R(IS) 8/98
(Chief Adjudication Officer v. Coombe)

Court of Session (Lord Justice Clerk, Lord Kirkwood,	CSIS/83/1994
and Lord Wylie)
19.6.97
Review - ignorance of, or mistake as to, a material fact - whether includes material facts not in existence at the time of the decision
The claimant, who had been awarded income support in 1991, applied for an award of the care component of disability living allowance at the middle rate on 14 April 1992. On 9 September 1993, an award at the middle rate was made. The claimant sought a review of his award of income support to include the severe disability premium with effect from 15 April 1992. The award was reviewed but not revised. A disability appeal tribunal decided that there were no grounds for review under section 25(1)(a) of the Social Security Administration Act 1992. The claimant appealed to the Commissioner. The Deputy Commissioner upheld the appeal. The adjudication officer appealed to the Court of Session.
Held, allowing the appeal, that:
1.	section 25(1)(a) referred to decisions given in ignorance of a material fact and also to decisions based on a mistake as to a material fact. It was clear that paragraph (a) referred to material facts which were in existence at the time of the decision. Accordingly the adjudication officer could not be “in ignorance of” a fact which did not exist at the time of his decision;
2.	further, if paragraph (a) could be read as embracing facts which came into existence after the original decision, paragraphs(b) and (c) would be otiose;
3.	the decision in Wincentzen v. Monklands District Council [1988] SLT 259, in which the Court of Session considered the meaning of the words “unaware of any relevant fact” did not avail the claimant since that was an entirely different expression in a different context.

DECISION OF THE COURT OF SESSION

Mr. G. W. M. Liddle, Advocate, (instructed by Mr. R. Brodie, Solicitor to the Secretary of State for Scotland) appeared on behalf of the Appellant.
Mr. R. Anderson, Advocate, (instructed by the Lord Advocate) appeared as Amicus curiae.
Judgment
The Income Support (General) Regulations 1987 enable a severe disability premium to be added to the income support to which a person is otherwise entitled if he is in receipt of the care component of a disability living allowance at the highest or middle rate (see para. 13 of the second schedule). Paragraph 14B of the schedule provides that a person is to be regarded as being in receipt of any benefit if, and only if, it is paid in respect of him and is to be so regarded only for any period in respect of which that benefit is paid.

Section 25(1) of the Social Security Administration Act 1992 provides inter alia that any decision under that Act of an adjudication officer may be reviewed at any time by an adjudication officer or, on a reference by an adjudication officer, by a social security appeal tribunal, if:
“(a)	the officer or tribunal is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or
(b)	there has been any relevant change of circumstances since the decision was given; or
(c)	it is anticipated that a relevant change of circumstances will so occur; ...”

Regulation 69 of the Social Security (Adjudication) Regulations 1986 places a limit on the retrospective revisal of a determination on a claim or question relating to income support. In general such a determination is not to be revised on review so as to make income support payable or to increase the amount of income support payable in respect of inter alia “any period which falls more than 12 months before the date on which the review was requested or, where no request is made, the date of review”. This is subject to the exception of cases covered by one or other of a number of provisions under the regulations, including regulation 64A(2). This provides, in short, that it applies to a review of any decision where the adjudication officer or, as the case may be, the appeal tribunal, is satisfied that:
“(a)	the evidence upon which it is relying to revise the decision under review is specific evidence which the authority which was then determining the claim or question had before it at the time of making the decision under review and which was directly relevant to the determination of that claim or question but which that authority failed to take into account; or ...
(c)	the evidence upon which it is relying to revise the decision under review did not exist and could not have been obtained at that time, but was produced to an officer of one of [certain] departments or to the authority which made that decision as soon as reasonably practicable after it became available to the claimant”.

In the present case, on 18 December 1991 an adjudication officer decided that the claimant, Gavin Combe, should be awarded income support. On 9 September 1993 the Benefits Agency awarded him a disability living allowance at the middle rate with effect from 15 April 1992, which was the date when he had submitted a claim in respect of such an allowance. He was then paid the allowance outstanding from that date. On 10 September 1993 a representative of the claimant informed the adjudication officer of this award and sought a revision of the original decision which had awarded income support by the addition of a severe disability premium backdated to 15 April 1992. On 6 October 1993 the adjudication officer reviewed the original decision, but limited the increase in the amount of income support by the addition of the severe disability premium to a period of twelve months prior to the date on which the review had been requested. The decision of the adjudication officer was upheld by the social security appeal tribunal, but the social security Commissioner decided that the claimant was entitled to have the severe disability premium backdated to 15 April 1992.

The point at issue in this appeal is a short one and depends upon whether the claim for a severe disability premium in the present case was covered by paragraph (a) or by paragraph (b) of section 25(1) of the 1992 Act which we quoted earlier in this opinion. In other words was the decision of the adjudication officer on 
18 December 1991 “given in ignorance of ... some material fact”, namely the receipt by the claimant as from 15 April 1992 of a disability living allowance, as the social security Commissioner held; or was the receipt by the claimant of a disability living allowance as from 15 April 1992 a “relevant change of circumstances since the decision was given”, as the adjudication officer and the social security appeal tribunal held?

That issue is not one of practical importance to the claimant, since a severe disability premium was paid to him in accordance with the decision of the social security Commissioner, and there is no question of its being recovered. However, the point is of some general importance. It was debated before us between Mr. Liddle on behalf of the Chief Adjudication Officer, and Mr. Anderson, as amicus curiae representing the interests of the claimant.

Mr. Liddle submitted that paragraph (a) of section 25(1) related to facts in existence at the time of the decision which is subject to review. It was impossible for the adjudication officer to be “in ignorance of “ a fact which did not exist at the time of his decision. Paragraph (b) related, on the other hand, to facts which were not in existence at the time of the decision but came into existence at a later date, so providing a basis for the review of the decision as from that date. In the present case the claimant was not in receipt of a disability living allowance until 15 April 1992; and in the light of that change of circumstances the adjudication officer had revised the original decision on that basis. Such a revision of the amount of income support payable was not covered by regulation 64A of the 1986 Regulations but by regulation 69 of those regulations. Accordingly the period for which the revision could be made retrospective was limited to twelve months. Mr. Liddle pointed out that paragraphs (a) and (c) of regulation 64A(2) drew a distinction between, on the one hand, the failure to take into account evidence which was before the decision maker at the time when the decision under review was made, and, on the other hand, evidence which did not exist and could not have been obtained at that time but was produced as soon as reasonably practicable after it became available to the claimant. Paragraph (c) plainly did not refer to a fact which was not in existence at the time when the decision under review was made, but referred to evidence relied upon in establishing a fact which was in existence at the time of the decision. Accordingly that paragraph provided no support for the claimant.

Mr. Anderson submitted that there was nothing in the wording of paragraph (a) of section 25(1) of the 1992 Act which would justify limiting its scope to facts which were in existence at the time of the original decision. The word “ignorance” simply meant a lack of knowledge. A wide interpretation of paragraph (a) did not do violence to the provision. Paragraph (b) of section 25(1) was more apt to cover a change in the personal circumstances of the claimant, which could include the awarding of additional benefit. However, there was no reason to think that paragraphs (a) and (b) were mutually exclusive. In the present case when the adjudication officer made his decision on 18 December 1991 he was in ignorance of the fact that the claimant would be found entitled to the care component of a disability living allowance at the highest or middle rate as from 15 April 1992. In these circumstances the social security Commissioner had arrived at the correct conclusion. Mr. Anderson also placed reliance on the decision of Lord Clyde in Wincentzen v. Monklands District Council [1988] SLT 259, which was concerned with the question whether for the purposes of the Housing (Homeless Persons) Act 1977 a young woman had become homeless intentionally. Section 17(3) of the Act provides that an act or omission in good faith on the part of a person who was “unaware of any relevant fact” is not to be treated as deliberate for the purposes of subsection (1) of that section. The young woman went to live temporarily with her mother, genuinely but mistakenly thinking that her father had not been serious when he told her not to return if she did so. Lord Clyde held that the father’s state of mind could constitute a fact in respect of which the awareness of the applicant could be considered, even though it related to possible actings at a future time. Mr. Anderson submitted that a fact of which a person was ignorant could be the lack of knowledge that something was going to happen at a later time.

We have no doubt that the argument of Mr. Liddle is to be preferred. Firstly, it is important to note that paragraph (a) of section 25(1) refers not only to a decision given in ignorance of some material fact but also one which was based on a mistake as to some material fact. The latter plainly refers to a material fact in existence at the time of the decision. This strongly suggests that the earlier part of the paragraph, in its reference to “ignorance”, has a similar application. Secondly, as was pointed out by Mr. Liddle, paragraph (b) would be otiose if paragraph (a) were read as capable of embracing any fact which came into existence at any time after the original decision. The same consideration would also apply in regard to paragraph (c). We also agree with Mr. Liddle that the terms of regulation 64A(2) of the 1986 Regulations are of no assistance in arriving at a proper interpretation of the scope of section 25(1)(a) of the 1992 Act. The decision in Wincentzen v. Monklands District Council does not avail the claimant. It dealt with an entirely different expression and in a different context. In any event the fact of which the young woman in that case was unaware could be defined not only as the fact that her father would refuse to take her back but also as the fact that he was serious in expressing his attitude at the time when she left his house.

In these circumstances the appeal will be allowed.