Upper Tribunal (Administrative Appeals Chamber)

MG v Secretary of State for Work and Pensions [2009] UKUT 82 (AAC)(28 April 2009)
DLA, AA, MA: general
other

 


IN THE UPPER TRIBUNAL Appeal No. CDLA/3660/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

Decision: The decision of the Fox Court tribunal held on 14 July 2008 under reference 242/07/12455 is SET ASIDE because it involved the making of errors on points of law.

The appeal is REMITTED to the First-tier Tribunal (Social Entitlement Chamber) for a complete rehearing by a fresh tribunal.

This decision is given under section 12(1) and (2)(a) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

1. From 3 November 2008, the functions of the Social Security Commissioners were transferred to the Upper Tribunal (Administrative Appeals Chamber), under whose jurisdiction this decision is now given.
2. The appellant appeals with my permission against the decision of the Fox Court tribunal to disallow her appeal against the Secretary of State's decision of 26/06/07 to reduce her rate of entitlement to Disability Living Allowance from the effective date of her renewal claim. She had previously been in receipt of Disability Living Allowance ('DLA') at the higher rate of the mobility component and middle rate of the care component from 21/07/05 to 20/07/07, but upon renewal, the Secretary of State reduced the award to the lower rate of the mobility component and the lowest rate of the care component from 21/07/07 to 20/07/10.
3. The appellant appealed by way of a paper hearing, which was adjourned twice to give her the opportunity to attend to give oral evidence. She was advised in the adjournment notice of 1/5/08 that the tribunal had the power not only to increase an award, but also to reduce it. The appellant did not take up the invitations to attend. The tribunal which heard the appeal on the papers on 4 July 2008 decided to remove the appellant's award altogether from the date of the hearing.
4. The appellant submitted that the tribunal had not dealt with the totality of the appellant's various conditions and had instead limited itself to her sciatica. On the whole, I accept this ground as made out. I do not, however, accept her submission that the tribunal treated her GP's statement that he was unaware of any care needs as the equivalent of a statement that she did not have any such needs. The tribunal merely says that the GP's lack of unawareness of any disability needs echoes the Examining Medical Practitioner's opinions that she does not have any. I would not, have set aside the tribunal's decision on this basis in event. This is because the tribunal is a specialist body with legal, medical and disability expertise. It is their job as a specialist tribunal to weigh the evidence and make the necessary judgment whether a claimant is entitled to Disability Living Allowance. Their own expertise will inevitably play a part in their assessment of the appellant's claims and in analysing the evidence. The remark about the GP Factual Report played a very minor part in their overall assessment of the evidence and does not vitiate their conclusions. Finally, the appellant felt that she had not been given the opportunity to comment on the tribunal's suspicions about the award and that she did not attend because the letters issued to her by the Tribunal Service had a Nottingham address so that she thought the appeal would be held in Nottingham, which was far from her home. Had the appellant read the letters sent to her by the Tribunal Service more carefully, she would have seen that an appeal would be held at a venue near her home. I would not, therefore, have set the decision aside on the basis that there had been a breach of natural justice.
5. However, in addition to the failure to find sufficient facts, I observed in giving permission to appeal that the date from which the tribunal took away the appellant's award was one for which there appeared to be no basis in law. The Secretary of State supported the appeal on this ground.

The date from which the tribunal's decision should have operated

6. The simple issue before the tribunal was whether the advance award of DLA made in decision of 26/06/07 and effective from 21/07/07, was correctly made on the basis of the renewal claim. The tribunal erred when it strayed from this issue and decided to remove benefit from the date of hearing. This was plainly wrong, even if they had embarked on some sort of revision or supersession exercise.
7. Renewal claims may be submitted by the claimant up to 6 months in advance of the expiry of a subsisting claim by virtue of Regulation 13C of the Social Security (Claims and Payments) Regulations 1987, as amended to its present restricted form by the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 2005. The present form of regulation 13C merely allows a claim to be submitted in advance of the expiry of an existing claim, unlike the 'old' regulation 13C, which specified how other matters were to be resolved, such as the starting date an award, its conditional status and how it was to be revised, if necessary. These matters must, therefore, now be decided by reference to the general provisions of the Social Security Act 1998 and Social Security and Child Support (Decisions and Appeals) Regulations 1999 and principles in case law derived from them. Though the Secretary of State cited the previous form of regulation 13C in his submission to the Upper Tribunal, this does not make any difference to this appeal.
8. A tribunal's duty in an appeal is to re-hear completely the factual and legal issues involved in the Secretary of State's decision. Where the issue is whether an award or renewal of DLA should be made, the tribunal stands in the shoes of the Secretary of State in deciding whether, and if so at what rates, an award should be made. The tribunal is entitled to make any decision that the Secretary of State could properly have made in relation to the issue before him. If the tribunal comes to the conclusion that the Secretary of State's decision on a claim or renewal is wrong, they have the power to replace the Secretary of State's decision with their own, having made any findings of fact necessary to do so. The relevant date from which their decision is operative is the date of the claim or effective date of renewal. The powers of a tribunal in relation to claims are well explained in R(IB)2/04 (Tribunal of Commissioners) paragraphs 11 – 33.
9. Although the process by which the tribunal changes the Secretary of State's decision on a claim is commonly described as 'revising' the decision, the change is not a revision for the purposes of section 9 of the Social Security Act 1998 or regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It is just a replacement of the wrong decision with the right one: R(IB)2/04, paragraph 15.
10. Accordingly, as the tribunal came to the conclusion that the evidence did not support renewal of the appellant's award for either component at any rate, their decision could only operate from the date of renewal.
11. It is not at all clear what legal process the tribunal employed in arriving at its decision to terminate the appellant's award from the date of hearing. They start out by saying they revised the Secretary of State's decision, but did not adopt a date consistent with legal process. If the tribunal was attempting to supersede a decision, the only decision that could have been superseded was the previous award. If so, they were wrong in imposing the date of hearing as the effective date of the supersession. Under section 10(5) of the Social Security Act 1998, the general rule is that, where the Secretary of State superseded a decision on his own initiative, the supersession takes effect as from the date on which it is made. In this case, the tribunal would have been exercising the Secretary of State's initiative at the date of decision, 26/6/07. It follows that the supersession should have been effective from that date. It does not appear that regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 would have effected any change in this date, and I do not consider it further.
12. I consider that the appropriate course of action is to remit this appeal to a fresh tribunal for complete rehearing. I do not consider it appropriate to substitute a decision, not least because my inclination would be to come to the same conclusion as the tribunal and remove benefit from the correct date, 21/7/07. As this might result in an overpayment of benefit, it seems preferable to remit the matter for an oral rehearing. It is very much in the appellant's interest to attend on the next occasion.
13. The appellant should be fully aware that the next tribunal may come to precisely the same conclusion as the tribunal on 4/7/08. She would do well to seek legal advice on whether to continue her appeal before the First-tier Tribunal (Social Entitlement Chamber).

[Signed]

S M Lane

Judge of the Upper Tribunal

28 April 2009