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Cite as: [2013] UKUT 584 (AAC)

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SD v Secretary of State for Work and Pensions (CA) [2013] UKUT 584 (AAC) (08 November 2013)
Revisions, supersessions and reviews
official error

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Wakefield First-tier Tribunal dated 27 July 2011 did not involve any error on a point of law and therefore stands.

REASONS FOR DECISION

1. This appeal is linked to that in CDLA/2482/2011, where the claimant was the late wife of the claimant in the present case. My decision in that case should be read before the present decision and describes most of the background, which will not be repeated here. Prior to December 2005 the claimant in the present case (from now on just “the claimant”) was in receipt of carer’s allowance (CA) for looking after his wife, who met the definition of “severely disabled person” in section 70(2) of the Social Security Contributions and Benefits Act 1992 because disability living allowance (DLA) was payable to her by virtue of an entitlement to the highest rate of the care component. The definition thus covers both entitlement to the benefit and payability.

2. After the claimant and his wife left Great Britain for Spain on 17 December 2005 his entitlement to CA was looked at, but a decision was not made until 18 April 2006. By that date a decision-maker on behalf of the Secretary of State had on 15 March 2006 superseded the previous decision awarding his wife DLA on the ground of a relevant change of circumstances and decided that she was not entitled to either component of DLA from and including 18 December 2005 because the residence and presence conditions were no longer satisfied from that date. The CA decision-maker noted that she might have been inclined to conclude that the claimant and his wife’s ordinary residence had not changed immediately and that their absence had not ceased to be temporary until 13 January 2006, but as entitlement to DLA had been removed as from 21 December 2005 she had no alternative but to remove entitlement to CA once DLA entitlement had ceased (page 40). The decision was as follows:

“I have superseded the decision of the Decision Maker dated 26/05/04, awarding Carer’s Allowance from 12/04/04. This is because there has been a relevant change since the decision took effect. This was that payment of an appropriate qualifying disability benefit had stopped. As a result, [the claimant] is not entitled to Carer’s Allowance for the period below:

You are not entitled from 26/12/05. This is because [your wife], the person you were caring for at this time, does not get an appropriate disability benefit.”

Thus it is clear that the ground for disallowing entitlement to CA was not the claimant’s own non-satisfaction of any residence and presence conditions, but that his wife had ceased to be within the definition of “severely disabled person” in section 70(2) of the Contributions and Benefits Act. The discrepancy in the dates presumably merely reflects the way in which benefit weeks for the payment of the benefits in question fell.

3. There was no appeal against the decision of 18 April 2006, an important difference from the circumstances in CDLA/2482/2011. In a letter dated 26 October 2007, very promptly indeed after the ECJ’s decision in Commission v Parliament, the claimant wrote to the Department referring to the decision and asking for reinstatement of his entitlement to CA and his wife’s entitlement to DLA. The letter was received on 29 October 2007, but nothing happened. Eventually, after much toing and froing that I need not detail, a decision was given on 30 July 2009 that there were no grounds to revise the decision of 18 April 2006 for official error or to supersede it for error of law, since it was considered that the UK was not the “competent state” in relation to him so as to require any export of his entitlement to CA. So the claimant remained not entitled to CA from and including 26 December 2005. On 16 July 2010 there was what could only have been a revision of the decision of 30 July 2009, apparently on new advice that the “competent state” rule was satisfied, to award CA from and including 5 November 2007, but to disallow entitlement for the period from 29 October 2007 to 4 November 2007 during which the claimant’s wife was not entitled to the care component of DLA. The letter notifying the claimant of that decision told him that an extra-statutory payment was being made of CA for the period from 22 October 2007 to 4 November 2007.

4. The claimant had appealed against the decision of 30 July 2009. The revision in his favour could have had the effect of causing the appeal to lapse under section 9(6) of the Social Security Act 1998, requiring the making of new appeal against the decision of 30 July 2009 as revised. However, the notification letter of 19 July 2010 informed him that, unless he wrote in to the contrary, the appeal would continue on the question of whether he was entitled to CA for the period from the date he moved abroad to 21 October 2007. That was in accordance with the reasoning of the Tribunal of Commissioners in decision R(IS) 2/08, so that the appeal did not lapse in relation to the period prior to 22 October 2007 (or strictly, I think, 5 November 2007).

The decision of the First-tier Tribunal of 27 July 2011

5. The claimant attended the hearing on 27 July 2011 and was represented by Mrs Tighe, his wife’s sister. The tribunal, constituted by Judge Searby sitting alone, disallowed the appeal and confirmed the terms of the decision as revised on 16 July 2010. The CA appeal was regarded very much as dependent on the outcome of the claimant’s wife’s DLA appeal. Certainly, if that appeal did not result in the reinstatement of her entitlement to DLA for some part of the period from 18 December 2005 to 4 November 2005, there was no prospect of the CA appeal succeeding. Regardless of any arguments over EU law applying to CA or whether or not any procedure to re-open the decision of 18 April 2006 was available, if the claimant’s wife was not within the definition of “severely disabled person” there could not be entitlement to CA. It should be noted that, by contrast to the decision on the DLA appeal, Judge Searby did not consider any potential official error in the decision of 18 April 2006 in the form of taking away the entitlement to CA from too early a date, prior to 10 April 2006 (the date of a relevant amendment to the terms of regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999).

The appeal to the Upper Tribunal

6. Judge Searby gave permission to appeal to the Upper Tribunal against the decision of 27 July 2011 on the same date as he gave permission in the claimant’s wife’s DLA case. The two appeals have proceeded together as linked cases. I do not now in the light of the outcome of CDLA/2482/2011 need to detail the separate directions and written submissions in the present case. The linkage continued down to the oral hearing on 6 November 2013. The claimant attended that hearing represented by Mrs Tighe. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Services.

7. There was some interesting discussion at the oral hearing, a lot of which does not need to mentioned now that I have disallowed the claimant’s wife’s appeal in CDLA/2482/2011, thus confirming the legally operative decision in her case with effect from 18 December 2005 to 4 November 2007 as being that she was not entitled to either component of DLA. I need only deal briefly with two points that were raised.

8. The first is whether the Secretary of State had the power on 18 April 2006 to take away the claimant’s entitlement to CA on supersession for relevant change of circumstances with effect from 26 December 2005. Prior to the amendment with effect from 10 April 2006 there was defect or gap in the terms of regulation 7(2)(c) of the Decisions and Appeals Regulations as they applied to supersessions of “disability benefit decisions” on the ground of relevant change of circumstances. Such decisions are defined in regulation 7A as meaning decisions to award benefit embodied in or necessary to which is a “disability determination”. That definition plainly covers DLA and AA decisions. The defect was that, although in relation to other benefits a supersession not a claimant’s advantage for any sort of change of circumstances could take effect from the date of the change of circumstances, in relation to disability benefit decisions that rule only applied where the change related to the disability determination. Where the change of circumstances was in relation to something else, such a change in ordinary residence or a change in the status of the person being looked after by a carer, no rule was provided in regulation 7(2)(c) or elsewhere, leaving the default rule in section 10(5) of the Social Security Act 1998 to apply. That is that the superseding decision takes effect from the date on which that decision was made or the date of any application for supersession, if earlier. A question in the present case is whether a decision awarding CA is a disability benefit decision, so that prior to 10 April 2006 a supersession for a change of circumstances not related to the disability determination was subject to the section 10(5) rule. I considered that question in JK and CK and held in paragraph 54 that the answer was no. That was in essence because a disability determination is not embodied in or necessary to a decision to award CA. It is necessary that the person being cared for meets the definition of “severely disabled person” by having certain disability benefits payable, but that is a different thing. In addition, regulation 7A defines “disability determination” only in relation to DLA and AA, severe disablement allowance and industrial injuries benefit, and not in relation to CA. The upshot is that there was no error of law and no official error that could constitute a ground of revision in the Secretary of State’s decision of 18 April 2006 making the disallowance of CA effective from 26 December 2005.

9. The second point is whether in considering whether the claimant’s wife ceased to satisfy the definition of “severely disabled person” because the operative decision in her case was that she was not entitled to either component of DLA from and including 18 October 2005 it is relevant that it was known by 30 June 2009 that entitlement to the care component should not have been removed. There was some slightly inconclusive discussion of this question at the oral hearing, inconclusive because no-one had the exact text of section 70(2) of the Contributions and Benefits Act in front of them. I have quoted the terms used in paragraph 1 above, from which it emerges that the definition covers both entitlement and payability. Thus, even if it could be argued that the claimant’s wife retained an “underlying entitlement” to the care component of DLA from 18 December 2005 on the basis of EU law as it is now known to have been at that time, that benefit was definitely not “payable” to her once there had been a decision disallowing entitlement and there has been no new award of care component for any date prior to 5 November 2007. Benefit can only be payable on the basis of an actual award. There can then be no question of the claimant’s wife satisfying the definition of “severely disabled person” for the purposes of the claimant’s CA case, given the outcome of CDLA/2482/2011.

10. I have been speculating since the hearing of 6 November 2013 whether, even if an “underlying entitlement” could count, it could do the claimant any good. The only way under the British procedural rules for the claimant to obtain reinstatement of his entitlement to CA with effect from 26 December 2005 in the current proceedings would be by way of revision on the ground that the decision of 18 April 2006 arose from official error. It is difficult to see how there could in any case be said to have been an official error at the time in the decision-maker making the decision on the basis of the DLA decisions that were currently operative. There was no mistake or error about the proper condition to be applied under section 70(2) of the Contributions and Benefits Act, nor was there any error about effective dates. However, if the claimant’s wife had succeeded before the First-tier Tribunal or the Upper Tribunal on her DLA appeal, it would, I think, have been different. If it had somehow been accepted that the decision of 15 March 2006 was to be revised for official error, then it is arguable that the CA decision of 18 April 2006 arose from the same official error. If an appeal to the Upper Tribunal against the DLA decision of the appeal tribunal of 22 August 2006 had been successful and the appeal against the decision of 15 March 2006 redetermined to award the care component to the claimant’s wife with effect from 18 December 2005, then I suspect that the route to the claimant’s obtaining CA for the past period would be by making a new claim for CA for that period. Then regulation 6(33) of the Social Security (Claims and Payments) Regulations 1987 requires that, if the CA claim is made within three months of the date of the decision making the award, the first day of the first benefit week for which the award of the qualifying benefit is made is to be treated as the date of the CA claim, so that CA can be awarded from that date. I do not see why regulation 6(23) should not apply where a claimant has a current entitlement to CA, but makes a claim for a closed past period for which there is not currently entitlement. However, I stress that I do not pretend to have worked out all the potential complications of these difficult questions or to have reached any definite conclusions because the situations discussed do not arise in the present case.

11. The upshot is that on any basis the tribunal of 27 July 2011 did not go wrong in law in any way in disallowing the claimant’s CA appeal. The appeal to the Upper Tribunal must therefore be dismissed.

(Signed on original): J Mesher

Judge of the Upper Tribunal

Date: 8 November 2013