Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Sutton First-tier Tribunal dated 19 August 2010 involved an error on a point of law and is set aside. It is appropriate for the Upper Tribunal to re-make that tribunal’s decision (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). The decision as re-made is that the appeal constituted by the letter dated 12 June 2009 from the claimant’s representative is not to be struck out under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 on the ground that the tribunal did not have jurisdiction in relation to the appeal because it was made outside the time prescribed in rule 23 of and Schedule 1 to those Rules. The appeal is accordingly admitted for consideration and determination by the First-tier Tribunal.

 

 

REASONS FOR DECISION

 

1. There was an oral hearing of this appeal, brought with the permission of a district tribunal judge of the First-tier Tribunal, on 11 October 2012. The hearing had been requested by the claimant’s representative, Mr O’Kelly of Mind in Croydon, but there were delays in seeing whether the substance of the case could be resolved without a hearing and then in finding a date on which Mr O’Kelly could be available. He attended the hearing. The Secretary of State for Work and Pensions was represented by Mr Stephen Cooper, solicitor, instructed by DH/DWP Legal Services. I thank both representatives for their constructive submissions in a case with great technical difficulties. I gave both parties time after the hearing to make further written submissions on some points that had arisen during the hearing. Those submissions were completed very promptly by 7 November 2012, but not added to the file until 23 November 2012.

 

The First-tier Tribunal’s decision: striking out?

2. The decision of the tribunal of 19 August 2010 was, as set out in the decision notice, that the appeal lodged on 18 June 2009 against a decision (of the Secretary of State) first made on 19 March 2003 could not proceed because it was made outside the absolute time limit. At one point in the proceedings I expressed the view that the tribunal’s decision was not a striking out of the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (proceedings must be struck out if the tribunal does not have jurisdiction in relation to the proceedings), but was a separate decision standing in its own terms to bring the proceedings to an end. Neither party disagreed with that view. However, after the oral hearing I noticed that in LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC), now reported at [2011] AACR 27, the three-judge panel of the Upper Tribunal recorded that it was common ground between the parties in that case that a decision of a First-tier Tribunal declining jurisdiction because an appeal had been lodged outside the absolute time limit was to be treated as if it had been a striking out of the proceedings under rule 8(2)(a). The Upper Tribunal also in re-making the First-tier Tribunal’s decision put its disposal of the case in terms that the proceedings should not be struck out.

 

3. I gave the Secretary of State and Mr O’Kelly the opportunity to comment. The submission on behalf of the Secretary of State was that, following LS, the decision of 19 August 2010 was to be regarded as a striking out, which it was said was confirmed by the fact that it was made by a tribunal judge alone, without the medically qualified member who would have been necessary for the disposal of an incapacity benefit appeal. Mr O’Kelly’s submission was that a decision on a case referred to the First-tier Tribunal under rule 23(7) was a different thing from a striking out for want of jurisdiction for some other reason. I do not as it turns out have to decide who is right. The answer would only matter if it mattered that there was no hearing held by the tribunal of 19 August 2010, the normal requirements of rule 27 being excluded in cases of striking out (rule 27(3)). There is nothing in the Secretary of State’s point about the composition of the tribunal, because the Senior President of Tribunals’ Practice Statement allows a district tribunal judge, by delegation, to determine that an appeal which would normally need an additional member can be determined by a tribunal judge alone when it raises questions of law only. Since I have concluded that the tribunal of 19 August 2010 erred in law for other reasons, I do not have to decide whether there was some breach of rule 27 in proceeding without a hearing on that day. In my view there may need to be some reconsideration of the approach taken in LS to striking out, but that should occur in some other case in which the answer does matter. In the current case I am content to proceed on the basis of accepting what was done in LS and treating the decision of the tribunal as a striking out under rule 8(2)(a). It is plain from LS that such a decision is appealable to the Upper Tribunal.

 

The time limit for appeal

4. The absolute time limit emerges from the provisions in rule 23(5) of the Tribunal Procedure Rules that no appeal may be made more than 12 months after the time specified in Schedule 1 and in rule 23(8) that there can be no extension of that 12-month limit. The time limit in Schedule 1 is:

 

“The latest of—

 (a) one month after the date on which notice of the decision being challenged was sent to the appellant;

 (b) if a written statement of reasons for the decision was requested within that month, 14 days after the later of—

  (i) the end of that month; or

 (ii) the date on which the written statement of reasons was provided; or

 (c) if the appellant made an application for revision of the decision under—

  (i) regulation 17(1)(a) of the Child Support (Maintenance Assessment Procedure) Regulations 1992,

 (ii) regulation 3(1) or (3) or 3A(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, or

(iii) regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001,

and that application was unsuccessful, one month after the date on which notice that the decision would not be revised was sent to the appellant.”

 

5. It was thus crucial to the tribunal’s decision that the decision being challenged was that of 19 March 2003. On that basis the appeal lodged on 18 June 2009 was years outside the absolute time limit and could not possibly be admitted. That was the basis on which the case was referred by the Secretary of State, but was that correct?

 

The decision under appeal

6. The decision made on 19 March 2003 was a disallowance of a claim for incapacity benefit received on17 February 2003 and treated as made on 24 November 2002. The ground of the disallowance was that the claimant did not satisfy the contribution conditions. It is not clear what documents or records relating to that claim and decision remain in existence. No copies appear in the papers that were before the tribunal of 19 August 2010 or the Upper Tribunal, but the information above was given in letters from officers of Jobcentre Plus, in particular that of 18 February 2009 (page 20). The claimant, who was born on 5 September 1983, was at the time of the claim aged 19. The letter of 18 February 2009 states that the 196 day period of incapacity for work necessary to exempt a person below the age of 20 from the contribution test under section 30A(2A) of the Social Security Contributions and Benefits Act 1992 (the so-called incapacity benefit in youth provisions) did not end until 7 June 2003. That would indicate that the claimant’s incapacity for work began on or around 24 November 2002 and that has not been disputed by Mr O’Kelly. The claimant was apparently accepted as qualifying for incapacity credits from 24 November 2002. She did not challenge the decision of 19 March 2003 at the time and did not make any further claim for incapacity benefit around 7 June 2003.

 

7. Mr O’Kelly came on the scene in April 2007, when the claimant was in receipt of income support, and began to write letters enquiring about why she had not been awarded incapacity benefit. For present purposes I do not need to detail all the correspondence or to say whether any of his letters should have been treated as a claim for incapacity benefit and whether any replies should have been taken as a decision against which an appeal was lodged. Nor do I need to explore whether the claimant’s continuing submission of medical certificates in 2002/2003 could be treated as constituting claims. I return briefly to those matters in paragraph 29 below. For present purposes what matters is what precipitated the appeal lodged on 18 June 2009.  That appears to have been Mr O’Kelly’s letter dated 24 February 2009 (page 22), written in reply to that of 18 February 2009 mentioned above. In the letter Mr O’Kelly picked up on the mention in the letter of 18 February 2009 that the claim made on 19 March 2003 could not have been treated as an advance claim for incapacity benefit in youth as it was made more than three months before the end of the 196 day qualifying period. He argued that the proper position under regulation 13 of the Social Security (Claims and Payments) Regulations 1987 was that the claim should be treated as being continuously made until it was determined (relying on Commissioner’s decision CSDLA/852/2002), so that as at 19 March 2003 an advance award of incapacity benefit with effect from 8 June 2003 should have been made, as there were less than 13 weeks between those two dates and from 7 June 2003 the claimant satisfied all the conditions of section 30A(2A). He asked the relevant decision-makers to reconsider their decisions or to process the appeal (presumably against the alleged decision on the alleged new claim).

 

8. A reply was given in the letter dated 8 June 2009, which contained the following:

 

“My colleagues at the Stratford Benefit Delivery Centre have now heard from our central Decision Making and Appeals Team. They have advised that since the decision in CSDLA/852/02, the same Commissioner later revisited the same issue in CSDLA/246/06 and reached a different conclusion. They have advised us that the later decision should be followed and, as a consequence, the advanced claim provisions must be applied from the date the claim was treated as made. In [the claimant’s] case this was 19 February 2003. Even if this were taken as an advanced claim she would not have satisfied the conditions for Incapacity Benefit in Youth.”

 

9. In his letter dated 12 June 2009 Mr O’Kelly stated that he took that as a refusal to revise and wished to appeal on the claimant’s behalf. He took issue with the view of the legal position adopted in the letter of 8 June 2009, including on some matters that I have passed over. That letter was accepted as an appeal (see the letter of 29 July 2009 at page 31), and eventually referred to the First-tier Tribunal as out of time. The Secretary of State must accordingly be taken as having accepted that there had been a formal refusal of Mr O’Kelly’s request for reconsideration.

 

10. The case appears not to have been referred to the First-tier Tribunal until April 2010, with the following important written submission dated 6 April 2010 on behalf of the Secretary of State (now copied at page 69; I have corrected some obvious mistakes):

 

“1. Please see the attached letter of appeal made by the customer’s representative.

 2. The appeal concerns a decision made on 19-Mar-2003.

 

 3. Advice has been taken from the Department’s Legal and Policy Section to the end that:

 • We are refusing to revise the decision of [19]-Mar-2003, under Regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, because the application for revision was made outside the 13-month deadline provided by Regulation 4(3) the  Social Security and Child Support (Decisions and Appeals) Regulations 1999

And

 • Under Regulation [3(5)(a)] of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 because there was no official error

 • We are also refusing to supersede the decision under Regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as there has been no error of law.”

 

11. The claimant was given the opportunity to make representations about whether the appeal was admissible, which Mr O’Kelly did not do until 9 July 2010, the letter from the First-tier Tribunal having been sent only to the claimant and not to him. His fully reasoned response included the submission that, accepting that a refusal on 8 June 2009 to revise the decision of 19 March 2003 did not trigger the running of a new period for appealing against the decision of 19 March 2003, that decision could still be superseded on the ground of error of law (ie not making an advance award).

 

12. It was therefore manifest that the decision accepted by the Secretary of State as giving rise to the appeal comprised not just a refusal to revise the decision of 19 March 2003 but also a refusal to supersede that decision. In relation to the refusal to revise the appeal could only be against the decision of 19 March 2003 as not revised, as there is no right of appeal against a decision under section 9 of the Social Security Act 1998 (revision), only against decisions under sections 8 or 10. In relation to the refusal to supersede, that was a decision under section 10 and as such was appealable. In so far as the appeal lodged on 18 June 2009 was against the decision refusing to supersede the decision of 19 March 2009 it was manifestly within time. Although Mr O’Kelly wrote in his letter of appeal that he took the letter of 8 June 2009 as a refusal to revise, he was plainly in my judgment seeking to appeal against the whole of the decision made in response to his request for reconsideration (not restricted to either revision or supersession), which decision encompassed both a refusal to revise and a refusal to supersede. In his written representations Mr O’Kelly had maintained the position that the there was a ground of supersession in error of law, although accepting that a decision on that ground could not be as advantageous to the claimant as a revision (because such a supersession could only under section 10(4) of the Social Security Act 1998 take effect from the date of the application for supersession).

 

The tribunal’s error of law

13. The tribunal said nothing at all about supersession or about the element of the decision notified on 8 June 2009 constituting a refusal to supersede the decision of 19 March 2003. Instead it regarded the only decision under appeal as that of 19 March 2003, as not revised. That was acknowledged by Mr Cooper at the oral hearing as the strongest argument for the claimant. There can be no doubt, in my judgment, that the tribunal went wrong in law, not just by failing to deal with the element of the appeal before it against the decision of 8 June 2009 refusing to supersede, but in concluding that the appeal was out of time and could not be admitted (to be taken as a striking out for want of jurisdiction). The tribunal plainly did have jurisdiction in relation to that element of the appeal.

 

14. I would be reluctant to accept any argument that those errors of law were not material on the basis that any appeal against the decision refusing to supersede had no reasonable prospect of success. That would have involved the tribunal looking beyond time limits to issues that it simply did not consider and a ground for striking out (no reasonable prospects of success under rule 8(2)(c) of the First-tier Tribunal Procedure Rules) that was quite different from that on which it could have been assumed to act. However, if I were persuaded that the only substantive decision that could in law have been made on the appeal against the refusal to supersede was that neither the ground of error of law nor any other ground was made out, that would have been a reason to justify the exercise of the discretion in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside a tribunal’s decision even though it involved a (material) error of law. That requires consideration of the case-law on the interpretation of regulation 13 of the Claims and Payments Regulations, and equivalent provisions for particular benefits, on advance awards.

 

Advance awards and the date of claim

15. Regulation 13(1) provides:

 

“(1) Where, although a person does not satisfy the requirements of entitlement to benefit on the date on which a claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (`the relevant day’) not more than 3 months after the date on which the claim is made, then the Secretary of State may—

 (a) treat the claim as if made for a period beginning with the relevant day; and

 (b) award benefit accordingly, subject to the condition that the person satisfied the requirements for entitlement when benefit becomes payable under the award.”

 

If, under paragraph (1)(b), the requirements for entitlement are not satisfied on the date on which benefit would become payable under the award, the awarding decision may be revised (paragraph (2)).

 

16. The position is not nearly as clear as suggested in the letter of 8 June 2009. As well as the decision of Mrs Commissioner Parker in CSDLA/852/2002, repeated in CSDLA/553/2005, there are at least two further decisions providing support for the proposition that for the purposes of the advance award provisions a claim is to be treated as continuously made until it is determined. Those are CDLA/3071/2008 and KH v Secretary of State for Work and Pensions (DLA) [2009] UKUT 54 (AAC). In CDLA/3071/2008, it was accepted on behalf of the Secretary of State that Mrs Commissioner Parker’s reasoning was correct. Mr Commissioner Turnbull agreed and spelled it out that in the provision in issue there (regulation 13A) “the date on which the claim is made” meant every date from that on which the claim was initially made down to the date of the decision on it. The decision of Mrs Commissioner Parker in CSDLA/242/2006 appears not to have been mentioned in CDLA/3071/2008, but the approach of the Secretary of State in the latter case would still have been right even taking account of that decision. In my judgment CSDLA/242/2006 cannot be read as supporting the conclusion expressed in the letter of 8 June 2009. First, the decision was given under section 14(7) of the Social Security Act 1998 (setting aside on the agreement of the parties that there has been an error of law), as then in force, so that the directions given were related specifically to the circumstances of the case in question and therefore cannot be taken as necessarily laying down any general principles to be followed in other cases. That is especially so as the content of a submission on behalf of the Secretary of State that was accepted was not set out. Second, and more important, the decision did not so far as one can tell expressly address the problem raised and decided in CSDLA/852/2002 and, since the Commissioner repeated in paragraph 10 that a claim subsists until it is determined by a decision-maker, she cannot be taken to have diluted the force of anything she had decided in the earlier case.

 

17. The decision of Judge Jacobs in KH in some ways raises more difficulties. On the one hand, he cited the decisions in CSDLA/852/2002, CSDLA/553/2005 and CDLA/3071/2008 without expressing any doubt as to the correctness of their reasoning, saying in paragraph 16 that his own reasoning was slightly different, but to the same effect. On the other hand, he had written in paragraph 12 that the “natural meaning of `the date on which the claim is made’ in the context of regulation 13A is the date on which it is received”, a sentence specifically relied on by Mr Cooper in support of his submission for the Secretary of State that in the present case an advance award of incapacity benefit could not have been made on 19 March 2003.

 

18. However, in KH the claimant satisfied all the conditions of entitlement to disability living allowance (DLA) within three months after the date on which her claim was received. The issue to be determined was whether the making of an advance award was ruled out because the gap between her requesting a DLA claim pack and the date of satisfying all the conditions of entitlement was more than three months and regulation 6(8) of the Claims and Payments Regulations provided that, if the claim form was returned within the time (normally six weeks) allowed, the date on which the claim was made was to be the date on which the request for the form was received. Judge Jacobs held that, despite its wording, regulation 6(8) was in substance a deeming provision and not to be applied more widely than its purpose required, so that in the context of regulation 13A the date of claim was to be the date of receipt of the claim. But the choice being expressed there was only between the date of the request for the claim form and the date of receipt of the completed claim form. Since latter date was within three months of the date on which the advance award would take effect, there was no need to consider whether the claim was also to be treated as made on every day down to the date of the decision on the claim. In the light of Judge Jacobs’ later endorsement of the reasoning in the earlier decisions, nothing elsewhere in his decision, including the sentence specifically relied on by Mr Cooper, is to be taken as undermining the conclusions that follow from that reasoning. It is not so much that his reasoning was different, as he expressed it in paragraph 16 of the decision, as that his reasoning about the interpretation of regulations 6(8) and 13A made it unnecessary to apply the reasoning in the earlier cases.

 

19. Accordingly, the weight of the previous authority seems to me firmly in favour of the conclusion that on 19 March 2003 the Secretary of State had the power under regulation 13(1) of the Claims and Payments Regulations to make an advance award of incapacity benefit with effect from 8 June 2003. Further, that seems to me a conclusion that has many practical advantages. If, in circumstances like those as at 19 March 2003 in the present case, the Secretary of State had no option but to disallow the claim, but be in a position where on a further claim made on the same day an advance award could be made, that would seem to require a useless complication of procedure and of communication to the claimant. If an advance award could be considered on a further claim providing no additional evidence, why should it not be considered when the decision is given on the initial claim? I do not have to decide the question of law definitively. It is enough for present purposes that it is not the case that the only possible conclusion is that the Secretary of State had no power to make an advance award under regulation 13(1) on 19 March 2003.

 

Advance awards and discretion

20. Mr Cooper had a further submission against the making out of the ground of supersession under regulation 6(2)(b)(i) of the Decisions and Appeals Regulations that the decision in question was erroneous in point of law. He stressed that under regulation 13(1) of the Claims and Payments Regulations there was a discretion to make an advance award if the conditions of the regulation were satisfied. Thus, he submitted, it could not necessarily be concluded that the decision to disallow a claim rather than make an advance award was erroneous in law even if a legally wrong view was taken about the conditions in regulation 13(1). Even if the legally correct view had been taken the decision-maker might legitimately have decided not to exercise the discretion to make an advance award. Moreover, in the present case, there was no direct evidence of the thinking of the decision-maker on 19 March 2003. Mr Cooper submitted that the claimant could not show on the balance of probabilities that the decision-maker had adopted the wrong view of the conditions in regulation 13(1) identified above, rather than merely having decided to exercise the discretion in regulation 13(1) against making an advance award. In reply, Mr O’Kelly submitted that the best evidence available in the replies he had received from officers of the Secretary of State at quite a high level, which could realistically be expected to have reflected the thinking prevalent in March 2003 although written four or more years later, showed the decision of 19 March 2003 to have been erroneous in point of law. Either it had been wrongly considered that the claim had to fail because a separate claim for incapacity benefit in youth had not been made or it was clear that the discretion under regulation 13(1) had never been considered because it was wrongly considered that there was no power to make an advance award on the existing claim.

 

21. There were many statements in letters from officers of the Secretary of State giving the impression that it was considered that a separate claim had to be made for incapacity benefit in youth, which would plainly have been wrong in law. The incapacity benefit in youth provisions merely allow an alternative way of qualifying for incapacity benefit without satisfying the ordinary contribution conditions. But I think that those statements may well be consistent with a proper approach to that matter, as set out in the letter of 18 February 2009. I think that what the officers were trying to say was that, once the decision of 19 March 2003 had been given, then the claimant could only take advantage of the incapacity benefit in youth provisions by making a new claim. That, though, was on the assumption that there was nothing wrong in law with the decision of 19 March 2003. In relation to that question, a common sense view must be taken in the light of the evidence now available. I agree with Mr O’Kelly that that evidence suggests a wrong approach to the proper meaning of regulation 13(1) of the Claims and Payments Regulations, that there was no power even to consider making an advance award. That would seem to me to be enough to make out the ground of supersession for error of law, such as to justify taking another look at the decision. The fact that there was a discretion to be exercised even if the correct approach in law had been taken does not take away from that justification. The discretion is of course to be exercised with proper regard for the purposes of regulation 13(1). If all its conditions are satisfied, then there would I think usually be no reason, with the built-in protection if circumstances changed later, not to make an advance award, unless there was some positive indication in the evidence in existence at the date of the decision that circumstances were likely to change by the date from which the award would start. Making an advance award in such circumstances would be in the interests both of the claimant and of efficient administration. Accordingly, I reject Mr Cooper’s submission for the Secretary of State.

 

 

Conclusion and disposal

22. The tribunal of 19 August 2010 thus made a material error of law and the circumstances require the setting aside of its decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Mr O’Kelly and Mr Cooper were in agreement that in the event of my reaching that conclusion there was no point in remitting the issue of whether the appeal lodged on 18 June 2009 should be admitted for consideration or should be struck out to a new First-tier Tribunal. It was agreed that that issue should be decided by the Upper Tribunal. However, there was disagreement at the oral hearing about the extent of the duty under section 12(2)(b)(ii), if the case is not remitted, to “re-make the decision”.

 

23. Mr O’Kelly stressed the provision in section 12(4)(a) that in acting under section 12(2)(b)(ii) the Upper Tribunal could make any decision which the First-tier Tribunal could make if it were re-making the decision. He submitted, in effect, that on remission the First-tier Tribunal could conduct what in the courts is called a “rolled-up hearing” and on the same occasion consider the arguments as to admission of the appeal and striking out and the arguments on the substantive appeal on the assumption that it was not struck out. Therefore, he said, the Upper Tribunal could do the same thing and in re-making the decision could not only make a determination on admission and striking out but, if the appeal was not struck out, could make a decision on the appeal lodged on 18 June 2009. Mr O’Kelly argued that further evidence was very unlikely to come to light at this late stage of the case, so that the Upper Tribunal would be in as good a position as a new First-tier Tribunal to make a decision on the issues of revision or supersession of the decision of 19 March 2003. Mr Cooper for the Secretary of State submitted that the power and duty in section 12(2)(b)(ii) to re-make the decision had to relate to the issue that had been before the tribunal whose decision was being set aside and that that issue was restricted in the present case to the preliminary or interlocutory issue of whether the appeal lodged on 18 June 2009 should be admitted or struck out.

 

24. Because the issue only came to the surface at the oral hearing I gave both parties the opportunity to comment further on it after the opportunity for reflection and the taking of instructions. In the written directions issued on 18 October 2012 I expressed the preliminary view that it would only be right in the present case for the Upper Tribunal to take the course suggested by Mr O’Kelly with the consent of both parties. I still think that that is right. In his response dated 6 November 2012 Mr O’Kelly gave consent on behalf of the claimant and repeated his view that there was no legal objection, and many practical advantages, to the Upper Tribunal’s determining the appeal lodged on 18 June 2009, if admitted for determination. The response on behalf of the Secretary of State, dated 1 November 2012, endorsed Mr Cooper’s submission at the hearing and declined any consent to a wider re-making of the decision if I took a different view of the powers of the Upper Tribunal. In those circumstances, with consent withheld by the Secretary of State, I conclude that, even if the Upper Tribunal had power to act as submitted by Mr O’Kelly, the appropriate course is to re-make only the decision that was before the tribunal of 19 August 2010 on the issue of admission of the appeal lodged on 18 June 2009 or its striking out. I do not then have to reach any definitive conclusion on the extent in law of the Upper Tribunal’s powers under section 12(2)(b)(ii) and (4)(a) of the Tribunals, Courts and Enforcement Act 2007. However, it does seem to me that there may be a difference between the situation where the First-tier Tribunal had dealt with a reference from a decision-maker under rule 23(7) of the First-tier Tribunal Procedure Rules, where the issue as to admission or striking out is dealt with as a preliminary issue (as allowed by rule 5(3)(e)) and the situation where the tribunal had dealt with the substantive appeal against an outcome decision which had gone against a claimant at an early point in a chain of conditions and erred in law in upholding the decision on that point. In the latter case, there would appear to be little objection to the Upper Tribunal going on to determine all of the subsequent points in the chain in re-making the decision, providing that all parties have had a fair opportunity of putting forward arguments and evidence on those points. But in the former case, which is the present case, even if the power to re-make the substantive appeal exists, it would not be appropriate for the Upper Tribunal to go beyond what has to all intents and purposes been determined as a preliminary issue without the consent of all parties.

 

25. Accordingly, my decision under section 12(2)(b)(ii) is restricted to the issue of whether the appeal lodged on 18 June 2009 is to be admitted or to be struck out. For the reasons given above the decision notified on 8 June 2009 against which that appeal was made encompassed a refusal to supersede the decision of 19 March 2003. That was a decision under section 10 of the Social Security Act 1998, so that the appeal lodged against that decision on 18 June 2009 was within time. There is therefore no ground for striking out the appeal or for not allowing it to that extent to proceed in the normal way to a determination by the First-tier Tribunal. The decision to that effect is set out at the beginning of this decision.

 

26. The Upper Tribunal has no power in these circumstances to give any directions to the tribunal which in due course determines the appeal against the decision notified on 8 June 2009, but there is one important limiting factor that I must mention. This is that in so far as the appeal is against the refusal to supersede the tribunal will have no jurisdiction to substitute a decision revising the decision of 19 March 2003. That is because the decision notified on 8 June 2009 included an express decision refusing to revise the decision of 19 March 2003. The reasoning behind that conclusion is as set out in paragraph 78 of Tribunal of Commissioners’ decision R(IS) 15/04, after referring to the general rule laid down in R(IB) 2/04 allowing such a substitution:

 

“However, in the present case the appeal tribunal had before it an appeal against a section 10 decision in circumstances in which there had been an express refusal to revise by the Secretary of State which (as we have held) was not capable of being appealed, and which by section 17 of the 1998 Act was `final’. It seems to us that, in those circumstances, if an appeal tribunal were permitted to substitute a revision decision for the supersession decision, that would in effect be to permit by the back door what is not permitted by the front door, namely an appeal against the refusal to revise. This is another instance where an express statutory limitation on the powers of an appeal tribunal cuts into the general principle set out in paragraph 55 of [R(IB) 2/04] (see paragraph 12 of that decision). We do not therefore consider that, in dealing with the appeal against the supersession decision, the tribunal was entitled to consider whether the decision of 20 February 1998 should have been revised for official error. It would have been a different matter if the Secretary of State had not made a decision (whether express or implied) on the issue of revision for official error.”

 

Thus the tribunal here will be restricted to considering whether there should be a supersession of the decision of 19 March 2003 on the application that gave rise to the decision notified on 8 June 2009 (probably, subject to further submissions, Mr O’Kelly’s letter of 24 February 2009), with the consequent limitation on the date from which any supersession for error of law could take effect. I come back in the postscript below to the possibility of further consideration of revision for official error. The tribunal will no doubt when considering error of law take into account the analysis of the case-law on advance awards under regulation 13 of the Claims and Payments Regulations set out in paragraphs 15 to 19 above, subject to any further submissions that may be made by the parties

 

Postscript

27. There are two matters on which I make very brief observations. First, if the Secretary of State were persuaded of the correctness of my analysis in paragraphs 15 to 19 above of the case-law relevant to the interpretation of regulation 13 of the Claims and Payments Regulations on advance awards, there would be nothing to stop him now carrying out a revision of the decision of 19 March 2003 on the ground that it arose from official error. The existence of earlier decisions refusing to revise can be no obstacle to the exercise of that power if the conditions of regulation 3(5)(a) of the Decisions and Appeals Regulations are made out. By the same token, there is nothing to stop Mr O’Kelly from inviting the Secretary of State, repeatedly if necessary, to take that course, even though a refusal to do so would not trigger the running of any new period for appealing against the decision of 19 March 2003. See paragraph 35 of decision AS v Secretary of State for Work and Pensions (CSM) [2012] UKUT 448 (AAC), file number CCS/186/2012. If the decision of 19 March 2003 were revised in the claimant’s favour on the ground of official error, any power to supersede the original decision on the ground of error of law would fall away.

 

28. I further note that there appears to be no problem stemming from the exclusion from the definition of “official error” in regulation 1(3) of the Decisions and Appeals Regulations, as in force from 3 November 2008, of “an error of law which is shown to have been an error by virtue of a subsequent decision of the Upper Tribunal or the court”. If the decision of 19 March 2003 is found to have arisen from official error because it failed to apply the reasoning first adopted in Mrs Commissioner Parker’s decision in CSDLA/852/2002, that decision was signed on 11 December 2002. That decision, on the assumption that the exclusion can post-3 November 2008 apply to decisions of the Commissioners at all, was not “subsequent to” the decision of 19 March 2003.

 

29. The second matter might become relevant if there is no favourable outcome for the claimant under paragraphs 27 and 28 above. Mr O’Kelly was concerned that the tribunal of 19 August 2010 expressed conclusions that no valid claims for incapacity benefit were made by or on behalf of the claimant in 2003 or 2007. His concern was that the expression of those conclusions would prevent him from pursuing arguments with the Department or with the First-tier Tribunal that there were either outstanding claims on which decisions should now be given or an outstanding appeal against a decision in 2007 that should now be processed. In my view, the expression of those conclusions does not have that effect because those questions were not before the tribunal of 19 August 2010 for decision. The matter for decision was restricted to whether the appeal lodged on 18 June 2009 should be admitted or struck out. The decision giving rise to that appeal was that notified on 8 June 2009, which in turn was prompted, on current assumptions, by Mr O’Kelly’s letter of 19 February 2009. The possible existence of earlier outstanding claims was not relevant to the issue to be decided, nor even would the possible existence of an outstanding appeal against an earlier decision. The conclusions can be treated as no more than part of the tribunal’s recitation of the history of the case as it understood it. Even if, contrary to that view, they achieved the status of “findings of fact necessary to” the decision, in accordance with section 17(2) of the Social Security Act 1998 the findings would not be conclusive for the purposes of any further decision that falls to be made in the claimant’s case.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date: 9 January 2013