UK Social Security and Child Support Commissioners' Decisions

 


1. This appeal, brought with leave of the regional chairman, succeeds. The decision of the Appeal Tribunal on 23 8 01 was erroneous in point of law because it apparently failed to notice that the appellant had claimed late and therefore its revised assessment of disablement, though perfectly correct in itself, could not lawfully be implemented exactly as it stood.. I therefore set its decision aside and remit the appeal to a differently-constituted tribunal, which will treat entitlement as well as assessment as before it. I think it better to remit the appeal rather than decide it myself adversely to the appellant, so as to give his advisers a chance to counter the submissions the Secretary of State will no doubt make.
2. I held an oral hearing, which had been directed by another commissioner. The appellant, who was present, was represented by Miss Berridge of counsel, instructed by Thompsons. Mr James represented the Secretary of State. I am grateful to both representatives for their assistance.
3. The appellant on 27 9 99 suffered an unpleasant industrial accident in which he effectively lost the distal phalanges of his right index and middle fingers. Happily for him, he is ambidextrous, and has been able to return to his usual occupation as a maintenance craftsman, but he is hampered by having to wear a glove on his right hand, as well as by the undoubted diminution in his ability to handle small objects as he lacks sensitivity in what are now the tips of the affected fingers. I note from his claim form that the accident happened when his fingers slipped while testing for vibration, which indicates that sensitivity is required in his job. Working outdoors in cold weather causes him pain in the affected fingers. He also, not surprisingly, lacks confidence in dealing with fans and fan belts, as it was one of these in which his fingers were caught.
4. As the accident happened on 27 9 99, the first date on which a disablement assessment could be made was 10 1 00 (the day after the expiry of the period of 90 days beginning with the day of the accident, excluding Sundays: s103(6) of the Contributions and Benefits Act 1992). That was also the day on which he became entitled to claim disablement benefit. However, under regulation 19(1) of, and Schedule 4 no 3 to, the Claims and Payments Regulations 1987 as amended, the prescribed time for claiming disablement benefit is 3 months from that day. There is no longer any provision to extend that time for good cause. The appellant did not claim disablement benefit until 18 9 00.
5. He was examined by a doctor on 20 11 00, and as a result of that examination he was found to be only 10% disabled from 10 1 00. As this was less than the 14% necessary to establish entitlement to a pension, that decision was, in the eyes of the Secretary of State in his embodiment as a decision maker, enough to dispose of the claim, without troubling to deal with the lateness. The decision actually rendered was "[The claimant] is not entitled to Disablement Benefit from 10 January 2000 as he has a disablement assessment of less than 14% resulting from an industrial accident on 27 September 1999".
6. The appellant appealed this assessment to a tribunal, effectively with the support of the Secretary of State in his guise as an appeals officer, who in paragraph 5 of the tribunal submissions pointed out that under the General Benefit Regulations 1982 there is a tariff of 9% for the amputation of one phalanx of the index finger and of 7% for the amputation of one phalanx of the middle finger, making a total of 16%. Nothing was said expressly to draw attention to the lateness of the claim, other than a mention of the dates involved.
7. The tribunal willingly accepted the assessment submission and assessed disablement at 16% from 10 1 00 for life final. This meant the appellant qualified for a 20% pension under the rounding-up rules. Everybody was happy.
8. However, in implementing the tribunal's decision the Secretary of State was mindful of the late claim and, by a letter of 10 9 01, awarded benefit only for 3 months back from the date of claim, 18 6 00 (page 86). So far as I can see, the decision maker was perfectly correct in doing this. But the appellant's advisers seem to have regarded this award as in some way emanating from the tribunal and, instead of making it the subject of a separate appeal, which it seems to me would have been the proper course, to argue that the tribunal had given inconsistent decisions. The regional chairman gave leave to appeal, identifying the problems that arise under the new adjudication system. Technically he was right, in that the tribunal's short decision notice dealt unequivocally only with the disablement (assessment) question, whereas the full statement did in its final paragraph refer to an "award" of benefit. The two were thus apparently inconsistent, quite apart from what the Secretary of State did with them. I add that it is now too late for the decision letter of 10 9 01 to be appealed, as late appeals may not, under regulation 32 of the Social Security etc (Decisions and Appeals) Regulations 1999, be brought more than a year after the expiry of one month from the date of an award notification.
9. The problem highlighted in this case was identified in CI/3700/00(T), one of the many decisions in which commissioners have struggled to make sense of the complex (to use a polite term) adjudication provisions introduced by the Social Security Act 1998 and the Decisions and Appeals Regulations 1999. Claims to benefit are decided under s8(1)(a) of the 1998 Act and are appealable under s12(1)(a). Until SI 2000 No 1596 came into effect on 19 6 00, there was no appeal against a disablement assessment under s8(1)(c); but regulation 26(c) of the Decisions and Appeals Regulations now provides for this by what is termed a "free-standing" appeal. CI/3700/00 held that following a successful appeal which raised only the assessment question under regulation 26(c), a fresh claim would have to be made unless the Secretary of State treated what in that case was an application to supersede a running, unappealed, assessment made under earlier legislation as a fresh claim (a matter entirely for him). If he did not do this, then presumably the non-extendable time limit under regulation 19(1) of the Claims and Payments Regulations would operate adversely to a claimant who had succeeded on his assessment appeal. In CI/1547/01 the commissioner was struck by the impracticality of this where it was at all possible to treat entitlement as well as assessment as before a tribunal, where the refusal of benefit was because of the inadequate assessment. The commissioner recommended that even if it is the Secretary of State's practice to treat most appeals against assessment as also being applications for revision of the decision against entitlement, a tribunal should satisfy itself that this has been (or will be) done before treating an appeal before it as limited to assessment.
10. In the present case, the Secretary of State's officer did not support the appeal, arguing that the tribunal did indeed have before it a decision on entitlement as well as on assessment, and that the tribunal submission covered both aspects. (As mentioned above, I cannot find that it did.) The short form decision did not consider entitlement, but the full statement did. He overlooked that inconsistencies between the short decision and the full statement may of themselves be grounds for appeal. He also submitted that the quite separate awarding decision made by the Secretary of State was correct. The appellant's representative (then his trade union) reiterated that what was still termed "the letter confirming the Decision" was at variance with the tribunal's award, and urged the "injustice" of the appellant being deprived of benefit for a period.
11. There is of course no injustice in the appellant being subjected to the late claim rules, just like any other claimant. What would be unjust in comparison with other claimants would be to give him benefit to which he was not entitled simply because of mistakes made by the decision maker and the tribunal. Mr James at the oral hearing submitted that there seemed nothing wrong with the late claim decision, and that I could either remit the appeal to a tribunal to decide the late claim point, or decide it myself.
12. Miss Berridge, on the other hand, urged me to accept the Secretary of State's officer's concession in his written submissions that the tribunal had both entitlement and assessment decisions before it and declare that its decision meant disablement benefit had to be awarded from 10 1 00, without regard to the late claim objection. This of course ignored the fact that the appeal she was instructed to argue was that the tribunal's decision was wrong, not that it was right. I asked how she suggested I should achieve what she wanted, since I have no jurisdiction to declare what a tribunal's decision means other than by allowing or dismissing an appeal against it on the ground of error of law, substituting my own decision if I can properly do so: s14 of the Social Security Act 1998. She suggested that I could "review" the tribunal's decision, but of course I cannot do this: "review" no longer exists under the new adjudication regime, and only the Secretary of State can supersede a tribunal's decision, under s10 of the 1998 Act. Miss Berridge and those instructing her did not seem fully to have considered the late claim point, which is why I have ultimately decided (differently from the impression I probably gave at the oral hearing) to remit the appeal rather than decide it myself without the benefit of focused submissions.
13. I conclude that the tribunal was in error of law. It did not make clear what it did think it was doing. If it did not think a decision on entitlement was before it, then it was wrong, as mentioned in CI/1547/01, in not "satisfying" itself that the Secretary of State would treat the benefit claim as made on 18 9 00 and not at some later date (he in fact did so, but the tribunal was not to know this). If it did think a decision on entitlement was before it, then its decision was wrong in law because it did not deal with the late claim aspect.
14. It seems the only way I can usefully give the appellant a chance to argue the late claim point properly, given that an appeal against the awarding decision is now out of time, is to hold that, as submitted by the Secretary of State's officer, the tribunal of 23 8 01 did have an entitlement as well as an assessment decision before it, with which it failed to deal properly, and remit the appeal on that basis, directing further submissions on the late claim. Of course, remitting the appeal throws open the whole claim again and in principle admits the possibility that the rehearing tribunal will form a different view on assessment, as well as payability.
15. What I do not consider I can do, either as a matter of jurisdiction or on the merits, is declare the tribunal's decision to mean that the appellant gets benefit from a date several months before he appears to have been entitled to it under the Claims and Payments Regulations and direct the Secretary of State to implement that decision. Schedule 4, no 3 to those regulations expressly draws a distinction between entitlement and payability in providing that the prescribed period for claiming disablement benefit is "as regards any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to benefit, that day and the period of 3 months immediately following it".
16. This appeal illustrates the vice of the "salami" approach, beloved of time management consultants but inappropriate in a case like this. The original decision maker satisfied him or herself, wrongly as it has turned out, that the claim had to fail on the ground of assessment alone, and therefore did not trouble to deal with the late claim. This meant that if the appeal succeeded on assessment there would have to be a separate decision on payability, with the prospect of another appeal, or at the very least an adjournment part-heard. If both points had been dealt with in the tribunal submissions, there would have been no need for that. The tribunal erred in not (I suspect) picking up that there was a late claim point. In many cases, this might not have mattered (since the Secretary of State did preserve the original claim date); but in this case it did, because this was a new claim to which time limits outside those prescribed for revision or supersession applied. I endorse the approach in CI/1547/01, but it was not operated here. If it had been, the tribunal might have adjourned for a decision covering all necessary points.
17. It is most unfortunate that the adjudication system in this area depends on decision makers being alert to points which will only arise if their decision is overturned on appeal, or on tribunals wanting to allow appeals likewise being alert to points that will not have been dealt with in submissions and which may necessitate adjournments. I add that matters are not helped where experienced representatives either fail to notice late claim points or hope to swing them past inadvertent tribunals (though I do not suggest that happened here).
18. Regulation 26(c), presumably added as an afterthought when it was realised that otherwise there would be no appeal against an assessment decision, is a trap for the unwary, into which everyone here fell headlong. The appeal succeeds.

(signed on original) Christine Fellner

Commissioner

18 November 2002