Upper Tribunal (Administrative Appeals Chamber)

INDEX OF REASONS FOR DECISION

 

Paragraph

1 Introductory

 

5 FACTUAL BACKGROUND

 

9 THE FIRST-TIER TRIBUNAL’S DECISIONS

 

15 THE APPEAL TO THE UPPER TRIBUNAL

 

16 Official error and the exportability of the care component of DLA, AA and CA

17 Is the ECJ a “court” under the definition in regulation 1(3)?

23 Did Jauch show that there was an error of law in 2001?

36 The effect of post-Jauch case-law

39 The effect of post-Jauch legislative and administrative developments in the EU

 

47 Official error and the effective dates of the supersession decisions in 2001

 

55 Could the tribunal of 18 May 2011 have carried out a revision if there had been  an official error?

 

70 Does EU law require the disapplication of the British rules on official error  and on the time limits for appealing in revision cases?

 

77 Does EU law require the disapplication of the British rules on the effective date of supersessions on the ground of error of law?

 

81 Conclusion on the appeal to the Upper Tribunal

 

82 Postscript

 

SUMMARY OF MAIN ELEMENTS OF THE REASONS

 

The decisions removing entitlement to the care component of DLA and to CA in 2001 could not be revised on the application in 2008 because they did not arise from official error (the error only having been shown by the subsequent decision of the ECJ in Commission v Parliament and not by Jauch) and in any event the First-tier Tribunal of 18 May 2011 would have had no power to substitute a revision for the supersession with effect from the date of the application to reinstate benefit even if there had been an official error. Those rules are not inconsistent with the principles that the remedies and procedures provided by domestic law for the enforcement of EU rights are not less favourable than those provided for the enforcement of EU right (equivalence) and that the rules do not make the enforcement of EU rights virtually impossible or excessively difficult (effectiveness).

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimants’ appeals to the Upper Tribunal are disallowed. The decisions of the Liverpool First-tier Tribunal dated 18 May 2011 either involved no material error on a point of law or, if they did, in the exercise of the discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I decline to set them aside. The decisions accordingly stand.

 

 

REASONS FOR DECISION

 

1. There was an oral hearing of these two linked appeals on 5 February 2013, on the same day as the hearing in two other appeals, CA/2028/2011 and CDLA/2972/2011, raising related issues. The four appeals were selected as lead cases from a group of appeals, with a view to determining the major questions of law common to all the cases in the group.

 

2. All the claimants involved had their entitlement either to the care component of disability living allowance (DLA), to attendance allowance (AA) or to carer’s allowance (CA) removed on supersession on their leaving Great Britain to live in another Member State of the European Union at some date prior to that of the decision of the European Court of Justice (which I shall call the ECJ although it is now the Court of Justice of the European Union) in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695 on 18 October 2007. That removal of entitlement was correct under the terms of regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (and the corresponding provisions for AA and CA), which make it a condition of entitlement that a claimant is ordinarily resident and present in Great Britain. I do not need to do more than mention the additional condition in relation to any day of potential entitlement that a claimant has been present in Great Britain for at least 26 weeks out of the previous 52 (the past presence test). That rule was regarded as decisive at past stages in the history of these cases, but is now agreed not to be an obstacle. The significance of Commission v Parliament is that the ECJ ruled that none of the care component of DLA, AA and CA were to be categorised as special non-contributory benefits for the purposes of article 10a of Council Regulation (EC) No 1408/71, which would have allowed the United Kingdom to restrict entitlement to claimants who were resident in the United Kingdom. Instead, those benefits were to be categorised as sickness benefits under Regulation No 1408/71, which meant that in certain circumstances the United Kingdom was required not to make entitlement dependent on the residence or presence of the claimant here. That is commonly described as meaning that the benefits are “exportable” to other Member States.

 

3. All the claimants applied after the decision in Commission v Parliament for their entitlement to the benefit in question to be reinstated from the date of its removal. The eventual decisions of the Secretary of State in response were that the provisions in the British legislation for revision and supersession (discussed in detail below) did not allow any alteration to the decisions removing entitlement from any date earlier than the date of the application for reinstatement, which was also the date from which an award could have been made if the application for reinstatement were regarded as a new claim. That was subject to the making of payments on an extra-statutory basis for the periods from 18 October 2007 down to the day before awards were made from the date of the application for reinstatement. Well after the dates of the decisions in the present cases, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 were amended to allow a superseding decision on the ground of error of law to take effect in these particular circumstances from 18 October 2007 (Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations 2011). The First-tier Tribunals in all the cases were concerned with challenges to the refusal to award entitlement for, in practice, the period from the date of removal of entitlement to 17 October 2007 and confirmed that refusal.

 

4. The appeals against the First-tier Tribunal decisions raise very difficult issues of both British and European Union law. That is why the oral hearing was directed. The claimants in the present two appeals had the good fortune to be represented by Mr Jason Coppel of counsel, instructed by the Child Poverty Action Group. The claimant in CG/2053/2011 was also present at the hearing on 5 February 2013. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Group. Between them, coupled with the earlier efforts of then unrepresented claimants, they have ensured that no stone has been left unturned. The claimants’ representatives took the opportunity that I offered to put in some further material. In a letter dated 4 April 2013 the Secretary of State declined the opportunity to put in any further material in response.

 

THE FACTUAL BACKGROUND

5. The claimant in the primary case out of these two appeals (CDLA/2053/2011) is a British citizen born on 22 September 1945. From now on I shall call him Mr K. In 1998, while still living in the United Kingdom, he was awarded the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) with effect from 3 July 1998. It appears that on a review (or possibly a renewal claim) the rate of the care component was reduced to the lowest rate with effect from 3 July 2000, but an appeal was successful and on 2 November 2000 an appeal tribunal decided that Mr K was entitled to the lower rate of the mobility component and the middle rate of the care component from 3 July 2000 for life. He had last worked in the United Kingdom on 29 May 1996 and started to receive long-term incapacity benefit from 19 October 1997, which entitlement has continued uninterrupted. He has been in receipt of state retirement pension since 22 September 2010.

 

6. Mr K moved with his wife (the claimant in CG/2052/2011, but who from now on I shall call Mrs K) and daughter to Spain for an indefinite period on 14 July 2001. He had given advance notice to the DLA authorities by letter of his intention to make that move. A decision notified in a letter dated 3 July 2001 (page 143) was given superseding the appeal tribunal’s decision of 2 November 2000, presumably on the ground of an anticipated relevant change of circumstances, and deciding on supersession that Mr K was not entitled to DLA from and including 15 July 2001 because he would not be residing or present in Great Britain. Mr and Mrs K raised some questions at the time about the decision of 3 July 2001 at the time, but the tribunal of 18 May 2001 found as a fact that there had been no appeal made. I consider that that finding cannot be impeached as a matter of law and I proceed on that basis. However, I return in the postscript to this decision to Mr and Mrs K’s contentions that an appeal was made. It is absolutely clear that no appeal against the decision ever came before an appeal tribunal for decision.

 

7. On 22 January 2008 Mr K requested reinstatement of his DLA from July 2001. The initial decision on 23 April 2009 was to refuse to revise the decision of 3 July 2001, but to supersede the decision on the ground that it was erroneous in point of law and decide that Mr K was not entitled to DLA under the past presence test. He appealed against that decision. On 21 May 2010 the decision of 23 April 2009 was revised on the ground that the past presence test should not have been applied and the decision given that Mr K was entitled to the middle rate of the care component from and including 22 January 2008. Accordingly, his existing appeal lapsed under section 9(6) of the Social Security Act 1998, but a new period started for him to appeal against the decision of 23 April 2009 as revised in his favour, which he did on 10 August 2010. The Secretary of State treated that appeal as made in time.

 

8. Mrs K is a British citizen born on 16 October 1965. She was in receipt of what was then called invalid care allowance (renamed carer’s allowance in April 2003: I use the abbreviation CA to cover both names) prior to the family’s move to Spain, although records of when the award was made and what payments were made seem to have been destroyed. Records of contribution credits indicate that payment was made down to 15 July 2001, although there are also copies of letters identifying an overpayment of £125.25 having been made for the period from 16 July 2001 to 5 August 2001 and requiring repayment (which Mrs K made in September 2001). On some unknown date in 2001, but plainly no later than 14 August 2001, the date of the first letter identifying an overpayment, a decision appears to have been made removing entitlement with effect from 16 July 2001, although for some reason the written submission to the First-tier Tribunal said that that took effect from 4 June 2001, on the erroneous basis that the move to Spain happened on 1 June 2001. The reason given on the letter of 14 August 2001 was that Mrs K was not in Great Britain. The request for reinstatement from Mr K had included a request for reinstatement of CA for Mrs K. The decision on 15 July 2010 was to supersede the 2001 decision and to award CA from and including 28 January 2008, with an extra-statutory payment being made for the period from 22 October 2007 to 27 January 2008. Mrs K appealed against that decision within time.

 

THE FIRST-TIER TRIBUNAL’S DECISIONS

9. The tribunal of 18 May 2011, constituted by Tribunal Judge S R Jones sitting alone, disallowed both appeals without a hearing. I intend no disrespect in not setting out the careful and thorough way in which the judge dealt with the issues.

 

10. He correctly identified that, apart from arguments about the proper categorisation of the mobility component of DLA which are no longer live, Mr K could only achieve any practical success under British legislation by showing that the decision of 3 July 2001 had to be revised on the ground that it arose from official error. Although it was and is common ground that that decision was erroneous in law (because as we now know entitlement to the care component of DLA should not have been removed), supersession on that ground could only assist Mr K with effect from 22 January 2008. That is because there is nothing in the Decisions and Appeals Regulations to take such cases out of the general rule in section 10(5) of the Social Security Act 1998 that a superseding decision takes effect from the date on which it is made or, where applicable, the date on which the application for supersession is made.

 

11. There is one provision in regulation 7 of the Decisions and Appeals Regulations which at first sight appears to require a supersession for error of law to take effect from the date of Commission v Parliament (18 October 2007). That is regulation 7(6):

 

“(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 from the date of the relevant determination.”

 

Section 27(1)(a) of the 1998 Act makes it one of the conditions of the operation of the section that:

 

“(a) the effect of the determination, whenever made, of an appeal to the Upper Tribunal or the court (`the relevant determination’) is that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law;”

 

“The court” in section 27 is defined in subsection (7), discussed further below, to include the Court of Justice in the European Community. “Adjudicating authority” is defined as the Secretary of State or various predecessor persons or bodies who made initial decisions on claims and questions.

 

12. It might therefore have been thought that the decision of the ECJ in Commission v Parliament was a “relevant determination”, so that its date was to be applied under regulation 7(6). But that would have been wrong. A relevant determination can only be made by way of a decision on an appeal to the Upper Tribunal or the court which has arisen out of an adjudicating authority’s decision. The ECJ’s decision was not made on an appeal, but on the action brought directly by the European Commission for annulment of certain of the May 2005 amendments to Annex IIa to Regulation No 1408/71. Nor could a decision of the ECJ on a reference by a national court or tribunal of questions under Article 267 of the Treaty on the Functioning of the European Union be a “relevant determination” because its answers to the questions referred are given to enable the national court or tribunal to decide the case before it. The ECJ does not itself decide the national case. Even though the effect of Commission v Parliament was to show that various decisions of British adjudicating authorities were erroneous in point of law, that effect was not in an appeal arising from any such decision. Thus, regulation 7(6) could not in itself assist Mr and Mrs K. But I return in paragraphs 77 to 80 below to the difficult question of the compatibility of that conclusion with EU law.

 

13. The only potentially applicable ground of revision was official error. “Official error” is defined in regulation 1(3) of the Decisions and Appeals Regulations as at April 2009, unless the context otherwise requires, to mean (omitting parts relevant only to child support, tax credit and housing benefit cases) “an error made by an officer of the Department for Work and Pensions to which no person outside the Department materially contributed, but excludes any error of law which is shown to have been an error by virtue of a subsequent decision of the Upper Tribunal or the court”. The tribunal of 18 May 2011 decided that the ECJ was a court and that the error in taking away entitlement to the care component of DLA when it was exportable as a sickness benefit under Regulation No 1408/71 was only shown to be so by the decision of the ECJ in Commission v Parliament, so that the exception to the definition applied. It rejected the argument for Mr K (discussed in detail below) that the error had been shown by the ECJ’s decision in Jauch v Pensionsversicherungsanstalt der Arbeiter (Case C-215/99) [2001] ECR I-1901 (8 March 2001).

 

14. Mrs K’s appeal in CG/2052/2011 was disallowed for similar reasons, but the tribunal also took the view that since Mr K was not in receipt of a qualifying benefit for CA purposes in the period in issue, she could not be entitled to CA for that reason, independent of any arguments about whether the 2001 CA decision could be said to have arisen from official error.

 

THE APPEAL TO THE UPPER TRIBUNAL

15. I gave permission to appeal in both cases. There are two fundamental obstacles in terms of the British legislation to success for Mr and Mrs K. The first is whether the 2001 superseding decisions can be said to have arisen from official error as defined for the purposes of the Decisions and Appeals Regulations. The second is whether, even if the circumstances were found to come within the ambit of official error, appeals following the decisions of 23 April 2009 and 15 July 2010 respectively have to be treated as made outside the absolute time limit in so far as it is sought to rely on revision of the 2001 decisions rather than supersession of those decisions. I propose to deal with those two issues first and then, as I have determined both  issues against Mr and Mrs K, to consider whether any principles of European Union law require the disapplication of some of the domestic British rules.

 

Official error and the exportability of the care component of DLA, AA and CA

16. It was rightly common ground that the definition of “official error” in regulation 1(3) of the Decisions and Appeals Regulations applies in its general part to a decision that involves an error of law and that, since courts and tribunals when determining points of law declare what the legal position has always been (or, in the interpretation of a legislative provision what has been the proper interpretation since the particular provision came into force), a decision may be found to have arisen from official error where the error of law is only revealed by a subsequent decision of some court of tribunal. That effect is only removed where the specific exception applies. It was also common ground that, if the correct principle of law has already, prior to the decision potentially under revision, been “shown” by whatever means, the error of law cannot have been “shown” by a subsequent decision. But there was not agreement about what showing an error of law entails in this context.

 

Is the ECJ a “court” under the definition in regulation 1(3)?

17. Perhaps Mr Coppel’s most general point for Mr and Mrs K was that the ECJ is not a court for the purposes of the definition in regulation 1(3), so that even if the Secretary of State was right to say that the error in respect of the exportability of the care component of DLA etc was only shown by the decision of the ECJ in Commission v Parliament, the operation of the exception was not triggered.

 

18. “The court” is not defined either in regulation 1(3) or in the Social Security Act 1998, the provisions about revision being made under section 9 of that Act. As noted above, the definition in section 27(7) is only for the purposes of that section:

 

“`the court’ means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in Northern Ireland, the House of Lords or the Court of Justice in the European Community.”

 

Mr Cooper for the Secretary of State says that, since section 27 is concerned with the circumstances in which a ruling on a point of law is to be given effect in relation to other cases for periods before the date of the ruling (thus cognate to the context of revision for official error), the definition is a useful indicator of what was intended in regulation 1(3). Mr Coppel says that the fact that a definition was considered necessary in section 27 shows that “the court” is not a term of art or a phrase with any obvious meaning, so that the absence of a definition for the purposes of regulation 1(3) leaves the covering of the ECJ open. Those submissions seem neatly to cancel each other out. So do the proposition that an exception to a general provision should, if ambiguous, be construed so as to have the narrowest effect on the general provision and the proposition that the word “court” is one of wide and general meaning.

 

19. I do not see that Mr Coppel’s submission that the ECJ should be excluded to allow the widest operation to rights under EU law gets him any further forward. As will be explored below, EU law allows Member States to impose time limits and procedural rules on the enforcement of EU rights. If there is a limitation on the process of revision for official error by reason of errors of law shown by subsequent decisions of United Kingdom courts and tribunals, why should there not also be a limitation where the error is shown by the ECJ? The State’s obligation under Kühne & Heitz NV v Productschap voor Pluimvee en Eieren (Case C-453/00) [2004] ECR I-837 to reopen an administrative decision to take account of an ECJ ruling in another cases applies only if it has power to do so.

 

20. The legislative history adds little of substance. Immediately before the coming into force of the Decisions and Appeals Regulations in 1999, the equivalent provision (regulation 72) in the Social Security (Adjudication) Regulations 1975 on the award of arrears of benefit on review excluded errors of law by virtue of subsequent determinations of a Social Security Commissioner or the bodies listed in section 27(7) of the 1998 Act, thus including the ECJ. But the Decisions and Appeals Regulations as initially drafted and brought into force in October 1999 (for DLA etc purposes) did not contain any such exception to the definition of “official error”. That did not appear until 19 June 2000, under regulation 14(b) of the Social Security and Child Support (Miscellaneous Amendments) Regulations 2000 (SI 2000 No 1596), by reference to an error of law “only” shown to have been an error by virtue of a subsequent decision of a Commissioner or the court. In the form introduced with effect 20 May 2002 under regulation 2(a) of the Social Security and Child Support (Decisions and Appeals) (Miscellaneous Amendments) Regulations 2002 (SI 2002 No 1379) the word “only” was dropped, whether intentionally or by mistake I do not think anyone knows. There seems no reason why there should, as between the Adjudication Regulations and the Decisions and Appeals Regulations, have been a different approach adopted to what sort of decisions might take a case out of the obligation to pay arrears for periods before the decision in question on the basis of error of law, but on the other hand the gap of several months without any exception at all throws doubt on any suggestion of continuity of intention.

 

21. The absence of a specific definition is therefore not at all helpful. However, all that Mr Coppel in fact suggested by way of a more limited interpretation, which would enable the full implementation of Mr and Mrs K’s EU rights, was the “the court” should be restricted to courts within the United Kingdom jurisdiction. However, that does not seem to me a rational place to draw any line in the light of requirement in section 3(1) of the European Communities Act 1972 for any question as to the meaning or effect of any EU instrument to be determined in accordance with the principles laid down by and any relevant decision of the ECJ and in the light of the procedures for the reference of preliminary questions to the ECJ as part of the proceedings in United Kingdom courts and tribunals. The answer must in my judgment be that the scope of the general words “the court” in their context in regulation 1(3) must be determined by consideration of what courts and tribunals can produce a decision that will, within the system of precedent operating within the United Kingdom, be binding on decision-makers. In other words, bodies whose decisions can authoritatively indicate that an initial decision involves an error of law. That category would certainly include the ECJ, mainly through the preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (formerly article 234 of the EC Treaty). Although rulings of the ECJ under that procedure strictly determine only points of interpretation or validity of EU law, leaving the application to the facts to the national court in making the final decision in the case in the course of which the preliminary reference was made, the ECJ does not unusually give rulings which effectively dictate the final answer in the case in which the reference was made. It must remain a matter for sorting out in the circumstances of particular cases whether it is the ruling of the ECJ or the decision of the referring court or tribunal which has shown a decision to be in error of law. In the present case, the ruling in Commission v Parliament relied on for the Secretary of State as showing the error of law was not made under the preliminary reference procedure, but in an action for the annulment of EU acts (the provisions inserted into Regulation No 1408/71 by Council Regulation (EC) No 647/2005) under article 263 of the Treaty on the Functioning of the European Union (formerly article 230 of the EC Treaty). That ruling had a directly authoritative precedential effect under section 3(1) of the European Communities Act 1972. That ruling is capable of being a decision of the court within the meaning of the exception to the definition of official error in regulation 1(3) of the Decisions and Appeals Regulations.

 

22. That conclusion is consistent with the approach taken by the Tribunal of Commissioners in paragraph 43 of decision R(P) 2/09:

 

“We accept the Secretary of State’s further submission that the error thus identified falls outside the definition of `official error’ [in regulation 1(3) of the Decisions and Appeals Regulations], because it was only shown to be an error of law by the interpretation declared by the ECJ in [Richards v Secretary of State (Case C-423/04) [2006 ECR I-3585]. Whether the decision that `showed’ it to be so for this purpose was the ruling of the ECJ itself, or the subsequent one of the Commissioner implementing it, is immaterial in this case: the consequence either way must be that there is no power on this ground to revise either or both of the awarding decisions so as to correct them back to their original dates.”

 

Since there is no inconsistency, I do not have to consider how far that approach was based merely on assumption rather than argument and how free I would have been to take a different approach.

 

Did Jauch show that there was an error of law in 2001?

23. I can then move to Mr Coppel’s submission that Commission v Parliament did not show the DLA decision of 3 July 2001 and the CA decision to have involved an error of law because that had already been shown by decisions prior to that date, and in particular the ruling in Jauch. In order to keep this decision within some reasonable bounds, and hopefully moderately accessible to the claimants in other similar cases who are awaiting the outcome, I shall not embark on anything like a full description and analysis of the relevant case-law and of the provisions of Regulation No 1408/71 on special non-contributory benefits. Instead I shall set out only what in my view are the essential and decisive features.

 

24. The starting point consists of two cases I referred to the ECJ in my capacity as a Social Security Commissioner relatively soon after the new regime for special non-contributory benefits in Regulation No 1408/71 came into operation on 1 June 1992 by virtue of Council Regulation (EC) No 1247/92. These are Snares v Adjudication Officer (Case C-20/96) [1997] ECR I-6057, also reported in the series of Social Security Commissioners’ decisions as R(DLA) 5/99, and Partridge v Adjudication Officer (Case C-90/97) [1998] ECR I-3467, also reported as R(A) 1/99.

 

25. In Snares the ECJ ruling as expressed in the operative part was that on the proper construction of article 10a of Regulation No 1408/71, as amended with effect from 1 June 1992, read in conjunction with Annex IIa, DLA fell within the scope of that provision and was therefore a special non-contributory benefit within the meaning of article 4(2a). The primary reason for that conclusion was that, because DLA was listed in Annex IIa, it had to be regarded as being exclusively governed by the coordination rules of article 10a and consequently as a special non-contributory benefit (paragraph 32 of the judgment). Article 10a requires such benefits to be granted exclusively in the territory of the Member State of residence. However, in paragraph 33 of the judgment the ECJ went on to say that the intention of the 1992 amendments had been to provide a specific system of coordination for certain benefits falling simultaneously within the categories of both social security and social assistance and to endorse the reasoning of the Advocate General in paragraphs 59 to 63 of his Opinion in support of the conclusion that DLA was such a benefit. In Partridge, the same analysis was made of AA, also listed in Annex IIa, but also found to be a “mixed” benefit by the Advocate General.

 

26. Thus, at that point the conclusive effect given to the listing of a benefit in Annex IIa to Regulation No 1408/71 (which had been confirmed in relation to income support in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR I-6057, also reported as R(IS) 6/99) seemed to make further discussion of whether DLA, AA or CA/ICA (also listed) truly had the characteristics of a special non-contributory benefit of academic interest only, as the non-exportability of all those benefits had been clearly determined.

 

27. The ruling of the ECJ in Jauch on 8 March 2001 then made a very significant difference to that position. In particular, the ECJ ruled that the Austrian care allowance in issue in the case was exportable as a cash sickness benefit despite the fact that it was listed in Annex IIa. In paragraphs 21 and 22 of the judgment it was held that, although it was permissible for the Community legislature to adopt provisions derogating from the principle of exportability of social security benefits, such provisions had to be interpreted strictly and could only apply to benefits that fulfilled the defined conditions, in this case in article 4(2a) of Regulation No 1408/71, so that those conditions had to be examined. The Court had accepted in paragraph 17 in discussing the argument for the Austrian government that the listing in Annex IIa was conclusive that the holdings in Snares, Partridge and Swaddling were as described above and added:

 

“It should also be observed that in those three cases the special non-contributory character of the benefits in question was not discussed.”

 

The priority of article 4(2a) over Annex IIa was also confirmed by the decision in Leclere and Deconescu v Caisse nationale des prestations familiales (Case C-43/99) [2001] ECR I-4265.

 

28. The Court accordingly went on to examine the nature and characteristics of the Austrian care allowance. This provided a flat-rate allowance to persons reliant on care in order to improve their opportunity of leading an autonomous life and was payable to persons habitually resident in Austria in receipt of a pension as a result of an accident at work or an occupational disease or under the general law on social insurance. Payment was made by the compulsory pension and accident insurance institutions, but they were reimbursed by the State, which increased sickness insurance contributions to provide the finance. Care allowance (except for work accidents and industrial diseases) was listed in Annex IIa to Regulation No 1408/71. The claimant had worked in Austria for many years and had been compulsorily and then voluntarily insured, but had always lived in Germany. He was refused the care allowance on the ground of not being habitually resident in Austria.

 

29. The Austrian Government had also argued that the allowance could not be a social security benefit within article 4(1) of Regulation No 1408/71, because the risk of reliance on care did not fall within any of the categories listed and was closer to the risk of poverty than to the risk of sickness. The Court rejected that argument, saying that the point had already been decided in Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg (Case C-160/96) [1998] ECR I-843, where German care insurance benefits had been held to be essentially intended to supplement sickness insurance benefits. Although there might be a different national legal regime, the Austrian benefit was of the same kind and was, like the German care allowance, granted objectively on the basis of a legally defined situation. In paragraph 28 of the judgment, the Court said this:

 

“The conditions for granting care allowance and the way in which it is financed cannot have the intention or the effect of changing the character of care allowance as analysed in the Molenaar judgment, in which it was held that benefits of that type are essentially intended to supplement sickness insurance benefits, to which they are, moreover, linked at the organisational level, in order to improve the state of health and quality of life of persons reliant on care (Molenaar, paragraph 24). In those circumstances, even if they have their own characteristics, such benefits must be regarded as `sickness benefits’ in cash within the meaning of Article 4(1)(a) and (b) of Regulation No 1408/71 (Molenaar, paragraph 25). It is of no importance in those circumstances that the care allowance is intended to provide a financial supplement, having regard to a person’s reliance on care, to a pension paid on a basis other than sickness. Thus, whether it is contributory or non-contributory, the allowance, as the German government moreover observes, must be regarded as a cash `sickness benefit’ within the meaning of Article 4(1)(a) of Regulation No 1408/71, and does not therefore come under Article 4(2a) of that regulation.”

 

In addition, the care allowance was found not to be non-contributory (paragraph 33) and failed to meet the conditions of a special non-contributory benefit on that ground.

 

30. Looking at the decision in Jauch on its own, it cannot in my judgment be concluded that it showed that there was an error of law in the removal of Mr K’s entitlement to DLA and Mrs K’s entitlement to CA. Mr Coppel submitted that, in order to give the maximum effect to EU rights the test under the definition of official error in regulation 1(3) of the Decisions and Appeals Regulations of whether an error had already been shown before the decision in question should be whether any previous decision had indicated that on the balance of probabilities what was done would be an error. Mr Cooper submitted that that was not the proper test and that a previous decision would have to have demonstrated that there would be an error of law, not merely have raised a suspicion that that would be so. I consider that the proper position, compatible with the force in the word “shown” in relation to the subsequent decision in question and to the general context, is rather closer to Mr Cooper’s submission for the Secretary of State than to Mr Coppel’s. However, I do not need to work out where precisely the line should be drawn, if indeed any gloss on the ordinary English word “shown” is permissible, because even adopting Mr Coppel’s approach I find it not made out. In my view, Jauch put a question mark against the proper categorisation of DLA, AA and CA, but no more than that.

 

31. There are three essential reasons for that conclusion, two applicable to all three benefits concerned, one special to DLA. The first is that there was considerable doubt how far the decision in Jauch had undermined the reasoning in Snares and Partridge apart from the particular point about the priority between article 4(2a) of and Annex IIa to Regulation No 1408/71. It might just be literally correct that, as stated by the ECJ in paragraph 17 of the judgment in Jauch, the special non-contributory nature of the benefits in question was not “discussed” in the judgments in Snares, Partridge and Swaddling. However, as pointed out in paragraph 25 above, the Court had in both Snares and Partridge endorsed the reasoning of the Advocate General as to why DLA and AA were special non-contributory benefits within the meaning of article 4(2a), without adding any surrounding discussion. Advocate General Alber in Jauch had also suggested in his Opinion (see paragraph 72) that the special non-contributory nature of the benefits in question was not even in question in Snares, Partridge and Swaddling, but that seems an unduly restricted view. The questions that fell to be answered in all three of those cases were dependent on whether the benefit in question was a special non-contributory benefit or not. The Court in Jauch therefore avoided any comment on the overall correctness of the outcomes in Snares and Partridge. Those decisions remained in place. I consider that it was not possible to say whether they would be swept aside in that respect, as they had been in relation to the conclusive effect of Annex IIa by Jauch, until a case arose in the ECJ dealing with those benefits specifically. We now know that the ECJ in Commission v Parliament was able simply to say in paragraph 71 of its judgment that the fact that Snares and Partridge ruled, in the legal context at the time, that DLA and AA came within article 4(2a) did not affect the analysis to be made in the “post-Jauch legal context”. But we could not know that until it happened.

 

32. The second reason is that there was considerable doubt how far the decision in Jauch depended on the care allowance being a supplement to some insurance benefit. In Molenaar there truly was no discussion of any possible categorisation as a special non-contributory benefit at all, no doubt because the German care insurance scheme was fairly plainly contributory. The issue was whether the benefit could be held to fall within the category of sickness benefit or fell outside the scope of “social security” as defined in article 4 and so outside the scope of Regulation No 1408/71 entirely. That was the context in which the Court (paragraph 24 of the judgment) relied on the essential intention to supplement sickness insurance benefits, to which there was a link at the organisational level, in order to improve the state of health and quality of life of persons reliant on care. Thus, when in paragraph 28 of the judgment in Jauch the Court said that, since the Austrian benefit had the same essential purpose, it was of no importance that it provided a supplement to a pension paid on a basis other than sickness, it was merely saying that in the particular case it did not matter that the qualification for care allowance was receipt of a contributory pension, rather than being part of sickness insurance. We were left in the familiar situation in the development of ECJ case-law, of not knowing whether the factor of the care allowance being linked to receipt of a contributory social security benefit would turn out to be merely a feature of the particular circumstances, not constituting a limitation on future application of the same principle in other cases, or whether it would turn out to constitute such a limitation. We now know, from paragraph 70 of the judgment in Commission v Parliament that it was the former:

 

“70. The fact that the DLA, AA and CA, unlike the benefit at issue in Jauch and [Hosse v Land Salzburg (Case C-286/03) [2006] ECR I-1771], do not have as there the essential purpose of supplementing sickness insurance benefits does not affect the categorisation of those benefits.”

 

But we could not know that, subject to the short discussion below of the intervening case-law, until the decision in Commission v Parliament. We certainly could not know that immediately after the decision in Jauch.

 

33. The third reason is linked to the peculiar structure of DLA. Since within the British legislation the care component and the mobility component are linked as two components of one benefit, which may be awarded as consisting of either one or both of those components, at varying rates, it was in my judgment quite impossible, as submitted by Mr Cooper for the Secretary of State, to say at the time how the principles of Jauch might be applied to a benefit only one part of which was plainly linked to reliance on care, as well as not being linked in its conditions of entitlement to qualification for any other benefit at all. Moreover, DLA was listed as such in Annex IIa to Regulation No 1408/71, not by reference to its components. We now know, after many trials and tribulations, from the decisions in Commission v Parliament and in Bartlett and others v Secretary of State for Work and Pensions (Case C-537/09) [2011] ECR I-000, reported at [2012] AACR 34, that the existence of the mobility component does not prevent the categorisation of the care component as a sickness benefit, and therefore exportable, but that the mobility component is not exportable as it is a special non-contributory benefit. However, the method by which that result has been reached is far from satisfactory, as discussed in NG v Secretary of State for Work and Pensions (DLA) [2012] UKUT 26 (AAC), reported at [2012] AACR 35. The uncertainties are pointed up by the convolutions in Advocate General Kokott’s suggestion in paragraphs 116 to 120 of her Opinion in Commission v Parliament about how the problem should be met of what to annul when only the inclusion of the care component of DLA in Annex IIa had been challenged by the Commission and by the adoption of a different solution by the Court in paragraphs 74 and 75 of its judgment. It would in my view have been quite impossible for anyone to have said in advance how those problems would be worked out.

 

34. That particular reason applies equally to CA in so far as entitlement to it depends on the payability of the higher or middle rate of the care component of DLA to the disabled person. As Advocate General Kokott said in paragraph 121 of her Opinion in Commission v Parliament:

 

“Carer’s allowance constitutes a supplement to disability living allowance or attendance allowance. It is granted only when the person reliant on care is in receipt of one of those benefits. As a result of the complementary character of carer’s allowance, according to the Court’s case-law [references omitted], no reason exists to consider that benefit as differing in nature from that of disability living allowance and attendance allowance. Thus carer’s allowance can likewise be attributed to the branch of social security mentioned in Article 4(1)(a) [sickness benefits].”

 

Accordingly, since it was impossible to work out in advance of the decision in Commission v Parliament how DLA as a whole or the care component would be categorised, it was also impossible to work out how CA as a complementary benefit would be categorised. That does not apply to CA in so far at depends on payability of AA to the disabled person. However, the reasons given in paragraphs 31 and 32 above are sufficient on their own for concluding that the decision in Jauch alone did not, even if a balance of probabilities test were adopted, show that there would be an error of law in treating those benefits as special non-contributory benefits.

 

35. Shortly before the oral hearing on 5 February 2013 Mr and Mrs K’s representatives wrote to the Secretary of State asking for a copy of the legal advice they believed would have been received shortly after the ECJ’s decision in Jauch about the impact of the decision on the correct classification of DLA and CA under Regulation No 1408/71. The representatives of the Secretary of State, by a letter dated 1 February 2013, while declining to confirm that any such advice was held, stated that, if it was, it would be covered by litigation privilege or legal advice privilege and could therefore be withheld from inspection. Copies of the letters were supplied to the Upper Tribunal. Paragraph 26 of Mr Coppel’s skeleton argument was as follows:

 

“It is noted that the SSWP, despite his duty of candour, has not disclosed the legal advice which he received as to the effect of Jauch on the classification of DLA. The Appellants consider it very likely that SSWP was advised that in the light of Jauch DLA was not properly characterised as a special non-contributory benefit (a view subsequently embodied in Memo DMG 17/09). He should not be permitted to make submissions to the contrary without first disclosing that legal advice.”

 

There was some discussion of this at the outset of the oral hearing. I expressed the preliminary view against directing any disclosure of any legal advice or constraining any submissions on behalf of the Secretary of State, on the basis that what mattered was not what advice the Secretary of State may or may not have received at any particular point, but what the Upper Tribunal’s objective conclusion was as to whether the error of law in the decisions of 2001 were only shown by a subsequent decision, in particular Commission v Parliament. The issue was not then pressed. However, as will be seen below, I did give Mr and Mrs K’s representatives the opportunity after the hearing to present any evidence in the public domain as to what the implications of Jauch were understood to be at the time.

 

The effect of post-Jauch case-law

36. I look briefly at the intervening case-law between Jauch and Commission v Parliament. That is not of much significance in the present cases because the decisions sought to be revised were made very shortly after the decision in Jauch, so that revelation of the error of law involved in such other cases would have fallen within the exception to the definition of official error just as much as the definitive revelation in Commission v Parliament. However, in some of the other cases in the block awaiting the outcome of the present decision there may be a longer gap. The look at the case-law can be brief because I adhere to the view expressed in paragraphs 25 to 28 of my reference of questions to the ECJ about the mobility component of DLA in Bartlett, included in the report at [2012] AACR 34, that there was a fundamental incoherence in the approach to the different benefits from different States that came before the ECJ. That view was repeated in paragraph 15 of NG. I need not set it out again here. See also the preliminary observations of the ECJ in paragraphs 37 to 48 of its judgment in da Silva Martins v Bank Betriebskrankenkasse – Pflegekasse (Case C-388/09) [2011] ECR-I 000. In essence, the answer produced by the ECJ seems to have depended on the end at which it chose to start its analysis. If it started by asking itself whether a benefit was a social security benefit (ie in the present context a benefit granted objectively on the basis of a legally defined position and intended to improve the state of health and life of persons reliant on care) the answer tended be that it was. If the Court started by asking whether the benefit met the cumulative conditions of article 4(2a) of Regulation 1408/71, the answer tended to be that it did.

 

37. There is an example around what is perhaps the strongest case from the point of view of Mr and Mrs K and one specifically mentioned in Commission v Parliament, that is Hosse. The claimant there was the disabled daughter of a worker in Austria where he enjoyed sickness insurance cover. The family lived in Germany. What was at issue was whether the claimant was entitled to a provincial care allowance payable to those who were not entitled to the national care allowance the subject of Jauch and who were not entitled to the benefits that qualified for the national allowance. The benefits were calculated on the same basis. The cost came from the province’s social assistance budget. The claim was initially unsuccessful because the claimant was not resident in the province of Salzburg. The Court stressed that the concepts of social security benefit and special non-contributory benefit were mutually exclusive, so that a benefit found to fall within the former category could not fall within the latter. It concluded that the provincial care allowance was of the same kind as that in Jauch and that the way in which it was financed, not being necessarily linked to payment of a sickness insurance benefit or a pension awarded on some other basis, could not change its character as a sickness benefit. That could have been taken as a strong indication that a care benefit such as DLA, AA and CA, even though not linked to any insurance benefit, could properly be characterised as a social security benefit and therefore not a special non-contributory benefit (although of course the strong analogy with the benefit already so characterised in Jauch must have been a factor).

 

38. However, a mere five months later the Court in Kersbergen-Lap and Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Case C-154/05) [2006] ECR I-6249 started from the article 4(2a) end in discussing the Dutch “Wajong” incapacity benefit for disabled young people without the insurance qualifications for invalidity benefit. It concluded that the benefit was a special non-contributory benefit because it guaranteed a minimum income to a socially disadvantaged group and was closely linked to the socio-economic situation in the Netherlands. The only clear conclusion that could in my judgment have been drawn from the case-law following Jauch was that the proper categorisation of any particular benefit from any particular country would have, once the conclusive effect of Annex IIa had been blown away, to wait for a definitive decision of the ECJ dealing specifically with the benefit in question.

 

The effect of post-Jauch legislative and administrative developments in the EU

39. I need also to consider the legislative and administrative developments within the EU following Jauch. It was information about that which was put forward on behalf of Mr and Mrs K with Mr Coppel’s further written submission dated 4 March 2013, little in the way of published opinion and debate on the status of Jauch having been discovered.

 

40. The first document provided was the proposal of the Commission of the European Communities dated 31 July 2003 for an amendment of Regulation No 1408/71 including an amendment to the conditions in article 4(2) and a replacement Annex IIa (COM(2003) 468 final). That proposal eventually resulted in the amendments that came into force on 5 May 2005, the validity of some of which were in issue in Commission v Parliament. The proposed United Kingdom entry in Annex IIa was restricted to pension credit and income-based jobseeker’s allowance. In relation to the proposed new Annex IIa it was said at page 7 that in the light of Jauch and Leclere and Deaconescu it appeared:

 

“essential not only to delete from Annex IIa the benefits declared invalid by the Court (Austria’s care allowance and Luxembourg’s maternity allowance) but also to carry out a new analysis of the elements comprising each benefit in Annex IIa in order to verify whether these elements meet the `special’ and `non-contributory’ criteria defined by the case law of the Court of Justice which a benefit should possess in order to be entered in Annex IIa and be coordinated by specific coordination rules laid down for special non-contributory benefits.”

 

41. The second document was the draft statement of the reasons of the Council of the European Union dated 5 November 2004 on the common position adopted with a view to allowing the amendments to proceed (12062/04 ADD 1). Section V of that document briefly referred to the background and to the fact that the revised criteria in article 4(2a) were the same as those in article 70 of Council Regulation (EC) No 883/2004, which was to replace Regulation No 1408/71 in due course. It continued:

 

“The Council also sought to agree criteria for the inclusion of entries in Annex IIa and to identify some key characteristics of disability schemes which would assist in the classification of such schemes as providing `solely specific protection for the disabled’. On the basis of the above approach, unanimous agreement could be reached on classifying the vast majority of Annex IIa entries, resulting in a substantial streamlining of the Annex.

 

However, unanimous agreement could not be reached on the Commission’s proposal to remove certain specific entries from Annex IIa. The Member States concerned did not accept that the criteria proposed should be used to define benefits which were appropriate for listing in Annex IIa. These Member States wanted to maintain their entries in the Annex as they regarded them as fulfilling the requirements of Article 4(2a) and they considered that current European Court of Justice jurisprudence did not justify their removal from the Annex.

 

In order to allow for the adoption of the regulation in view of the significant progress made overall, the Council agreed to maintain these entries in Annex IIa pending future ECJ jurisprudence which could clarify the relevant criteria and subsequently entail revision of the Annex.

 

In this context, the Commission made a statement to the Council’s minutes stressing that the list of entries might need to be revised on the basis of new jurisprudence from the ECJ, in particular in relation to the benefits concerned. The Commission stated that it reserved the right to seize the Court and to present a proposal, if necessary, to revise the list of entries in Annex IIa, based on the findings of the Court.”

 

42. That supplies some additional background to the action brought by the Council to that set out in the Advocate General’s Opinion and the decision in Commission v Parliament. But Mr Coppel submitted that the documents made it clear that the United Kingdom had been adopting a “partisan” position in maintaining that DLA, AA and CA should not be removed from Annex IIa and that, in the light of the discussions and the views of the Commission among others, it was refusing to accept “the writing on the wall”. Although it had been open to the government to pursue litigation to the point of a definitive decision on the particular benefits concerned, it should not be allowed to rely on that stance in support of the application of the exception to the definition of official error.

 

43. That submission cannot be accepted. In the light of the analysis of the ECJ case-law that I have set out above, the strongly maintained view of the Commission about the proper categorisation of DLA, AA and CA in the proposals for and negotiations about amendments to Regulation No 1408/71 cannot be regarded as doing any more than perhaps slightly adding to the size of the question mark against the categorisation of those benefits after Jauch had removed the conclusive effect of listing in Annex IIa. But there was still no more than a question mark, especially in relation to the peculiar circumstances of DLA. Nor can any of the criticisms of the stance of the United Kingdom (leaving aside whether they are justified) properly prevent the Secretary of State now from making submissions as to the proper application of the definition of official error or prevent the Upper Tribunal from making an independent and objective analysis of the position.

 

44. Mr Coppel also invited the Secretary of State to provide an explanation of the grounds on which infraction proceedings were apparently taken against the United Kingdom by the Commission in tandem with the action for annulment brought against the Parliament and the Council, the stage which those proceedings reached and the government’s response to the proceedings. In the reply dated 4 April 2013 the Secretary of State decline to produce any further information. I do not think that any of the information requested would have added anything of value. The claimants in the other appeals heard on 5 January 2013 and in some of the other cases in block relied particularly strongly on the views of the Commission, which it was prepared to maintain to the ultimate degree in litigation and were eventually accepted by the ECJ. However, for the reasons summarised in the previous paragraph, those views were only views, though of course from an exceptionally expert and experienced source, and could not show what the true legal position was before the ECJ made its decision in Commission v Parliament.

 

45. Accordingly, I find nothing in the legislative and administrative developments within the EU to alter my general conclusion that the error of EU law in the decisions in the present cases was shown only by the decision of the ECJ in Commission v Parliament. Since that was a decision of a court for the purposes of the definition of official error in regulation 1(3) of the Decisions and Appeals Regulations, the exception to that definition applies. The decisions do not fall to be revised for official error on this ground.

 

46. Nor could it possibly be said that in July 2001 there was any official error in proceeding to make a supersession decision removing Mr and Mrs K’s entitlement to benefit, rather than suspending payment of benefit.

 

Official error and the effective dates of the supersession decisions in 2001

47. In July 2001, regulation 7(2)(c) of the Decisions and Appeals Regulations provided as follows in relation to the effective date of superseding decisions on the ground of relevant change of circumstances not to the advantage of the claimant (omitting the provisions relating specifically to incapacity benefit decisions):

 

“(2) Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision was made, the decision under section 10 shall take effect—

 …

(c)           where the decision is not advantageous to the claimant—

 …

(ii)            in the case of a disability benefit decision […], where the Secretary of State is satisfied that in relation to a disability determination embodied in or necessary to the disability benefit decision […], the claimant or payee failed to notify an appropriate office of a change of circumstances which regulations under the [Social Security Administration Act 1992] required him to notify, and the claimant or payee, as the case may be, knew or could reasonably have known that the change of circumstances should have been notified,

(aa) from the date on which the claimant or payee, as the case may be, ought to have notified the change of circumstances, or

(bb) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified, or

(iii) in any other case, except in the case of a decision which supersedes a disability benefit decision […], from the date of the change.”

 

A “disability determination” is, under regulation 7A, in cases of awards of DLA or AA, a determination that the medical or disability conditions of entitlement are satisfied. A “disability benefit decision” is a decision to award a benefit embodied in or necessary to which is a disability determination.

 

48. If there is no contrary provision in regulations, section 10(5) of the Social Security Act 1998 provides that a decision under section 10 is to “take effect as from the date on which it is made, or, where applicable, the date on which the application was made”. It is quite clear, from the plain words of the regulation, that any change relating to a claimant’s satisfaction or otherwise of the residence and presence conditions is not a change in relation to the disability determination that must have been made when DLA or AA was most recently awarded. Therefore, regulation 7(2)(c)(ii) cannot apply. Nor can regulation 7(2)(c)(iii) apply, because it does not apply where a disability benefit decision is superseded. Therefore, the only rule as to the effective date of the superseding decision in DLA and AA cases is that in section 10(5).

 

49. I deal with some consequences of that state of the law in my decisions in the other two appeals heard on 5 February 2013, CA/2028/2011 and CDLA/2972/2011. In relation to the DLA decision of 3 July 2011 in Mr K’s case, Mr Coppel made the following submission. The family moved to Spain on 14 July 2001. The decision of 3 July 2001 must therefore have been made on the ground of an anticipated relevant change of circumstances. Since neither head (ii) nor (iii) of regulation 7(2)(c) could apply, the decision could not take effect from the date of the change. It could only take effect under section 10(5) of the 1998 Act from 3 July 2001, at which date there could not have been a superseding decision because Mr K and his family had not yet ceased to be present and ordinarily resident in Great Britain. Accordingly, it was submitted, the decision arose from official error and fell to be revised. Mr Coppel’s written submission did not expand on what could be done on such a revision, but at the oral hearing was prepared to accept that the error might be uncorrectable. On revision, the circumstances as they existed at the date of the decision to be revised have to be looked at. If as at 3 July 2001 the Secretary of State could not have superseded the decision of 2 November 2000 on the ground of a relevant change of circumstances, because the change had not yet happened, and could not have superseded for anticipated relevant change of circumstances, because the decision could not be made effective from 15 July 2001, the result might be that there could have been no supersession at all. That would, Mr Coppel suggested, leave the appeal tribunal’s award in operation and the Secretary of State free now to carry out a supersession for relevant change of circumstances, taking account of what EU law is now known to be. If that result was contrary to common sense, the fault lay in the Secretary of State’s failure to put in place a comprehensive and thought-through structure for ascertaining the effective dates of supersession decisions before the amendments to the Decisions and Appeals Regulations in 2006.

 

50. That is a very ingenious submission, which so far as I know has not been put to the Upper Tribunal before. As will be seen in the decisions in CA/2028/2011 and CDLA/2972/2011, there has been extensive discussion of the problems emerging when a supersession decision is based on a past relevant change of circumstances not related to the disability determination and purports to take effect from the date of the change rather than the date of the superseding decision. But the consequences of a decision being given in advance of the change have not so far been discussed.

 

51. I do not accept Mr Coppel’s submission. It would be a very odd practical outcome if, in the state of the legislation as it was until 2006, the Secretary of State could not use the power to supersede for an anticipated relevant change of circumstances in non-disability determination DLA and AA cases and then, after the change had happened, could only make the supersession effective from the date of the decision (or an earlier application), so that the supersession could only be effective from the date of the change if the Secretary of State was able to light on the exact day of the change on which to make the decision. That is so odd that it cannot possibly have been intended and so points strongly in favour of an interpretation that avoids that result. I accept, however, that sometimes legislation may be in such a defective state that no process of interpretation can produce a sensible result.

 

52. Here, regulation 7(2)(c) of the Decisions and Appeals Regulations as in force in 2001 cannot possibly be interpreted so as to cover the situation. The answer therefore turns on section 10(5) of the 1998 Act and what is meant by a decision taking effect “as from” the date of the superseding decision. Section 10 was of course enacted before the circumstances in which a supersession could take place and the rules about effective dates were prescribed under subsections (3) and (6), but in my judgment it can legitimately be assumed that some similar structure to that previously in force for many years under the powers of review (including review for anticipated relevant changes of circumstances) would be replicated. Then it has to be asked what the purpose was of the protection provided by the default rule in section 10(5). In my judgment, it is self-evidently to protect claimants with the benefit of an existing award of entitlement from having that benefit taken away or altered to their detriment for any day prior to that of the decision having that effect, unless specific rules are put in regulations to say so. That is a protection which is not necessary in the case of supersession on the ground of an anticipated relevant change of circumstances taking effect from the anticipated date of change in the future. In my view the words “as from” have sufficient flexibility to authorise the making of a supersession on that ground effective only from the anticipated date of change. That is not to write additional words into section 10(5) to cater for the particular case of supersession on the ground of an anticipated relevant change of circumstances, which Mr Coppel submitted would be impermissible in a process of interpretation, but to give it a purposive construction in the context of the protection it was evidently intended to provide.

 

53. Accordingly, I conclude that there was no official error in relation to the effective date in the decision of 3 July 2001 in Mr K’s case.

 

54. The evidence about the date of the superseding decision in Mrs K’s case and the date from which her entitlement to CA was removed is very much less clear (see paragraph 8 above). I consider it most likely that the decision was made shortly after 5 August 2001, the end date of the overpayment identified in the letter of 14 August 2001, but in view of the deficiencies in the evidence held by the Secretary of State and the doubt whether there was any notification to Mrs K prior to the letter of 14 August 2001, I would be prepared to proceed on the basis that the decision was not made until 14 August 2001. However, the precise date of the decision does not matter. That is because the decision awarding Mrs K CA was not a “disability benefit decision” as defined in regulation 7A(1) of the Decisions and Appeals Regulations for the purposes of regulation 7. A “disability determination” was not embodied in or necessary to the decision to award CA. That phrase is defined in regulation 7A(1) only in relation to AA or DLA, severe disablement allowance and industrial injuries benefit. So, even if (which I strongly doubt) a disability determination, in the award of AA or the care component of DLA to the disabled person cared for, could be said in general to be necessary to an award of CA, that would not bring the case within the special definition of “disability benefit decision” in regulation 7A(1). Accordingly, regulation 7(2)(c)(iii) would then apply to allow the superseding decision to have taken effect from the date of the change of circumstances, in practice from16 July 2001.

 

Could the tribunal of 18 May 2011 have carried out a revision if there had been an official error?

55. If any reader thinks that this decision has been hard going so far, things are about to get a lot worse. For the purposes of this section of the decision only, I am assuming (contrary to what has actually been decided above) that the conditions in regulation 3(5)(a) of the Decisions and Appeals Regulations for revision of the 2001 decisions on the ground that they arose from official error have been met.

 

56. The crucial provision that lies at the heart of the complexities is section 12(2) of the Social Security Act 1998, which only provides for an appeal to a First-tier Tribunal against a decision identified in subsection (1):

 

“(1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which—

(a)           is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or

(b)           is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act;”

 

Section 8 covers initial decisions by the Secretary of State and section 10 covers decisions under the power of supersession. Section 12(9) provides:

 

“(9) The reference in subsection (1) above to a decision under section 10 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.”

 

It has been decided that decisions refusing to supersede are appealable under section 12(1) and (9) just as much as decisions making a change in entitlement or payability (Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53, R(DLA) 1/03). If a decision (an “original decision”) is revised or if the Secretary of State on an application or request or otherwise declines to revise, any appeal can only under section 12(1) be directed against the original decision, as revised or not revised.

 

57. That structure plainly limits the scope of appeals in revision cases, by virtue of the rules imposing time limits on the making of appeals. Those rules are now contained in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, made in that respect under the power in section 12(7) of the 1998 Act. Rule 23(2) provides that an appellant must start proceedings by sending or delivering a notice of appeal (until April 2013 to the decision-maker) so that it is received within the time specified in Schedule 1 to the Rules. The basic time specified in the Schedule is one month after the date on which notice of the decision being challenged was sent to the appellant, subject to a short extension if a statement of reasons for the decision had been requested within the time allowed. An appeal not made within that time is treated as made in time if the decision-maker does not object (rule 23(4)) and the First-tier Tribunal has the power to extend the time for complying with any rule (rule 5(3)(a)) or to waive compliance with any requirement of the rules (rule 7(2)(a)). However, all those provisions are subject to rule 23(5), which provides that no appeal may be made more than 12 months after the time specified in Schedule 1 (rule 23(4) and (8)). The limit imposed by rule 23(5) is commonly called the absolute time limit, because there is no power to extend it or waive its effect.

 

58. There is mitigation of the effects of those basic provisions first in section 9(5) of the 1998 Act:

 

“(5) Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.”

 

Thus, where the revision process results in an alteration to the original decision the running of a new period for appealing against the original decision as revised is triggered. The weight of  binding authority at the level of the Upper Tribunal is inconsistent with an interpretation of section 9(5) in a similar way to the interpretation of section 12(9) in Wood to allow it to operate where the original decision is not revised, ie not altered (Tribunal of Commissioners’ decision in R(IS) 15/04 and the Court of Appeal’s decision in Beltekian v Westminster City Council and another [2004] EWCA Civ 1784, reported as R(H) 8/05, recently discussed and applied in AS v Secretary of State for Work and Pensions (CSM) [2012] UKUT 448 (AAC) and AW v Secretary of State for Work and Pensions (IB) [2013] UKUT 20 (AAC)).

 

59. There is further mitigation in the alternative time limit for appealing provided by Schedule 1 to the First-tier Procedure Rules:

 

“(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.”

 

Thus in the case of some, but not all, decisions not to revise, the running of a new period for appealing against the original decision is triggered. There are problems in the interpretation of head (ii) of the provision so far it applies to revisions under regulation 3A of child support decisions under the 2003 scheme and of head (iii). These were discussed in the decisions in AS and AW, referred to above. But there is no ambiguity in head (ii) in so far as it applies to revisions under regulation 3(1) or (3). There must have been an application under one of those paragraphs to revise the original decision. Under regulation 3(1) the application must be made within a month of notification of the original decision, extendable on various grounds subject to an absolute limit of 13 months from the date of notification. No other ground needs to be made out for revision, so that if a timeous application is made there can be a general reconsideration of the merits of the original decision on the circumstances as at its effective date, perhaps taking into account additional evidence. Regulation 3(3) applies similar limits to social fund cases, so is not relevant here. The ground of revision for official error is in regulation 3(5)(a). Thus, although, as recognised in paragraph 39(1) of R(IS) 15/04, a claimant’s request for revision of an original decision on the ground of official error is in the ordinary use of language to be regarded as an “application” it cannot, unless made within the time specified under regulation 3(1) be an application under that provision.

 

60. In the present cases, the application for reinstatement of Mr and Mrs K’s benefits made on 22 January 2008 was plainly made much more than 13 months after the date of the 2001 decisions and therefore could not be treated as an application under regulation 3(1) of the Decisions and Appeals Regulations for revision of those decisions. If there had simply been a refusal to revise the 2001 decisions following the application, there could not have been any valid appeal against the 2001 decisions as not revised, because the absolute 13-month time limit after notification of those decisions had been breached.

 

61. To this point I think that matters are common ground, although as will emerge below Mr Coppel does have a significant challenge to one particular aspect of the decision in R(IS) 15/04.

 

62. There is also a dispute about the nature of the decisions made in 2009 and 2010 in Mr K’s case that should be determined as a preliminary matter. The first decision made on the application for reinstatement on 23 April 2009 was described in paragraph 7 above. It included a refusal to revise the decision of 3 July 2001 and a supersession of that decision on the ground of error of law not resulting in any change in the substance of the decision from any date. The revision of the decision of 23 April 2009 on 21 May 2010 then needs to be examined in detail. As copied on pages 145 to 147 of the papers it was made on a printed form that supplied a variety of boxes to be ticked or filled in. The decision-maker ticked that she had revised the decision of 23 April 2009. The form then took her direct to the substantive outcome decision, expressed as that the claimant was not entitled to the mobility component of DLA from and including 22 January 2008 and was entitled to the middle rate of the care component from 22 January 2008 because he benefited from the provisions of Regulation No 1408/71. The box for brief grounds for the decision contained the following:

 

“Decision dated 23/4/2009 reconsidered and revised as 26/52 wrongly applied and decision dated 3/7/2001 could have been superseded. Needs stated during the night do not amount to repeated attention/supervision from another person. I do not consider needs during the night enough for an award to higher care. Therefore reinstatement award of middle rate care from date of application. Mobility not exportable.”

 

63. Mr Coppel submitted that, because there was no mention at all of whether the decision of 3 July 2001 could or could not be revised, the decision that was made on 21 May 2010 was purely a decision to supersede on the ground of error of law and to make an award in favour of Mr K, effective from the date of the application. I do not accept that submission. When an “original decision” is revised, in my judgment the substance of the original decision stands except to the extent that it is revised. Sometimes the revision will require the complete replacement of the original decision, sometimes it will not. In the present case, there was a need only to revise the outcome decision on the supersession on the same ground as identified in the decision of 23 April 2009. Thus the decision of 23 April 2009 as revised on 21 May 2010 consisted of the refusal to revise the decision of 3 July 2001 and the supersession of that decision, with only the outcome of the supersession altered. That conclusion is reinforced by the nature of the form that had to be used by the decision-maker on 21 May 2010. Although the Secretary of State may in some circumstances need to be held to adverse consequences flowing from misguided or poor designs of forms, here the absence of any opportunity in the pre-printed boxes to re-visit the substance of the original decision on grounds of revision or supersession serves only to emphasis that no change in that element of the substance was intended. Accordingly, the case must be approached on the basis that the decision under appeal to the tribunal of 18 May 2011 consisted expressly of both a refusal to revise and a supersession.

 

64. The appeal was validly before the tribunal because the time for appealing against the supersession decision under section 10 of the 1998 Act, following the revision on 21 May 2010, ran from the date of notification of that decision (section 9(6)) and the Secretary of State was allowed to treat the appeal as made in time. Mr Coppel’s primary submission then ran as follows. The tribunal had an appeal against the supersession decision before it. By virtue of regulation 6(3) of the Decisions and Appeals Regulations a “decision which may be revised under regulation 3 may not be superseded” under regulation 6. On the assumption being made in this part of the decision, the Secretary of State on 23 April 2009 and 21 May 2010 should have carried out a revision of the decision of 3 July 2001 on the ground that it arose from official error. Then in accordance with paragraph 55 of Tribunal of Commissioners’ decision R(IB) 2/04, since the supersession decision was wrong (as contrary to regulation 6(3)), the tribunal was entitled and required, in putting itself into the shoes of the decision-maker, to substitute a decision under the power of revision given by section 9 of the 1998 Act.

 

65. Mr Coppel then had to consider what was said by the Tribunal of Commissioners in paragraphs 77 and 78 of R(IS) 15/04:

 

“77.  It was not submitted on behalf of the claimant that the tribunal was, in the appeal against the supersession decision which was probably before it, in any event entitled to revise the decision of 20 February 1998 for official error. That was because it was argued on behalf of the claimant, as it was on behalf of the Secretary of State, that on appeal against a decision under section 10 of the 1998 Act, an appeal tribunal has no power to substitute a decision under section 9 of that Act. In our decision dated 21 January 2004 in respect of the other four appeals which were heard at the same time as this ([R(IB) 2/04]), we rejected that proposition (see paragraph 55, under Issue 1A).

 

 78.  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.”

 

66. Mr Coppel submitted that paragraph 78 of R(IS) 15/04 embodied an error of law. He said that paragraph 77 showed that the argument that he was making about what had to follow from the application of regulation 6(3) of the Decisions and Appeals Regulations as the key provision was not made to the Tribunal of Commissioners in that case. The omission to consider regulation 6(3) undermined the reasoning supporting the implication of a limitation on the powers of the tribunal. Mr Coppel submitted that it was difficult to see how a purely procedural limit, based on the time limits for lodging appeals, could drive the reasoning on the substantive limits to the powers of a tribunal on an in-time appeal against a supersession decision. He also submitted that, since his interpretation was not inconsistent with any legislative words, but only with what was found by the Tribunal of Commissioners in R(IS) 15/04 to follow by implication from general principles, EU law required it to be adopted so as to enable effect to be given to Mr and Mrs K’s EU rights. In answer to Mr Cooper’s reply that the proper approach in EU law was to ask whether the domestic time limit as applied in paragraph 78 of R(IS) 15/04 contravened either the principle of equivalence or of effectiveness (discussed below), Mr Coppel submitted that those principles were relevant only to the acceptability of domestic procedural rules and that here the concern was with the substantive powers of the First-tier Tribunal.

 

67. Mr Coppel’s approach overlooks the fact that the appeals in R(IB) 2/04 and R(IS) 15/04 were heard at the same time before the same Tribunal of Commissioners, with the same representatives for all the claimants and for the Secretary of State. The decision in R(IS) 15/04 had to be issued a few weeks after that in R(IB) 2/04 to allow for further submissions on issues under the Human Rights Act 1998. Thus, in my judgment, the two decisions must be regarded as a combined package. Mr Coppel rightly acknowledged the centrality of regulation 6(3) of the Decisions and Appeals Regulations to the extensive discussion in R(IB) 2/04. Rather than a contrast being drawn with the lack of discussion in R(IS) 15/04, that extensive discussion must be regarded as incorporated into R(IS) 15/04. The challenge to paragraph 78 of R(IS) 15/04 therefore has to rest solely on the argument that the rule laid down is inconsistent with the general principles set out in R(IB) 2/04 (in particular in paragraph 55(5) to (8)). I reject that argument essentially because I find the reasoning in paragraph 78 of R(IS) 15/04 cogent and convincing. The analysis in R(IB) 2/04 expressly recognised that the scope of the powers of the First-tier Tribunal as set out in general in paragraph 55 could be cut down by express statutory provisions. The slight extension, if any, in paragraph 78 of R(IS) 15/04 was that it required rather more of an element of interpretation to conclude that the provisions of sections 9 and 12(1) and (9) of the 1998 Act, with the then equivalent of the time limit rules in the Tribunal Procedure Rules, had that effect. However, as the length and complexity of the decision in R(IB) 2/04 shows, the legislation did not provide an exhaustive and fully worked-out  framework, but left open many areas of ambiguity in which solutions have to be found by a mixture of principle and pragmatism. That will inevitably result in some rough edges and some cases where any solution involves an inroad into some general principle or other. That seems to me to be the case in relation to paragraph 78 of R(IS) 15/04. Nevertheless, I remain satisfied that the pragmatic solution there is the right one in the overall context of the legislation. I do not then need to grapple with how far I would have been bound to follow the approach of the Tribunal of Commissioners in R(IS) 15/04 if I had taken the opposite view. I note that in paragraph 9(3) of her decision in CDLA/1707/2005 and CDLA/1708/2005 Miss Deputy Commissioner Humphreys endorsed that approach.

 

68. Nor do I accept Mr Coppel’s submission on EU law. In my judgment, questions as to the powers of the First-tier Tribunal in appeals against decisions of the Secretary of State fall firmly into the general category of remedies for the enforcement of EU rights. There is now no dispute about the substance of Mr and Mrs K’s EU rights. The dispute is over whether a British tribunal is able, in the circumstances, to provide a remedy to require the Secretary of State to give effect to those rights for a period prior to the dates adopted in the decisions under appeal. There is then no scope for any additional principle of statutory interpretation in favour of allowing the maximum enjoyment of the EU rights. The rules as to remedies must be judged according to the principles of equivalence and effectiveness.

 

69. Accordingly, the conclusion in this section of the decision is that, applying the British legislation without considering the effects of those principles, the tribunal of 18 May 2011 did not have the power in law to make a decision revising the 2001 decisions even if it had concluded that those decisions arose from official error.

 

Does EU law require the disapplication of the British rules on official error and on the time limits for appealing in revision cases?

70. I have dealt above with Mr Coppel’s general arguments about the interpretation of legislative provisions where possible to as to promote the enjoyment of EU rights. In the present section, I concentrate on whether the British limitations on the remedies available to Mr and Mrs K to enforce their EU rights under Regulation No 1408/71 are compatible with the EU law. Once again, to try to keep this decision within reasonable bounds, I shall not embark on any full analysis of all the relevant ECJ and British case-law, but concentrate on the particular points that seem to me relevant. Mr Coppel did not put his aspect of the case in the forefront of his submissions.

 

71. In my view the general principles were helpfully and clearly set out by Mr Deputy Commissioner White in decision CIS/488/2004 as cited by the Court of Appeal (without disapproval, although his application of the principles was disapproved) in paragraph 42 of Secretary of State for Work and Pensions v Walker-Fox [2005] EWCA Civ 1441, reported as R(IS) 3/06:

 

“34.  My understanding of the requirements of Community law, in relation to remedies and time limits for claiming, is that there is a requirement of equivalence and a requirement of effectiveness. The principle of equivalence requires that the conditions laid down by national law for the pursuit of Community rights are not discriminatory by comparison with those relating to domestic claims. The principle of effectiveness requires that any restrictions imposed must not be such as to render the reliance on Community rights virtually impossible or excessively difficult. …

 

35.  Though much of the case law relates to the consequences of the failure by a Member State to implement, or to implement fully, the requirements of directives, the principles of equivalence and effectiveness apply regardless of the character of the Community provision which gives the Community right. Here it is a Regulation. “

 

The Court of Appeal also cited in paragraph 40 the summary of the reasoning behind that position as expressed in the judgment of the ECJ in Fantask A/S v Industriministeriet (Case C-188/95) [1997] ECR I-6783:

 

“47.  As the court has pointed out in paragraph 39 of this judgment, it is settled case-law that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules for actions seeking the recovery of sums wrongly paid, provided that those rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

 

 48.  The court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular [Rewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Case 33/76) [1976] ECR 1989]).”

 

72. I see no problem in revision cases with the principle of equivalence, that the rules are not less favourable than those governing similar domestic actions. As I have decided above, the exception to the definition of “official error” in regulation 1(3) of the Decisions and Appeals Regulations does apply where an official error is shown to have been such by a subsequent decision of the ECJ, but that is to apply the same rules as apply to decisions of the Upper Tribunal or the British courts. Then the rules about appeals following a refusal to revise for official error lying only against the original decision and subject to the absolute 13-month time limit are the same for cases where the official error consists in an error of EU law as for cases where the official error consists in an error of British law. The potential issue is whether there is an incompatibility with the principle of effectiveness.

 

73. In relation to effectiveness, I note that the Tribunal of Commissioners in R(P) 1/09 and R(P) 2/09 did not even think it worth considering whether the existence of the exception to the definition of official error was in any way inconsistent with the principle. Allowing the effect of an authoritative ruling of the ECJ, like that of a similar ruling of the British courts or tribunals, not to alter the outcome of decisions made prior to the date of the ruling, cannot be seen as making the enforcement of EU rights virtually impossible or excessively difficult. It does not prevent the revision of decisions made after the crucial ruling. And even if the right conclusion in paragraphs 77 to 80 below were that the principle of equivalence does not require regulation 7(6) of the Decisions and Appeals Regulations to be extended to cover rulings of the ECJ, the rules on supersession allow supersession for error of law to take effect prospectively from the date of an application for supersession following the ruling. The combined effect of those rules cannot, bearing in mind the interests of legal certainty, be regarded as making the enforcement of EU rights excessively difficult.

 

74. If I were wrong above about the interpretation of the exclusion from the definition of official error or about the compatibility of that exclusion with the principles of equivalence and effectiveness, the time limits in the British legislation for appealing after a refusal to revise for official error would still have operated to prevent the tribunal of 18 May 2011 from considering on the appeals before it whether a revision of the 2001 decisions should be substituted for their supersession. Does that infringe the principle of effectiveness? In my judgment, the answer is no. First, there is no time limit at all on the Secretary of State’s power to revise for official error. Providing that the definition of official error is made out, the decision revised can be of any age. There is thus no time limit either on the claimant applying for the Secretary of State to exercise that power of revision. Where the time limit comes in is that, if the Secretary of State declines to revise (and there was no application under regulation 3(1) or (3) of the Decisions and Appeals Regulations), the claimant cannot appeal against the refusal to revise itself or against the original decision if more than 13 months have elapsed. However, as discussed in relation to the Human Rights Act 1998 in R(IS) 15/04, the refusal to revise could be challenged by way of judicial review, and there would have been a right of appeal against the original decision at the time it was notified. I add that there is also nothing to stop the claimant, after a refusal, making further applications for revision for official error, multiple application if necessary, to which the Secretary of State would be bound to give proper attention in the light of the duty to revise if official error is made out (see paragraph 39 of R(IS) 15/04). In that context, and bearing in mind also what was said in the previous paragraph, I cannot see that the limitation on the scope of appeals to the First-tier Tribunal makes the enforcement of EU rights excessively difficult. The Tribunal of Commissioners in R(P) 2/09 took a similar view in paragraph 35 of the decision.

 

75. Some arguments have been raised in these and other cases in the block of unfair treatment, often triggered by it having been noted in the Secretary of State’s submission to a First-tier Tribunal or in a tribunal’s statement of reasons that the claimant in question had not appealed against the decisions removing entitlement on moving to another Member State at the time. Sometimes it is said that the claimant could not have been expected to realise at that time that there was any point in appealing, because the decision was clearly right in terms of the British legislation. Sometimes it is said that when the claimant when raising queries about the decision was told that there was no point in appealing. Sometimes it is said, as here, that letters challenging the decision that should have been treated as appeals were disregarded or wrongly treated as merely requests for further information. I come back to that last point in the postscript to the present decision. So far as being told that there was no point in appealing, I am satisfied that that sort of thing would fall a long way short of unconscionable or inequitable conduct of the kind that the Court of Appeal in Walker-Fox accepted could require the disapplication of an otherwise acceptable time-limit in the case of the non-implementation of an EU Directive by a Member State. And in any event there is at the least very serious doubt whether that rule applies when it is the effect of an EU Regulation which is in issue.

 

76. After a good deal of thought, I have decided that I should say no more about the other elements of unfairness that have been put forward. That is partly because the arguments used are many and various and to deal with them at all (let alone to the satisfaction of the claimants involved) would unduly what is already an unwieldy decision. But mainly it is because what both the First-tier Tribunal and the Upper Tribunal have to deal with is the course of events as they actually happened in each particular case under appeal, not what might have happened if the Department or the claimants involved had acted differently.

 

Does EU law require the disapplication of the British rules on the effective date of supersessions on the ground of error of law?

77. This point was not argued before the Upper Tribunal. If it was to be decided in favour of Mr and Mrs K the result would be that the tribunal of 18 May 2011 had gone wrong in law in not giving effect to its supersession of the 2001 decisions from 18 October 2007 instead of from 22 January 2008. However, since Mr and Mrs K have already received payment of the benefit concerned for that period on an extra-statutory basis, I would have declined (under the discretion given by section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007) to set aside the tribunal’s decision for that error alone. The point is of some general importance, although the practical outcome for supersessions carried out on and after 31 October 2011 in the special circumstances of cases like the present has already been secured by the 2011 amending regulations (paragraph 3 above). But I have concluded that I do not need to reach a definite conclusion on it. I certainly did not want to impose any further delay in the resolution of these and other cases by seeking the views of the parties.

 

78. The point stems from the terms of regulation 7(6) of the Decisions and Appeals Regulations, as discussed in paragraphs 11 and 12 above. I concluded there that any ruling of the ECJ, and in particular the ruling in Commission v Parliament, could not be a “relevant determination” for the purposes of triggering the operation of regulation 7(6). However, a serious question arises whether the provision as so interpreted is incompatible with the principle of equivalence in cases where EU rights are in issue. Regulation 7(6) has the result that, for the ordinary case where a decision of the Secretary of State is revealed to have been in error of law by a decision of the Upper Tribunal or a superior United Kingdom court (a relevant determination), the Secretary of State’s decision has to be superseded on the ground of error of law and the superseding decision has to have effect no later than the date of the relevant determination. Thus if, in the present case, the decision in Commission v Parliament had not been made by the ECJ but by the Court of Appeal in England and Wales on an appeal arising out of a Secretary of State’s decision, the decisions in Mr and Mrs K’s cases would have had to be superseded (not being capable of revision) with effect from 18 October 2007. However, because of the peculiarity of the way in which section 27(1) of the 1998 Act is drafted, rulings of the ECJ are excluded. Therefore, it could be argued that the procedural conditions governing the enforcement of EU rights when the error of law is revealed by a ruling of the ECJ are less favourable than those relating to errors of law revealed by United Kingdom courts and tribunals, so that the limits to regulation 7(6) have to be disapplied to the extent necessary to remove the less favourable treatment.

 

79. An argument to the contrary would be to point out that the definition of “relevant determination” also appears to exclude some authoritative decisions of the British courts, in particular decisions given on applications for judicial review. An initial decision on an application for judicial review of the Secretary of State’s making of secondary legislation, say, or the adoption of a particular administrative practice would not be an appeal and would not in my judgment arise from the decision of an adjudicating authority. Although the Secretary of State is defined as an adjudicating authority that by necessary implication be limited to circumstances in which the Secretary of State was exercising adjudicatory functions under the 1998 Act. Thus, even an appeal to a higher court from an initial judicial review decision would appear not be a relevant determination. It could then be argued that the definition of relevant determination in domestic law is limited to appeal decisions arising directly in the appellate chain established under the 1998 Act and now the Tribunals, Courts and Enforcement Act 2007. There would not then be any breach of the principle of equivalence in excluding rulings of the ECJ, which do not form a direct part of that appellate chain, especially not the annulment proceedings in Commission v Parliament which were analogous to judicial review proceedings.

 

80. I do not, for the reasons given in paragraph 77 above, express any definite conclusion on those competing arguments. The result is that, on the basis that the rules in regulation 7(6) of the Decisions and Appeals Regulations are not required to be disapplied, the tribunal of 18 May 2011 did not err in law in making the decisions superseding the 2001 decisions effective only from 18 January 2008 and not from 18 October 2007.

 

Conclusion on the appeal to the Upper Tribunal

81. Accordingly, as I have found no material error of law in the decision of the tribunal of 18 May 2011, Mr and Mrs K’s appeals must be disallowed.

 

Postscript

82. It has been part of the case for Mr K (see Mrs K’s submission to the First-tier Tribunal on his behalf at page 177 of CDLA/2053/2011) that a letter she wrote to the Department following the decision of 3 July 2001 saying that the decision was wrong should have been treated as an appeal. In her submission on her own appeal Mrs K gave further details of the letters and the surrounding circumstances (pages 41 and 42 of the papers in CG/2052/2011). It was sent with the cheque for the overpayment of CA that had been identified, which Mrs K knows arrived as a copy of the receipt is at page 53 of CG/2052/2011. In paragraph 6 above I explained briefly why I considered that the finding of fact of the tribunal of 18 May 2011 that no appeals had been made at the time had to be accepted for the purposes of the appeal to the Upper Tribunal. In my view, in accordance with section 17(2) of the Social Security Act 1998 that finding of fact is not conclusive for the purposes of any other decisions to be given outside the scope of the particular appeal before the tribunal of 18 May 2011. If so, there is nothing to stop Mrs K from making another attempt, with further and better evidence if any is available, to persuade the Secretary of State that she did in August or September 2001 lodge a document that ought fairly to be regarded as an appeal against the DLA decision of 3 July 2001 and the CA decision of unknown date and that that appeal should now be processed and referred to the First-tier Tribunal. I say nothing about what prospects of success any such attempt might have.

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date: 3 May 2013