UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The Secretary of State's appeal to the Commissioner is disallowed. The decision of the Durham appeal tribunal dated 10 July 2001 is not erroneous in point of law, for the reasons explained below, and therefore stands.
2. This case has a very complicated history. The points of law which arise are the same as those which arise in the case of the claimant's wife (CDLA/4347/2001). The two appeals were heard together. However, since the history of the claimant's wife's case is slightly different, for the purpose of clarity I have given separate decisions in the two appeals.
3. The claimant was awarded mobility allowance on 24 February 1989 for the period from 13 January 1989 until he reached the age of 75. That award was converted into a life award of the higher rate of the mobility component of disability living allowance (DLA) for life, by the operation of regulations 7(2) and 8(2) of the Social Security (Introduction of Disability Living Allowance) Regulations 1991. In February 1992 the claimant had submitted a claim form for the care component of DLA. On 27 April 1992 an adjudication officer gave a decision purporting to award the lowest rate of the care component for the period from 6 April 1992 for life.
4. On 16 December 1992 the claimant asked for a review of his DLA as he needed more assistance. On 3 April 1993 the adjudication officer reviewed the decision of 27 April 1992 on the ground of relevant change of circumstances and gave the revised decision that the claimant was entitled to the middle rate of the care component from and including 16 December 1992 and to the higher rate of the mobility component from and including 6 April 1992. The decision recorded that entitlement and rate of payment of the mobility component had not been considered. That was in accordance with section 32(4) of the Social Security Administration Act 1992.
5. On 27 April 1995 the claimant asked for a further review. On 24 May 1995 the adjudication officer gave a decision refusing to review the decision of 3 April 1993. No relevant change of circumstances or other ground of review had been shown.
6. In the period from January to May 1999 there was an investigation into the claimant and his wife, including observations carried out at Newcastle Airport on 17 May 1999. On 28 June 1999 a representative of the Secretary of State applied to an adjudication officer for a review of the decision of 3 April 1993 as evidence received cast doubt on entitlement. On 29 June 1999 the adjudication officer gave a decision reviewing the decision of 24 May 1995 on the ground of relevant change of circumstances. The revised decision was that the claimant was not entitled to the care component or the mobility component of DLA from and including 17 May 1999. The decision was maintained on second-tier review on 17 August 1999. The claimant appealed.
7. The appeal tribunal of 6 April 2000 (which I shall call AT1) said this in its statement of reasons (exactly as typed):

"1. The appeal was against removal of lifetime entitlement to both mobility component (at the higher rate) and care component (at the middle rate for day needs) of Disability Living Allowance.

2. The award was reviewed on application dated 28.6.98 from the Secretary of State. That application requested a review of the Adjudication Officer's decision dated 3.4.94. That decision states, in terms, that entitlement to the other (mobility) component was not considered. Therefore the decision effectively awarding the mobility component was still that dated 24.7.92.

3. The fact that neither the Secretary of State's application on 28.6.98 nor the review decision on 29.6.99 mentioned the decision of 24.7.92 is in our view fatal as to the review of the mobility component."

AT1 went on to accept that the adjudication officer had been supplied with information giving reasonable grounds for believing that entitlement to the care component ought not to continue, that there had been a relevant change of circumstances since April 1993 and that the revised decision was that the claimant was not entitled to the care component from and including 17 May 1999. The chairman completed one printed decision notice for the care component and one for the mobility component. The printed forms did not include any spaces specifically for a decision on the issue of review and revision to be recorded. They simply contained spaces for a decision on entitlement to be recorded. On the care component form the chairman recorded that the claimant was not entitled to an award of the care component from and including 17 May 1999. On the mobility component form she recorded that the claimant was entitled to mobility component at the higher rate from 24 February 1989 for life because he was virtually unable to walk.

8. There was no appeal brought against AT1's decision by the Secretary of State. I understand that an application for leave to appeal may have been made, but that it was out of time and not admitted.
9. The claimant completed another DLA claim form, covering both components, which was received on 11 December 2000. On 16 January 2001 a decision was recorded "on supersession of the Appeals Service outcome dated 6.4.2000 and of a decision dated 24/2/89". The decision was that the claimant was not entitled to the mobility component of DLA from and including 17 May 1999 or to the care component from and including 17 May 1999. The following was recorded under reasons for decision:

"Cust states change of circs as condition deteriorated - now needs help with personal care & change of circs also re mobility. Cust states walks 30 - 35 metres and has problems with balance - needs have been there since 1980s. Observations made by BA investigators on 17.5.99 show cust walking distance in excess of 670 yards. Evidence does not suggest cust would need guidance or supervision whilst outdoors. Cust also states care needs since 1992; getting out of chairs & bed, turning over in bed, loses balance when showering, cannot bend to dress and cannot prepare m.m. Observations on 17.5.99 show cust lifting luggage (cases & holdalls), carrying trays of food & drink and climbing stairs to aeroplane. Based on the observations of 17.5.99 and the comments made by the Appeals Service on 6.4.00 it is unlikely that cust has the care needs which would amount an award of the care component. Benefit revoked from date of observations on 17.5.99."

10. The claimant appealed. At the hearing on 10 July 2001 the claimant's representative, Mr Guy of Durham Welfare Rights, did not put forward any case in relation to the care component. The appeal tribunal (which I shall call AT2) decided that the decision of 16 January 2001 was:

"invalid as to the mobility component as it fails to identify any ground for supersession since the operative decision of the Appeal Tribunal of 6-4-00 awarding higher rate mobility component for life from 24-2-89. That decision remains the operative decision the Tribunal deciding he was virtually unable to walk."

AT2 explained in its statement of reasons that in its view AT1 had made a new decision confirming entitlement to the mobility component. It was the last operative decision on the mobility component and the Secretary of State had not shown any changes of circumstances since 6 April 2000. AT1's decision was restored. AT2 continued:

"We do not consider it open to this Tribunal to treat the Decision-Maker's decision of 16 january 2001 as being made on the basis of mistake of law or mistake as to a material fact as that would not be the decision appealed against and in any event the Benefits Agency had not exercised their right to appeal the decision of 6 April 2000. They had effectively accepted the decision as correct."

11. The Secretary of State now appeals against AT2's decision with leave granted by Mr Commissioner Bano. Following the exchange of written submissions, the request on behalf of the claimant for an oral hearing was granted by a legal officer to the Commissioners. The hearing took place in Doncaster County Court. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department for Work and Pensions. The claimant was represented by Mr Michael Guy of Durham Welfare Rights. I am grateful to both representatives for their submissions.
12. The central issue of law is whether the decision of AT1 was the last operative decision in relation to the mobility component. Ms Haywood submitted that it was not. She submitted that AT1's decision notice had to be interpreted in the context of what was said in the statement of reasons. Paragraphs 2 and 3 of the statement made it clear that AT1's decision (whether properly legally justified or not) was that there had been no valid review of the pre-existing operative decision in relation to mobility component, which it identified as the decision of 24 July 1992 (which must be a slip or mistyping for 27 April 1992). AT1 did not purport to carry out any review of its own. Ms Haywood submitted that the effect of AT1's decision could only have been to leave the pre-existing operative decision on the mobility component in existence, unreviewed and untouched by AT1's decision. Therefore, she submitted, the Secretary of State had power on 16 January 2001 to supersede that operative decision and, whether it was properly the decision of 27 April 1992 or the decision of 3 April 1993, to rely on subsequent relevant changes of circumstances evidence by the observations on 17 May 1995 as a ground of supersession. On that basis, AT2 erred in law in looking at supersession of the wrong decision and consequently looking at the wrong period over which to consider a change of circumstances.
13. Mr Guy disagreed. He submitted that the Secretary of State's case ignored the nature of DLA as a single benefit with two components and the effect of sections 32(1) and 33(3) of the Social Security Administration Act 1992. He submitted that AT1's decision was an award. The claimant had walked into the appeal tribunal with no entitlement to DLA and had walked out with entitlement to the mobility component. The award could only be an award of DLA, consisting from 17 May 1999 of only the mobility component. Consequently, he submitted, the Secretary of State in seeking to carry out a supersession on 16 January 2001, could only direct that supersession against AT1's decision of 16 April 2000. He submitted that AT2 had been correct in law to decide that the Secretary of State had failed to show any grounds to supersede that decision.
14. I accept the substance of Mr Guy's submission. Ms Haywood's submission would hang together if AT1's decision had been not to review a pre-existing decision awarding DLA at all or if the entitlement to each components of DLA could be treated as stemming from different decisions. But neither of those conditions is met.
15. On the first point, the general principles of review under the Social Security Administration Act 1992, outside the special context of DLA and attendance allowance, required that, when a decision was made refusing to review (or reviewing but not revising) an earlier decision, the earlier decision was left in existence and operative. That seems to me to be the only view which is consistent with the decision of the Court of Appeal in Chief Adjudication Officer v Eggleton, reported as R(IS) 23/95. The Court of Appeal's decision there (in the case of James) would extend the principle to the case where a revision on review only took effect from a date after the beginning of the period covered by the earlier decision, leaving the earlier decision in existence and operative for the period before that date. That principle could apply in the context of DLA in cases of a decision not to review at all. Thus, in the present case, the adjudication officer's decision of 24 May 1995, which refused to review the decision of 3 April 1993 in relation to either component, in my judgment left the decision of 3 April 1993 in existence and operative. The operative DLA decision remained that of 3 April 1993, not that of 24 May 1995. The decision of 24 May 1995 was not, for reasons explained below, an "award". See also the approach of Tuckey LJ in Ashraf v Secretary of State for Social Security (2 December 1999, unreported). By contrast, AT1's decision of 6 April 2000 did revise the pre-existing operative DLA decision in relation to the care component. That is a crucial difference.
16. On the second point, it is necessary to look briefly at the structure of DLA and the special regime of decision-making under the Social Security Administration Act 1992. It is axiomatic that DLA is a single benefit, with two components, so that an award of DLA can be made up of either component or both. That was stated by Mr Commissioner Mitchell QC in paragraph 9 of decision R(DLA) 2/97 and by Mr Commissioner Powell in paragraph 18(1) of decision CDLA/13008/1996, a part of his decision which was not challenged before the Court of Appeal in Ashraf. Mr Commissioner Powell went further in his paragraph 18(3) in stating that:

"It follows that at any one time there will be only one award of disability living allowance in favour of a person."

I agree that that principle emerges from the general structure of section 71 of the Social Security Contributions and Benefits Act 1992. It also seems inherent in the provisions on adjudication and, in particular, in sections 32(1) and 33(3) of the Social Security Administration Act 1992. Section 32(1) provided:

"(1) An award of an attendance allowance, a disability living allowance or a disability working allowance on a review under section 30 above replaces any award which was the subject of the review."

Section 33(3) provided:

"(3) An award on an appeal under this section replaces any award which was the subject of the appeal."

It was also important that section 30(12) provided that a claim made by a person who already had an award of DLA, within the period of the award, was to be treated as an application for review and that a claimant could not be entitled to both components for different fixed periods (Social Security Contributions and Benefits Act 1992, section 71(3), although entitlement to one component can co-exist with entitlement to the other component for life). The provisions allowing or requiring an adjudication officer or tribunal not to consider one component when only the other component was in issue (sections 32(3) and (4) and 33(4) to (6) of the Social Security Administration Act 1992) did not suggest anything to the contrary. The fact that a component was not looked at in coming to a decision did not prevent it forming part of an award of DLA as a whole made by the decision.

17. Once the principle that at any one time a person can only have one award of DLA is accepted, the interpretation of sections 32(1) and 33(3) of the Social Security Administration Act 1992 becomes clear. Any decision on review which revised an earlier decision (except one which removed all entitlement to DLA) was an "award" for the purposes of section 32(1). By definition, the decision made an alteration in at least one component, so that the new decision had to govern the entitlement to DLA as a whole from its effective date. If the decision on review removed all entitlement to DLA it would plainly replace the pre-existing decision and operate for both components from the effective date without any need for section 32(1). In both cases, the pre-existing decision would remain operative for any period before the effective date of the revised decision on review. If the decision was not to review at all or not to revise at all on review, then the pre-existing decision would remain operative in accordance with paragraph 15 above.
18. Those conclusions are consistent with the result of what was said by Mrs Commissioner Parker in paragraph 49 of decision CDLA/3364/2000. Although she seems to suggest there that any judicial decision, including a decision removing all entitlement could be an "award", there was no need to bring such a decision within the scope of section 32(1). As she recognised, such a decision would replace the pre-existing decision without the need for section 32(1). Otherwise, her reasoning clearly supports the general principle of one award at any one time. I do not think that any of the other Commissioners' decisions cited to me assists on this point. The decision of Mr Commissioner Lloyd-Davies in CDLA/4485/2000 and CDLA/4487/2000 (in particular, paragraph 10) was relied on by Mr Guy. That paragraph might seem to suggest that any DLA decision, including a refusal to review, replaced the pre-existing decision and became the operative decision. However, I am satisfied that the Commissioner was dealing there with a special point on the effect of section 16(c) of the Interpretation Act 1978 and that what he said does not affect the principles adopted in paragraph 15 above. My conclusions are also consistent with at least two Commissioners' decisions not cited by the representatives. In paragraph 14 of CSDLA/169/1994, Mr Commissioner Walker QC said that where an appeal tribunal did not consider a component under the discretion in section 33(4) of the Social Security Administration Act 1992, any award by the appeal tribunal would become the operative decision on both components. In CDLA/1360/2000 a claimant had an award of DLA consisting of a life award of the mobility component. On review, the middle rate of the care component was awarded, without the mobility component having been looked at. Mr Commissioner Turnbull held that the decision on review replaced the decision on both components as an award, and one award of DLA, under section 32(1).
19. I should also mention briefly my decision in R(DLA) 5/98. The procedural history of that case was very confused and was not something which concerned the Court of Appeal when it upheld the part of the decision about section 69 of the Social Security Administration Act 1992 (Chief Adjudication Officer v Woods). I said some rather confusing things in paragraphs 4 to 7. In paragraph 6 I said:

"I have concluded that in a case where either of those subsections [section 32(3) and (4) of the Social Security Administration Act 1992] applies the decision made on the application for review is restricted to the component considered by the adjudication officer and that the original decision related to the decision which is not considered remains undisturbed."

In that case I was concerned with an application for review which had been refused. My statement should not be read as applying outside that context. In so far as anything I said in R(DLA) 5/98 is inconsistent with the principles set out above I now consider that it is wrong in law.

20. Applying those principles to AT1's decision produces this result. AT1 was strictly hearing an appeal from the second-tier review decision of 17 August 1999, but in conducting a rehearing was in effect standing in the shoes of the adjudication officer who made the decision of 29 June 1999 and exercising the powers which the adjudication officer had on the application for review made by the Secretary of State. Its decision, by virtue of section 33(3) of the Social Security Administration Act 1992 and of general principle, replaced those two adjudication officer's decisions. The DLA decision which was operative before the adjudication officer's decision of 29 June 1999 was that the claimant was entitled to both components for life. AT1 revised that decision on review so as to terminate the entitlement to the care component with effect from 17 May 1999, but decided that there could be no review in relation to the existing entitlement to mobility component. The result was, despite the use of two decision notices and the purported award of mobility component from 24 February 1989, the making of a revised decision on review, effective from 17 May 1999, that the claimant's entitlement to DLA from that date consisted only of the mobility component for life. That was an award within section 32(1) which replaced, with effect from 17 May 1999, the award of DLA under the pre-existing operative decision.
21. AT1's decision, whether right or wrong in law, was not set aside before 16 January 2001. Therefore, when the Secretary of State sought on that date to make a superseding decision in relation to the period from 17 May 1999 onwards, that could only be done by supersession of AT1's decision. As Mr Guy has submitted, there was no evidence of any relevant change of circumstances since 6 April 2000. The only evidence was of a change of circumstances on 17 May 1999 or before. Nor could it be said that AT1 was in ignorance of or under a mistake as to any material fact. AT1 knew all about the earlier chain of decisions and had the same evidence as to the claimant's and his wife's condition as did AT2. Ms Haywood argued valiantly that there were many mistakes in AT1's decision which justified supersession. However, the mistakes in paragraphs 2 and 3 of its statement of facts are no more than slips or typing errors which do not affect the substance of the decision. There were no mistakes of material fact. I can see nothing else which could be a ground of supersession under regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
22. The truth is that AT1 went wrong in law. It seems to me clear that the operative DLA decision before 28 June 1999 was that of 3 April 1993, so that the Secretary of State's application was directed against the right decision. The adjudication officer's decision of 29 June 1999 purported to review the adjudication officer's decision of 24 May 1995. However, in the context of a case in which the issue of substance was the effect of a change of circumstances alleged to have occurred in 1999, that was a defect which could surely have been corrected by AT1 (R(IS) 2/97), so that it was wrong simply to declare the review process invalid. But a decision of an appeal tribunal cannot be superseded on the ground that it was erroneous in point of law. The ground in regulation 6(2)(b) of the Decisions and Appeals Regulations is restricted to the supersession of decisions of the Secretary of State (or adjudication officers under the previous regime). The Secretary of State, having failed to use the remedy of appeal available when an appeal tribunal goes wrong in law, cannot have a second bite at the cherry through the mechanism of supersession on the same ground. It is not for me to suggest how the Secretary of State might be able to bring the decision on the claimant's entitlement to DLA into line with what he believes the facts to be.
23. AT2 was therefore right to reject the case put forward by the Secretary of State for a supersession of AT1's decision adversely to the claimant, although my reasoning is not the same as that used by AT2. As the claimant's representative had effectively abandoned the argument that there should be a supersession to the advantage of the claimant, AT2 did not need to say any more than it did about that. In those circumstances, AT2's decision was not erroneous in point of law.
24. Consequently, the Secretary of State's appeal must be dismissed.

(Signed) J Mesher

Commissioner

Date: 24 January 2003