Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CDLA/3894/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Chesterfield on 24 May 2012 under reference SC031/11/01388 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

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

 

(2)           The appellant is reminded that the tribunal can only deal with her situation as it was down to 6 April 2011 and not any changes after that date.

 

(3)           If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Birmingham Appeals Service Centre within one month of the date this decision is issued.

 

(4)           The First-tier Tribunal should have regard to the points made below.

 

 

 

 

REASONS FOR DECISION

 

 

1.                This is an appeal by the claimant from a decision of the Chesterfield First-tier Tribunal (SEC) dated 24 May 2012. I will refer to this from now on as “the tribunal” and the claimant as the “appellant”. The tribunal allowed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of 6 April 2011. The Secretary of State’s supersession decision of that date was to the effect that the appellant’s five year award of the lower rate of the mobility component (“lrmc”) and the middle rate of the care component (“mrcc”) of Disability Living Allowance (“DLA”) that had been due to run until 29 June 2015 ought to be removed with effect from 10 March 2011. The tribunal allowed the appeal but only to the extent of finding that the appellant was “entitled to the [lrmc] from 10/o3/2011 to 9/03/14”.

 

2.               I have two difficulties with the language used here by the tribunal to express its decision.  The first concerns the use of the phrase “is entitled to the [lrmc] ... from 10/03/11”. For reasons to which I will come shortly, this focuses on the wrong issue, namely whether the appellant was entitled to the lrmc from 10 March 2011, rather than whether the tribunal was not satisfied that it had been established on supersession that the appellant  was no longer entitled to the lrmc from 10 March 2011. The latter was the correct focus. This leads to my second difficulty. The issue for the tribunal was not whether the appellant had established entitlement to the lrmc from 10 March 2011: she already had an award of lrmc covering that period and up to 29 June 2015 (see Secretary of State’s decision of 14 June 2010 to this effect on pages 56-61).  Instead, the issue for the tribunal was whether it had been established that the appellant was no longer entitled to the lrmc from 10 March 2011 (and up to 29 June 2015). If that had not been established then on the face of it the award of the lrmc to 29 June 2015 ought to have remained in place.

 

3.               This is not simply an infelicity in the wording of the tribunal’s decision. It reveals, in my judgment, a fundamental and material error of law in the tribunal’s approach to the factual and legal issues it had to decide. Central to that approach was a failure on the tribunal’s part to correctly focus on the law on supersession and its relationship with the existing award the appellant had. 

4.               Permission to appeal was refused initially by District Tribunal Judge Pritchard on 27 September 2012. However, I gave permission to appeal on the renewed application for permission to appeal on 18 December 2012 and gave as my reasons:

 

“….I consider it is arguable that the First-tier Tribunal erred in law in three respects in respect of “supersession”.

 

Firstly, it is arguable that it erroneously saw the supersession criteria as threshold rather than outcome criteria.  In this respect it may have committed the same error as the representative.  Following Wood –v- SSWP [2003] EWCA Civ 53; R(DLA)1/03 and paragraph 10(4) of R(IB)2/04 the ground of supersession once established must lead to the decision.  In other words, the ground of supersession is not (just) about showing grounds to look at the 14.06.10 decision again but must establish the result contended for: so here, that there has been a change of circumstance or circumstances since 14.06.10 that establishes the outcome decision that the appellant was no longer entitled to the middle rate of the care component or the lower rate mobility component of DLA: see also R(I) 56/54.

 

Secondly, it is arguable that in deciding whether there had been a change of circumstances that the First-tier Tribunal [ought] to have reasoned out more fully why it felt able to accept as secure the IB85’s assessment of walking when that report had been overset by the other First-tier Tribunal’s decision of 4.12.11.  Ought it not at least have investigated with the appellant whether walking was in issue on the IB appeal and what approach the 4.12.11 tribunal took to walking (especially as the 13.04.12 EMP report – and see further on this below – was compiled over a year after the date of the alleged change of circumstances)?

 

Thirdly, it is strongly arguable that the First-tier Tribunal failed to have any, or any sufficient, regard to regulation 7(2)(c)(ii) of the Social Security (Decisions and Appeals) Regulations 1999 in deciding that the supersession decision took effect from 10.03.11.  Even if it was established that there had been a change of circumstances such that the appellant did not satisfy the conditions of entitlement to the mrcc and lrmc of DLA from 10.03.11, that supersession ground could only bite, and the award of DLA change, from the date it was established that “the claimant ….failed to notify an appropriate office of a change of circumstances which regulations under the Administration Act required him to notify, and the claimant…, knew or could be reasonably have been expected to know that the change of circumstances should have been notified”; in which case the supersession would bite (and the award change) “…from the date the claimant…., ought to have notified the change of circumstances”: see further on this CDLA/1823/2004. The reasoning of the tribunal is seemingly silent on this additional but mandatory test.

 

In addition, it may be arguable that the First-tier Tribunal erred in law in failing to explain why the EMP report of a year later was relevant to Mrs King’s entitlement to DLA as at March 2011”

 

5.               The Secretary of State supports the appeal on all four of the potential grounds I suggested when giving permission to appeal, in a submission dated 6 March 2013 (pages 164-167). The appellant’s representative   makes no substantive observations in reply and consents to the Upper Tribunal giving a decision without reasons.

 

6.               Despite this unanimity of view and consent (at least from the appellant) for a short-form decision, in order to assist the First-tier Tribunal to whom this appeal is remitted I need to say a little about why I consider the tribunal erred in law, especially as I now consider, on reflection, that there may have been no error of law concerning regulation 7(2)(c)(ii) of the Social Security (Decisions and Appeals) Regulations 1999.

 

7.               I am satisfied that the tribunal erred in law in at least one respect concerning the law on supersession.  This concerns the tribunal’s confused, or at least inadequately reasoned, approach to the basis on which grounds for supersession did apply.  To understand this it is necessary to explain a little more about the background to the appeal and what the tribunal said about it.

 

8.               As noted above, the appellant had by a decision dated 14 June 2010 been awarded the lrmc and mrcc of DLA for five years from 30 June 2010 to 29 June 2015 (page 56-61). This award was on a renewal claim, as the entries on page 95 show. Based on the entries on page 95 it would seem that the appellant had been entitled to the lrmc and mrcc of DLA from 30 June 2008, with entitlement to the lowest rate of the care component of DLA running back from then until 13 October 2006. 

 

9.               The instigation for the Secretary of State’s supersession decision of 6 April 2011 was an “incapacity benefit” decision maker in the Derby Benefits Delivery Centre on 10 March 2011 sending the DLA Unit a copy of the IB85 Personal Capability Assessment report that had been compiled in respect of the appellant on 4 March 2011 (see page 62).  The incapacity benefit decision maker was aware that the appellant had an award of the lrmc and mrcc of DLA and suggested the lack of significant clinical findings in the IB85 report might “allow for reconsideration of the current DLA award”. In summary, the IB85 report found that the appellant had no problems with any of the areas of physical and mental functioning relevant to the Personal Capability Assessment. That then led to a decision of on or about 10 March 2011 that the appellant was not entitled to incapacity credits/incapacity benefit.

 

10.            Receipt of this IB report led to the DLA decision of 6 April 2011 with which this appeal is concerned.  The “Supersession and Reconsideration record” for this decision is on page 93.  It refers to the 14 June 2010 decision having been superseded and then under a sub-heading of “Grounds for looking at the decision again” refers to “Relevant change of circumstances” and sets out  “The grounds for looking at the decision again are: needs have decreased but customer did not inform us”.  It then gives as other relevant details “Customers statement of needs at ESA assessment. Not expected to know”.

 

11.             Whatever the correct analysis of the law on supersession is, it is plain that the Secretary of Sate considered the IB85 report was the evidence that provided the “relevant change of circumstances” ground for removing the award of the lrmc and mrcc of DLA.  However, in the course of the DLA appeal on 12 January 2012 the appellant’s representative submitted evidence of a First-tier Tribunal’s decision on the appellant’s incapacity credits/incapacity benefit appeal, dated 4 January 2012, in which the tribunal had awarded her 11 points under the mental health descriptors of the Personal Capability Assessment, thus rendering that appeal successful (page 101 – the “IB appeal”).

 

12.            Two points may be made about the tribunal’s decision on the IB appeal.  The first is that the degree of help the appellant needed from others because of her mental disabilities as at March 2011 may have been relevant to the assessment of her care needs on the DLA appeal.  For example the tribunal had found that the due to her mental disabilities the appellant needed encouragement to get up and dress (its DL(a)), did not care about her appearance and living conditions (DL(d)), and could not look after herself without help from others (OP(a)).  It is arguable that the tribunal did not have sufficient regard to this evidence: see paragraph 6 of the statement of reasons.  The second point is that it is unclear from the decision notice on the IB appeal whether restrictions from physical disabilities were also put in issue on that appeal and, if so, whether the tribunal upheld the IB85’s findings relating to the physical descriptors or simply made no findings on these areas (the 11 mental health points being sufficient for the appeal to succeed).  At a minimum, it seems to me that the significant oversetting of the assessment in the IB85 report on the mental heath descriptors ought also to have raised a question as to the cogency of the IB85’s other findings.

 

13.            Having received the IB appeal decision, the First-tier Tribunal on 16 January 2012 adjourned the DLA appeal for an examining medical practitioner (“EMP”) to visit the appellant and compile a report on her care and mobility needs.  The EMP visited the appellant on 13 April 2012 and his report is on pages 104 to 131. There is nothing in that report to show that it was doing anything other than assessing the appellant’s care and mobility needs as at April 2012.  That, of course, is a date that falls a year after the decision under appeal.

 

14.            In her representative’s written submission to the tribunal the appellant argued:

 

(a)   that the IB appeal tribunal’s overturning of the IB85’s findings removed the Secretary of State’s only evidence that a change of circumstances had occurred and therefore there were no grounds for supersession; and

 

(b)  that the EMP’s report ought to be disregarded as it was only a snapshot of observations made a year after the decision was made.

 

The submission also implied that the IB appeal tribunal had not made any assessment of the physical descriptors under the Personal Capability Assessment and so had made no findings one way or the other on the accuracy of the IB85’s assessment concerning physical disabilities.

 

15.            This then is how the appeal came before the tribunal.  I note also that in his opening submission to the tribunal the representative for the appellant argued that there were no valid grounds to supersede but if the tribunal disagreed the tribunal should look at entitlement to the higher rate of the mobility component and the mrcc. The underlined words suggest a wrong approach to what the law on supersession requires.

 

16.            The tribunal said that “the first matter” it had to decide was whether there were grounds to supersede the present award. In so doing it focused on the IB85 report and the decision made by the tribunal on the IB appeal, and the appellant’s representative’s arguments thereon.  It seemed to take the view that the key issue was whether “the IB report [was] so entirely discredited….that it could not be the basis for a decision to supersede” (paragraph 3 of the statement of reasons).  The tribunal decided that the IB85 report was not entirely discredited as it had found the appellant to have no significant physical problems yet it was those problems which had led to the mrcc award. The tribunal therefore said “that finding [in the IB85 report] would be…sufficient for the basis of supersession alone” and went on to conclude (in the same paragraph 3 of the statement of reasons) that “the IB…report provided ample grounds to supersede the award.  Accordingly the Tribunal proceeded to determine if the appellant was entitled to an award of [DLA]”.

 

17.            It was in adopting this preliminary or threshold step approach that in my judgment the tribunal erred materially in law.  It is plain from the above quotes from paragraph 3 of the statement of reasons that the tribunal viewed the supersession rules merely as (what I have termed) “threshold” criteria rather than “outcome” criteria. That was a material error of law as it led the tribunal to consider that having opened up the award for consideration the level and the period of the award was now at large before it, and this led it to consider that it could re-decide afresh the period of the lrmc award. To explain this error of law further it is necessary to go back to some basics about decision-making under the Social Security Act 1998 (“SSA 1998”)

 

18.            The structure of decision making under the SSA 1998 is such that once an awarding decision has been made (under s. 8 SSA 1998) the person to whom that award has been made has the entitlement of that award either (a) unless and until the award under the decision comes to an end (e.g. at the end of a 2 year award of DLA), or (b) the awarding decision is lawfully revised or superseded under sections 9 or 10 of the SSA 1998 (setting aside the awarding decision on appeal does not arise here because no appeal was ever made against the 14 June 2006 awarding decision). This structure is made explicit by the finality provisions in section 17 of the SSA 1998.

 

19.            Thus the claimant who (as here) has been made award of benefit for a fixed period of five years has a statutory protection against that award being removed or changed during that five year period. The award cannot be removed or altered simply because the Secretary of State or the tribunal on appeal considers the person ought not to get the award, and the corollary of this is that on an appeal (as in this case) it is not simply for the tribunal to decide whether the appellant is entitled to DLA as if what is before them is a fresh claim for DLA.  More importantly, however, following Wood –v- SSWP [2003] EWCA Civ 53; R(DLA)1/03 and paragraph 10(4) of R(IB)2/04 the ground of supersession once established must lead to the decision contended for (here only being entitled to the lrmc of DLA with effect from 10 March 2001 and then only until 9 March 2014) ).  In other words, the ground of supersession is not (just) about showing grounds to “look at” the awarding decision again but must establish the result contended for: so here, (if this is the ground relied on) that there has been a change of circumstance since the awarding decision that establishes the outcome decision that the appellant was only entitled to the lrmc of DLA until the earlier date of 9 March 2014: see also R(I) 56/54.

 

20.           The error the tribunal fell into on this appeal was to treat establishment of the supersession ground as a preliminary or threshold matter that once established enabled it to go on to consider completely afresh the period and level of the appellant’s entitlement to DLA.  That was an error of law. The establishment of the supersession ground can only be considered once all the evidence has been considered. Further, the onus will lie on the on the party seeking the supersession to show that it has been established.

 

21.            Moreover, I am satisfied that the error of law was material, not least because of the shortening of the period of the lrmc award. As the effect of the tribunal’s decision, though not its analysis, had led it to conclude that the Secretary of State had not established a change in circumstances sufficient to merit the lrmc award being removed from 10 March 2011, the tribunal had to address and reason out the basis for its decision that there had been a change of circumstances by 10 March 2011 sufficient to cut the period of the award by over a year.  There is no reasoning given by the tribunal on this issue. That, in my judgment, arose as a direct result of its wrong view as to what is required in law for a supersession ground to be satisfied.

 

22.           As this is sufficient to merit setting aside the tribunal’s decision, I limit myself to saying that I consider the tribunal also erred in law in (a) not enquiring of the appellant whether the extent of her walking was in issue on the IB appeal, and (b) not explaining why the EMP’s report of over year later was relevant evidence in relation to the decision under appeal dated 10 March 2011.

 

23.           However, on reflection I am not sure if the tribunal did err in law concerning regulation 7(2)(c)(ii) of the Social Security (Decisions and Appeals) Regulations 1999. I say this despite the support of the Secretary of State for this ground.  In my view it may be more arguable (or just as arguable) that regulation 7(2)(c)(ii) is dealing only with situations where the supersession for change of circumstance is alleged to apply before the date of the superseding decision (i.e. in overpayment cases), and if that is not the case then the rule in section 10(5) of the Social Security Act 1998 applies.  In other words, regulation 7 (2)(c)(ii) has no application to periods after the date of the supersession decision.  It is, for example, difficult to envisage a situation where “the reasonably expected to know that the change of circumstances should have been notified” test under  regulation7(2)(c)(ii)  could have any application after the claimant has been notified of the change of circumstances supersession decision (assuming that that decision is made out on the evidence). However, the point has not been fully argued before me and it may not be material on this appeal, and so I leave it to be decided in a case where it does arise.

 

24.           It is for all these reasons that the tribunal’s decision dated 24 May 2012 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

 

Dated 12^th September 2013