UK Social Security and Child Support Commissioners' Decisions

 


CI/1547/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Leeds appeal tribunal dated 20 December 2000, whereby they confirmed a decision of the Secretary of State, dated 20 February 2000, given in respect of an assessment of disablement resulting from prescribed disease A11, and I refer the case to a differently constituted tribunal for determination.

REASONS

2. It will be noted that, in paragraph 1 above, I have not explained what the Secretary of State's decision was. That is the first problem arising in this case, despite the fact that the case is, at first sight, a very ordinary one.
3. The claimant claimed disablement benefit in respect of prescribed disease A11 (vibration white finger) on 30 April 1996. On 29 October 1996, he was examined by an adjudicating medical authority who assessed the resulting disablement at 3 per cent. from 15 April 1988 for life. On 23 February 1998, he applied for a review of that assessment on the ground that there had been unforeseen aggravation of the effects of the disease. On 21 April 1998, an adjudicating medical authority decided that there had been no unforeseen aggravation and that decision was confirmed on 25 September 1998 by a medical appeal tribunal. On 30 June 1999, a Commissioner set aside the medical appeal tribunal's decision and referred the case to another tribunal. On 17 September 1999, an appeal tribunal again decided there had been no unforeseen aggravation. On 14 April 2000, a Commissioner refused leave to appeal.
4. Meanwhile, the claimant made the application that has led to this appeal. In a letter dated 2 November 1999, written in response to a document received from the Appeals Service, which I suspect was the statement of reasons for the tribunal's decision, the claimant enclosed either one or two (it is not quite clear) medical reports that pre-dated the tribunal hearing. He did so specifically because he had been told that his appeal had failed due to a lack of medical evidence. He expressly asked for a "review on the grounds that the original assessment was given in ignorance as to a material fact". He then completed form BI 168 which is headed "Industrial Injuries Disablement Benefit – Change of circumstances" and which asked him to identify the decision he wished the Secretary of State "to look at again". He identified the decision of the appeal tribunal given on 17 September 1999. That form was received by the Benefits Agency on 3 December 1999. After obtaining a further medical report, the Secretary of State's decision-maker decided on 20 March 2000 that the "outcome decision" should be "no change of circumstances" and, on 22 March 2000, notice of that decision was issued in the following terms:

"You told us about a change in your circumstances regarding your vibration white finger.

You asked that we look again at your decision because:-

you are claiming Disablement Benefit and your condition has changed.

We have looked at the points you have raised and the facts and evidence used to make the original decision. There has been no change since your original decision."

If you think this is wrong, you have the right to appeal against the decision not to take into account your change of circumstances."

If you want to know more about this decision or if you think it is wrong

Please contact us and we will give you an explanation. Our telephone number and address are at the top of this letter.

You should contact us within one month of the date of this letter, or we may not be able to consider any dispute. Further information on the disputes and appeals process can be found in leaflet GL24 If you think our decision is wrong.

What happens after the decision is looked at again

If the decision can be changed we will send you a new outcome decision. If we cannot change the decision we will tell you why. You still have the right of appeal against the decision.

How to appeal

If you want to appeal you should fill in the form GL24 If you think our decision is wrong. Please send it to the address at the top of this letter within one month of the date of this letter. You can get this leaflet from any Social Security office or Jobcentre. Your appeal will be heard by an independent appeal tribunal."

That was plainly intended to be notice of a proper decision by the Secretary off State. It contained, albeit by reference to another document, the information that is required by regulation 28 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to be included on such a notice. It even alluded to the possibility of the decision being revised under regulation 3(1), albeit without using that term.

5. Despite the repeated statements by Commissioners that tribunals should be informed of the exact terms of a decision under appeal, there was no copy of that notice of decision in the bundle of documents before the tribunal and the submission to the tribunal stated that the decision was:-

"The assessment of disablement resulting from Prescribed Disease A11 cannot be reconsidered as the effects of the disease have not been changed since the assessment of disablement was made on 29 October 1996."

6. At a local level within the Benefits Agency, there seems to be a lack of regard to the legislation now governing the making of decisions. Section 8 of the Social Security Act 1998 provides for the making of decisions, section 9 for their revision and section 10 for their supersession. Section 12 provides for appeals against decisions under section 8 and section 10. In respect of decisions under section 10, section 12(9) provides that there shall be an appeal only against a decision superseding certain earlier decisions. The Social Security and Child Support (Decisions and Appeals) Regulations 1999, prescribe the cases and circumstances in which review or supersession decisions may be made under sections 9 and 10. Regulation 6(2)(a)(i) provides that –

"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; ….".

The legislation does not refer to "reconsideration" or "outcome decision" which are the terms used in the Benefits Agency's documents. The Benefits Agency's documents do not refer to "revision" or "supersession", which are the terms used in the legislation.

7. The mismatch between the legislation and the Benefits Agency's internal procedures has led to the effect of decisions issued by the Benefits Agency being considered by a Commissioner in CI/1132/00 and, more recently, by a Tribunal of Commissioners in CI/3700/00 and CDLA/3466/00, who took a different approach from that taken by the single Commissioner. The Tribunal took the view that section 12(9) of the 1998 precluded there being any appeal against a refusal to supersede. However, they did not consider that to be of great significance because they accepted the submission made on behalf of the Secretary of State to the effect that it was possible to supersede a decision and substitute a decision "at the same rate". They said, in paragraph 37 of CDLA/3466/00 –

"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."

Thus, as I understand the decision, as long as a claimant makes an application "on the basis" that one of the grounds in regulation 6(2) exists, the decision will be superseded, even if the Secretary of State finds none of the grounds in regulation 6(2) actually to be made out. If he does not find the ground to be made out, he will presumably supersede "at the same rate" so that the claimant's application will have been unsuccessful in practical terms but there will at least have been a supersession so that he is entitled to appeal.

8. All this theory is, of course, a long way from the practice of the Benefits Agency as revealed through its documents and submissions to tribunals. However, it is possible to reconcile the theory with the practice. As the Tribunal of Commissioners accepted the Secretary of State's assertion that any action taken on an application for supersession necessarily led to a supersession, albeit that it might be "at the same rate", it seems to me necessary to construe any decision, purporting to comply with the requirements of regulation 28 of the 1999 Regulations, made on such an application as being a supersession (unless, having regard to regulation 3(10) of the 1999 Regulations, it is clearly a revision). This is so whatever language has been used by the decision-maker or the person writing a submission to a tribunal. In the present case, there was no mention of a supersession and one might think that a statement that a decision "cannot be reconsidered" was a statement that it could not be superseded. In other cases, I have seen submissions to appeal tribunals in which it is expressly stated that the decision under appeal is a refusal to supersede an earlier decision. In the light of the decision of the Tribunal of Commissioners, those assertions to tribunals must be regarded as erroneous. It is necessary to proceed on the basis that there has been a supersession, albeit at the same rate. I therefore accept the Secretary of State's submission that that is how I should proceed in the present case.
9. I should, however, add that I am not convinced that the converse approach – i.e., that there is no supersession where the Secretary of State refuses to issue a document that purports to be a decision in a case where a claimant has applied for a supersession – necessarily holds good in all cases. The Tribunal of Commissioners accepted the Secretary of State's submission that there are cases in which the Secretary of State is entitled to take no action rather than issuing a decision. I do not doubt that that is so. The Secretary of State is certainly entitled to have a look at cases of his own motion without issuing any sort of decision. Furthermore, there may be letters from claimants that might possibly be regarded as applications for supersession but which are nonetheless so frivolous that the Secretary of State is entitled to consider that the claimants do not intend them to be taken seriously. However, I am concerned that some of the illustrations of cases where it has been suggested by the Secretary of State's representatives that no action may be taken do not draw a distinction between something that is not in substance an application for supersession and something which is a misconceived application but is nonetheless a genuine application. Any genuine application ought, in principle, to lead to a decision.
10. Counsel for the Secretary of State told the Tribunal of Commissioners that there were issued to claimants in cases where "no action" was being taken a letter containing an explanation. The Tribunal of Commissioners stated, obiter in paragraph 10 of CDLA/3466/00, that such a letter would not be a decision because a decision refusing to supersede a decision is not authorised. With respect, it seems to me that there are cases, including those where there has been a genuine application for supersession, where such a letter is in substance a decision and should be treated as a decision to supersede "at the same rate", notwithstanding the failure to put it in the form required by regulation 28 of the 1999 Regulations. A failure to comply with regulation 28 does not render a decision invalid so as to prevent the claimant from appealing against it. There are countless examples of cases where, despite a decision-maker regarding it as obvious that a claimant had no case, a tribunal or a Commissioner or a court has decided otherwise. It would be most unsatisfactory if the Secretary of State could prevent appeals in such cases merely by issuing a letter that fails to comply with regulation 28, when in reality the letter contains a decision. Anything that is in substance a decision should be issued in the proper form. I do not see how it can be said that a refusal to alter a decision following a proper application for supersession can be regarded as anything other than a decision on that application. If the Secretary of State regards the application as hopeless, he should issue a proper decision but he is entitled to ask for any appeal to be struck out as misconceived, which is a procedure that involves a degree of judicial oversight.
11. The Benefits Agency's procedures must be made to work in a way that is consistent with the legislation, as it has been construed by the Tribunal of Commissioners. The fact that decisions are issued without any regard to the terms of the legislation may require recourse to the Humpty Dumpty school of interpretation when considering the words used in decisions issued by the Secretary of State.

"'When I use a word," Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean – neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean so many different things.'

"'The question is,' said Humpty Dumpty, 'which is to be master – that is all.'"

(Through the Looking-Glass, Chapter VI)

However, it is important to remember who is master in the present context. It is Parliament. The Secretary of State is bound to act in accordance with Parliament's will. Parliament may have intended that there should be no such thing as a refusal to supersede a decision but I do not consider that Parliament can have intended that the Secretary of State, merely by declaring that what is in substance a decision is not in fact a decision, should be able to prevent a citizen form appealing to a tribunal.

12. I can now return to the facts of the present case. If the Secretary of State's decision was to supersede an earlier decision at the same rate, what decision was being superseded and what grounds for giving a new decision should have been considered ? Plainly, the Secretary of State had in mind the decision of the appeal tribunal dated 17 September 1999 as the one being superseded and he appears to have considered only the question whether there had been a change of circumstances since that decision. That was consistent with what the claimant had written on the form received by the Benefits Agency on 3 December 1999. However, I see nothing in the legislation that requires an application for supersession to be made on any particular form. Even if there were, the Secretary of State would not be entitled to demand that the claimant complete a form that did not properly represent his application. The claimant, in his letter dated 2 November 1999, was seeking a supersession (although he used the old term "review") of the decision of 29 October 1996 on the basis that that decision had been based on a mistake of fact. At the very least, his supplying the medical reports pre-dating the decision of 17 September 1999, might be thought to imply that his case was that that decision should be superseded on the ground of mistake of fact, rather than on the ground of change of circumstances. The form the claimant was required to complete was wholly inappropriate. The Secretary of State should have considered the real substance of the claimant's case and the fact that he did do so not did not prevent the tribunal from considering it. The tribunal were not, of course, obliged to consider issues "not raised by the appeal" (section 12(8)(a)) but as the claimant's letter of appeal amounted to a broad challenge to the Secretary of State's decision on the basis that it was inconsistent with the evidence as to his disability, all the procedural issues were left open. The tribunal were entitled to take a wholly different approach to the case from the Secretary of State's.
13. In fact, the tribunal's decision was in the following terms:

"We have read all the documents including the report of Professor R C Kester (20 October 1999), who examined [the claimant] on 3 September 1999.

We have questioned [the claimant] carefully.

[The claimant's} case is that the effects of A11 have increased since the last assessment on 29 October 1996.

He has raised this issue previously before Tribunals on 25 September 1998 and 17 September 1999 without success.

We cannot consider any period before 18 September 1999 being the day following the date of the last Tribunal. Nor can we look beyond the date of the decisions under appeal namely 20 February 2000.

The very narrow time window in which [the claimant] must show worsening is therefore 18 September 1999 to 20 February 2000.

Professor Kester's report comprehensively describes all [the claimant's difficulties at 3 September which is just before the commencement of the appropriate period.

We have difficulty with Professor Kester's statement (page 76, third paragraph):

'At the present time, he experiences pallor of the thumb, index, middle and ring finger tips of both hands, extending from the finger tips to the distal inter-phalangeal joints.'

The prescription of PD A11 requires distribution of blanching down to the proximal inter-phalangeal joints.

Therefore on the basis of Professor Kester's description, whatever problems [the claimant] undoubtedly experiences in his hands, he would not on a fresh claim satisfy the conditions for PD A11.

Whilst we cannot legally remove the current assessment, we cannot attribute all his current symptoms (circulatory and neurological) to PD A11 for the reasons indicated.

Even if this were not so, [the claimant] has not satisfied us that any overall deterioration occurred during the limited time period we can consider."

14. The Secretary of State concedes that the tribunal erred in considering only whether there had been a worsening in the claimant's condition since 17 September 1999 when the claimant's case was that the decision given on that day had been based on an error of fact. However, the Secretary of State submits that the tribunal also erred in considering that they were not entitled to give effect to their finding that the claimant was not currently suffering from prescribed disease A11 and that I should substitute my own decision revoking "the award of PD A11". The claimant, on the other hand, submits that the tribunal erred as to the extent of blanching required but he alternatively points to earlier findings that he did have the blanching of the whole of three fingers on one hand.
15. I accept the Secretary of State's submission that the tribunal could have given effect to their finding that the claimant was not currently suffering from prescribed disease A11, at least by deciding that there was no current disablement resulting from that disease. The tribunal seem to have had in mind the old law under which an assessment of disablement could be varied only if the claimant had shown unforeseen aggravation. Since the coming into force of section 10 of the 1998 Act, a tribunal has been entitled to vary an assessment either upwards to reflect aggravation or downwards to reflect improvement. Furthermore, it was open to the tribunal to take the view that the previous decision had been based on a mistake of fact.
16. I do not accept the claimant's submission that the tribunal erred as to the extent of blanching required. Paragraph A11 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 requires that there be:-

"Episodic blanching, occurring throughout the year, affecting the middle or proximal phalanges or in the case of a thumb, the proximal phalanx, of –

(a) in the case of a person with 5 fingers (including thumbs) on one hand, any 3 of those fingers, …"

A thumb has two phalanges, the distal and the proximal. A finger has three phalanges, the distal, the middle and the proximal. There are two inter-phalangeal (i.e., between the phalanges) joints on a finger, the distal and the proximal. The distal phalanx or joint is the one furthest or further from the main part of the hand. The proximal phalanx or joint is the one nearest or nearer the main part of the hand. The wording of the legislation therefore makes it clear that blanching that affects only the distal phalanx (i.e., from the tip of the finger to the distal inter-phalangeal joint) is not enough to satisfy the prescription of the disease. The tribunal were correct in that respect.

17. However, I do not consider it right to substitute for the tribunal's decision a decision even less favourable to the claimant than theirs. The tribunal's finding as to the extent of the blanching of the claimant's fingers was based on one line of Professor Kester's record of the history given to him by the claimant, which the claimant states is inaccurate and which appears to be inconsistent with what has been recorded on at least one other occasion. The tribunal did not advert to the other evidence and, despite what was said in the statement of reasons about the claimant being carefully questioned, there is nothing in the chairman's note of evidence to suggest that the claimant was ever asked about the extent of the blanching in his fingers, far less that he was asked to explain what was in Professor Kester's report. In those circumstances, although the tribunal's finding as to the extent of the blanching may have been correct, I do not consider that I can safely rely on it. I could make my own finding but I cannot properly do so without an oral hearing and I consider that the issues arising in this case would be better determined by a tribunal which includes a medically qualified panel member. Accordingly, I refer this case to another tribunal for determination.
18. There is one further matter to which I should draw attention. In CI/3700/00, the Tribunal of Commissioners recorded that the claimant's application for supersession of the assessment of disablement was treated by the Secretary of State also as a claim for disablement benefit but they stated that, because the appeal to the appeal tribunal raised only issues of assessment, only the assessment decision was under appeal in that case (see paragraphs 34 and 35). However, I do not read the decision as laying down a rule of law that an appeal raising only issues of assessment cannot be treated as being an appeal against the refusal of benefit, when the extent of the assessment was the ground for refusing benefit. In many cases, the two decisions will have been communicated to the claimant at the same time and it will be perfectly reasonable to construe any appeal as an appeal against both decisions. Indeed, the notice of decision issued on 22 March 2000 in the present case does not refer either to the assessment of disablement or to entitlement and could equally well relate to either decision or to both. It is true that regulation 26(c) of the Social Security (Decisions and Appeals) Regulations 1999 permits a free-standing appeal against an assessment of disablement but, unless any such appeal is also treated as being either an application for revision (under regulation 3(1) of the 1999 Regulations) of, or an appeal against, the decision refusing or awarding benefit, I do not see how full effect can be given to a successful appeal against the assessment of disablement. That is because there does not appear to be adequate provision as to the date from which either revision or supersession of a refusal or award of benefit is to be effective following a successful free-standing appeal against the decision on assessment. It may be the practice of the Secretary of State to treat most appeals against assessments of disablement as being applications for revision of decisions as to entitlement, but a tribunal should satisfy themselves that that has been done before deciding to treat the appeal before them as being only against the assessment of disablement and not also against the decision as to entitlement.
19. The Secretary of State may wish to consider an amendment to the 1999 Regulations to provide a simpler mechanism for giving full effect to a decision that is favourable to a claimant on an appeal in respect of an assessment of disablement. A case like the present, where there has been an appeal to a Commissioner, seems to me to present particular difficulties under the legislation as it stands.

(signed) M. ROWLAND

Commissioner

22 February 2002