Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/2283/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

Decision:  The appellant is not entitled to any change in her existing entitlement to DLA.  She remains entitled to the lower rate of the mobility component from and including 6/7/07 but is not entitled to the care component of DLA at any rate from and including that date.

REASONS FOR DECISION

1. This is an appeal against the decision of the First-tier Tribunal confirming that the appellant’s supersession application to the Secretary of State on 3/3/09 failed.  The appellant wanted an award of the care component of DLA in addition to her existing award from and including 6/7/07 of the lower rate of the mobility component..  The tribunal considered that there were no grounds for supersession. Since the appellant’s application for supersession was submitted after she attained the age of 65, the tribunal correctly confined their attention to the middle and highest rate of the care component of DLA only. 

2. The appellant’s representative had, however, submitted to the tribunal that the original award of 2/9/07 was based on an official error so that the decision could be re-opened and revised from 6/7/09.  The effect would be that, if official error was established, the award could have been reopened back to its start date with possible result that she was entitled to the care component running from that date rather than from the date of her application for supersession in 2009.  It would also mean that she did not have to establish one of the grounds for supersession.  The tribunal did not address this ground, and this is the sole basis upon which I granted permission to appeal.  I indicated to the parties that this error was one which I could fix by substituting my own decision, if appropriate.  The other issues raised in the grounds of appeal were, at the end of the day, matters that the tribunal was entitled to decide as they did on the basis of the evidence before them.

3. Since the original decision to award benefit was made in 2007, the only path to revision lay through regulation 3(5) of the Social Security and Child Benefit (Decisions and Appeals) Regulations 1999, which permits a revision at any time if the decision was based on an official error. 

Revision of decisions

3.(1) Subject to the following provisions of this regulation, any decision of the Secretary of State under section 8 or 10 (“the original decision”) may be revised by him if—

(a) he commences action leading to the revision within one month of the date of notification of the original decision; or

(b) an application for a revision is received by the Secretary of State at the appropriate office—

(i) within one month of the date of notification of the original decision,

(ii)  (not applicable) or

(iii) within such longer period of time as may be allowed under regulation 4.

  (2) Where the Secretary of State requires further evidence or information from the applicant in order to consider all the issues raised by an application under paragraph (1)(b) (“the original application”), he shall notify the applicant that further evidence or information is required and the decision may be revised—

(a)where the applicant provides further relevant evidence or information within one month of the date of notification or such longer period of time as the Secretary of State may allow; or

(b)where the applicant does not provide such evidence or information within the time allowed under sub-paragraph (a), on the basis of the original application.

(5) A decision of the Secretary of State under section 8 or 10—

(a)which arose from an official error; or

(b)where the decision was made in ignorance of, or was based upon a mistake as to, some material fact and as a result of that ignorance of or mistake as to that fact, the decision was more advantageous to the claimant than it would otherwise have been but for that ignorance or mistake,

may be revised at any time by the Secretary of State.

4. Official error is defined in regulation 1(3) of the same regulations: 

1(3)  “official error” means an error made by an officer of the Department of Social Security or the Department for Education and Employment acting as such which no person outside either Department caused or to which no person outside either Department materially contributed;

5. The appellant’s original submission to the First-tier Tribunal [108 - 110] was that the initial approved disability analyst’s report at 67 68 indicated that the appellant needed supervision out of doors all of the time and that as this was the case, the reasoning should extend to the care component, in particular the main meal test.  It was argued therefore that the decision to refuse the care component was ‘Wednesbury unreasonable’, i.e. so unreasonable that no reasonable person could have made it, or so outrageous in its defiance of logic... that no sensible person could have arrived at it.  In the supplementary argument to the First-tier Tribunal [171- 3], it was argued that the EMP’s report indicated that the appellant was anxious, lacking in confidence, suffered with dizziness, had problems with short term memory, exertion and the use of both arms, could not chop or peel vegetables and was panicky outdoors; and this supported what the appellant said about preparing a main meal in her original claim form and in certain other entries in the medical evidence she submitted relating to 16/6/08 and 4/7/08.  In the application for permission to appeal, the argument was that the revision argument had not received any consideration and that there was evidence that the appellant could not peel and chop.  In the representative’s reply to the Secretary of State’s response, he argued (as I understand it) that the decision maker was incorrect to have come to the decision in 2007 without seeking further evidence and this was an official error.

6. There are insuperable difficulties with these arguments, which do not begin to establish that there was an official error. 

(i) The decision maker made the original award on the basis of advice she received from an approved disability analyst (ADA), Dr Sinha [67 -68].  His opinion was that although the appellant would require supervision outdoors most of the time, she should be able to fully self care at her own pace including cooking a main meal for most of the time.  It was up to the decision maker to weigh that evidence.  Unless it was inherently contradictory or otherwise significantly flawed, she was entitled to accept it and prefer it to the other evidence.

(ii) The ADA’s opinion was professional and independent.  There was nothing inherently inconsistent or flawed in his view that the appellant needed supervision outdoors but would be able to manage indoors where she could proceed at her own pace.  The factors affecting an ability to manage outdoors as opposed to coping in the home are, after all, very different.  There was nothing irrational or outlandishly unreasonable in the decision maker accepting the ADA’s evidence.

(iii) The EMP report was made in 2010, some three years after the original award and a year after the supersession application.  His view, three years down the line, that the appellant would have trouble peeling and chopping vegetables does not necessarily conflict with or make the ADA’s view in 2007 was wrong.  The ADA had the appellant’s evidence before him but plainly did not find it in conformity with his professional assessment.  The decision maker accepted the ADA’s evidence. Again, I cannot see how the decision maker’s preference can be described as irrational or outrageous. 

(iv) The final argument was that the decision maker erred in law in failing to seek further evidence about the appellant’s care needs in 2007.  The decision maker had ample evidence, including a professional, independent report from an ADA which was satisfactory.  There was no official error on this ground either. 

7. CDLA/0393/2006 and CDLA/1945/2006 do not assist. 

[Signed]

S M Lane

Judge of the Upper Tribunal

[Date] 25 February 2011