UK Social Security and Child Support Commissioners' Decisions

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Leeds appeal tribunal dated 6 May 2003 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the decision dated 8 August 2002 (Social Security Act 1998, section 14(8)(a)(ii)). The decision is that the appeal is allowed and that:

(a) the decisions of the adjudication officer, dated 6 May 1997, and of the Secretary of State, dated 18 April 2000, as to payability of the care component of disability living allowance are revised on the ground that they arose from an official error (Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 3(5)(a)); and

(b) the decisions as revised, with effect from 6 May 1997 and 4 April 2000 respectively, are that the care component of disability living allowance is payable to the claimant for the days on which she was not at her residential school, that is for all the dates within the period from 10 July 1998 to 21 May 2001 specifically identified (although with the wrong conclusion as to payability attached) in the decision of 8 August 2002 and on the boarder record card on page 78 of the papers.

2. This is a case involving exceptionally complicated technicalities that have nothing to do with the question of whether the claimant (Maria, date of birth 4 April 1989) satisfied the conditions of entitlement for the disability living allowance (DLA) that she had been awarded for all the dates in issue. No-one doubts that she fully satisfied those conditions or that her mother (her appointee for DLA purposes) provided her throughout with devoted and loving care despite all the difficulties involved.
3. The case was subject to delays at several stages before it reached me for oral hearing at Doncaster County Court on 8 March 2005. There have unfortunately been further delays, first for the claimant's representative, Mr Neil Dyson of Queens Road Advice Centre in Halifax, to have the opportunity of making a submission on an issue arising from his submissions, an opportunity he did not take up. The second reason for delay was, as set out in the directions dated 15 March 2005, to await the decision of the Court of Appeal in Campbell v Secretary of State for Work and Pensions, on appeal from the decision of the Tribunal of Commissioners in CIB/3645/2002. That was because a question potentially arose in the present case as to whether an absence of a right of appeal to an appeal tribunal against a decision of the Secretary of State under regulation 38, apart from paragraph (2A), of the Social Security (Claims and Payments) Regulations 1987 (extinguishment of right to payment of sums by way of benefit) was incompatible with Article 6(1) of the European Convention on Human Rights. The Court of Appeal's decision was handed down on 28 July 2005. It then took me some time to work out whether I needed, as forecast in the directions of 15 March 2005, to ask for further submissions on Article 6. On the view that I took and still take of the case as a whole, I do not need to do so.
4. However, as that view of the case was based on lines of argument that had not previously been raised, on 4 October 2005 I issued a draft decision and invited the comments of the parties. Mr Dyson was content with the draft decision, but the Secretary of State in a response dated 3 November 2005 argued against the two bases suggested for deciding in the claimant's favour and requested that the case be deferred to await the decision of the Court of Appeal in Hannam v Secretary of State for Work and Pensions, on appeal from Commissioner's decision CI/2131/2004. A main issue in that appeal was the scope of the principles laid down by the Court of Appeal in Secretary of State for Work and Pensions v Adams [2003] EWCA Civ 796, reported as R(G) 1/03, on which I had relied in my draft decision. I agreed to deferral in a direction dated 9 November 2005. Then, the claimant's appeal in Hannam was dismissed by consent of both parties, without any hearing or other ruling, on the basis that there would be no order for costs. Accordingly, I directed on 30 November 2005 that the parties could make any further submissions about the effect of Adams. The Secretary of State had already done so on 1 December 2005. Mr Dyson did not make any further submission in reply. By this time I was on a period of six months' leave and the case was passed back to Mrs Commissioner Jupp, who on 14 February 2006 indicated to the parties that she would decide the present case at the same time as another appeal before her, CDLA/4010/2005. That had not happened by the time that I returned from leave, so that the present case has now returned to me for decision.

The background

5. The history of the case is quite important. Unfortunately, all paper copies of claim forms and awarding decisions prior to April 2000 (which were not before the appeal tribunal) have been destroyed under the Department for Work and Pensions' (DWP's) document retention policy. However, I have been able to supplement what was known to the appeal tribunal by information from computer records obtained in response to a direction given by Mrs Commissioner Jupp when she granted leave to appeal to the Commissioner.
6. Maria had been in receipt of DLA since 6 April 1992. She was born blind and also has severe learning difficulties. It is now known that the initial award was of the middle rate of the care component, followed, from 4 April 1994, by an award of the highest rate of the care component and the lower rate of the mobility component. It looks then as though there was a further decision with effect from 4 April 1997 on a renewal claim at the same rates. The appropriate amounts were paid to the claimant's mother. However, on 1 November 1995 Maria had begun to attend the Royal Schools for the Deaf in Stockport, funded by the Education Department of Calderdale Metropolitan Borough Council on a residential basis, but spent every weekend (Friday afternoon to Monday morning) and the school holidays at home with her mother. The DWP did not become aware of this until December 1996, when something (probably a mention of attending a residential school on the renewal claim form) caused them to write to the School for information and then to Maria's mother. She supplied a list of dates when Maria was at home from 1 November 2005 and the schedule of term and holiday dates for 1996/97.
7. It now appears that a review decision was made on 6 May 1997, giving a revised decision that the care component of DLA was not payable for various dates from 4 December 1995. The computer records show a reduction of the weekly amount payable down to the level of the lower rate of the mobility component, but presumably the decision confirmed the payability of the care component for the days prior to 6 May 1997 on which Maria was at home, in accordance with regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991 and regulation 25 of the Claims and Payments Regulations. Regulation 9(1) provides, subject to conditions and exemptions, that a person "shall not be paid" any amount in respect of the care component for any period throughout which she is provided with accommodation in circumstances including those of the present case. Regulation 25 of the Claims and Payments Regulations allows daily payments in such circumstances for days spent out of the accommodation. Maria's mother has said that an overpayment was identified in 1997, which she paid back immediately, and that she understood from that point that payment could only be made for the days on which Maria was at home. What is not known is the precise form of the decision that was given in May 1997 as to the payability of the care component for the future.
8. Pages 62 to 72 of the papers before the appeal tribunal show that in April and May 1998 Maria's mother was sent forms headed "Claim for time spent at home" on which she was invited to specify the days on which Maria had been at home since May 1997 and since 28 April 1998, the second of which was returned on 9 July 1998. Then on a "Boarder record card" (page 78) a calculation was made of the amounts due between 9 May 1997 and 6 July 1998, which clearly indicates that no payments of care component had been made in the meantime. There is no suggestion that the amounts due were not paid. It appears, though, that no further such forms were sent to Maria's mother. No payments of care component were made after 6 July 1998.
9. On 11 February 2000, Maria's mother signed a renewal claim form. One of the sections of the form was about children in residential care. She ticked yes to the question "Is the child in residential care now?" and gave the details of the School and of the funding by Calderdale. There was no space in that section to write anything about whether the child came home regularly or not. The following section, for children who had been in hospital or residential care in the past 13 weeks, had a space for writing in the dates of going into and coming out of hospital or residential care, but that whole section was left blank. The main part of the form about the effect of the child's illness or disability was filled in with information that all clearly described the care and supervision that Maria needed and was given by her mother at home.
10. The decision given on 18 April 2000 was that Maria was entitled to the highest rate of the care component and the lower rate of the mobility component for the period from 4 April 2000 to 3 April 2005. In the part of the decision form on payability the following decision was given by the ticking of boxes against printed text:

"DLA care component is not payable for any day from and including 4/4/00 because the claimant is in certain accommodation."

The decision maker had had a choice of using those printed boxes or the boxes further on in that part of the form, which allowed only a decision that a component was or was not payable from and including a specified date, rather than for any day from and including a specified date. The part of the form for reasons for decision included the statement "Customer still residing at a residential school receiving LA funding".

11. No copy of the actual letter of notification, which would apparently have been sent automatically by the computer system, has been retained. An officer has in July 2004 produced manually a letter in the form which it is said would have been sent. After saying that Maria was entitled to DLA from 4 April 2000 to 3 April 2005 and describing the rates of the two components awarded, the letter continues:

"We cannot pay you Disability Living Allowance for help with personal care for any day that you are in residential accommodation from and including 4.4.00."

The rest of the letter gives information about asking for the decision to be looked at again and appealing and about where to ask for help or advice about the contents, but says nothing about the procedure for payment of the care component. What is evident is that no payments of care component were made following the decision, although payments of mobility component were made into Maria's mother's bank account.

12. The next step in the story is the following letter from Maria's mother, received by the DWP on 3 May 2002:

"Re: DLA claim for Maria ...

I have completed the dates for when Maria was not at Residential school and was staying at home with her family.

Unfortunately, I have not claimed the allowance for which Maria was entitled because I was not aware I could. Previously, you asked me to return the allowance for a period and I did not know how to claim for the days she was at home. I have obtained help and advice for claiming in the past but this has not been available to me for sometime. My son, who is aged fourteen years, has completed the dates for me.

Since late November 2001, Maria has been attending a local school for one day a week, she arrives home on a Thursday."

A list of school holiday dates and weekends at home during term covering the whole period from December 1995 to April 2002 was attached.

The decision under appeal

13. The decision was given on 8 August 2002 that there was no entitlement to payment of the care component of DLA for all the specified periods at home between 10 July 1998 and 21 May 2001, because it was more than 12 months since entitlement to payment of benefit arose and the decision maker did not accept that there was good cause to extend the above periods. There was a reference to regulation 38(1) of the Claims and Payments Regulations. Payment of £1161.84 was made for the days in the period from 25 May 2001 to 11 April 2002.
14. Regulation 38(1) and (2A) as in force in May and August 2002 provided (omitting references to the Board of Inland Revenue):

"(1) Subject to paragraph (2A), the right to payment of any sum by way of benefit shall be extinguished where payment of that sum is not obtained within the period of 12 months from the date on which the right is to be treated as having arisen; and for the purposes of this regulation the right shall be treated as having arisen--

(a) [deals with cases where an instrument of payment has been issued;]

(aa) [deals with cases where an instrument of payment has been issued;]

(b) [deals with cases where notice that a sum is ready for collection has been sent;]

(c) in relation to any sum to which none of (a), (aa) or (b) apply, on such date as the Secretary of State determines ... .

(2A) Where a question arises whether the right to payment of any sum by way of benefit has been extinguished by the operation of this regulation and the Secretary of State is satisfied that--

(a) he first received ... written notice requesting payment of that sum after the expiration of 12 months; and

(b) from a day within that period of 12 months and continuing until the day the written notice was given, there was good cause for not giving the notice; and

(c) either--

(i) no instrument of payment has been given or sent to the person to whom it is payable and no payment has been made under the provisions of regulation 21 (automated credit transfer); or

(ii) that such instrument has been produced to the Secretary of State and no further instrument has been issued as a replacement,

the period of 12 months shall be extended to the date on which the Secretary of State decides that question, and this regulation shall accordingly apply as though the right to payment had arisen on that date."

The appeal to the appeal tribunal

15. Maria's mother appealed against the decision of 8 August 2002, saying that after July 1998 she had not been sent any forms to claim for dates when Maria was at home, although the DWP knew the pattern that had been established, and that as she was entitled to the care component for those dates payment should be made. She attended the hearing on 6 May 2003 and was represented by Mr Dyson. Mr Dyson's main submission was that regulation 38 did not bite in the present case as no decision had been made as to when benefit was payable from and that there was no other provision restricting the payment now of the benefit to which Maria was entitled from July 1998 to May 2001. A secondary submission, if regulation 38 had to be applied, was that Maria's mother had, on the further evidence given about her circumstances, proved good cause for not giving notice requesting payment before 3 May 2002.
16. The appeal tribunal dismissed the appeal. It took the view that Maria's mother was aware, from the events in 1998, of the need to inform the DWP of the dates when Maria was at home and that the terms of the payability decision of 18 April 2000 simply re-asserted the position of which she was already aware. It expressly considered the evidence of her circumstances and of why she said that she had not written earlier than May 2002 and concluded that she had not shown good cause. On Mr Dyson's main submission, the appeal tribunal said this:

"Whilst the decision dated the 18th of April 2000 does not refer to a set sum of money for the care component, it clearly indicates that it is to be paid at the highest rate. We therefore consider that contrary to Mr Dyson's representation, a decision had been made as to the amount of benefit payable and when it was payable from.

...

Consequently, when [Maria's mother] finally got round to providing the necessary information, a decision for the period of entitlement was made on the 8th of August 2002 pursuant to Regulation 38(1)(c). On that date, the Secretary of State determined the dates for which benefit was payable pursuant to the decision of entitlement to benefit dated the 18th of April 2000. Until [Maria's mother] provided that information, such a decision could not be made."

The appeal to the Commissioner

17. Maria's mother now appeals against the appeal tribunal's decision with leave granted by Mrs Commissioner Jupp on 10 June 2004. There had been quite a volume of written submissions by that point in response to directions given by a legal officer to the Commissioners. Further information was provided, but the arguments of law had not really moved on by the time that the Secretary of State's request for an oral hearing of the appeal was granted. Maria's mother attended the hearing with Mr Dyson. The Secretary of State for Work and Pensions was represented by Mr Huw James, solicitor, instructed by the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for their submissions.
18. Rather than set out all the competing submissions, I shall mention the relevant points when dealing with what seem to me to be the central points in the case. I look first at the dates from 4 April 2000 to 21 May 2001, to which the decision of 18 April 2000 is relevant. Then I look separately at the dates from 6 May 1997 to 3 April 2000.

The nature of the payability decision of 18 April 2000

19. Mr James submitted, building on the written submissions for the Secretary of State dated 3 October 2003 and 12 March 2004, that the form of the decision was such as to make the care component payable prospectively for any day on which Maria was not living at the School, so that all that her mother had to do to obtain payment was to tell the DWP what days those were. The point was made most fully in point 2 of the submission of 12 March 2004:

"(i) The system of paying claimants [DLA] for days when not in Local Authority funded accommodation used in this case has been in operation at the DWP's Disability Benefit Unit for many years.

(ii) The payability decision is framed in such a way as to make benefit payable for any day when the claimant is not at the LA-funded residential school. The decision at page 50 states: `DLA care component is not payable for any day from and including 4.4.00 because the claimant was in certain accommodation' (underlining added). This accommodation is then specified at page 53. The words `for any day' are significant because they relate to the provisions under reg 25 of the Claims and Payments Regs 1987 for making daily rate payments of DLA. Reg 25(1) provides that DLA payable under that regulation shall be paid weekly or as the Secretary of State may direct in any case.

(iii) By having ticked `for any day' the DWP decision-maker has indicated that the daily rate of DLA under reg 25 is not payable for any day in which the claimant is in an LA-funded residential school. The decision therefore also intimates that benefit is potentially available to the claimant for any days of non-residence at the school: all that is required of the claimant is that she notify the Secretary of State of these days. The wording of the decision does in effect qualify the payability restriction imposed to the extent of `except when the claimant is at home' referred to by the Legal Officer in his Direction. In these circumstances supersession of the awarding decision is not necessary."

20. I am quite unable to read the decision of 18 April 2000 in that way. I agree with Mr Dyson that the actual printed words ticked on the form are absolutely plain and read together can have only one meaning. The care component was not to be payable for any day from and including 4 April 2000, ie for all the days following that date. The decision was not that the benefit was not payable if and when Maria was at the residential school or was not payable except when she was at home. The printed word is "because", which indicates a reason for the decision, not a limitation of its effect only to future days on which she was at the residential school. Whatever the intentions might have been within the administrative system adopted by the Disability Benefit Unit within the DWP (and that is all that is reflected in the terms of the notification letter produced manually in 2004) and whatever might have been intended by the printed alternatives on the decision form, the actual decision made and operative from 4 April 2000 until altered in some way was that no payment of the care component was to be made.

How does regulation 38 of the Claims and Payments Regulations apply?

21. The conclusion reached above was not admitted on behalf of the Secretary of State, but great reliance was placed on regulation 38(1)(c) of the Claims and Payments Regulations giving the Secretary of State the power to determine when a right to payment of any sum by way of benefit has arisen. There was also reliance on the rule in paragraph 5(x) of Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 that no appeal lies against a decision of the Secretary of State under regulation 38, except a decision under regulation 38(2A). It is not necessary to go into all the complications of those points here, or into what was said by Mr Commissioner Levenson in decision R(U) 1/02 and by me in decision CDLA/2609/2002 (doubted to some extent in the Secretary of State's submission of 3 October 2003). It seems to me quite impossible to say in circumstances where the operative decision is that no benefit is payable that any right to payment, let alone a right to payment of any amount that has been quantified, is in existence. There could be no right to payment until that decision has been altered in some way. Regulation 38 simply cannot have any operation in such circumstances.

How can the decision of 18 April 2000 be altered?

22. This was the stumbling-block in Mr Dyson's submission at the oral hearing. If the case falls outside the scope of operation of regulation 38, he was left with a decision under which the care component was not payable at all and could only suggest that it should be superseded, for instance for a relevant change of circumstances. As was then pointed out for the Secretary of State, the provisions in regulation 7 of the Decisions and Appeals Regulations about the dates on which superseding decisions can take effect would appear to limit payment under a superseding decision to the period from 3 May 2002 onwards. It was this point on which Mr Dyson was given the opportunity to make a further submission after the oral hearing, but he was evidently not able to come up with a solution.
23. On considering that problem, I initially thought that the approach of the Court of Appeal in Secretary of State for Work and Pensions v Adams was applicable to the circumstances. Unfortunately, that decision was not referred to in any submissions or in my directions following the oral hearing. I therefore issued to the parties a draft decision giving effect to my view and to an alternative argument in favour of the claimant and gave them the opportunity to comment on the relevance and effect of Adams in the present case. As noted above, Mr Dyson for the claimant was content with the draft decision (which gave the claimant all that she was asking for). The Secretary of State submitted that the principle of Adams could not be extended to the circumstances of the present case and that the alternative argument did not work either. I agree with the Secretary of State on the first part of that submission, but not on the second.

Is Adams applicable?

24. As noted above, the appeal in Hannam was dismissed by consent, so that no further guidance has been given in that case about the scope of Adams beyond what Mr Commissioner Angus gave in CI/2131/2004. In Adams, the claimant became entitled to invalid care allowance (ICA) at a time when he was already in receipt of incapacity benefit. The effect of regulation 4 of the Social Security (Overlapping Benefits) Regulations 1979 was that, as the amount of his incapacity benefit exceeded the amount of his ICA entitlement, no amount of ICA was payable. The adjudication officer's decision was that the claimant was entitled to ICA from and including 20 June 1995, but that ICA was not payable from and including that date. The claimant's incapacity benefit was terminated from 12 May 2000. He did not inform the ICA office until 27 March 2001 when he returned a routine enquiry form a few days after his appeal against the incapacity benefit decision had been disallowed. The Secretary of State then gave a decision superseding the initial decision and making ICA payable, but only with effect from 27 March 2001. There are therefore similarities with the circumstances of the present case as I have found them to be, but without the complication of the potential involvement of regulation 38 of the Claims and Payments Regulations (as a period of less than 12 months' payment was in issue).
25. The Secretary of State's decision in Adams that payability could not be given effect from the end of the claimant's entitlement to incapacity benefit was confirmed by an appeal tribunal. Mr Commissioner Howell QC overturned that decision on the basis that supersession had not been necessary (see R(G) 1/03 where the Commissioner's decision is reported along with the Court of Appeal's). He rightly accepted that decisions about payability fell within the regime of the Social Security Act 1998 on appeal, revision and supersession, but reasoned that the initial decision only had legal force for a period during which regulation 4 of the Overlapping Benefits Regulations authorised the adjustment to payability. He continued, in paragraph 24:

"Nor is there anything in either the substantive or the procedural law which entitles the Secretary of State to refuse payment of benefit due to a claimant for a past period merely because the Secretary of State himself has failed to notice that an adjustment wrongly still being applied under the regulations should have ceased ... ."

The Commissioner therefore decided that the claimant was legally entitled to payment of ICA from 12 May 2000.

26. I note at this point that Mr Commissioner Howell's reasoning would work against the claimant in the present case. It would suggest that the decision of 18 April 2000, whatever its actual terms, should be interpreted as only applying to days on which the non-payment of the care component was authorised because of Maria's being at the residential school. That would convert the question into one of the obtaining of payment under regulation 38 of the Claims and Payments Regulations.
27. The Secretary of State's appeal to the Court of Appeal in Adams was dismissed, but Sedley LJ (with whom the others Lords Justices agreed) took a different view of the law, despite describing Mr Commissioner Howell's decision as impressively reasoned. It was agreed between the parties and accepted by the Court that the resumption of payment of ICA required some sort of adjudicative decision, not merely an administrative act. The question posed by the Court was whether the necessary decision was a supersession under section 10 of the Social Security Act 1998 or some other kind of decision under section 8. The answer was (at paragraph 18) that:

"it is not impossible to regard it as a decision to pay which superseded the decision not to pay. But it is more in conformity with the legislative scheme to regard it simply as a decision on a claim for a relevant benefit, or as a decision falling to be made under the enactments which had so far created an entitlement but inhibited payment. The decision to restore payments after May 2000 was predetermined by the decision notified in February 1996."

28. Two additional reasons for that conclusion were given in paragraph 20 of Sedley LJ's judgment: that regulation 4 of the Overlapping Benefits Regulations was a mere accounting provision and that treating the decision as a supersession would penalise the claimant in terms of backdating for the DWP's own failure to readjust payment of ICA in consequence of its own decision to terminate his incapacity benefit. I do not need to explore the extent to which that second reason has been overtaken by the decision of the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, R(IS) 7/05. For present purposes, I am satisfied that those additional reasons show an essential element of the context in which paragraph 18 of Sedley LJ's judgment must be read. This is that the factor which removed the barrier to payability was a decision of the Secretary of State on another social security benefit. I agree with the Secretary of State's submissions of 3 November 2005 and 1 December 2005 that the authority of Adams is restricted to such circumstances and should not be extended to cases where the factor that removes the barrier to payability is a change in the circumstances of the claimant. In such cases one is not concerned with mere accounting or a lack of internal communication within the DWP. Whatever Sedley LJ meant by the decision to restore payment having been predetermined by the earlier decision against payability, it cannot be allowed to extend the principle of the case beyond its immediate context.
29. That conclusion is consistent with Mr Commissioner Angus's decision in CI/2131/2004, which I am bound to follow unless satisfied that it was wrong. There, the claimant's industrial death benefit was not payable because she was living with a man as husband and wife. The man died. The claimant did not raise the question of the industrial death benefit for some six months. The Commissioner held that the appeal tribunal erred in law by applying Adams, as the change of circumstances was one that the Secretary of State could not act on without being told about it, so that the decision restoring payability was subject to the time limits on the effect of supersessions. Finally, although both the Commissioner and the Court of Appeal in Adams were able to achieve a result in favour of a deserving claimant, there are dangers in giving the Secretary of State a power to alter previous decisions without the controls and limits provided by the rules on revisions and supersessions. Such alterations might not necessarily be in favour of claimants. The effect of Adams should be restricted to the specific context mentioned above, regardless of whether its authority in that context has been undermined to any extent by Hinchy.
30. Accordingly, in the present case the decision of 18 April 2000 cannot be altered by a decision under section 8 of the Social Security Act 1998.

An alternative method of altering the decision of 18 April 2000

31. The decision of 18 April 2000 can only be altered by a decision under the powers of revision or supersession in sections 9 and 10 of the Social Security Act 1998. Contrary to the submissions for the Secretary of State, I conclude that it can be altered by revision under section 9 on the ground of official error.
32. The Secretary of State may revise a decision of his own (or an old adjudication officer's decision) at any time on the ground that it arose from official error (Decisions and Appeals Regulations, regulation 3(5)(a), and regulation 1(3) for the definition of "official error"). The existence of the power is not dependent on the making of any application by a claimant. The revised decision will then take effect from the same date as the decision under revision. There has, in the social security context, to have been an error made by an officer of the DWP acting as such to which no-one outside the DWP materially contributed.
33. In my draft decision I suggested that it could have been an official error for the decision-maker acting on behalf of the Secretary of State on 18 April 2000 to make any decision on payability of care component for the future, when it could not be known on exactly what dates Maria would be at home or at school. I drew an analogy with my decision CG/1479/1999, although the precise point of that decision had been overtaken by changes in legislation (see CG/2122/2001), and suggested that the decision should have been deferred until the actual pattern of residence for a convenient past period could be established. In his submission of 3 November 2005, the representative of the Secretary of State raised a number of cogent objections to that approach. I now consider that there is a much more straightforward official error involved.
34. The error is this. The intention of the decision-maker of 18 April 2000, as is clearly shown by the extract from the Secretary of State's submission of 12 March 2004 set out in paragraph 19 above, was to achieve the result that the care component was not to be payable for the days on which Maria was at the residential school, but was to be payable for the days on which she was at home. That was also the right decision to have given in the circumstances. The decision-maker did not, for the reasons given in paragraph 20 above, achieve that result. The actual result was a decision that care component was not payable for any day at all in the period from 4 April 2000. That failure was a plain enough error, not contributed to by anyone outside the DWP, for regulation 3(5)(a) to be satisfied. It was an error even though the printed alternatives on the decision form did not match the particular form of decision that was required. The decision-maker could always have written out what was needed. And in so far as the defectiveness of the form contributed to the error, that was a contribution from within the DWP.
35. The question then is what the revised decision, which in accordance with section 9(3) of the Social Security Act 1998 would take effect from the same date as the decision of 18 April 2000, should be. I do not see why a payability decision should not be made for a prospective period in the form that the decision-maker intended, but failed, to achieve. Although the exact days could not be identified in advance, the principle on which the days of payment were to be identified could be clearly stated. It seems to me that it would then be a purely administrative matter, not involving any decisions under the 1998 Act, work out the mechanics of actual payment and the gathering of the necessary information from time to time. However, on a revision for official error there is no prohibition on taking into account changes of circumstances after the date of the decision to be revised (regulation 3(9) of the Decisions and Appeals Regulations only applies to revisions under regulation 3(1)). And, as the appeal in this case was against the decision of 8 August 2002, section 12(8)(b) of the 1998 Act allows the taking into account of circumstances down to that date. By 8 August 2002 the precise dates of Maria's residence at school and at home had been identified and agreed. Therefore, I can give a revised decision as to payability taking the actual circumstances into account. That is set out in paragraph 1(b) above.
36. The final step would be to ask whether it would have been open to the Secretary of State on 8 August 2002, or is open to him now, to determine under regulation 38(1)(c) of the Claims and Payments Regulations that the right to payment of a sum by way of benefit arose on the last day of each discrete set of days identified for payment. If such a determination were made, the 12-month extinguishment rule would come into play. However, in my judgment such a determination would not have been and is not open to the Secretary of State. For the reasons given in paragraph 21 above, such a determination could not have been given while the decision of 18 April 2000 remained the operative decision as to payability of the care component from 4 April 2000. The operative decision was that nothing by way of care component was payable at all. It would be perverse to say that on the altering of the situation as to payability, any right to payment could arise before the actual giving of the decision having that legal effect.

Was revision of the decision of 18 April 2000 within the powers of the appeal tribunal of 6 May 2003?

37. The appeal tribunal had before it an appeal against a decision that there was no right to payment of benefit for the dates specified because it was not accepted that there was good cause to extend the period of 12 months under regulation 38(2A) of the Claims and Payments Regulations. That was an appealable decision that the appeal tribunal plainly had jurisdiction to hear. The decision was given in response to the claimant's mother's letter received on 3 May 2002. The question then, on the view of the law stated in paragraphs 31 to 36 above, is whether the appeal tribunal would have had power to substitute a decision as to payability of benefit by way of revision under which an issue under regulation 38 would not arise. On the principles set out in Tribunal of Commissioners' decision R(IB) 2/04, especially in paragraphs 11 to 26, it would have that power. The appeal tribunal stands in the shoes of the decision-maker and has the power to make any decision that the decision-maker could have given in response to whatever it is that has caused him to act. Thus, the appeal tribunal of 6 May 2003 had jurisdiction to substitute a decision of a different, but correct, legal nature in response to the letter received on 3 May 2002.

The dates in the period from 6 May 1997 to 3 April 2000

38. In relation to this period I do not have the advantage of a copy of the operative decision on payability, as I do in relation to the period from 4 April 2000 onwards. All that I know, and all that can now be ascertained after the destruction of documents, is as set out in paragraphs 6 and 7 above. What I think has to be inferred from that history, especially from the computer print-outs showing a reduction of the weekly amount payable down to the lower rate of mobility component only, is that on 6 May 1997 a prospective decision was given in the same form as used in the decision of 4 April 2000, to the effect that the care component was not payable for any day from and including 6 May 1997 because the claimant was in certain accommodation. Then the payment apparently made in July 1998 for dates in the period from 9 May 1997 to 6 July 1998 is to be interpreted as following from administrative action of the kind described in paragraph 35 above, without any further formal decision on payability being made. That would leave the decision of 6 May 1997 intact and open now to revision on the ground of official error as in paragraphs 31 to 36 above. I therefore substitute for the appeal tribunal's decision a decision revising the decision of 6 May 1997 for official error, so as to make the care component payable for the relevant dates identified in the decision of 8 August 2002 and on the boarder record card on page 78 of the papers.

Conclusion

39. Accordingly, in relation to the whole of the period before it, the appeal tribunal of 6 May 2003 erred in law by failing to make a decision of the correct legal nature that was within its powers to make and by wrongly considering that regulation 38 of the Claims and Payments Regulations controlled the conclusion that it could reach. For those reasons I set its decision aside as erroneous in point of law.

The Commissioner's decision on the appeal against the decision of 8 August 2002

40. As there is no dispute about Maria's circumstances throughout the period in issue and as there is no prospect of any further information coming to light about the course of past decisions in this case, it is clearly expedient for me to substitute a decision on the appeal against the Secretary of State's decision of 8 August 2002. That decision is set out in paragraph 1 above. It will now fall to the Secretary of State to make payment of the relevant amounts in so far as payment has not already been made.

(Signed) J Mesher

Commissioner

Date: 26 June 2006