DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the claimant.

 

The decision of the Scarborough First-tier Tribunal dated 12 January 2011 under file reference 132/10/00391 does not involve an error on a material point of law. The decision of the tribunal stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The legal issues in this appeal

1. The First-tier Tribunal (FTT) was concerned with an appeal against the Secretary of State’s supersession decision. For present purposes the appellant had originally been awarded the highest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA). She applied for a supersession (to increase the level of the award of the mobility component to the higher rate). The Secretary of State’s supersession decision was that she was no longer entitled to the mobility component and only entitled to the lowest rate of the care component. The FTT, on her appeal, went further and concluded that there was no entitlement to either component of DLA at any rate.

 

2. The appellant’s grounds of appeal, as set out by her representative, were initially two-fold. First, it was said that her appeal had in fact already lapsed because of a decision to increase her DLA award taken by the Secretary of State, quite coincidentally, the day before the FTT hearing. Second, it was argued that the FTT failed properly to consider whether there were grounds for an adverse supersession decision. However, as will become apparent, this appeal has developed, as the appellant’s representative concedes, “in an entirely different direction to that which we started out with”.

 

The chronology in this case

3. The chronology in this case is somewhat complex. The full adjudication history was not before the FTT. It has also only emerged at a relatively late stage in these proceedings.

 

4. The Department’s computer system screen-print evidence, as before the FTT, was that the appellant had had the following awards of DLA:

 

From 5 December 2007 to 4 June 2009: highest rate care and higher rate mobility

From 5 June 2009 to 13 October 2009: highest rate care and lower rate mobility

From 14 October 2009 to 4 June 2011: lowest rate care and no mobility

 

5. The sequence of events in this appeal, up to the date of the FTT hearing, was as follows:

 

13 January 2009 The appellant made a DLA renewal claim.

 

11 February 2009 The Department obtained a GP factual report.

 

22 February 2009 A decision maker made an award of highest rate care and

lower rate mobility for the period 05.06.2009-04.06.2011.

 

05 August 2009 The appellant made a supersession request.

 

14 October 2009 A decision maker made a supersession decision awarding

lowest rate care for the period 14.10.2009-04.06.2011 and no mobility.

 

22 October 2009 The appellant lodged an appeal against the decision of 14

October 2009.

 

21 January 2010 The Department obtained a report from an examining medical

practitioner (EMP).

 

[04 October 2010 The appellant made a further supersession request.

 

13 October 2010 The Department obtained a further GP factual report.

 

22 October 2010 A decision maker made a supersession decision but with

no change to the outcome, i.e. lowest rate care for the period 14.10.2009-04.06.2011 and no mobility.

 

11 January 2011 A decision maker made a further supersession decision,

this time awarding lowest rate care and higher rate mobility from 28.09.2010 to 27.09.2012.]

 

12 January 2011 The FTT heard the appeal against the 14 October 2009

supersession decision, deciding that there was no entitlement to either component as from 14.10.2009.

 

6. The FTT which sat on 12 January 2011 was unaware of the developments between 4 October 2010 and 11 January 2011 (indicated by the square brackets and underlined text above). These matters were not mentioned in the Department’s submission to the tribunal (which had doubtless been prepared some time earlier, as one reason for the delay in hearing the appeal was that the appellant had moved to a different part of the country). The presenting officer at the hearing also made no mention of these developments. It is more than likely, of course, that she was herself completely unaware of the decision taken in Blackpool the day before the tribunal sat, reinstating an award of higher rate mobility and lowest rate care. The appellant also said nothing about the award made the previous day – presumably, and understandably, because she had not by that stage received the letter informing her of the new decision.

 

7. The original grounds of appeal were thus two-fold – first, that the FTT had no jurisdiction as the appeal had lapsed and, second, that the FTT had failed to establish grounds for supersession.

 

Had the appeal against the supersession decision of 14 October 2009 lapsed?

8. On the initial paperwork supplied to the Upper Tribunal, this appeared to be a very promising ground of appeal. The appellant’s representative argued that the effect of the Secretary of State’s decision of 11 January 2011 was simply that the appeal had lapsed (see section 9(6) of the Social Security Act 1998). On this basis, the FTT sitting 24 hours later had no jurisdiction to decide the appeal against the decision of 14 October 2009.

 

9. As I indicated in earlier observations on this appeal, this would put the case on all fours with the unreported decision of the Social Security Commissioner in CDLA/1526/2009 – there would simply be nothing left for the tribunal to decide.

 

10. However, as the full adjudication history has unfolded, it is clear that there was a fundamental difficulty with the representative’s submission. The decision of 11 January 2011 was not a revision decision at all, that replaced the decision of 14 October 2009 in its entirety. Rather, it was a supersession decision, which only changed the appellant’s award of DLA with effect from 28 September 2010. It had no effect on the appellant’s entitlement for the period from 14 October 2009 to 27 September 2010. In fairness to the representative, the appellant only consulted him after the FTT hearing, and so he too was not necessarily familiar with everything that had happened before that date.

 

11. It follows that the appeal had not in fact lapsed when the FTT sat on 12 January 2011. The FTT still had jurisdiction to hear the appeal against the supersession decision of 14 October 2009. There is a related issue about the extent of the FTT’s jurisdiction, but I address that further below.

 

Did the FTT properly identify grounds for an adverse supersession decision?

12. The second ground of appeal is that there were simply no grounds established by the FTT for superseding the decision dated 14 October 2009. As the representative acknowledges, the FTT was plainly aware of its discretionary power to make a decision which was worse for the appellant than the Secretary of State’s decision under appeal. The record of proceedings and the statement of reasons make it clear that the appellant was warned of this possibility in no uncertain terms, and on more than one occasion, but declined to ask for an adjournment and expressly stated her wish to proceed with the appeal.

 

13. However, the representative argues that the FTT “has simply assumed that it has a power to chop and change awards whenever the whim takes it.” He says that the FTT failed to identify the basis for making a decision on appeal which was more disadvantageous than the supersession decision being challenged.

 

14. There are certainly cases where a tribunal fails to appreciate that a ground for an adverse supersession of an existing award needs to be shown, and instead e.g. treats the case as an appeal against a straightforward refusal of a fresh claim for benefit. Although the present tribunal might have been more expansive in its reasoning, I am satisfied that it did not fall into this trap. I say that for the following four main reasons.

 

15. First, the FTT’s warning to the appellant was clear. As summarised in the record of proceedings, it was (in part) that “Appellant warned that the Tribunal’s powers included removing existing award”. Furthermore, the presenting officer, opening the case, expressly asked the FTT to reconsider the question of entitlement to the lowest rate care component in the light of the January 2010 EMP report. The tribunal judge noted in the record the following further exchange with the appellant: “I ask again – are you sure you wish to proceed without advice? Answer – yes, I am sure.”

 

16. Second, in the very first paragraph of its statement of reasons the FTT explained in summary that it found the supersession decision of 14 October 2009 to be incorrect: “In the Tribunal’s judgement whilst supersession was appropriate there should have been no care award made on that supersession”. This can only be shorthand, or a “headline point” in the FTT’s summary, for a conclusion that an appropriate ground for supersession had been made out.

 

17. Third, in paragraph 13, the FTT referred to the first GP factual report from February 2009 and stated:

 

“Frankly, the Tribunal were surprised that in the light of that report the initial award was made on 22/02/09 and it was not surprising that when the papers were reconsidered following the Appellant’s request for the award to be looked at again (clearly in the hope that she would be awarded HRM) that the decision was superseded.”

 

18. Fourth, the FTT undertook a detailed analysis of all the evidence before it, both documentary and oral. In her January 2009 claim form the appellant had referred to problems with bending down to use the oven, preparing and cooking food and lacking motivation. The February 2009 GP factual report noted pain on rising and “mild balance problems” but stated that the appellant was “fully ambulant”; the GP was not, however, asked directly about the main meal test. In the August 2009 supersession request form the appellant referred only to difficulties with bending and using a cooker. The appellant told the EMP in January 2010 that she could cook and cared for her 2 year old son. The EMP reported that in his opinion the appellant had no care needs. At the hearing, the appellant confirmed she had no problems with her upper limbs. The FTT then made clear findings of fact about the appellant’s ability to prepare and cook a main meal for one (paragraphs 27-29), also explaining that e.g. the ability to use a conventional oven was not necessarily a requirement of the “cooking test”.

 

19. The appellant’s representative argues that the FTT’s statement in paragraph 13 of the statement of reasons (see paragraph 17 above) amounts simply to its bald assertion that in its view there was no entitlement to DLA in January 2009. In short, he says, the FTT was simply expressing a different view or opinion on the facts, and that this was insufficient to form the basis for an adverse supersession decision. It had failed, he submits, to show any sound basis for concluding that the decision of 22 February 2009 was wrong.

 

20. It seems to me that there are two difficulties with the representative’s submission on this point.

 

21. First, the FTT was not concerned with an appeal against the decision of 22 February 2009 to award highest rate care and lower rate mobility on the renewal claim for the period from 5 June 2009 to 4 June 2011. Rather, the FTT was considering the appeal against the subsequent supersession decision of 14 October 2009, reducing the award to lowest rate care with effect from that date. That said, it seems to me the only way to read paragraph 13 of the FTT’s statement of reasons is as an expression of the view that the 22 February 2009 decision was fundamentally flawed because of either a mistake as to, or ignorance of, certain material facts (concerning the appellant’s then care and mobility needs). There is no serious suggestion in the statement of reasons that the FTT felt that the award had become incorrect due to a subsequent change in circumstances.

 

22. Second, it is important to read the FTT’s decision as a whole and in the light of all the evidence before it. Reading the statement of reasons in its entirety, the FTT’s conclusion was plain – the decisions of 22 February 2009 and 14 October 2009 were both wrong because they were both made in ignorance of, or under a mistake as to, a material fact or facts (in the latter decision, the material facts being the functional ability of the appellant to prepare and cook a main meal). As I suggested above, the FTT’s reasoning might have been a little more expansive. However, I am not persuaded that there was any material error of law here.

 

23. In this respect I agree with Judge Parker’s comments in GR v Secretary of State for Work and Pensions (DLA) [2010] UKUT 312 (AAC), where she approved the following submission made in that case on behalf of the Secretary of State (at paragraph 18):

 

“… [T]he relationship between the ground of supersession is a logical and not a chronological one. A tribunal merely has to arrive at a ground of supersession from which it logically follows that the claimant’s award falls to be altered. However, it is not bound to make findings as the ground of supersession before it considers the claimant’s entitlement … it may make its findings in whatever order it pleases, provided that what results from them is a chain of reasoning that tends logically to show that a ground of revision or supersession exists such as warrants the alteration of the existing award. Amongst other things, a tribunal is entitled to infer the existence of an appropriate ground of supersession if its findings as to the claimant’s circumstances and the extent to which he comes within the conditions of entitlement properly imply that either the existing award was never sustainable or a change has occurred since that award took effect. Whether such an inference is justified is a matter of fact and degree. It will not always be justified where a tribunal’s view of the claimant’s entitlement is at variance with that of the authority that made the existing award: neither will it never be justified by such a divergence. In any given case, the tribunal will have to determine, in the light of the particular circumstances before it, whether it has uncovered a mistake of fact on the part of the awarding authority, a change of circumstances, or a mere difference of opinion such as does not permit a revision or supersession.”  (original emphasis)

 

24. Judge Parker concluded in that case that the tribunal in question had not relied “on a changed view of how the same legal test applied to the same facts; it correctly considered the material underpinning facts” (at paragraph 16). In my judgment, the same is true in the present case. Reading the decision as a whole, it is plain that the FTT decided that the appellant could prepare and cook a main meal for one both at the time of the February 2009 award and, more importantly, at the time of the October 2009 supersession decision. Furthermore, the only way to read the decision is that the FTT also concluded that these earlier decisions had been made on the basis of mistake or ignorance as to those material facts. In that context it is important to bear in mind Judge Parker’s further observation in GR v Secretary of State for Work and Pensions (at paragraph 10) that:

 

“The test is adequacy of reasons, not perfection, and that can be judged only in the context of the evidence and submissions as a whole.  Against that background, and that the tribunal is a body of summary jurisdiction not expected to give a textual analysis akin to that of the Court Appeal, I judge there was no erroneous approach in law in the tribunal’s evaluation of the evidence.”

 

Did the FTT err in law by acting in ignorance of the 11 January 2011 decision?

25. The matter does not end there, even though on reflection I have been persuaded by neither of the grounds of appeal originally advanced by the appellant. Mr David Bell, the Secretary of State’s representative, has helpfully provided a full account of the rather convoluted adjudication history in this case. As already noted, it is clear that the FTT was completely unaware of both the later supersession request and the Secretary of State’s subsequent supersession decision, taken 24 hours before the hearing (making an increased award with effect from 28 September 2010). Mr Bell further argues that, by so acting, the FTT was inadvertently proceeding in ignorance of the new decision and erred in law.

 

26. Mr Bell cites no authority for that proposition. It seems to me that there may be two ways in which the Secretary of State’s decision of 11 January 2011 might have impacted on the FTT’s decision the following day: the first relates to jurisdiction and the second to evidence.

 

27. The first jurisdictional point is that as a matter of principle the FTT sitting on 12 January 2011 was actually (unbeknownst to its members) dealing with a closed period, namely the question of the appellant’s entitlement for the period from 14 October 2009 to 27 September 2010 (the day before the 11 January 2011 decision took effect). The FTT, of course, unaware of this complication, simply made a decision dismissing the appeal and ruling that there was no entitlement to either component at any rate “from and including 14/10/2009”.

 

28. Was this a material error of law? I think not. The FTT’s decision was always going to remain in place if and only so long as it was not the subject of any further decision by the Secretary of State in relation to a later period. Such a decision might have been taken by the Secretary of State the day before or the day after the hearing (or a month before or a month afterwards, and so on). Either way, it does not affect the validity of the FTT’s decision which had effect as from 14 October 2009 until subsequently superseded.

 

29. The second potential impact is if the FTT had acted in ignorance of material evidence used in making the later decision which might also have been relevant to the earlier period. A tribunal, of course, must “not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998). It is well established that this does not prevent a tribunal from considering evidence that only came to light later but which can be used to identify the circumstances in place before the decision was made (see Social Security Commissioner decisions R(DLA) 2/01 and R(DLA) 3/01).

 

30. Is this just such a case? In my view it is not. Mr Bell has helpfully provided the evidence used by the decision maker who made the 11 January 2011 decision. It comprises a supersession review form (received 4 October 2010), in which the appellant stated that her condition had severely deteriorated. The only other document was the new GP factual report, dated 13 October 2010, which tersely reported that the appellant was “able to self-care” and was “in pain daily” as regards mobility. There is nothing at all here that would have assisted the FTT on 12 January 2011 in considering the position as it stood in October 2009.

 

31. My conclusion, therefore, is that in the circumstances of this case the FTT did not err in law by proceeding in ignorance of the 11 January 2011 decision. Having also found that neither of the original grounds of appeal succeeds, I therefore dismiss the appeal.

 

Unfinished business before the FTT

32. There remains some unfinished business before the FTT. The supersession decision of 11 January 2011, awarding lowest rate care and higher rate mobility from 28.09.2010 to 27.09.2012, was itself subsequently revised on 23 March 2011. The new decision was that there was no entitlement to DLA as from 28 September 2010. The appellant lodged an appeal against that decision (SC010/11/008860). It appears that that appeal was sensibly stayed, pending the outcome of this appeal. That appeal can now go ahead. Obviously there is no need to hear it together with any earlier appeal as this present appeal to the Upper Tribunal has failed and there is no remittal. Equally clearly the findings of the FTT on 12 January 2011 are not binding on the new FTT, which will hear the new appeal afresh.

 

Conclusion

33. For the reasons explained above, the decision of the First-tier Tribunal does not involve any material error of law.  I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 18 December 2012 Judge of the Upper Tribunal