with that issue in CDLA/4977/2001, paragraph 27. The Secretary of State's representative in this case has overlooked that decision. I wrote:

'27. The representative is correct that the legislation does not give an appeal tribunal the power to make a revision or supersession. If there has been no supersession, the tribunal cannot undertake one. Assume, for example, that the Secretary of State has dealt with a change of circumstances under the revision procedure. There is no power to do that. A change of circumstances cannot only be taken into account under a supersession: regulation 3(9)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. On appeal, the tribunal can only decide that the revision was made without legislative authority and was of no force or effect. That leaves the Secretary of State to undertake a supersession. The claimant will have a right of appeal against the outcome decision. The same applies in reverse if the Secretary of State has used the supersession procedure instead of the revision: see regulation 6(3) of the 1999 Regulations.'

10. So, if the Secretary of State's supersession decision was of no force or effect, the tribunal and the Commissioner have no power to convert it into a revision decision. But was the Secretary of State entitled to make a supersession decision?
11. The power to supersede is governed by section 10 of the Social Security Act 1998. It allows the Secretary of State to supersede

'either on an application made for the purpose or on his own initiative'.

See section 10(1)(b). Regulation 6(2)(b)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is also relevant. This confers power to supersede if

'an application for a supersession was received by the Secretary of State, or the decision by the Secretary of State to act on his own initiative was taken, more than one month after the date of notification of the decision which is to be superseded'.

12. A claimant who wants a supersession must make an application. However, if the Secretary of State wants to supersede, an application is not necessary. The supersession can be undertaken on the Secretary of State's own initiative. (This is different from the review procedures for disability living allowance under which even the Secretary of State had to make an application: see section 30 of the Social Security Administration Act 1992.)
13. In this case, the Secretary of State was entitled to make a supersession decision. I reach that conclusion in two ways.
14. First, my conclusion follows from the wording of regulation 6(2)(b)(ii). The relevant date is the date when the Secretary of State's 'decision … to act on his own initiative was taken'. That decision was not taken until 3^rd January 2001. Until then, no decision to act had been taken. The memo of 28^th November 2001 only instituted an investigation. It was neutral on the action that should be taken when those investigations were complete. The need to act only became clear when the investigation was completed. If the examining medical practitioner's report had shown that the claimant was entitled to her award, no action would have been taken. If, as in this case, the report showed the need to act, the action available to the decision-maker was determined when the decision was taken. If the report had been received sooner and the case came before a decision-maker within the one month limit, only a revision decision could have been taken. But by the time the report was available and the case came before a decision-maker, more than one month had passed. The decision-maker was entitled to make a supersession.
15. Second, my conclusion follows from the nature of a supersession. A supersession on the Secretary of State's initiative only takes place when the decision is taken. It is not a procedure that has to be initiated and which is spread over a period of time. Investigations may be necessary before the decision is given. But those investigations are not part of the supersession process; they are preliminary to it. So, the supersession did not occur until the decision was made on 3^rd January 2001. That was more than one month after the decision that was superseded. A supersession was permissible.
16. Both these analyses have the effect that the time limit in regulation 6(2)(b)(ii) applies differently according to whether the supersession is sought by the claimant or the Secretary of State. However, it is an unavoidable consequence of the lack of any need for an application before the Secretary of State can supersede.

The substantive issues

17. I turn now to the substantive merits of the appeal.
18. The claimant opted for a hearing on the papers. The tribunal was presented with a conflict of medical evidence. For the claimant, was the GP's report written for the later claim. Against the claimant, were the GP's report written for the earlier claim and the examining medical practitioner's report. The tribunal preferred the latter evidence, particularly the examining medical practitioner's report. The tribunal explained that this was 'based on discussion with, observation of and clinical examination of the appellant and it was specifically prepared for the purpose of disability living allowance.'
19. The first ground of appeal is that the tribunal did not deal adequately with grounds for suppression. I reject that argument. The key to the supersession issue was the tribunal's findings of fact on the claimant's disablement. Once the tribunal had based its findings on the examining medical practitioner's report, it was obvious that there were grounds to supersede the decision making the award. The decision-maker had clearly acted in error of fact.
20. The second ground of appeal is that the tribunal did not refer to two other letters from a hospital doctor. I reject that argument. It would have been better if the tribunal had referred to those letters. However, the test I have to apply is whether the tribunal's reasons were adequate. Perfection is not the test. It is not necessary for a tribunal to refer to every piece of evidence before it. In this case, the letters are deficient as evidence compared with the report of the examining medical practitioner for two reasons. First, in so far as they deal with disabilities, they are more likely to be taken from the claimant's own statement than to be opinions reached by an objective assessment. Second, in so far a they deal with the claimant's medical conditions, they are not directly relevant to disability living allowance, which is concerned with the disabling effects of those conditions. Even if I had found the tribunal's decision to be erroneous on this ground, I would not have directed a rehearing. Based on my experience both as a Commissioner and as a chairman of tribunals, I am satisfied that there is no reasonable prospect of another tribunal assessing the comparative value of the conflicting medical evidence differently.

Summary

21. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 16th September 2002