CA 1856 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I dismiss the appeal. For the reasons below, the decision of the tribunal is not erroneous in law.

2	The appointee is appealing with permission of a Commissioner   against the decision of the Hull appeal tribunal on 21 January 2002 under reference U 01 006 2001 01314.

3	I held an oral hearing of this appeal on 10 March 2003 at Doncaster County Court. The appointee to (and daughter of) the late claimant, Mrs H, was present and was  represented by Mr Colin Baxter. The Secretary of State was represented by Ms D Haywood of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both for their submissions, including their oral submissions, although I record one reservation that I apply to both parties.

The written submissions in this case

4	Shortly before the start of the oral hearing I was handed a list of authorities and points related to the application of human rights law to this case on behalf of the appellant and a skeleton argument prepared on behalf of the respondent. Both documents added new authorities to the cases and decisions previously cited to me in the written submissions, and both added new points. Both were extremely helpful documents. But each side embarrassed the other, and both embarrassed me, by presenting their documents to each other and to me at the last minute. Either party could have asked for an adjournment to consider the new issues and authorities raised by the other party, and I would have had to consider that application seriously despite the obvious cost and inconvenience of doing so. We were able to make progress on the day but only with consent on both sides, with an adjournment before the oral hearing started for the new documents to be read by all of us, and subject to the right of both parties to make further submissions after the oral hearing if the new points or authorities proved to be crucial. 

5	While I appreciate that there were specific reasons why each party delayed in making their final written submissions in this case, it is not in the interests of the public or of any party that written submissions containing new points and new authorities are made so late in the day. Bearing in mind section 12(8)(a) of the Social Security Act 1998, such a submission may refocus the entire appeal. It is my duty, as with all members of the British judiciary, to promote in each case the most expeditious dispatch of business compatible with the interests of justice. But Commissioners, like appeal tribunals and unlike those in many parts of the British judicial system,  have an inquisitorial jurisdiction. They are both entitled and expected to look beyond, as well as at, a new point. That cannot be done without adequate notice.

6	I therefore take this opportunity - but not with any special emphasis on the two representatives specifically involved in this case, both of whom I accept were subject to specific restraints - to remind all parties that written submissions and skeleton arguments raising new points or referring to new authorities must be put to the other party and the Commissioner in adequate time before an oral hearing.  Similarly, they should give notice of any new authority and, if they are in a position so to do, they should supply all involved with copies of the authority.
 
Background to the appeal 

7	The appeal concerns the entitlement of a deceased claimant (Mrs H) to attendance allowance. She was awarded the allowance from March 1994. But she moved from her own house to a nursing home in December 1994. Applying the law as it was then understood, it was decided by the Secretary of State in July 1995 that Mrs H was not entitled to attendance allowance while in the nursing home. This was because the nursing home fees were being funded by the local authority until Mrs H sold her house. Mrs H agreed to refund the fees to the local authority on selling the house. Attendance allowance was stopped with effect from the day she moved to the nursing home. However, Mrs H and her daughter failed to notice this at the time. The house was sold after Mrs H died. It was only then that the appointee and the local authority both noted that attendance allowance had been stopped some years before. It appears that the local authority thought that the allowance had been paid to Mrs H and by her to the nursing home, and the appointee thought it had been paid direct to the nursing home. 

8	Having consulted the local authority, the appointee asked for a review of the decision in 1995 stopping the attendance allowance in 1994. This was by reference to a decision of Mr Commissioner Howell QC in cases CA 2937 1997 and CA 2604 1998, now both reported as R(A) 1/02.  That decision is now accepted as the proper basis for determining Mrs H’s entitlement. It is common ground that under that decision, made on 9 November 2000, Mrs H would have been entitled to attendance allowance throughout the period she was in the nursing home save for periods when she was receiving income support. But the decision to stop her attendance allowance was not appealed at that time, and no other claims or requests for a review were made.

9	On 3 May 2001 the Secretary of State superseded the decision in 1995 stopping the attendance allowance on the grounds of error of law, subject to the further decision stopping attendance allowance during periods when Mrs H received income support.  That decision was stated to take effect from 9 November 2000, the date of the Commissioner’s decision. As Mrs H became entitled to income support, and therefore lost entitlement to attendance allowance, before that date, her entitlement to the allowance related only to periods before the Commissioner’s decision was made. On that basis, the Secretary of State formally confirmed that no attendance allowance was payable to the appointee. The appointee appealed part of the supersession decision. It was accepted that attendance allowance was not payable until 1 March 1995, or from 9 April 1998.

10	The tribunal dismissed the appeal.  Its reasons were:

Considering the provisions of sections 10(5) and 27(1) and (3) of the Social Security Act 1998 and Regulation 7(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999,  the effective date of the supersession is limited to the date of the Commissioner’s decision on 9 November 2000 and cannot be backdated to 2 Mach 1995.   

Grounds of appeal 

11	The grounds of appeal raised an unfocussed issue of human rights. It was also contended for the appointee that the literal meaning of section 27 of the Social Security Act 1998 and of regulation 7(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 were so absurd that the Commissioner should adopt an alternative approach avoiding the absurdity. It was absurd and unreasonable to deprive the appointee of benefit to which her mother was entitled because the law had not been clarified until after the money should have been paid.

12	At the oral hearing, Mr Baxter focused the human rights arguments and expanded the argument based on interpretation of section 27. Ms Haywood submitted that she had not had notice of the focused human rights argument and could make no more than general submissions on it. I indicated at the hearing that I was not initially persuaded that there was scope for a human rights argument in this case but that, if there was, I would invite further submissions from the Secretary of State. I see no reason to invite those further submissions.

13	I do not take the human rights arguments further because I do not consider that they can help the appointee. I do not accept the argument from Mr Baxter that there is automatically an issue involving article 1 of Protocol 1 to the Convention in this case. That article deals with entitlement to property, subject to important exceptions. If the article is relevant, then the provisions of paragraph 2 of the article must be considered, namely whether any of the exceptions in that paragraph disapply the article. But I do not need to consider those issues further, because there is an overriding consideration. My decision, as set out below, shows that the decision of the tribunal relied on rules more favourable than those in primary legislation. Even were I to find a reason to disapply the secondary legislation under the Human Rights Act 1998 - and I do not see any such reason - I cannot disapply the clear terms of section 10 of the Social Security Act 1998. An argument based on the Human Rights Act 1998 cannot therefore achieve what the appointee wishes to achieve even were it successful. Further, in the light of my initial comments in this case, I record that if I had felt that Mr Baxter’s new arguments and authority did open up this issue I would also have felt further proceedings were necessary to ensure that all the relevant authorities were available at the hearing or at any rate were considered before the matter was decided.  	

Section 27

14	Mr Baxter rested the main thrust of his argument on a highly critical view of section 27 of the Social Security Act 1998 and the regulations that operate it, coupled with an attack on the supersession decision made in 2001. His submission, made in quiet but forceful terms, was that section 27(3) could not be read to mean what it appeared to say. It was absurd and unfair to deprive people in the situation of Mrs H of their benefits because they did not appeal at the right time. I add, in parenthesis, that the decision of the Commissioner on which Mr Baxter’s arguments were based was made in November 2000 and the discovery of the non-payment of the attendance allowance, and consequent request for a review, was made less than a month later. It was in his view also open to dispute at the time whether the local authority and Secretary of State took the right view (that is, in 1994 and 1995). It was now clear that they were wrong, and that should be given full effect. But the decision in 2001 relied only on the approach taken by Mr Howell in his decision. 

15	In Mr Baxter’s view, the attendance allowance decision in 1995 could be shown to be wrong on other bases too, and the supersession decision in 2001 was open to criticism because of this. It was arguable that there was official error, itself giving rise to the power, and duty, to revise or supersede. It was also arguable that there had been a mistake as to, or ignorance of, material facts. Those were grounds for revision, not supersession, and that is the basis on which, it was submitted, the Secretary of State should have proceeded. That brought in the terms of regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, rather than regulation 7. 

16	This argument was buttressed by a rigorous analysis of section 27 of the Social Security Act 1998 and of the policy behind it, as applied to Mrs H’s claim. The section is entitled “Restrictions on entitlement to benefit in certain cases of error”. It applies to what subsection (1) refers to as “the relevant determination”. That is a determination of a court or Commissioner that an official decision was wrong in law. Section 27(1) applies the section where another official decision falls to be made, revised, or superseded by reference to the relevant determination. The key aspect of the section relevant here is when the relevant determination is to be applied to the new decision. Section 27(3) provides:

(3) In so far as the decision relates to a person’s entitlement to a benefit in respect of -

	(a) a period before the date of the relevant determination ...
	[(b) is not relevant here]

	it shall be made as if the adjudicating authority’s decision had been found by 
	the Commissioner or court not to have been erroneous in point of law. 

17	Mr Baxter’s argument was to the effect that the absurdity of this subsection was such that it should only be used if it had to be used. In this case, it did not have to be used. The law was not changed by the decision of Mr Commissioner Howell. The matter was unclear and the decision that Mr Commissioner Howell reached could have been reached in this case without “the relevant determination”. Mr Baxter’s client had been told, after the event but on good authority, that it depended on which official took the decision for the Secretary of State in 1995 as to whether her mother’s benefit was stopped or allowed to continue. So “the relevant determination” did not show that the general approach to the law at that time was wrong, merely that the individual decisions in R(A) 1/02 had been wrong. Section 27 should not therefore be applied. 

18	In reply, Ms Haywood rebutted the argument that the 1995 decision could have been revised. The only basis for this would have been regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, as the time limit in regulation 4 excluded any other basis for revising in 2001 a decision made in 1995. In her submission, there was no official error here. In particular, the reference to an error as shown by R(A) 1/02 was expressly excluded by the terms of regulation 3(5) itself. No other official error had been shown.

19	Ms Haywood supported her argument on this point in her skeleton argument by reference to further authorities. It involved challenging a decision of the Tribunal of Commissioners in R(I) 5/02 by reference to the decision of Commissioner Mesher in CG 2122 2001.  I did not find it necessary to pursue that issue. In the light of my initial comments in this case, I record that if I had felt that Ms Haywood’s new arguments and authority did open up this issue, I would also have felt an adjournment necessary to ensure that all relevant authorities were available at the hearing or at any rate were considered before the matter was decided.

20	Turning to the supersession decision, Ms Haywood submitted that the only basis for that decision could be regulation 6(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Section 27(1) applied to the decision of Commissioner Howell QC in R(A) 1/02 and the date of that decision was the relevant date, and the only relevant date, for the purposes of determining when a decision under regulation 6(2)(b) could start as applied by regulation 7(6) of those Regulations. The reasoning behind the rule, in her submission, was adequately dealt with by reference to the considerations given by the members of the House of Lords in the well-known case of Bate v Chief Adjudication Officer (16 May 1996).

21	Finally, Ms Haywood raised another issue. The decision of the Secretary of State under appeal before the tribunal was a supersession decision. Neither the tribunal nor the Commissioner had, in her submission, the power to replace this with a revision decision. That could only be done by the Secretary of State. It was not therefore open to Mr Baxter to argue that I should substitute a revision decision for the supersession decision that was actually made. In the view of the Secretary of State, the decision of Commissioner Jacobs to that effect in CIS 4935 2002 was correct and Commissioner Rowland in indicating an opposite view in CDLA 5196 2001, was not. I again do not find this point to be necessary to my decision, but I must add the same comment as before about notice on the point. This is clearly a contentious point that warrants full argument when it is decisive.    

My decision 

22	The decision of the Secretary of State and of the tribunal are right in law. I have already indicated that I do not consider the argument based on article 1 of Protocol 1 to be of assistance. 

23	I do not accept that the actions of the adjudication officer in 1995 can be described as “official error” within the terms of regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  This is clear from the current form of the definition of “official error” in regulation 1 of those Regulations. I do not accept that it can be shown that there was an error of law in the 1995 decision stopping the attendance allowance to Mrs H save by a contemporary appeal or by the process that was used in this case. As there was no contemporary appeal, the 1995 decision is final, subject only to revision or supersession, by reason of section 60 of the Social Security Administration Act 1992 and section 17 of the Social Security Act 1998. 

24	I see no other relevant ground in regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for considering a revision, as against a supersession, of the 1995 decision. I therefore reject that aspect of the appointee’s argument. I do not therefore need to consider if the tribunal had jurisdiction to make a revision decision in place of the supersession decision.  

25	Aside from the revision point, neither party questioned the substance of the supersession decision. The only question was the date on which it came into effect. The general rule is that a supersession takes place when the decision is made or, if appropriate, when the application for it is made: Social Security Act 1998, section 10(5). That was in December 2000. If the general rule applies in this case, then there is no entitlement under the supersession decision before December 2000. 

26	The general rule gives way to any specific rules. In this case, the specific rule is that in regulation 7(6), triggered by section 27 of the Social Security Act 1998 . The specific rule is that the supersession takes place on the date of the “relevant decision”. That was in November 2000. In other words, the application of section 27 and regulation 7(6) had the effect of implementing the relevant decision at an earlier date than would otherwise have been the case under the primary legislation. I stress that point for two reasons. First, it shows that the title given to section 27 in the legislation (“Restrictions on entitlement to benefit in certain cases of error”) is somewhat misleading. In this case, invoking section 27 potentially expanded entitlement. Second, and consequent on that, attacks on section 27 may be misplaced where, as here, the underlying rules are narrower than the rules under section 27.   

27	On the facts, neither date helped the appointee obtain benefit that her mother would have received on a timely appeal had R(A) 1/02 applied to it. But this is because there was no appeal from the 1995 decision, and the request for review was made only in December 2000. While I recognise the strength of feeling of the claimant and her  representative, I cannot agree that there is any absurdity or gross injustice in this case. The rule criticised in such a strong way was, in fact, more generous in this case than the general rule in the primary legislation. 

								David Williams
								Commissioner

								25 March 2003
[Signed on the original on the date shown]