UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CSIB_22_2008 (10 July 2008)

DECISION OF SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the tribunal given at Dundee on 2 October 2007 is erroneous upon a point of law. I set it aside. I make the decision I see fit. It is there was no competent appeal to the tribunal of the decision of 10 July 2006. The purported revision of that decision on 1 February 2007 was incompetent.

This appeal came before me for an oral hearing on 17 June 2008. It was thereafter adjourned until 7 July 2008. The claimant was represented by Mr Logan, Advocate, instructed by Mr Myles, Solicitor. The Secretary of State was represented by Mr Bartos, Advocate, instructed by the Office of the Solicitor to the Advocate General.

This appeal was heard along with the appeal in CSIS/21/08.

The decision appealed against to the tribunal in the instant case was one of the 10 July 2006, which was in the following terms:

"[The claimant] is treated as capable of work from and including 04/01/04 because she has been working during this period."

This decision was purportedly revised on 1 February 2007. That decision was in the following terms:

"I have revised the decision of the decision maker dated 10.7.06. This is because the decision was made in ignorance of a material fact. This is that the customer was abroad in South Africa from 4.1.06 to 6.2.06 on holiday.

My revised decision is as follows –

[The claimant] is treated as capable of work from 1.9.03 to 30.12.05 and from and including 10.2.06.

The decision awarding Incapacity Credits from and including 31.7.95 is superseded."

The tribunal refused the claimant's appeal. It made the following decision:

"The appeals are refused.

The previous decisions of the Secretary of State relating to Incapacity Benefit issued on 10/07/06 and 01/02/07 are revised and the following decision substituted therefor.

[The claimant] is treated as capable of work from and including 19/11/03 because she has been working during that period. Accordingly she is not incapable of work and is not entitled to Incapacity Credits from and including that date. The decision (dated approximately 10/08/95) awarding Incapacity Credits from and including 31/07/95 is superseded."

Before hearing Mr Logan on his appeal, in relation to both cases before me, I raised with Mr Bartos the nature of the decision which was made on 10 July 2006.

After taking instructions, Mr Bartos submitted that the position of the Secretary of State was that the decision of 10 July 2006 was a determination made under section 31 of the Social Security Act 1998 and regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

Section 31 of the Social Security Act 1998 provides:

"31(1) Regulations may provide that a determination that a person is disqualified for any period in accordance with regulations under section 171E of the Contributions and Benefits Act shall have effect for such purposes as may be prescribed as a determination that he is to be treated as capable of work for that period, and vice versa.

(2) Provision may be made by regulations for matters of such descriptions as may be prescribed to be determined by the Secretary of State, notwithstanding that other matters fall to be determined by another authority.

(3) Nothing in this section shall be taken to prejudice the generality of the power conferred by section 17(2) above.

Regulation 10 of the Social Security and Child Support (Decisions and Appeals Regulations 1999) provides:

"10. A determination (including a determination following a change of circumstances) whether a person is, or is to be treated as, capable or incapable of work which is embodied in or necessary to a decision under Chapter II of Part I of the Act on which a decision is based shall be conclusive for the purposes of any further such decision."

It was Mr Logan's submission that the nature of what was done on of 10 July 2006 was a decision under section 10 of the Social Security Act 1996 superseding the award of incapacity credits. I do not accept that submission. Perusal of the decision of 10 July 2006 demonstrates that it does not bear to be such a supersession, either in its content nor its description as contained in the tick boxes at its head. There "decision" is ticked, not "supersession". Mr Bartos's submission is consistent with what it bears to be. This is reinforced by the ineffectual attempt to supersede in the purported and incompetent revisal decision of 1 February 2007.

It was Mr Bartos's submission that, as the nature of what was done on 10 July 2006 in a determination made under section 31 of the 1998 Act it is not a decision under section 8 or 10, whether as originally made or revised under section 9 of the 1998 Act. Accordingly, he submitted there is no right of appeal in respect of it to an Appeal Tribunal under section 12 of the 1998 Act. I think that Mr Bartos is correct and I accept his submission. Mr Bartos was also correct when he submitted that as it is a determination made under section 31 it is not a decision under section 8 or section 10 of the Act. It is thus incapable of revision and the purported revision of the decision of 10 July 2006 by the decision of 1 February 2007 is incompetent.

In the incompetent revisal decision of 1 February 2007, the Secretary of State purported to supersede the decision awarding incapacity credits from and including 31 July 1995. I do not consider that the purported supersession can be regarded as a freestanding decision on supersession and separated from the purported revisal. If I was wrong about that and the purported supersession was an independent freestanding decision and it was the subject of appeal to the tribunal, it was so lacking in coherence in respect that it was inept. Whilst there is a purported narration of evidence and justification for the decision, the basis for the purported supersession is not set out in the decision. It is further not clear on the face of the decision itself, what the consequence of the supersession was in relation to entitlement to credits and the period from which the supersession is to take effect. Thus, if there had been an effective appeal to the tribunal on it, I would have remitted the matter back to the Secretary of State to proceed as he wished in the light of that decision.

As the tribunal dealt with the substance of the determination under section 31, in respect of which there was no appeal to it allowed by statute, and dealt with a supersession on incapacity credits, which was not appealed to them and even if it had been, was wholly lacking in coherence, they erred in law and their decision must be set aside. In the light of the view of the case I have taken above, I have made the decision set out in paragraph 1.

The appeal fails.

(Signed)

D J MAY QC

Commissioner

Date: 10 July 2008