UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIB_2762_2007 (19 February 2008)
URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIB_2762_2007.html
Cite as: [2008] UKSSCSC CIB_2762_2007

[New search] [Printable RTF version] [Help]

[2008] UKSSCSC CIB_2762_2007 (19 February 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal to the Commissioner is allowed. The decision of the Haverfordwest appeal tribunal dated 19 March 2007 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 May 2006, but I defer further consideration of that appeal on the terms set out in paragraph 27 below. That is why the present decision is only initially effective on an interim basis, although it may become final depending on the future action of the Secretary of State.

This is an overpayment recoverability case that raises some difficult technical issues. I am afraid that those issues do not have much to do with what the claimant regards as important in her case. But the practical outcome should give her what she wants out of the appeal to the Commissioner.

The background

The claimant became entitled to incapacity benefit from and including 18 June 2004. Her statutory sick pay had expired on 17 June 2004, but I think that she continued to be paid her contractual sick pay (half-pay) by her employer. On the claim form, signed on 28 September 2004, she described her illness or disability as anxiety and panic disorder and depression. She disclosed that she was receiving bereavement benefit (her husband had sadly died in January 2004) and a payment from his occupational pension scheme as his widow. In the section of the form about her own pension income she ticked that she did not have any pension income, but also ticked that she was waiting to hear about her pension income. The claimant has more recently said that that was a mistake, but I think that it may reflect the possibility that was then on the cards of her applying for ill-health retirement (see the letter of 13 December 2004 from a union representative, at page 29). With the incapacity benefit claim pack was a set of notes about incapacity benefit (SC1 Notes). A copy of the 2006 print is at pages 39A to 39H of the papers. I think that the claimant accepts that she received the notes, which would have been in substantially the same terms, in September 2004. On pages 6 and 7 of the 2006 notes, under the heading "How your money is worked out" it was stated that the Department would look to see if a claimant had a pension income and that the amount of incapacity benefit would be reduced if pension income before tax was over £85 per week. There was no mention of the exception where the pension income is received by a claimant as a beneficiary on the death of a member of a pension scheme.

The award of incapacity benefit was made by a decision dated 14 November 2004. There are no copies in the papers of any documents that might have been sent to the claimant at that time telling her what information she was required to tell the Department about while receiving benefit, or indeed any reference to any such documents. The claimant did apply for early retirement from her employment, which was eventually granted. It is not clear exactly when the decision was made by the claimant's employers (the claimant has said 5 January 2005) or when the administrators of Teachers Pensions implemented the arrangement. According to the administrators, the first payment was made on 11 February 2005 (although the claimant has said 21 January 2005), but entitlement apparently started on 10 December 2004. The amount was £1015.51 gross per month. The claimant did not tell the Department about the start of the payments. As things turn out I do not need to explore or set out her state of mental and emotional health and capacity at that time.

At the end of January 2006 the claimant was sent a BF85A form enquiring about any changes that might affect benefit. The first page included the instructions to tell the Department straight away if the claimant started to get an occupational or personal pension or if pension income went up or down. There was a reference to a form IB40 Notes about Incapacity Benefit that was enclosed. The claimant signed the form on 8 February 2006, having answered the question about whether there had been any changes as follows:

"Not sure. I am in receipt of an occupational pension and enclose documents accordingly.

I am not sure if I have informed you previously of this pension. I was not aware that income support [obviously a slip for incapacity benefit] was means tested. I have declared it for tax purposes. Due to my illness and bereavement circumstances I have not been aware of any changes I should have informed people of."

It is not clear from the way in which the papers were put together in the Secretary of State's submission to the appeal tribunal just what documents the claimant enclosed, but at any rate further details as in the previous paragraph were obtained from her and from the scheme administrators. The form was stamped as received on 15 February 2006.

This decision was then given on 6 March 2006:

"This decision supersedes the decision made on 14/11/04 awarding Incapacity Benefit to [the claimant].

[The claimant] is entitled to Incapacity Benefit at the reduced weekly rate of £0.68 from and including 6/2/05 and she is entitled to Incapacity Benefit at a reduced weekly rate of £1.78 from and including 14/04/05.

This is because the law says that 50% of any pension income over £85.00 a week has to be deducted from entitlement to Incapacity Benefit."

There was no reference in the decision to any legislative provisions. The decision was noted as having been notified to the claimant on 8 March 2006 on a form/letter BF31.

On 8 May 2006 a decision was given, by a decision-maker described as computer generated, that as a result of the decision dated 6 March 2006 an overpayment of incapacity benefit amounting to £3,999.36 had been made for the period from 6 February 2005 to 16 February 2006, which was recoverable from the claimant under section 71 of the Social Security Administration Act 1992 because on 6 February 2005 or as soon as practicable after she failed to disclose the material fact that she was in receipt of an occupational pension. The letter notifying the claimant of the decision was dated 8 May 2006.

The claimant lodged an appeal form received on 7 June 2006. In the box for the date of the letter notifying her of the decision against which she was appealing she wrote "08/05/06". In the accompanying statement of grounds she said that she wished to appeal against the decision of overpayment of incapacity benefit. She said that in January/February 2005 she was unaware that an occupational pension affected incapacity benefit and that she did not realise that it did until she read the notes accompanying the form signed on 8 February 2006.

The Secretary of State's written submission to the appeal tribunal referred to regulation 32(1) of the Social Security (Claims and Payments) Regulations 1987 as containing a requirement for every person in receipt of benefit to report to the appropriate office details of any change of circumstances which they might reasonably be expected to know might affect their entitlement to benefit. It also asserted (wrongly) that form SC1 Notes contained instructions as to the type of changes that a claimant had to report to the relevant office. The submission rather confusingly repeated all the six tests for recoverability on the ground of failure to disclose a material fact that had been set out in Commissioner's decision R(SB) 54/83, including that disclosure by the person in question was reasonably to be expected, while in the following paragraph stating that Commissioners' decision CIS/4348/2003, upheld by the Court of Appeal, decided that there is no requirement that disclosure is reasonably to be expected and that it is enough that the claimant knows of the change of circumstances and it should be disclosed. It was submitted in paragraph 5.12 that disclosure was reasonably to be expected from the claimant because she had been provided with information and instructions, from which a reasonable person would have recognised that it was material to disclose receipt of an occupational pension. But it was also submitted in paragraph 5.14 that the claimant's reason for appeal did not assist her because she had been issued with guidance notes at the beginning of her claim that notified her that she had to report pension income payments.

Tribunal of Commissioners' decision CIS/4348/2003 has now been reported as R(IS) 9/06, along with the decision of the Court of Appeal in B v Secretary of State for Work and Pensions. The Court of Appeal has indeed established that there is a failure to disclose a material fact for the purposes of section 71 of the Social Security Administration Act 1992 if and only if the person in question is in breach of a legal obligation to disclose that fact. And in the case of recipients of most social security benefits once an award has been made, that obligation is to be found in regulation 32 of the Claims and Payments Regulations. But regulation 32, both before and after its rearrangement in 2003, contains two duties. The first, as now in regulation 32(1) and (1A), is to furnish such information or evidence as the Secretary of State may require for determining whether an award should be revised or superseded or in connection with the payment of benefit. The second duty, as now in regulation 32(1B), is to notify the Secretary of State of any change of circumstances that the recipient might reasonably be expected to know might affect the continuance of entitlement to benefit or its payment as soon as reasonably practicable after its occurrence. As the Tribunal of Commissioners in R(IS) 9/06 noted, those duties differ significantly. While under both there cannot be failure to comply if the claimant does not know of the information or change of circumstances in question, if the Secretary of State has required the furnishing of specific information, it is irrelevant to the consequent existence of the first duty that the claimant could not reasonably have expected there to be any effect on benefit or even as a result of mental incapacity could not understand the requirement. However, the second duty only arises in relation to changes that the claimant in question might reasonably be expected to know might affect benefit.

In my view the Secretary of State's written submission to the appeal tribunal can legitimately be criticised on three grounds. First, it failed adequately to distinguish between the two duties in regulation 32 of the Claims and Payments Regulations as in force at the relevant time or to make clear which duties were being relied on. Second, if it was relying on the second duty, it failed to deal fully with the case made by the claimant. Third, if it was relying on the first duty, it failed to put forward any evidence of a requirement by the Secretary of State to furnish information, because the SC1 Notes did not contain any instructions about what sorts of information had to be reported.

The appeal tribunal's decision

The claimant attended the hearing on 19 March 2007 on her own, a previous hearing having been adjourned for her to obtain medical evidence of her condition in January 2005. This she had done by way of the letter dated 12 February 2007 from the consultant psychiatrist who had had care of her at the time.

The appeal tribunal disallowed the appeal. In its statement of reasons it accepted the claimant's evidence about her difficulties in January 2005, but found that she was clearly able to understand and complete forms and continued:

"She had been alerted to the need to disclose the occupational pension in Part 7 of the claim form. Had she been in receipt of an occupational pension at the time of the completion of the claim form for incapacity benefit, it is likely that she would have provided full details. Part 7 of the claim form requires detailed information concerning pension income. The notes sheet that is part of the incapacity benefit claim pack makes it quite clear that pension income of over £85 per week gross will result in a decrease in any incapacity benefit in payment. The directions for disclosure of [the claimant's] pension income are unambiguous. She had been dealing with her late husband's affairs, her own tax affairs and with her daughter's disability living allowance. She had failed to disclose to the appropriate Department the material fact that she had been awarded a pension. As a consequence, an overpayment had arisen in the payment of incapacity benefit in the sum of £3,999.36 which is recoverable from her. The amount of the overpayment, for the period 6/2/05 to 16/2/06 inclusive, has been correctly calculated. Commissioner's decision CIS/4348/2003."

The appeal to the Commissioner

The claimant now appeals against that decision with my leave. When I granted leave to appeal I said that I did not do so on any of the grounds put forward by the claimant, which had related mainly to the appeal tribunal's assessment of her medical condition in January 2005. I am now not so sure about that as I consider that the criticisms of the Secretary of State's written submission to the appeal tribunal that I have summarised in paragraph 10 above could also be levelled at the appeal tribunal's statement of reasons. I do not see how there could have been reliance on the first duty under regulation 32(1) and (1A) of the Claims and Payments Regulations as there was in fact no evidence of any instructions from the Secretary of State about reporting changes of circumstances. If therefore the conditions in regulation 32(1B) had to be met, it is arguable that the appeal tribunal failed to get to grips with what the claimant could reasonably have been expected to realise about the effect of receipt of her ill-health retirement pension in the light of (a) the actual terms of the SC1 Notes and the questions on the claim form (that she will have parted with on putting in the claim); (b) the fact that her receipt of the widow's pension from her husband's occupational pension scheme had not affected her entitlement to incapacity benefit; (c) the fact that her contractual sick pay of £15,000 per year had not affected her entitlement and her pension was £12,000 a year; (d) the fact that, as she had said at the hearing on 31 January 2007, her parents had both been in receipt of occupational pensions and her father had received incapacity benefit in addition; and (e) the general impression that incapacity benefit was not means-tested. But I do not have to express any final conclusions on all that or on how far it was proper to take into account the claimant's mental and emotional condition at that time. That is because of the issue that did cause me to grant leave to appeal.

I put the issue in this way:

"However, it is arguable that the Secretary of State had no legal power on 6 March 2006 (prior to the amendment to regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 with effect from 6 April 2006) to make a superseding decision on the ground of relevant change of circumstances take effect before the date of the decision itself (ie 6 March 2006). The decision being superseded was an incapacity benefit decision and it appears likely that there had been an incapacity determination (see the definitions in regulation 7A). The relevant change of circumstances was not in relation to the incapacity determination. Accordingly, neither regulation 7(2)(c)(ii) nor regulation 7(2)(c)(iii) would seem to have applied, so that the effective date of the superseding decision would have to be as set out in section 10(5) of the Social Security Act 1998, the date of the superseding decision. If so, entitlement to incapacity benefit in the period from 16 February 2005 to 5 March 2006 could not have been altered to the claimant's detriment. There is little, if any, common sense in that outcome, but the flaw in the regulations was not repaired until 6 April 2006 and the claimant is entitled to have the legislation as made by the Secretary of State applied to her.

According to page 10 of the papers the decision dated 6 March 2006 was notified to the claimant by a letter dated 8 March 2006. Was the claimant's appeal signed on 4 June 2006 to be regarded as encompassing an appeal against that decision as well as against the overpayment recoverability decision? If not, did the appeal tribunal have power (being able to whatever the decision-maker of 8 May 2006 had power to do) to revise the decision of 6 March 2006 for official error (see Commissioner's decision CA/2650/2006)?"

In a comprehensive submission on behalf of the Secretary of State dated 25 October 2007, Mr Ged Cahill accepted that the Decisions and Appeals Regulations as in force on 6 March 2006 did not permit the supersession of the decision of 14 November 2004 on the ground of relevant change of circumstances in the form of beginning to receive an occupational pension to take effect for any date prior to 6 March 2006. He had confirmed that an incapacity determination following the application of the personal capability assessment (PCA) had been made in August 2005 in the claimant's case. Accordingly, regulation 7(2)(c)(ii) and (iii) did not apply, as the relevant change of circumstances was not in relation to the incapacity determination, so that the effective date of the supersession had to be determined according to section 10(5) of the Social Security Act 1998. Further explanation of that conclusion is not needed here (see my decision in CA/2650/2006). The Secretary of State's decision of 6 March 2006 was therefore plainly wrong in law and susceptible to revision by the Secretary of State on the ground of official error.

I note briefly at this point that Mr Cahill made no submission that on the application of the PCA to the claimant in August 2005 there would have been a decision superseding the initial decision of 14 November 2004. If there had been such a decision, that would have been significant, because that decision would have fallen to be revised from the date of its operation on the ground of ignorance of a material fact that made the decision more favourable to the claimant than it should have been. However, the decision-maker of 6 March 2006 had operated on the assumption that the only decision that needed to be altered was the initial awarding decision of 14 November 2004. That would be in accord with the approach that, although there is a change of circumstances on the first application of the PCA (because that brings to an end the deeming of incapacity to work under regulation 28 of the Social Security (Incapacity for Work) (General) Regulations 1995), there is not a relevant change of circumstances if the PCA is passed, because that does not require any change to the claimant's existing entitlement to incapacity benefit. There would thus be no supersession or other form of decision made, rather than a mere incapacity determination. That was the approach adopted by Mrs Commissioner Parker in paragraphs 27 and 28 of decision CSIB/695/2004 (although in the particular context of transitional awards of incapacity benefit) and by myself in paragraphs 5 to 8 of decision R(IB) 2/05 (although I did not need to decide the issue in that case). The present case should proceed on the basis that no supersession was given on the application of the PCA to the claimant in August 2005.

As to what the appeal tribunal should have done in the face of the legal situation set out in paragraph 16 above, Mr Cahill first submitted that the decision of 8 March 2006 was not under appeal to it. I have to agree. This was clearly not a case where the entitlement decision and the overpayment decision were combined into one, where an appeal, even if in terms limited to a challenge to the recoverability of the overpayment, would encompass the whole decision. In those circumstances, if an issue about entitlement arose clearly from the circumstances the appeal tribunal would be bound to deal with it. For an example of those circumstances, see CSIS/73/2005. Nor was this a case where the appeal, although not made until the separate overpayment recoverability decision had been received, was directed either expressly or by implication against the entitlement decision in addition. The claimant clearly identified the decision she was appealing against as that notified on 8 May 2006 and the terms of her appeal challenged the recoverability of the overpayment rather than whether there was an overpayment at all. There was evidence of notice of the decision of 8 March 2006 having been sent to the claimant and there is no reason to think that the notice was not received or that it did not inform the claimant of her right to appeal. And, as Mr Cahill pointed out, an appeal against that decision made on 7 June 2006 would have been well outside the basic one-month time limit and there was no trace of any extension of time having been granted or applied for.

Mr Cahill submitted, second, that on the basis that the appeal tribunal only had the decision of 8 May 2006 before it as under appeal, it had no power to revise the decision of 8 March 2006 for official error. Again, I have to agree with that conclusion.

I did not deal with the possibility of such a revision in my decision CA/2650/2006, where the same error of law had been made in a separate entitlement decision not under appeal to the appeal tribunal, but raised it when granting leave to appeal in the present case. In my judgment the principle that, subject to express statutory restrictions, an appeal tribunal stands in the shoes of the Secretary of State and "may make any decision which the officer below could have made on the legal questions properly before that officer" (paragraphs 24 to 26 of Tribunal of Commissioners' decision R(IB) 2/04) cannot stretch to cover the circumstances of the present case. It is true that, when the question of making an overpayment recoverability decision based on the decision of 6 March 2006 was put before a decision-maker, that officer should (in a general sense) have taken action as described below. The officer should have spotted the error of law in the decision of 6 March 2006 (although no doubt many thousands of supersession decisions for relevant change of circumstances have been made with the same error) and revised it on the ground of official error. Alternatively, if for administrative reasons that do not concern me (such as officers in the Debt Management branch of the Department not being competent or authorised to carry out such revisions, as suggested by Mr Cahill), that officer could not revise the decision, the case should have been referred to an officer who could. However, when one is considering the powers of an appeal tribunal where, instead of taking such action, the decision-maker has gone on to make an overpayment recoverability decision, it seems to me that the starting point must be the question to which the decision-maker has provided an answer in the giving of that decision. That is, in the present case, what overpayment recoverability decision should be made on the basis of the existence of the decision of 6 March 2006 in the terms in which it was given. If that were not the rule, it would give a warrant to appeal tribunals to seek to "correct" through revision or supersession all sorts of decisions not under appeal to them, possibly even decisions on different benefits, on the basis that the decision-maker who gave the decision under appeal should have seen the need for correction. That cannot be right.

I stress, in what will probably be an unsuccessful attempt to avoid further confusion in this difficult area, that the problem with the decision of 6 March 2006 has nothing to do with its validity. It was a perfectly valid decision, that superseded the right decision and by its terms gave a decision as to entitlement to incapacity benefit that covered the whole period later adopted as the period of overpayment and gave a proper outcome decision stating the amount of weekly benefit to which the claimant was entitled in that period. The condition in section 71(5A) of the Social Security Administration Act 1992 that an amount is not recoverable under section 71(1) unless the determination in pursuance of which it was paid had been revised or superseded or varied on appeal was therefore met. It was just that there was an error of law in changing entitlement for any day prior to 6 March 2006.

Thus, this case is different from cases like R(SB) 7/91, R(IS) 2/96, R(IS) 13/05 or CPC/3743/2006 where there had been no revision or supersession purporting to alter entitlement to benefit for all or part of a period of alleged overpayment, so as to satisfy the condition in section 71(5A). The present decision does not impinge at all on appeal tribunals' powers and duties to examine the decisions purportedly relied on in separate overpayment recoverability decisions as satisfying section 71(5A), to see if they in fact do so. In my respectful view, the decision of Mr Commissioner May QC in CSG/741/2006 is not to be read as deciding that appeal tribunals have no power to examine unappealed and final entitlement decisions for that purpose, but that the flaw alleged to exist in the entitlement decision in that particular case fell short by a very long distance from showing that it was not a decision at all. Thus, neither does my decision impinge on the principle that an appeal tribunal, in deciding whether section 71(5A) is satisfied, may ignore defects in the entitlement decision relied on that fall short of rendering that decision so fundamentally flawed as to be inconsistent with any proper exercise of a legal power and so not decisions at all (see paragraph 11 of R(IS) 13/05 and paragraphs 14 to 16 of decision CIS/3228/2003).

Finally, this is not a case where the appeal tribunal could "sidestep" the existence of an entitlement decision that it considered wrong through the principle that the findings of fact in that decision (as opposed to the decision on entitlement itself) were not final and binding on the appeal tribunal. I discussed that principle at some length in decision CA/2650/2006. There I followed decisions finding that, in deciding for the purposes of section 71 whether the amount of the alleged overpayment would have been made but for the misrepresentation or failure to disclose in question, an appeal tribunal could look afresh at issues of fact and their effect on whether the claimant had received more benefit than he or she ought to have done. That principle could not help the claimant in CA/2650/2006 on the issue of the period covered by the entitlement decision, although it did help her on the issue of the date on which she ceased to be ordinarily resident in Great Britain. Nor can it help the claimant here. That is because there were no wrong findings of fact incorporated in the decision of 6 March 2006. What was wrong was a pure question of law, as to the permissible effective date of a supersession on the ground of the relevant change of circumstances that no-one could dispute had happened. If the claimant had notified the Department of the receipt of her ill-health retirement pension immediately she would not have been paid the amount later identified as the overpayment.

It might then appear that the appeal tribunal had no alternative but to confirm the overpayment recoverability decision of 8 May 2006 on the basis that the claimant's entitlement to incapacity benefit had been altered (albeit wrongly in law) by the decision of 6 March 2006, creating an overpayment. However, I accept Mr Cahill's submission that in such circumstances what the appeal tribunal should do is to adjourn the appeal before it and refer to the Secretary of State the question of whether revision of the entitlement decision and any consequent revision of the overpayment recoverability decision (possibly lapsing the appeal) is appropriate. Although the appeal tribunal's own powers of revision of decisions not under appeal to it are limited as explained above, the Secretary of State's are not. Adjournment seems to me the only just alternative to an endorsement of recoverability of an overpayment that ought not in law have been decided to exist. Accordingly, the appeal tribunal erred in law in the present case by failing to adjourn the hearing of the appeal before it.

Mr Cahill did raise for consideration in his submission of 25 October 2007 the question of whether revision by the Secretary of State of the decision of 6 March 2006 for official error, so as to alter entitlement only from that date, would necessarily mean that no overpayment could properly be found to be recoverable. He asked whether regulation 12 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 was applicable:

"12. Section 71(5) or (5A) of the Administration Act (recoverability dependent on reversal, variation, revision or supersession of determination) shall not apply where the fact and circumstances of the misrepresentation or non-disclosure do not provide a basis for the decision pursuant to which the payment was made to be revised under section 9 of the Social Security Act 1998 or superseded under section 10 of the Act."

Mr Cahill stated that regulation 12 was generally applied in cases where instruments of payment had been stolen and entitlement remained unaffected, but asked whether it could apply where, as here, the circumstances of the non-disclosure, ie not disclosing at the proper time, meant that there was no basis for supersession for the relevant period of the decision pursuant to which the overpayment was made. If it did apply, there would have been no point in the appeal tribunal's adjourning.

In my judgment, regulation 12 has no application in circumstances like those of the present case. Although the somewhat mysterious phrase "the fact and circumstances of the misrepresentation or non-disclosure" must no doubt be given some kind of practical meaning, that process cannot be allowed to undermine the fundamental condition in section 71(5A). The change of circumstances that was not disclosed by the claimant did provide a basis for the supersession of the decision of 14 November 2004. It was just that the state of the legislation at the time did not empower the Secretary of State to give effect to any superseding decision before the date of the decision itself. I see no warrant for reading into regulation 12 the additional rule suggested by Mr Cahill. Doing so would involve lifting the condition in section 71(5A) in a wide variety of situations. Such a radical result could only be allowed if plain words required it and the words of regulation 12 are far from plain.

Accordingly, if in the present case the entitlement decision of 6 March 2006 were revised by the Secretary of State to be replaced by a decision altering entitlement only from 6 March 2006, that would have the effect that there had been no overpayment of benefit of which recovery could be sought, so that no decision that an overpayment was recoverable could be made. Thus an appeal tribunal considering an appeal against the overpayment recoverability decision could only allow it. But since the Secretary of State has a power to revise at any time any decision of his against which an appeal is pending (Decisions and Appeals Regulations, regulation 3(4A)), he could revise the decision of 8 May 2006 under that power following the revision of the decision of 6 March 2006. The giving of the revised decision that there was no overpayment that could be recoverable would cause the claimant's appeal against the decision of 8 May 2006 to lapse (section 9(6) of the Social Security Act 1998 and regulation 30 of the Decisions and Appeals Regulations). The existence of those powers underpins the obligation for the appeal tribunal of 19 March 2007 to have adjourned.

The Commissioner's decision on the appeal

For the reason given above, the decision of the appeal tribunal of 19 March 2007 must be set aside as erroneous in point. It is expedient for me to substitute the decision that the appeal tribunal should have given on the claimant's appeal against the decision of 8 May 2006 on its findings of fact. However, for the same reasons as given above, justice requires that I should defer giving a decision until the Secretary of State has had an opportunity to consider the revision of the decisions of 6 March 2006 and 8 May 2006. I refer the case to the Secretary of State for that consideration to be given as soon as possible. I direct the representative of the Secretary of State, as well as informing the claimant of the outcome of that consideration, to inform me of the outcome and to say whether or not it is submitted that the claimant's appeal against the decision of 8 May 2006 has lapsed. I shall then either give a ruling that that appeal has lapsed and that my present decision is the final one or give a decision on that appeal. If for any reason the Secretary of State is not able to comply with that direction within one month of the date on which this decision is sent to him, an explanation in writing is to be sent to the Commissioners' office.

(Signed) J Mesher

Commissioner

Date: 19 February 2008