DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Havant First-tier Tribunal dated 20 August 2009 under file reference 201/09/00780 involves an error on a point of law. The decision of the First-tier Tribunal is set aside. The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 2 October 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

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

 

Directions

 

The following Directions apply to the rehearing before the First-tier Tribunal:

 

(1) The rehearing will be at an oral hearing.

 

(2) The new tribunal should not involve any judge or member who has previously been involved in this appeal (i.e. at the hearing on 20 August 2009).

 

(3) If the appellant has any further written evidence to put before the tribunal, this should be sent to the regional tribunal office within one month of the issue of this decision.

 

(4) The new tribunal must consider, under regulation 6(2)(b) of the 1999 Regulations, whether the appellant has made out his case for a supersession based on the ground that the original award was erroneous in point of law in the light of the Mallinson decision.

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.

 

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the Havant First-tier Tribunal dated 20 August 2009 under file reference 201/09/00780 involves an error on a point of law. The case needs to be reheard by a new tribunal.

 

The issue in this appeal before the Upper Tribunal

 

2. The legal issue in this appeal is whether there is any statutory machinery to backdate entitlement to benefit where an application is made for a supersession of an award of disability living allowance some years after a successful appeal in a separate test case.

 

The background to the appeal to the First-tier Tribunal

 

3. The appellant is a blind gentleman who is now aged 78. On 14 February 1992 he was awarded disability living allowance (DLA) with effect from 6 April 1992, the start date for the then new DLA scheme. He was awarded the lower rate of the mobility component and the lowest rate of the care component from that date. Those awards were both unlimited in duration.

 

4. On 21 April 1994 the House of Lords allowed the claimant’s appeal in Mallinson v Secretary of State for Social Security [1994] 1 W.L.R. 630 (also reported as R(A) 3/94). The majority of the House of Lords held that (i) the guidance that a blind person requires when walking in unfamiliar surroundings constitutes “attention” and not “supervision”; (ii) attention is “in connection with a bodily function” if it provides a substitute method of providing what the bodily function would provide if it were not totally or partially impaired; and (iii) the attention which the claimant received when walking was in connection with the bodily function of seeing.

 

5. The practical effect of the decision in Mallinson, especially when taken with the subsequent decision of the House of Lords in Secretary of State v Fairey [1997] 1 WLR 799 (also reported as R(A) 2/98), was that many more (but not all) blind people qualified for the middle rate of the care component of DLA than was previously the case.

 

6. The appellant in the present case, through no fault of his own, was not aware of the decision in Mallinson until 2008, when either he or his son was in contact with a charity that works with people with visual disabilities. He sent in what he called a request for a review of his DLA entitlement, by completing a new claim form, on 11 September 2008. Technically this was an application to supersede his existing award.

 

7. As a result of that application, the Secretary of State’s decision-maker made a supersession decision on 2 October 2008. The new decision was that the appellant was still entitled to the lower rate of the mobility component but was now entitled to the middle rate of the care component with effect from 28 July 2008 (presumably the date on which he actually asked for the form).

 

8. The appellant lodged an appeal, arguing that he should be entitled to the middle rate of the care component with effect from 21 April 1994, the date of the Mallinson decision. He argued that backdating to that date on the basis of an error of law by the Department was appropriate.

The Havant First-tier Tribunal

 

9. On 20 August 2009 the Havant First-tier Tribunal heard the appeal. The appellant attended with his son, who pointed out that the original DLA claim form that his father had completed in 1992 was inadequate in the light of the Mallinson decision, as it had not asked all the right questions. He noted that the DLA claim form had been changed in 1995, after his father had made his claim. The presenting officer conceded that the drafting of the original DLA claim form had indeed transpired to be defective.

 

10. The First-tier Tribunal’s decision was to dismiss the appeal and to confirm the Secretary of State’s decision to make the supersession decision effective from 28 July 2008. The Tribunal Judge’s note at the end of the Record of Proceedings, plainly summarising the oral version of the tribunal’s decision at the close of the hearing, was short and to the point: “No claim made until 2008; no power to backdate; original decision in 1992 was correct as at that time”. The tribunal’s reasoning was elaborated upon in a Statement of Reasons.

 

11. The First-tier Tribunal expressed its sympathy for the predicament in which the appellant had found himself. However, the central passage in its reasoning read as follows:

 

“However the decision of the Secretary of State was not wrong in law when it was made on the 14^th February 1992 because it was made on the then interpretation of the Law as it was understood. It was true that after the Mallinson judgment on the 21^st April 1994, [the appellant] could have applied successfully for a supersession to be awarded the middle rate of the care component. However, the Secretary of State could only respond if he became aware of a change of circumstances. That did not apply until [the appellant] lodged his application for supersession on the 11^th September 2008. There was no machinery to backdate any award before a claim was made or an appeal lodged.”

 

The proceedings before the Upper Tribunal

 

12. The appellant’s son lodged an appeal on his father’s behalf. He argued that the First-tier Tribunal’s decision contained an error of law, in that it ignored regulation 7(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991). This provides that:

 

“(6) Any decision made under section 10 in consequence of a decision which is a relevant determination for the purposes of section 27 shall take effect as from the date of the relevant determination.”

 

13. The appellant’s son argued that the Mallinson decision was the “relevant determination” (a term which appears in section 27 of the Social Security Act 1998) and so regulation 7(6) provided the machinery (which the First-tier Tribunal said was missing) to backdate his father’s entitlement to the middle rate of the DLA care component to the date of that judgment.

 

14. Mrs F Gigg, who now acts for the Secretary of State in these proceedings, agrees in a helpful submission that the argument of the appellant’s son is “perfectly correct” and that the tribunal’s decision involves an error of law. She therefore supported the appeal to the Upper Tribunal and invited me to send the case back for rehearing by a fresh tribunal.

 

15. I agree with the appellant’s son about the potential application of regulation 7(6) of the 1999 Regulations. Putting the same point another way, I also agree with Mrs Gigg that the tribunal appears to have proceeded on the erroneous assumption that it was bound by the date that the appellant actually applied for the supersession, some 14 years after the date of the House of Lords’ judgment in Mallinson.

 

16. The tribunal therefore erred in law for that reason. I allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)).

 

What happens next?

 

17. The case must be remitted for rehearing by a new tribunal subject to the directions above (section 12(2)(b)(i) of the 2007 Act). The new First-tier Tribunal must consider all the evidence afresh and make its own findings of fact as regards the appellant’s need for attention in connection with his bodily functions in accordance with the Mallinson decision. Those needs will have to be determined as they were in the mid 1990s, not as they are now. As indicated above, the original DLA claim form did not capture all the necessary information, and so further information will be needed about the appellant’s needs at that time in the light of Mallinson.

 

18. As I indicated when granting permission to appeal, some blind people will qualify for the middle rate of the care component, but some will not (see also e.g. Commissioners’ decisions CDLA/4099/2004 and CDLA/1945/2006). There is no automatic entitlement. I note in this case what appears to have been a concession by the presenting officer at the First-tier Tribunal that had the appellant in the present case first made his claim in 2004, after Mallinson, he would have been granted the middle rate of the care component of DLA. The new tribunal will have to judge whether that concession was rightly made.

 

19. However, the matter does not end there. The new tribunal will have to consider whether there are actually grounds for supersession. A supersession argument based on Mallinson naturally pointed to an argument that regulation 6(2)(b) of the 1999 Regulations applied, namely a supersession based on the ground that the original award was erroneous in point of law. Mr Commissioner Rowland (as he then was) put the point thus in CDLA/4099/2004 (at paragraph 6):

 

“Section 27 of the 1998 Act provides that, where a decision of a court such as Mallinson has the effect that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law, any claim, revision or supersession in a different case must, insofar as it relates to a period before the decision of the court, be determined as though the adjudicating authority’s decision had not been found to be erroneous in point of law. Regulation 7(6) is the counterpart of section 27. The overall effect of the two provisions is that the application of the rule of law established by the court is made prospective instead of being retrospective which is more usual but any subsequent supersession based on the court’s decision is made effective from the date of the court’s decision. Thus, if the tribunal did accept that the claimant’s circumstances had not changed and that the original award had been wrong in the light of Mallinson, it should have accepted [the claimant’s representative’s] submission that the new award should be effective from 21 April 1994.”

 

20. I also note Mr Commissioner Rowland’s cautionary words at paragraph 14 of that decision:

 

“…as the applicant, the claimant must show not only that the decision was wrong but also that it is more probable that it was wrong due to the adjudicating officer taking a view of the law shown in Mallinson to be erroneous, than that it was wrong due to some other error of law or ignorance of, or a mistake as to, a material fact. That is no easy task.”

 

There are also three further points worthy of note.

 

Further comments

 

21. First, the First-tier Tribunal’s error was understandable. It was not helped by the Secretary of State’s original submission to the tribunal, which made no mention at all of the supersession provisions in the 1999 Regulations (although this was plainly the main point being made by the appellant from the outset of this appeal, so distinguishing this case from CDLA/4099/2004). In addition, regulation 7(6) is at best rather obscurely worded and it receives relatively little attention in the commentary in the standard work Social Security Legislation 2009/10, Volume III.

 

22. Secondly, in CDLA/4099/2004 Mr Commissioner Rowland referred (at paragraph 3) to a representative’s comment that there had been “a Departmental trawl of cases that might have be potentially affected” by the decision in Mallinson. That submission to the Commissioner appears to have been based on a misunderstanding. According to a ministerial reply in 1994, shortly after the Mallinson judgment, the Department then had “no current plans to initiate a review of those cases as major administrative disruption could be created in reviewing so many cases and the number of successful awards in the light of the judgment do not indicate that such disruption could be justified" (Hansard, Vol. 246 col 52W, 4 July 1994). Mrs Gigg for the Secretary of State has confirmed that no such trawl was conducted at the time, although the DLA claim packs were revised in the light of the Mallinson judgment.

 

23. Thirdly, I note that section 14 of the Welfare Reform Act 2009 amends section 73 of the Social Security Contributions and Benefits Act 1992, following a long campaign by organisations representing blind people. The amendment creates a new category of entitlement to the higher rate mobility component of DLA for people who are “severely visually impaired”, as that term is to be defined in regulations. Section 14 has just come into force but only for the purpose of conferring power to make regulations (Welfare Reform Act 2009 (Commencement No 2 and Transitory Provision) Order 2010 (SI 2010/293 (C.22), art. 2(2)(a)). It comes into force for the purpose of assessing claims and making decisions on eligibility on 15 October 2010 (art. 2(2)(b)) and for remaining purposes (i.e. including actual entitlement) on 11 April 2011 (art. 2(2)(c)). It is not immediately obvious from the primary legislation how this reform will affect existing DLA claimants who are aged over 65.

 

Conclusion

 

24. This appeal to the Upper Tribunal succeeds for the reason set out above. There will have to be a re-hearing before a different First-tier Tribunal, again subject to the Directions set out above.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 4 May 2010 Judge of the Upper Tribunal