R(I) 5/02

Mr. W. M. Walker QC	CI/3700/2000
Mr. J. M. Henty
Mr. E. Jacobs
20.12.01
Supersession – disablement assessment decisions in transitional cases – whether refused claim can be superseded for change of circumstances
The claimant suffered an accident and claimed disablement benefit. In 1992 an adjudicating medical practitioner made a final assessment at 10% for the period 6 March 1988 to 5 March 1993, and an adjudication officer refused the claim as the assessment was less than 14%. In November 1999 the claimant asked for his disablement to be looked at again. The claimant appealed to a tribunal against the decision-maker’s decision, and in turn to the Commissioner, on the facts of the case. The Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners in view of the importance and difficulty of the issues arising out of the introduction of the new scheme of decision making introduced by the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999. 
Held, allowing the appeal, that:
1.	the 1992 decisions are to be treated as if they were made by the Secretary of State by virtue of the transitional provision in paragraph 4(1) of Schedule 12 to the Social Security Act 1998 (Commencement No. 8, and Savings and Consequential and Transitional Provisions) Order 1999;
2.	those decisions were nevertheless not made by an “officer of the Department” so could not be superseded on grounds of “official error”;
3.	under the new scheme a claim only runs until a decision is made on it by virtue of section 8(2)(a) of the Act;
4.	a refusal of a claim cannot be superseded for relevant change of circumstances by virtue of section 8(2)(b) of the Act;
5.	the assessment decision by the adjudicating medical practitioner had ongoing effect by virtue of section 47(5)(b) of the Social Security Administration Act 1992;
6.	that decision could be superseded under section 10 of the Social Security Act 1998 by a decision in the same terms, or in different terms which may still not allow an award of disability benefit [R(DLA) 6/02].
[Note: This case was determined at the same time as the case reported as R(DLA) 6/02.] 

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Decision:
1.	Our decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
1.1.	The decision of the Southampton appeal tribunal, held on 16 March 2000, is erroneous in point of law.
1.2.	We set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	We direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision in accordance with our analysis of the adjudication scheme under the Social Security Act 1998. In particular, it must answer these questions:
Did the claimant’s accident result in a loss of faculty?
	What disabilities resulted from that loss of faculty?
	Was there another effective cause of any of those disabilities?
	What was the extent of the disablement resulting from the loss of faculty, applying if necessary regulation 11 of the Social Security (General Benefit) Regulations 1982?
	What period is covered by the assessment? The start of the period is governed by section 10(5) and (6) of the Social Security Act 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
	Is the assessment final or provisional?
	The appeal tribunal’s jurisdiction at the rehearing is limited to the assessment of disablement. The related refusal of the new claim for disablement benefit is not before the tribunal.
The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr. Commissioner Jacobs. 
3.	The case raised issues on the new adjudication scheme introduced under the Social Security Act 1998. In view of the importance and difficulty of those issues, the former Chief Commissioner directed that the appeal be heard by a Tribunal of Commissioners. It was heard before us at an oral hearing in London on 4, 5 and 6 December 2001 at the same time as the appeal in CDLA/3466/2000, which raised related issues. 
4.	The claimant attended the hearing and was represented by Ms. S. Robertson of counsel. The Secretary of State was represented by Ms. N. Lieven of counsel, instructed by Office of the Solicitor to the Department for Work and Pensions.
5.	The Child Poverty Action Group asked to be heard on the appeal under regulation 24(6)(g) of the Social Security Commissioners (Procedure) Regulations 1999. That request was granted by Mr. Commissioner Jacobs. As a result, the Group became a respondent: see the definition in regulation 4. Its skeleton argument was prepared by Mr. R. Drabble QC and was presented at the hearing by Mr. S. Wright, the Legal Officer to the Group.
6.	We are grateful to all the representatives for their arguments and their responses to our questions. They have greatly helped us in understanding and resolving the issues that arise on the adjudication arrangements under the 1998 Act.
Was the tribunal’s decision wrong in law?
7.	Yes, it was. 
8.	Ms. Robertson presented a detailed criticism of the tribunal’s reasoning. Ms. Lieven argued that the tribunal’s reasons were adequate. She referred to a test from, we believe, planning law, that in order to be adequate the reasons had to deal with the principal, important and controversial issues. 
9.	We accept Ms. Robertson’s argument that the tribunal’s decision was wrong in law. We do not accept all her criticisms of the decision, but there are at least two inadequacies in the decision, even on Ms. Lieven’s formulation of the test of adequacy. Either is sufficient to make the decision wrong in law and to justify a rehearing. The first inadequacy is that the tribunal did not deal in its reasons with the detailed arguments put by the claimant. The second, which may be no more than an example of the first, is that the tribunal did not explain how it dealt with the claimant’s arguments about the nature and extent of his pain. We are not saying that the tribunal had to answer the questions that the claimant set out for the tribunal. All we are saying is that, in answering the legal questions that arose for decision, the tribunal should have explained why it did not accept the claimant’s arguments. 
10.	The decision is also wrong, because the tribunal began the assessment one month before the date of the application. The tribunal did not explain how it derived that date from regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, this error would not justify a rehearing, as we could have corrected it ourselves.
Adjudication issues
11.	The claimant suffered an accident on 23 November 1987. He claimed disablement benefit on 5 October 1991. The accident was accepted as falling within the statutory scheme. Under the adjudication scheme at the time, two decisions were then given.
The assessment of disablement 
12.	The first decision was the assessment of the claimant’s disablement that was made in 1992 by an adjudicating medical practitioner. The examining doctor made a final assessment of that disablement benefit at 10% for the inclusive period from 6 March 1988 to 5 March 1993. That decision was appealable to a medical appeal tribunal. The claimant did not appeal.
13.	The nature of the assessment decision was governed by section 47 of the Social Security Administration Act 1992:
	‘(4)	Any assessment of the extent of the disablement resulting from the relevant loss of faculty may also be reviewed by an adjudicating medical practitioner if he is satisfied that since the making of the assessment there has been an unforeseen aggravation of the results of the relevant injury.
	(5)	Where in connection with a claim for disablement benefit made after 25th August 1953 it is decided that the relevant accident has not resulted in a loss of faculty, the decision––
		(a)	may be reviewed under subsection (4) above as if it were an assessment of the extent of disablement resulting from a relevant loss of faculty; but 
		(b)	subject to any further decision on appeal or review, shall be treated as deciding the question whether the relevant accident had so resulted both from the time about the decision was given and for any subsequent time.
	(6)	For the purposes of subsection (5) above, a final assessment of the extent of the disablement resulting from a loss of faculty made for a period limited by reference to a definite date shall be treated as deciding that at that date the relevant accident had not resulted in a loss of faculty.’
14.	We accept Ms. Lieven’s argument that the effect of those provisions was this. The assessment was final and was made for a definite period. It had the effect, under section 47(6), that the claimant had no loss of faculty from and including 6 March 1993. As a result of section 47(5)(b), it did not relate just to the period covered by the assessment. It ran indefinitely, potentially for the rest of the claimant’s life, until replaced. The continuing effect of the decision allowed it to be reviewed for unforeseen aggravation under section 47(4) and (5)(a). There was no review on unforeseen improvement. 
The refusal of the claim
15.	The second decision followed from the assessment of the claimant’s disablement. It was made in 1992 by an adjudication officer. As that disablement was less than 14%, the claimant was not entitled to disablement benefit and an adjudication officer refused the claim from the date it was made. That decision was appealable to a social security appeal tribunal. The claimant did not appeal. 
16.	Unlike the assessment decision, the refusal of the claim was not subject to special provision. Therefore it was not a running decision. On ordinary principles, it was a decision that related only to the period from the date of claim to the date on which it was made. It was not subject to review on a relevant change of circumstances that occurred after the latter date, because that change would not be relevant to the period covered by the decision.
Adjudication under the Social Security Act 1998
17.	In November 1999, the claimant asked for his disablement to be ‘looked at again.’ We use that for the moment as a convenient neutral expression. By this time, the Social Security Act 1998 was in force in respect of disablement benefit. It made a number of changes. Some are relevant to this case. 
18.	First, all decisions are now made by the Secretary of State. That includes both decisions on claims for disablement benefit and assessments of disablement for that purpose. In making the latter decision, the decision-maker has advice from a medical adviser who interviews and examines the claimant and gives an opinion on the nature and degree of the disablement. Decisions on claims are covered by section 8(1)(a) and are appealable under section 12(1)(a). Assessments of disablement are made under section 8(1)(c). They are made appealable by regulation 26(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. That regulation is made under the authority of paragraph 9 of Schedule 3 to the Act. That makes assessment decisions appealable under section 12(1)(b).
19.	Second, review has been replaced by revision and supersession. Only supersession is relevant to this case. It is governed by section 10.
20.	Third, supersession may be to the disadvantage of the claimant. There is no equivalent to the protection against review for unforeseen improvement. 
Transition
21.	The change from the old scheme to the new was managed by complex transitional provisions. In her skeleton argument, Ms. Robertson argued that there were no transitional arrangements that applied to this case. At the hearing, she resiled from this.
22.	The relevant provision in this case is paragraph 4(1) of Schedule 12 to the Social Security Act 1998 (Commencement No 8, and Savings and Consequential and Transitional Provisions) Order 1999:
	‘(1)	Where, before 5th July 1999, a decision has been made by an adjudicating authority in relation to a relevant benefit, that decision shall be treated on or after that date as a decision of the Secretary of State under paragraph (a) or, as the case may be, paragraph (c) of section 8(1)’
‘Adjudicating authority’ includes both an adjudication officer and an adjudicating medical practitioner: see the definition in paragraph 1(1) of the Schedule.
23.	Ms. Robertson argued that paragraph 4(1) had the effect that the decisions taken under the former adjudication scheme were subject to all the grounds of supersession set out in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. In particular, she argued that the assessment of the claimant’s disablement in 1992 could be superseded on the ground of ‘official error.’ That was a concept that did not exist by name before the 1998 Act, although the fact that a mistake had been made by an official might affect the date from which payment could be made on a review. 
24.	Ms. Lieven made three points against that argument. First, there had been no official error in this case. Second, paragraph 4(1), properly interpreted, did not make that ground for supersession available against a decision made under the former scheme. Third, if paragraph 4(1) did have that effect, it was made outside the scope of its enabling power in section 87(3) and so of no force or effect.
25.	We reject Ms. Robertson’s argument on the effect of paragraph 4(1). That paragraph must be interpreted in its context. The context is of a transitional provision. Its effect is to allow the new scheme to apply to cases that are not covered by the terms of the new scheme. That scheme allows decisions made by the Secretary of State to be superseded. The claimant’s disablement assessment was not made by the Secretary of State. So on its terms the new scheme does not apply to it. The effect of paragraph 4(1) is to rebase decisions that were made under the former scheme so that the new scheme can apply to them. It is of notional effect. It means that the earlier decisions are treated as if they were made by the Secretary of State. It does not require us to ignore the fact that they were not. 
26.	Official error applies to mistakes made by ‘an officer of the Department … acting as such’: see regulation 1(3). The decisions made in the claimant’s case in 1992 were made by an adjudication officer and an adjudicating medical practitioner acting in those capacities. Official error does not apply in terms to the 1992 decisions and paragraph 4(1) does not require or allow us to pretend that it does.
Did the claimant have to make a fresh claim in 1999?
27.	This question arises because of section 8(2) of the Social Security Act 1998:
	‘(2)	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.’
28.	It has been suggested that this requires every change of circumstances to be raised as a new claim. In other words, it prevents a change of circumstances being given effect on a supersession under section 10. If that were correct, it would produce considerable inconvenience, especially for those benefits which can only be claimed on prescribed forms. 
29.	Before us, there was no dispute about the proper interpretation of section 8(2). Our analysis is this. 
30.	Paragraph (a) reverses the rule that a claim continued to run throughout the period of any decision made on it. If that decision was an award, the claim continued to run for the duration of the award. This was the rule relied on by a Tribunal of Commissioners as the basis for the ‘down to the date of hearing rule’: R(S) 2/98. Paragraph (a) provides that the claim only runs until it is decided. Its effect is reinforced by section 12(8)(b), which prevents an appeal tribunal from taking account of circumstances that were not obtaining at the date when the decision under appeal was made. 
31.	Paragraph (b) opens with the word ‘accordingly’. That shows that whatever paragraph (b) provides follows from paragraph (a). Paragraph (b) can only be understood in the context of the meaning and significance of paragraph (a). It does not merely restate the same provision in different words. It makes separate provision that follows on from paragraph (a). In other words, whatever paragraph (b) provides, it operates as a consequence of the claim ceasing to exist. Section 10 operates differently from paragraph (a). It authorises the supersession of a decision. A decision may exist after the claim has ceased to subsist. A decision may also be made independently of a claim, as recognised by section 8(1)(c). So, limitations on the scope of supersession under section 10 would not follow from the rule in paragraph (a). 
32.	We interpret paragraph (b) as meaning that a refusal of a claim cannot be superseded for a relevant change of circumstances. We have already explained the reason for that rule. It is that a change that occurs after the period covered by a decision cannot be relevant to it. Paragraph (b) codifies that rule and sets it on a new basis as the consequence of the claim ceasing to exist. That is the natural meaning for paragraph (b), as it is the inevitable consequence of paragraph (a). 
How does our interpretation of section 8(2) affect this case?
33.	The assessment of the claimant’s disablement had ongoing effect, as a result of section 47(5)(b) of the Social Security Administration Act 1992. It was a decision that could be superseded under section 10. For the reasons given in CDLA/3466/2000, paragraphs 32 to 47, that decision need not (a) in terms be different from the decision that was the subject of the application or (b) even if the terms are different, be sufficient to allow an award of disablement benefit.
34.	Unlike the assessment of disablement, the refusal of the 1991 claim for disablement benefit did not have ongoing effect. If the tribunal in this case had assessed the claimant’s disablement at 14% or higher, he could only be awarded disablement benefit on a new claim. That does not cause difficulties, because the Secretary of State may accept a claim for disablement benefit in any form. Ms. Lieven told us that in this case the claimant’s application for a supersession was treated also as a claim for disablement benefit, although that does not appear from the papers before us.
35.	The claimant’s letter of appeal to the appeal tribunal raised only issues of assessment. So, only the assessment decision was under appeal in this case. It follows that at the rehearing the tribunal will not have jurisdiction over the claim for disablement benefit. The Secretary of State will give effect to the tribunal’s assessment in a decision refusing, or making an award on, the new claim.
Assessments of disablement under the Social Security Act 1998
36.	Ms. Lieven argued, without elaboration, that the analysis of an assessment of disablement as an ongoing decision under the 1992 legislation continued to apply under the 1998 legislation.
37.	That issue does not arise before us. Any view we expressed would not be binding. We say only this. Our reasoning is based on provisions in the 1992 legislation, which have now been repealed. It does not necessarily follow that the same reasoning applies in the absence of those provisions. The resolution of this issue must await fuller argument in a case that raises it.
CI/1132, 2087 and 2088/2000
38.	Some of the issues covered by our decision were considered in CI/1132, 2087 and 2088/2000. In so far as the reasoning differs, the reasoning in those cases must not be followed. 
Summary
The decision of the appeal tribunal was wrong in law and must be set aside. It is not expedient for us to assess the claimant’s disablement, because we do not have the expertise of the medically qualified panel member that will be available at a rehearing before an appeal tribunal. We direct a rehearing of the case in order to answer the questions we have set out in paragraph 1.3.

Date: 20 December 2001 					 (signed) Mr. W. M. Walker QC
Commissioner

Mr. J. M. Henty
Commissioner

Mr. E. Jacobs
Commissioner