DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioners Reference:  CSIB/51/01

1.	My decision is that the decision of the appeal tribunal given at Inverness on 18 July 2000 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.

2.	The tribunal found and the Secretary of State tells me that the claimant was awarded incapacity benefit with effect from 3 April 1999.  The basis upon which the claimant obtained such an award and the vehicle for it is neither set out by the Secretary of State in his submission to me nor the tribunal.  It is apparent from the papers that the claimant had been subsequently the subject of an all work test and was found to have a score which was less than the number of points required to obtain benefit.  The matter was referred to a decision-maker in a document at page 49 seeking supersession but the decision sought to be superseded was not identified.  The basis upon which supersession was sought was on the basis that the all work test had been applied and the claimant scored less than 15 points.  Thereafter a decision- maker made a decision on the 4 October 1999 which is set out at page 48 of the bundle in which he indicated that the claimant’s claim for incapacity benefit was disallowed from and including 4 October 1999.  The claimant then appealed against the decision.  Following upon that a reconsideration of the decision-maker’s decision was carried out but the decision was not changed.  The claimant’s appeal then came before the tribunal whose decision is appealed to the tribunal by the Secretary of State.

3.	It formed no part of the claimant’s written grounds of appeal to the tribunal or oral submission to them that the decision-maker’s decision was defective.  The grounds were related solely to the all work test and the appropriate descriptors.  The decision of the tribunal was to allow the claimant’s appeal and find that she is entitled to incapacity benefit from and including 4 October 1999.  In giving reasons for their decision the tribunal said:-

	“The tribunal have noted that decision-maker has purported to supersede an earlier decision awarding incapacity benefit.  However the decision makes no reference whatsoever to supersession.  It does not seek to either identify the date of the decision which is to be superseded, nor does it identify any grounds upon which supersession can take place.  (Continued on next page) It merely makes reference to the fact that she is no longer entitled to incapacity benefit without giving the tribunal any indication as to which statutory provisions have been applied in attempting to reach this conclusion.  The statutory provisions relating to supersession appear at section 10 of the Social Security Act 1998.  Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 contain the procedural provisions relative to supersessions.  The tribunal observe, in passing, that section 10 allows a decision made by the Secretary of State to be superseded either on an application made for the purpose, or on his own initiative.  The tribunal were unable to identify from the papers in this case any evidence to suggest which of these two alternatives had been adopted.”

The tribunal then went on to say:-

“The tribunal consider that it is extremely important that any appellant must, on being given an adverse decision, as a bare minimum, know what the decision which has been taken actually is.  In the context of this case, the means that the appellant must be told that an earlier decision has been superseded and must be given, even if only in bare outline, the grounds upon which that supersession is based.  Without such basic information no appellant can be expected to state grounds of any appeal.

In reaching this conclusion, the tribunal had regard to the terms of Regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  This regulation sets out the provision relating to the date from which a decision superseded under section 10 takes effect.  It presupposes that any such decision will state the grounds upon which it has been taken.  It is accordingly in the view of the tribunal absolutely necessary that any decision superseding an earlier decision should say so and should also state the grounds upon which that supersession is to take place."

The tribunal then went on to indicate that they considered whether or not to adjourn the appeal to afford the Benefits Agency the opportunity of producing further evidence or elaborating the submission that had been made to the tribunal.  They note the disadvantage that there was no-one representing the Benefits Agency before them.  They then went on to say:-

	“However, it appeared to the tribunal that given the fundamental deficiencies in the decision which had been taken, no useful purpose would be served by adjourning since the decision would remain in the same defective terms.”

4.	The Secretary of State has appealed against the decision and the grounds of appeal are set out at page 77 where the grounds state:-

	“The tribunal considered the terms of the decision under appeal to be defective and merely re-instated benefit on that basis.  It is my submission however, that it is well documented in case law that a tribunal has the power to correct any deficiencies in an adjudication officers decision, where considered appropriate, as the tribunal completely rehears the decision under appeal.  I particularly draw support for that contention from paragraph 47.1 of the common appendix to CSIS/137/94 (to be reported as R(IS) 2/98), decided by a tribunal of Commissioners.

	I further submit that those established principles must apply equally to decision-makers representing the Secretary of State, who replaced adjudication officers upon the implementation of the Social Security Act 1998.”

5.	The Secretary of State followed that up with a submission recorded at pages 83-85.  In that submission it is said:-

“4.2	Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides that an incapacity benefit decision may be superseded where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995.  I submit that it is that provision which is relevant to this case.

4.3	The tribunal decided that the decision cited at 4.1 above was insufficiently terms to indicate which earlier decision was under consideration and under which provision the award was being altered.  On that basis, the decision under appeal was declared to be defective and the original awarding decision was reinstated.  In reaching that conclusion the tribunal also considered the terms of the decision-maker’s submission to them, but found that it also failed to address in precise terms the issue of supersession.

4.4	I essentially agree with the tribunal that the decision under appeal was flawed for the reasons given.  I also agree that the submission before them did not address the point in express terms.  However, it is my submission that it was open to the tribunal to correct any deficiencies in the decision, having regard to the facts of the case cited in the submission, as it was incumbent on them to completely rehear the question under appeal.

4.5	I particularly draw support for that contention from paragraph 47.1 of the common appendix to CSIS/137/94 (to be reported as R(IS) 2.98), decided by a tribunal of Commissioners.  I submit that those established principles apply equally to decision-makers representing the Secretary of State who replaced adjudication officers upon the implementation of the Social Security Action 1998, as in this case.”

6.	The claimant was given the opportunity of responding to that submission but indicated that she had no comment to make.

7.	I am satisfied that the tribunal decision erred in law and must be set aside.  In doing so I would however note that the Secretary of State placed himself at a considerable disadvantage before the tribunal in respect that first he chose not to be represented before them and second that although the reference made to the decision-maker was sought upon the basis that a supersession should be carried out in respect of an unidentified decision it is not apparent on the face of the decision-maker’s decision that the issue of supersession was addressed.

8.	However, it does seem to me that the tribunal erred in law when they indicated that they were unable to identify from the papers in the case evidence to suggest whether supersession was to be made or an application made for the purposes or on the Secretary of State’s own initiative.  It is clear from the document at page 49 that a referral for supersession was made and of more particular importance, that it was done so upon the basis that the all work test was applied and that the claimant had scored less than the necessary points.  It is implicit that the decision made on 4 October 1999 at page 48 was done so in the context of the reference which raised the issue of supersession.  Further as is pointed out by the Secretary of State in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 6(2)(g) grounds for supersession are established if there is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision) and where, since the decision was made, the Secretary of State has 
received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation.  That is clearly the position in this case standing the report at pages 22-45.  The claimant had an award of incapacity benefit of which she would undoubtedly have been aware as she was receiving payment of it and the grounds for superseding it are abundantly clear with reference to regulation 6(2)(g).  Accordingly as it was implicit by the nature of the referral and indeed the content of the decision of the decision-maker on the merits, the tribunal in my view, erred in law by holding the decision-maker’s decision defective and allowing the appeal and finding that the claimant was entitled to incapacity benefit from and including 4 October 1999 without themselves considering the merits of the case.  If mischief there be in this case it is that the printed form of the decision-maker’s decision does not make it clear that in respect where benefit is withdrawn a decision awarding incapacity benefit has been superseded, the basis of that supersession and the date of the decision which has been superseded.  Notwithstanding that, supersession can I think be said to be implied standing the reference, the grounds for supersession under the regulation to which I referred being satisfied and the fact that the date from which benefit was disallowed is in conformity with section 10(5) of the Social Security Act 1998.  I should perhaps add that it would have been better had the decision spelled out the position rather than leave it to the process of inference and implication I have set out above.  Some thought perhaps should be given to the terms of the printed form by the Benefits Agency.  Such inference and implication may not have been able to be so readily and easily made had some of the other grounds for supersession been the ones relied upon such as a change of circumstances.

9.	I find myself in agreement with the Secretary of State that even if the decision made by the decision-maker was defective, something I do not accept for the reasons set out above, I am satisfied that the tribunal was not permitted simply to find that the claimant was entitled to incapacity benefit from and including 4 October 1999 upon the basis of a defective decision having been made.  I can see no reason in principle why in relation to supersession a tribunal could not conduct or perfect any supersession of the claimant’s entitlement for themselves in the manner in which they could do so in respect of review as confirmed by the Tribunal of Commissioners in paragraph 47(1) of the appendix CSIS/137/94.  There has certainly been no contradictor to that proposition by the claimant’s representative and I am not directed to any statutory provision which would support an assertion that such an approach would either be prohibited or rendered inappropriate by the new statutory arrangements.

10.	The Secretary of State submitted in relation to the disposal of the case:-

	“In conclusion, I submit that the tribunal’s decision dated is erroneous in law for the above reasons.  Should the Commissioner accept my submission, I respectfully recommend that he substitute his own decision for that which the tribunal ought to have given (that receipt of the report from the Examining Medical Practitioner enabled supersession in accordance with DMA regulation 6(2)(g)).”

I am not prepared to accede to that recommendation.  It seems to me that it is appropriate that the case should be referred to a freshly constituted tribunal.  That tribunal will require to accept my decision that the decision-maker’s decision is not defective to the extent that the statutory grounds for supersession in terms of regulation 6(2)(g) as there is medical evidence following an examination of the type referred to therein.  They will then have to determine whether incapacity benefit is allowed or disallowed from 4 October 1999.  This will depend upon whether on the merits having heard evidence and submissions they accept the claimant has satisfied the all work test  or not.

11.	The appeal succeeds.

						(signed)
						D J MAY QC
						Commissioner
						Date:  7 August 2001