R(DLA) 3/01

Mr. E. Jacobs	CDLA/473/1999
7.2.00						           
Tribunal practice - evidence of disablement produced after the date of the decision under appeal - whether admissible evidence of circumstances obtaining at the date of the decision
Review - renewal claim providing evidence in support of extension to a limited award - whether an application for review
The claimant was in receipt of an award of disability living allowance limited to 11 February 1998. She made a renewal claim on 6 November 1997 which was refused. She applied for a review under section 30(1) of the Social Security Administration Act 1992, submitting that her situation had not altered and that she was also due to go into hospital for a hip replacement operation on 7 March 1998 which she expected would increase her needs. She submitted a report from her GP dated 29 April 1998 which indicated that her mobility would be restricted for six months. On 1 July 1998 a Senior Registrar at the hospital wrote a report which indicated that the claimant had begun mobilisation two days after the operation and was now fully weight bearing. On review, the adjudication officer confirmed the refusal of the claim. The claimant appealed to a disability appeal tribunal who found she had continuing problems after 11 February 1998 but that she had improved sufficiently by the beginning of July to take her outside the conditions of entitlement and so she did not satisfy the six month prospective qualifying period for an award of disability living allowance. They relied on the hospital report of 1 July 1998. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
1.	the tribunal erred in law by relying on the hospital report as it did not deal with the issue of whether the claimant was in severe discomfort when walking (para. 13);
2.	in view of the evidence and the tribunal’s findings of fact, the tribunal erred in law by failing to consider whether the adjudication officer conducting the review ought to have treated the renewal claim as an application for review to extend the period of the claimant’s first award to cover the claimant’s post operative recovery (paras. 15 to 18);
3.	by virtue of section 33(7) Social Security Administration Act 1992 and section 12(8)(b) of the Social Security Act 1998; 
(i)	the “down to the date of hearing rule” as explained by the tribunal of Commissioners in CIB/14430/1996, CIS/12015/1996 and CS/12054/1996 (now reported as R(S) 2/98) did not apply on an appeal to a disability appeal tribunal made on or after 21 May 1998 or on an appeal to an appeal tribunal created by the Social Security Act 1998 (paras.  1.3 and 20 to 24); 
(ii)	in the case of disability living allowance the tribunal’s jurisdiction was limited to the inclusive period from the date of the claim to the date of the decision under appeal (para. 58);
(iii)	the tribunal was not able to take into account a fresh circumstance arising after the date of the decision under appeal (para. 55);
(iv)	evidence was not admissible if it related to a period later in time than the period within the tribunal’s jurisdiction but the tribunal was not limited to evidence that was before the officer who made the decision under appeal or that was in existence at the date of that decision provided the evidence related to the period within the tribunal’s jurisdiction (para. 58);
(v)	when considering the prospective six months qualifying period and the period of an award the tribunal was required to take into account any evidence about the claimant’s likely disablement beyond the date of the decision that could be related to the circumstances obtaining at that date, including evidence as to what actually occurred after that date unless that amounted to a fresh circumstance, and was required to make relevant findings of fact on probability based on their assessment of admissible evidence (paras. 59 to 68);
4.	in the case of a decision of the Secretary of State to which section 8(2)(b) of the Social Security Act 1998 was applicable, the “down to the date of hearing rule” did not apply on an appeal to the Commissioners (para. 24).

DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decision:
1.	My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998:
1.1	The decision of the Liverpool disability appeal tribunal  held on 14 December 1998 is erroneous in point of law: see paragraphs 13 and 18.
1.2	Accordingly, I set it aside and, as it is not expedient for me to give a decision on the claimant’s appeal to the tribunal, I refer the case to a differently constituted tribunal for determination.
1.3	I direct the appeal tribunal that rehears this case to conduct a complete rehearing. In particular, the tribunal must:
Consider the “renewal claim” first as an application for review.
	The tribunal must decide whether there are grounds to review and revise the decision awarding disability living allowance to the claimant: see the decision of the Commissioner in CDLA/14895/1996, para. 4. The burden is on the claimant to show these grounds. If there are grounds, the starting date for any revised decision must be fixed by reference to the claimant’s disablement from time to time, the date of the application for the review, the qualifying period of three months and the limits on awards made on review set by regulations 57 and 59 of the Social Security (Adjudication) Regulations 1995, as in force at the date of the application: see my decision in CIB/213/1999, paras. 36 to 40. 
	If necessary, consider the “renewal claim” as a claim.
If there are no grounds to review and revise the decision awarding disability living allowance to the claimant, the “renewal claim” must be considered as a claim. In this case, the tribunal’s jurisdiction begins on the day after the end of the existing award: 12 February 1998.
In either case, confine itself to the period of its jurisdiction.
The decision under appeal was made on 10 July 1998. As the claimant’s appeal to the appeal tribunal was made on or after 21 May 1998, the tribunal must confine its consideration to the circumstances obtaining at that date in accordance with section 33(7) of the Social Security Administration Act 1992 and 12(8)(b) of the Social Security Act 1998. 
If appropriate, make provision for an offset and payment on account.
If the tribunal makes a revised award of disability living allowance, the circumstances will fall within Case 1 of regulation 5(2) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988. The tribunal must decide that any sum already paid in respect of the period covered by its decision must be offset against arrears of entitlement arising under its decision and that, except to the extent that that sum exceeded the arrears, it must be treated as properly paid on account of those arrears: see regulation 5(1).
Follow my directions.
I give directions on the operation and application of section 12(8)(b) of the Social Security Act 1998 in paragraphs 54 to 68.
The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the disability appeal tribunal brought by the claimant with the leave of a Commissioner. The Secretary of State supports the appeal.
Changes made by the Social Security Act 1998
3.	The Social Security Act 1998 is now in force. Two changes are relevant to this case:
3.1	The Act abolished the title and status of adjudication officers, transferring their functions to officers acting in the name of the Secretary of State. As a result, the Secretary of State has replaced the adjudication officer as a party to this appeal.
3.2	The Act also abolished disability appeal tribunals, transferring their existing cases to the new and nameless appeal tribunal. The claimant’s appeal will be reheard by the new appeal tribunal.
The oral hearing
4.	I directed an oral hearing of this appeal. It was held on 2 February 2000. I had indicated that I wanted to give my own decision on the appeal. However, this proved impossible, as the claimant was unable to attend. Her solicitor also did not attend, but did fax a letter from the claimant’s GP written on the day of the oral hearing, reporting ongoing but variable limitation of mobility. Fortunately, the Secretary of State was represented by Miss Main-Thompson of the Office of the Solicitor to the Departments of Health and Social Security. I am grateful to her in particular for her submissions and the discussion on the operation of section 12(8)(b) of the Social Security Act 1998.
The adjudication officers’ decisions
5.	The claimant was in receipt of an award of a disability living allowance consisting of the mobility component at the higher rate and the care component at the middle rate. The award ran until 11 February 1998. On 6 November 1997, a “renewal claim” was received. In the claim pack, the claimant asserted difficulties with mobility, with care by day and at night, and with cooking. She attributed these difficulties to arthritis in her hips, severe in the right, and to asthma. She also reported falls.
6.	A hospital report was obtained on the claimant’s condition. This report confirmed that the claimant had pain in her hip every day with limping and reduced movements, as a result of a deformed hip joint. No care need was identified in the list of activities supplied and the claimant’s walking before the onset of severe discomfort was given as between 200 and 400 metres. The adjudication officer treated the “renewal claim” as a claim rather than a review. The officer refused the “renewal claim” from and including 12 February 1998.
7.	The claimant applied for a review of the decision. She wrote that her situation had not altered. She also reported that she was to go into hospital for a hip replacement on 7 March 1998, which would increase her care needs. Evidence was provided by the claimant’s GP, reporting that following her operation the claimant was limited to walking a few metres with the aid of crutches and that her mobility would be impaired over the next six months (the letter was dated 29 April 1998). A hospital report was obtained from a Senior Research Registrar on 1 July 1998, reporting that the claimant had begun mobilisation two days after her operation and that she was now fully weight bearing. The Registrar did not identify any care needs from the list of activities supplied. On 10 July 1998, a different adjudication officer carried out a review under section 30(1) of the Social Security Administration Act 1992 of the decision refusing the claim, but refused to revise it. In other words, the adjudication officer confirmed the refusal of the “renewal claim”. 
The appeal to the tribunal
8.	The claimant appealed against the decision given by the adjudication officer on the section 30(1) review. The claimant attended and gave evidence at the hearing of the appeal, accompanied by her father. She was represented by a firm of solicitors.
9.	The tribunal found that the claimant had continuing problems after 11 February 1998, but that she had improved sufficiently by the beginning of July to take her outside the conditions of entitlement. The tribunal’s reasoning was based on the hospital report of 1 July. The tribunal confirmed the adjudication officer’s decision on the ground that the claimant did not satisfy the six months prospective qualifying period for an award to be made.
The appeal to the Commissioner 
10.	The claimant applied for the tribunal’s decision to be set aside on the ground that the tribunal had misunderstood the hospital report. A further report from the Senior Research Registrar was produced dated 28 April 199, reporting that the claimant had pain in her back and in her right iliac crest, that her mobility was restricted and that a walking stick was required. Future improvement was likely to be slow in view of her back symptoms. Of course, that letter was not before the tribunal. The application was properly refused, as it did not identify a procedural error. 
11.	The claimant then appealed to the Commissioner on the grounds that (i) the tribunal had misinterpreted the hospital report, (ii) a further report was available (that of 28 April 1999) and (iii) the claimant did not have a fair hearing as she was unable to supply the further evidence.
12.	Leave to appeal was given by a Commissioner on the ground that the report relied on by the tribunal did not deal with severe discomfort.
Severe discomfort
13.	The Secretary of State supports the appeal on the ground that the tribunal did not deal with the issue whether the claimant was in severe discomfort when walking. I accept that submission. The tribunal either misinterpreted the hospital report or drew inappropriate inferences from it. The questions posed related to weight bearing and to useful walking distances. The Registrar commented on weight bearing, but did not reply directly to the questions on useful walking distances. The evidence of weight bearing, of course, says nothing about walking distances or about the pain or discomfort experienced when walking. 
The legal questions for the oral hearing
14.	When I directed an oral hearing, I identified two legal questions for argument. One question was whether the “renewal claim” should have been treated as an application for review, which would have avoided problems with the prospective qualifying period. The other was the operation and application of section 12(8)(b) of the Social Security Act 1998, with particular reference to disablement and incapacity cases. The Secretary of State made a written submission on these questions in advance of the hearing.
Review or claim?
15.	The “renewal claim” was submitted in advance of the termination of the existing award. The claim was to be treated as a claim for benefit from the end of the existing award under regulation 13C(2)(a) of the Social Security (Claims and Payments) Regulations 1987. However, it might also be treated as an application for review of that award: see the decision of the Commissioner in CDLA/14895/1996. If it were treated as an application, the burden would be on the claimant to show grounds both to review and to revise the existing award. 
16.	I suggested in my direction for the oral hearing that the problems of the prospective period could have been avoided if the “renewal claim” had been treated as a review and the period extended to cover the claimant’s post-operative recovery. 
17.	The Secretary of State submitted that the adjudication officer who first dealt with the “renewal claim” had acted generously by treating the “renewal claim” as a claim. The officer considered that the conditions of entitlement were no longer satisfied. By treating the “renewal claim” as a claim, the officer merely refused to make a further award. If the officer had instead treated the “renewal claim” as an application for review, the officer would have had to terminate the existing award forthwith.
18.	I accept that argument so far as the first adjudication officer was concerned. However, the adjudication officer who dealt with the section 30(1) review was entitled to take a different approach, as was the tribunal on appeal from that officer’s decision. In view of the evidence and the tribunal’s findings of fact, it is possible that grounds to review the existing award might have been shown. The tribunal did not consider this possibility. This is another error of law.
Section 12(8)(b) of the Social Security Act 1998 
19.	Section 12(8)(b) provides that a tribunal:
“shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
This is in the same terms as section 33(7) of the Social Security Administration Act 1992, which was inserted in that Act by paragraph 3(2) of Schedule 6 to the 1998 Act with effect from 21 May 1998. The hearing of the claimant’s appeal was governed by section 33(7). The rehearing will be governed by section 12(8)(b). For convenience, I will refer only to section 12(8)(b). I refer to a circumstance not obtaining at the time of a decision as a “fresh circumstance”.
History and background
20.	The jurisdiction of disability appeal tribunals was subject to the general approach developed by the social security Commissioners for social security appeal tribunals and their predecessors. 
21.	There are broadly two types of appeal. In an appeal strictly so-called, the appellate body has to consider the correctness of the decision under appeal as at the date when it was made. In an appeal by way of rehearing, the appellate body has to consider the correctness of the decision under appeal as at the date of the hearing of the appeal. See the opinion of Lord Davey in the Privy Council in Ponnamma v. Arumogam [1905] Appeal Cases 383 at page 390.
22.	An appeal before a disability appeal tribunal was by way of rehearing. This meant that a tribunal had to deal with an appeal by conducting a complete reconsideration of the decision of the adjudication officer that was under appeal. See the decision of the tribunal of Commissioners in R(FIS) 1/82, para. 20. 
23.	As part of that reconsideration, it had to consider the case down to the date of the hearing or, if earlier, to the day before the next operative decision on the claimant’s entitlement to disability living allowance. This is usually known as the down to the date of hearing rule. As analysed by the tribunal of Commissioners in CIB/14430/1996, CIS/12015/1996 and CS/12054/1996 [now reported as R(S) 2/98], the down to the date of hearing rule was based on the continued existence of the claim. If an award was made, the claim continued to run. The tribunal of Commissioners did not deal with the case where a claim was refused, but on the same reasoning the claim would begin to run again when the refusal was reconsidered.
24.	The Social Security Act 1998 created a new appeal tribunal and provided for it to have a more limited jurisdiction than social security and disability appeal tribunals. Section 8(2) removed the basis of the down to the date of hearing rule as it was explained by the tribunal of Commissioners. It provides:
“Where at any time a claim for a relevant benefit is decided by the Secretary of State-
(a)	the claim shall not be regarded as subsisting after that time; and 
(b)	accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.”
Section 12(8)(b) reflects section 8(2)(b) and provides in effect that the down to the date of hearing rule does not apply on an appeal before an appeal tribunal. This was not strictly necessary, as section 8(2)(b) removes the basis of the rule. That removal means that the rule does not apply to Commissioners, despite the lack of any provision in section 14 equivalent to section 12(8)(b). I accept Miss Main-Thompson’s argument on this point.
Miss Main-Thompson’s arguments
25.	Miss Main-Thompson’s arguments were developed during the hearing as the discussion of the operation and application of section 12(8)(b) developed. I hope that this is an accurate summary of her main points. 
26.	Argument Section 12(8)(b) should be understood in light of the policy intention behind it. At least, her arguments set out that intention. Comment In legal theory, interpretation seeks to identify the legislative intention. As that is not the same as the policy intention, policy intention does not necessarily give clear guidance on how legislation should be interpreted.
27.	Argument The Social Security Act 1998 prevents an appeal tribunal and the Commissioners applying the down to the date of hearing rule. Comment I accept that argument.
28.	Argument Appeal tribunals must ignore “anything subsequent” to the decision. Comment That depends on what is meant by “anything”.
29.	Argument Appeal tribunals are limited to considering circumstances obtaining at or before the date of decision under appeal. Comment I accept that argument. It is what the legislation says.
30.	Argument At first, Miss Main-Thompson argued that an appeal tribunal could only consider matters that were in someone’s mind at the date of the decision or could be based on inferences from those matters. Matters that came to someone’s mind after the date of the decision were fresh circumstances that the appeal tribunal must not consider. 
31.	This argument is clearer if presented by way of examples: 
31.1	A claimant sees a consultant on the day before a decision is made and a clinical examination is carried out. On the day after the decision is made, the consultant puts into writing the findings made on the examination two days earlier. The appeal tribunal may take account of this evidence. The findings were a circumstance obtaining at the time when the decision was made, as they were in the consultant’s mind at that time.
31.2	A claimant sees a consultant on the day before the decision is made and a clinical examination is carried out. On the day after the decision is made, the consultant puts into writing the findings made on the examination two days earlier, together with further comments on the claimant’s capabilities that were based on those findings. The appeal tribunal may take account of this evidence. These findings were a circumstance obtaining at the time when the decision was made, as they were in the consultant’s mind at that time. The inferences drawn from those findings were inherent in them and could be developed by a process of reasoning from them. So, they were also a circumstance obtaining at the time of the decision.
31.3	A claimant sees a consultant after the decision is made. A clinical examination is carried out. The consultant records the findings on examination and comments on the claimant’s capabilities in the light of those findings. The appeal tribunal must not take account of this evidence. Neither the findings nor the inferences were a circumstance obtaining at the time of the decision.
32.	Comment There are three problems with this argument.
32.1	First, the argument confuses circumstances and evidence of circumstances.
32.2	Second, why should the evidence in 31.3 not be admitted if it could be related to the time when the decision was made? There is merit in the argument if there is so long a gap between the decision and the examination that the results cannot be related to the time of the decision. Also, the more contemporaneous the evidence to the date of the decision, the easier it may be to relate it to that time. However, the argument is put in such stark terms that it must apply to an examination carried out the day after the decision and to evidence that incontrovertibly relates to the time of the decision. I put this example to Miss Main-Thompson. The consultant sees the claimant on the day after the decision was made and the claimant has an MRI scan which shows advanced degenerative changes of the spine. Those changes must have been present at the time of the decision. Why are they not a circumstance obtaining at that time? Why should it matter that the evidence of them happened to be obtained after the decision was made rather than before? 
32.3	Third, the practical result of the argument is to render it virtually impossible for a claimant to produce medical evidence on appeal that will be admissible to challenge the medical evidence used to make the decision. It is likely that a doctor whose concern is to treat a patient rather than report for medico-legal purposes will record only information that is relevant to diagnosis and treatment. It may be possible to infer from that information that the claimant has some difficulties with particular activities, but it is most unlikely that it will be sufficient to allow the extent of those difficulties to be identified with sufficient certainty.
33.	Argument In response to these comments, Miss Main-Thompson developed her argument to allow an appeal tribunal to consider evidence produced after the date of decision on the basis of an examination after that date provided that it could be safely related to the claimant’s condition at the date of decision. This is a more difficult condition to satisfy in the case of changing disablement than in the case of a static condition. Also, great care is needed with an opinion, such as a prognosis. 
34.	Comment I accept this argument, subject to two qualifications. First, we did not explore what was meant by “safely relate”. From some of Miss Main-Thompson’s comments and examples, I suspect that she may have intended a rather high standard to be applied so as not to move too far from the policy intention of the provision. There is no justification for applying any other standard than the balance of probabilities. Second, her next argument suggests that the evidence would have to be limited to evidence of the extent of a claimant’s disablement from a condition that had already been diagnosed and could not include evidence of a new diagnosis.
35.	Argument A circumstance can only be something that exists. Again, this is clearer with an example. A decision is based on a diagnosis of one disease, but the diagnosis is changed after the date of decision to a different disease. The new diagnosis is a fresh circumstance. It did not exist at the date of the decision. So, it was not a circumstance obtaining at that time and the appeal tribunal must not consider it. However, perhaps the Secretary of State could revise the decision.
36.	Comment I accept that a circumstance cannot be obtaining at the time of the decision unless it exists. However, I do not accept Miss Main-Thompson’s definition of “exists”. As a simple matter of language, a circumstance can exist even if it is not known. The fact that a claimant has a disease is a circumstance, even before it is diagnosed and even though a different diagnosis is at first made. 
37.	The argument that a new diagnosis must not be taken into account on appeal but may be taken into account on revision involves treating the new diagnosis inconsistently under the legislation. As far as an appeal is concerned, the argument treats the new diagnosis as a fresh circumstance that must not be taken into account. As far as revision is concerned, the argument treats the new diagnosis as not involving a change of circumstances. If it were a change of circumstances, revision would not be possible: see regulation 3(9)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as amended by regulation 6(b) of the Social Security and Child Support (Decisions and Appeals), Vaccine Damage Payments and Jobseeker’s Allowance (Amendment) Regulations 1999. Surely something cannot be a fresh circumstance so far as the appeal tribunal is concerned, but not so far as the Secretary of State is concerned? Miss Main-Thompson supported her distinction by arguing that the effect of the Social Security Act 1998 was to try to convert an appeal by way of rehearing into an appeal strictly so-called (see para. 21). This was consistent with her arguments as a whole. However, I do not accept the building blocks of those arguments.
38.	Argument The application of section 12(8)(b) is particularly difficult if a claimant’s disablement was not static but changing. (I use “changing disablement” to mean disablement that is improving, deteriorating or fluctuating.) Comment I accept this argument. Indeed, specifically in the context of attendance allowance, disability living allowance and disablement benefit, it is difficult to see the rationale for section 12(8)(b) as all these benefits require consideration of future possibilities and probabilities.
39. 	Argument Medical evidence must become more focused and show whether it was related to circumstances obtaining at the time of the decision. This was a general argument, but it was particularly developed in the context of changing disablement. Comment This must be advantageous to good decision-making, although the chances of it happening are perhaps low. However, Miss Main-Thompson’s examples show that she intended this suggestion to produce very restrictive results.
40.	The examples This argument and its related examples build on the argument set out in paragraphs 30, 31 and 33. All the examples assume that at the time of the decision there is evidence that a claimant should recover sufficiently to fall outside the conditions of entitlement for a benefit within the next three months.
40.1	After the decision, evidence of published research is produced that shows that recovery from the claimant’s condition would not be sufficiently expected within six months. Miss Main-Thompson argued that this was evidence that could be taken into account by the appeal tribunal on appeal. It was in the public domain at the time the decision was made and was not based on an examination of the claimant.
40.2	After the decision, evidence is produced from a consultant which says that recovery from the claimant’s condition would not be sufficiently expected within six months. Miss Main-Thompson argued that this evidence must not be taken into account by the appeal tribunal on appeal. It related to the claimant, was not in public domain at the time of the decision and was a fresh circumstance. 
41.	Comment on the examples I do not accept that the law is as restrictive as these examples suggest for three reasons. 
41.1	Again, the examples confuse circumstances and evidence of circumstances. 
41.2	They have the effect that the less related the evidence is to the claimant, the more likely it is to be admissible.
41.3	They concentrate on form rather than substance. Why should evidence be admissible if it is in the public domain, but not if it is equally authoritative but unpublished? Anyway, a consultant who gives an opinion on a patient is basing that opinion on a range of factors that include the published data, individual and collective experience, and personal knowledge of the claimant. A consultant who has seen the claimant could (i) write a report in general terms quoting publicly available information or (ii) write a report in terms specific to the claimant, having made use of that information in reaching the opinion expressed in the report. Why should it matter how the report happens to be expressed?
42.	Argument In the case of a changing disablement, a prediction of future progress is a circumstance. A fresh medical opinion on prognosis is a fresh circumstance that the appeal tribunal must not consider.
43.	Comment I do not accept this argument. A prognosis is evidence of the likely future change in a claimant’s condition which is relevant to determining the period for which a claimant is likely to satisfy the conditions of entitlement to disability living allowance. That a prognosis is evidence and not of itself a circumstance is shown by this example. At the time a decision is made two prognoses have been given by different doctors. The officer acting on behalf of the Secretary of State must chose between them. The fact that there is a choice shows that a prognosis is not a circumstance, but merely evidence of something that exists independently and apart from it.
44.	Argument It is irrelevant whether or not the prognosis on which the decision is based turns out to be accurate. Comment I accept that a fresh circumstance must not be given retrospective effect. So, if a claimant who is recovering from heart surgery develops pneumonia after the date of decision, that is a fresh circumstance that cannot alter the circumstances obtaining at the earlier date. However, it will often be difficult to distinguish in practice between a case in which there has been a set back to a claimant’s recovery and one in which the rate of recovery was uncertain and accurate prediction impossible. In the latter case, the evidence of prognosis should not be given greater weight than it can bear. It should not be elevated into a firm conclusion on the rate of progress taking place at that time with the effect that any difference from it in the actual rate of progress is a fresh circumstance that must not be taken into account. 
European Convention on Human Rights
45.	I raised with Miss Main-Thompson the possibility that section 12(8)(b), at least on her arguments, might not comply with Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. I presented a general case and a more detailed case. She accepted that these cases raise issues of compliance.
46.	This was the general case that I made. If Miss Main-Thompson’s arguments were accepted, a claimant would in practice find it very difficult, if not impossible, to challenge on appeal a decision relating to disablement or incapacity and would be left with having to obtain evidence to support a fresh claim. Unless a claimant was particularly well informed on the operation of section 12(8)(b) and was aware of the Secretary of State’s medical evidence before the decision was made, a claimant could not act in advance of a decision to ensure that evidence would be available that could be considered on appeal. 
47.	This is but one example of the way in which the system is structured in favour of the Secretary of State. Another example involves retrospective revision of a decision on the ground of error of fact. If the decision made was more favourable to the claimant than it should have been, the Secretary of State may revise a decision on this ground at any time: see regulation 3(5)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, if the decision was less favourable to the claimant than it might have been, it can only be revised by the Secretary of State if the claimant applies for a revision within one month or satisfies the stringent late application rules: see regulations 3(1) and 4 of those regulations.
48.	This general case raises two issues: (i) whether the system as a whole complies with Article 6(1) and (ii) whether there is an inequality of arms between the parties before the appeal tribunal.
49.	The more detailed case that I made related to the qualifying periods for an award of disability living allowance. It is easy to construct a case in which, if Miss Main-Thompson’s arguments were accepted, a claimant would satisfy the conditions of entitlement to a short award of a disability living allowance under section 72 or 73 of the Social Security Contributions and Benefits Act 1992, but would be unable to establish that entitlement under the decision-making and appeals system created by the Social Security Act 1998. For example, assume this sequence:
1 January	The claimant is seriously injured in an accident. 
1 April	The claimant claims a disability living allowance. A doctor writes that the claimant should have recovered sufficiently to fall outside the conditions of entitlement by the end of August The claim is refused as the six months prospective qualifying period is not satisfied.
1 June	A different doctor writes that the claimant would not be sufficiently recovered until the end of October. 
In this example, a new claim would be refused because the six months qualifying period would not be satisfied from the date on which an award would start (the date of claim). As far as the earlier claim is concerned, the refusal of that claim could not be revised, because (i) the application would be late and (ii) the new prognosis would be treated as a fresh circumstance. Also, that refusal could not be superseded. Supersession is available for a relevant change of circumstance, but a change after the date of refusal would not be relevant, because it occurred outside the period considered when making the decision. On an appeal against the refusal of the first claim, the new diagnosis would be treated as a fresh circumstance that the tribunal could not take into account.
50.	This more detailed case raises the issue whether the claimant would have any means of establishing the entitlement that arose under the Social Security Contributions and Benefits Act 1992 whether by appeal or otherwise. 
51.	I find in these considerations confirmation for my comments on Miss Main-Thompson’s arguments and for my conclusions set out in paragraphs 54 to 68. Quite apart from the Human Rights Act 1998, it is not appropriate to interpret legislation in a way that puts the State in breach of its obligations under the Convention, unless this result is unavoidable. On my interpretation of section 12(8)(b) and on my view of its operation and application, this result does not arise. 
52.	I have limited my comments to matters directly relevant to disablement and incapacity cases. There are, of course, other more fundamental respects in which the decision making and appeals system set up by the Social Security Act 1998 may not comply with Article 6(1).
My conclusions
53.	My conclusions are these. I direct the tribunal at the rehearing to deal with the case in accordance with them in order to determine (i) whether the claimant satisfied the six months qualifying period for an award and (ii), if she did, the appropriate period for an award.
54.	Section 12(8)(b) is the natural companion to section 8(2). It emphasises that an appeal tribunal’s jurisdiction is limited to the scope of the claim as considered by the Secretary of State. 
55.	It refers to “any circumstances not obtaining at the time when the decision appealed against was made.” It is not refer to circumstances “not existing” at that time. The Secretary of State and the appeal tribunal will usually be concerned not with entitlement at a particular date, but over a period. That period will run from the date of claim to the date when a decision is made on behalf of the Secretary of State. There will almost always be a delay before a decision is made on a claim. That delay may be lengthy while the Secretary of State makes inquiries and gathers evidence. There may be changes of circumstances within that period. In its context, a circumstance must be “obtaining at the time when the decision appealed against was made” if it existed at any time during that period. Otherwise, the Secretary of State and the appeal tribunal would not be able to take account of circumstances as at the date of claim if they had changed before the decision was made. Section 12(8)(b) only applies to fresh circumstances occurring after the decision is made. This is more likely to be relevant to benefits with daily entitlement, like income support or jobseeker’s allowance, than to benefits in which entitlement is considered over a period, like disability living allowance. 
56.	It is neither possible nor appropriate to give an abstract definition of “circumstance” that will provide a touchstone for decision in all cases.
57.	There is a difference between a circumstance and evidence of that circumstance. In most cases, the distinction will be obvious.
58.	Section 12(8)(b) limits an appeal tribunal’s jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of the law that I set out in CDLA/2934/1999, para. 9:
“In the case of a claim for a disability living allowance, the jurisdiction [of an appeal tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal. The effect is also to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.”
In relating later evidence to the time of the decision, the claimant’s evidence is admissible, although it will, like all evidence, have to be weighed by the appeal tribunal. 
59.	In the case of a benefit in which a prediction has to made of future disablement, it is always relevant to know whether the claimant’s disablement at the date of decision was static or changing. The classification of the disablement is a circumstance obtaining at that time. It will be relevant both to the six months qualifying period and to the period of an award. I give directions on changing disablement in the context of a claimant who is in a period of post-operative recovery, as that is the position in this case, but the principles are applicable to all cases of changing disablement. 
60.	An appeal tribunal is entitled, and required, to take account of the fact that at the time of the decision a claimant is in a period of post-operative recovery. That is a circumstance obtaining at that time. If a rule requires a prediction of future events but the actual events are known by the time of a hearing, a court would take account of what had actually occurred rather than undertake an artificial exercise of prediction: see for a recent discussion of this principle the decision of the Court of Appeal in Charles v. Hugh James Jones and Jenkins (a firm) [2000] 1 All England Law Reports 289 at pages 299 to 301. However, section 12(8)(b) prevents appeal tribunals from applying this principle.
61.	In some cases, a claimant who is recovering may suffer a set back, slowing down the rate of recovery. Take the example given in paragraph 44 of a claimant recovering from heart surgery who develops pneumonia after the date of decision. That is clearly a fresh circumstance, which an appeal tribunal would have to leave out of account. In that case section 12(8)(b) would operate to the claimant’s disadvantage. However, it can also work to the claimant’s advantage on an appeal. If the period of a claimant’s recovery is dramatically reduced by the use of a new drug, this would also be a fresh circumstance which the appeal tribunal would have to leave out of account.
62.	In other cases, the fact that a claimant’s recovery has not progressed as quickly as expected does not necessarily indicate that a fresh circumstance has occurred. This may do no more than reflect the natural vagaries of an uncertain recovery process that cannot be predicted accurately or with confidence. In this case, the actual rate of recovery is not a fresh circumstance that the appeal tribunal must ignore.
63.	There is no clear test that will allow appeal tribunals to distinguish between cases in which there has been a set back to recovery and those where the evidence only shows that the rate of recovery is inherently uncertainty. An appeal tribunal must use common sense to draw the distinction between these cases.
64.	It must ask: how long was the claimant likely to satisfy the conditions of entitlement for a disability living allowance, disregarding fresh circumstances?  The answer will depend on the tribunal’s assessment of the admissible evidence. The appeal tribunal may, and must, take account of any evidence about the claimant’s likely disablement beyond the date of decision that can sensibly be related to the circumstances obtaining at that date. The conclusion will be a finding of fact on probability which the appeal tribunal may substitute for the finding of fact on that issue made by the officer acting on behalf of the Secretary of State.
65.	The claimant’s own evidence is admissible, but however credible it may be, it is likely to be of limited value. It will be based on the claimant’s personal feelings and the claimant will not have a yardstick against which to judge the rate of recovery.
66.	If there is in evidence a prognosis of the likely rate of recovery, the tribunal must weigh that evidence in the light of these considerations, among others. (i) A prognosis is no more than an opinion. (ii) The factors that affect the rate of recovery from an operation are so many, so variable and so dependent on the individual patient that it is impossible for a prognosis to take into account all the variables in an individual case, let alone to reach a firm conclusion. (iii) Some of the variables will be specific to the claimant. Others will be general. It is unlikely that the prognosis will record those that were taken into consideration. This lack of transparency prevents the reasoning behind the prognosis from being examined and, therefore, reduces the weight that can be given to it.
67.	It will always be relevant to consider whether there is an identifiable occurrence that has caused a change in the rate of recovery. That occurrence may be, and perhaps is likely to be, a fresh circumstance. However, some occurrences may be sufficiently predictable as a feature of the recovery process to be regarded as but a part of it. 
68.	The length of the recovery may be so abnormal as itself to indicate that some unidentified fresh circumstance must have occurred. However, if the actual recovery period is not abnormal, there is no reason why the tribunal should not have regard to that, so long as the tribunal asks itself the correct question (see para. 64) and bases its answer on admissible evidence.
69.	I trust that this is a sensible approach that makes sections 8(2) and 12(8)(b) workable by appeal tribunals and, while faithful to the proper interpretation of the legislation, does not impose unattainable restrictions on claimants who want to challenge a decision on appeal.
Summary
70.	The appeal tribunal’s decision is erroneous in law and must be set aside. It is not appropriate for me to give the decision that it should have given on its findings of fact and it is not expedient for me to make further findings of facts. There must, therefore, be a complete rehearing of this case before a differently constituted appeal tribunal. The appeal tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions. As my jurisdiction in this case has been limited to issues of law, my decision is no 

indication of the likely outcome of the rehearing, except in so far as I have directed the appeal tribunal on the law to apply.

Date: 7 February 2000 					    (signed) Mr. E. Jacobs
	Commissioner