CDLA/2033/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Southend-on-Sea appeal tribunal dated 24 November 2000.

REASONS

2.	I directed an oral hearing of the appeal.  The claimant neither appeared nor was represented.  The Secretary of State was represented by Mr Jeremy Johnson of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  I am grateful to Mr Johnson for his helpful submissions.

3.	The claimant has been entitled to the higher rate of the mobility component of disability living allowance since 1995 and no-one has suggested that that entitlement should not continue.  What is in issue in this case is her entitlement to the care component.  She applied for the care component on 23 June 1999.  On 20 November 1999, she was awarded the lowest rate of the care component from 5 July 1999 (a month before a completed claim back was received).  On 10 December 1999, she asked for “reconsideration”.  As that request was made within a month of the original decision, it was treated as a request for revision under regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  On 2 February 1999, the Disability Benefits Unit received form DBD138 completed by the claimant.  On 1 March 2000, the Secretary of State refused to revise the decision of 20 November 1999.  Notice of that decision was not sent to the claimant until 21 March 2000.   On 10 April 2000, the claimant appealed.

4.	The appeal was heard on 24 November 2000.  The claimant did not attend but she was represented by her carer.  The tribunal dismissed the appeal.  In a decision which looks as though it was based on a proforma and was dictated, the chairman said:

“8.	Upon the basis of the evidence before it the Tribunal found the following facts:

a)	The appellant is 45 years of age.
b)	The Date of claim is 5 July 1999.
c)	The disabilities diagnosed were osteoarthritis, fibromyalgia, agoraphobia, panic attacks, obesity, spondylosis.

9.	Higher rate Mobility already awarded.

a)	Night attention or watching over.
b)	Attention during the night with sometimes getting in and out of bed.
c)	Watching over to avoid falling when she goes to the toilet.
d)	Frequent day attention or continual supervision during the day.
e)	Washing and bathing.
f)	Getting dressed and undressed with halts.
g)	Supervision to prevent falling downstairs and with self medication because of panic attacks.
h)	Attentions for a significant portion of the day.  The facts found for day attention apply equally to the lowest rate of care.  Claimant already has this.

10.	The conclusion of the Tribunal was therefore that on the facts found and applying the appropriate law the claimant had not proved night attention or supervision, day attention or supervision and therefore the Tribunal must reject the appeal.

11.	In reaching this conclusion on the evidence the Tribunal accepted the evidence of the visiting doctor because the appellant because the paper evidence could not be tested as to [the carer’s] evidence it is not supported by current medical evidence and the Examining Medical Practitioner report does not support it, there is no medical evidence from the claimant.  There is some supervision required but not continual during the day and watching over at night is not prolonged or at frequent intervals.  The attention needed at night and during the day is adequately represented by the lower rate of care.  There was no substantial danger proven in connection with supervision.  The conflict between the medical evidence and the appellant was resolved in favour of the doctor because it was an objective examination.”

5.	The claimant appeals with my leave.  In the application for leave to appeal, it was contended that the tribunal erred in considering that night-time attention could be covered in an award of the lowest rate of the care component, that there had been a breach of natural justice because, if they considered medical evidence to be necessary, the tribunal should have obtained a medical report and that the tribunal’s reasoning was obscure, particularly as regards paragraph 9(a) to (h).

6.	In the light of R(DLA) 8/02, the first ground of appeal appears a good one as a strict matter of law but it does not help the claimant because the tribunal found that the claimant did not satisfy the conditions of section 72(1)(c) of the Social Security Contributions and Benefits Act 1992 in respect of night-time requirements.  The second ground is not a good one because the tribunal had the examining medical practitioner’s report and I do not consider that there was any obligation on them to obtain further medical evidence.  They were entitled to give greater weight to that report, as the objective opinion of a doctor, than to the carer’s evidence and to comment that they might have taken a different view had the claimant’s case been supported by medical evidence.  The claimant had had ample time to get medical evidence and no request had been made for an adjournment to obtain such evidence.  There is also force in the Secretary of States submission that a further report from the claimant’s doctor or occupational therapist would have been helpful only insofar as it threw light on the claimant’s condition before the relevant decision of the Secretary of State.

7.	However, this takes me to the reason for directing the oral hearing in this case.  Section 12(8)(b) of the Social Security Act 1998 precludes a tribunal from taking “into account any circumstances not obtaining at the time when the decision appealed against was made”.  What was the date of the relevant decision ?  In the present case, the original decision was made on 20 November 1999 and a further decision was given on 1 March 2000.  As the decision given on 1 March 2000 was plainly in terms of revision under section 9 of the 1998 Act rather than supersession under section 10 of that Act, I accept that the appeal was against the decision of 20 November 1999 rather than the decision of 1 March 2000.  This is because there is no right of appeal under section 12 against a decision under section 9.  Instead, the time for appealing against the decision of 20 November 1999 was extended in consequence of the decision given on 1 March 2000 (regulation 31(2) of the Social Security (Decisions and Appeals) Regulations 1999).

8.	This seems to me to reveal a lacuna in the legislation.  The two procedures of revision and supersession introduced by the Social Security Act 1998 replace a single procedure known as “review” (see Part II of the Social Security Administration Act 1992, re-enacting provisions some of which were in turn derived from legislation that came into effect in 1948).  As it is not always easy to determine whether revision or supersession is appropriate, cases are put to a decision-maker for “reconsideration”.  That is a non-statutory term that is presumably designed to allow the decision-maker to make whichever type of decision is appropriate.  This approach seems entirely sensible, or at least it would be if decision-makers then gave decisions that were worded so as clearly to be decisions under either section 9 or section 10 or both.  In the present case, further evidence was provided, in the shape of form DBD138, between 20 November 1999 and 1 March 2000.  A later medical report might also have indicated a change of circumstances between those dates.  If the decision-maker had considered that that evidence showed a change of circumstances which could not have been anticipated on 20 November 1999, arising between that date and 1 March 2000, he or she could have refused to revise the decision of 20 November 1999 but would have been able to supersede that decision (with effect from a date usually determined by the date when the evidence of the change of circumstances was submitted).

9.	However, unless the Secretary of State issues a decision which can be interpreted as both a revision or refusal to revise under section 9 and a supersession under section 10, that flexibility is lost on appeal.  In the present case, as Mr Johnson submitted, the decision given on 1 March 2000 cannot be interpreted as a supersession and therefore there was no decision given on that day that could be the subject of an appeal upon which the tribunal could itself give a supersession decision (see CCS/901/02 and CDLA/2733/02).   Given the terms of section 12(8)(b), I do not see how a tribunal considering an appeal against a decision given on 1 November 1999 could give a supersession decision that should have been given on 1 March 2000.  It is not quite so clear that a tribunal considering an appeal against a supersession decision cannot give a revision decision that should have been given, although there have been suggestions, strictly obiter, that that is not possible (CDLA/4977/01, CSIS/1298/01).  Whatever its precise extent, this loss of flexibility seems highly undesirable.  When there is an appeal following a “reconsideration”, a tribunal should be able to give any decision the Secretary of State could have done when “reconsidering” the original decision.  I hope that those responsible for the legislation will consider a suitable amendment.  As it is, replacing the single concept of review with the two concepts of revision and supersession has complicated, rather than simplified, the procedures.  The best the tribunal could have done was suggest that the Secretary of State treat the form DBD138 as a request for supersession with the possibility of a further hearing before a tribunal some weeks later.

10.	Mr Johnson submitted that the Secretary of State was right not to consider supersession because the form DBD138 did not suggest a change of circumstances.  That may be correct because the form was broadly consistent with the form completed in August 1999, but I suggest that I should have the power to decide whether or not it is correct and to rectify the error if there should have been a supersession decision.  The form certainly asserted that circumstances were not as the examining medical practitioner had found them to be and so could have been taken as an application for supersession even if supersession was then at the same rate.

11.	I turn, then, to the final ground of appeal, which challenges the adequacy of the tribunal’s reasons.  The statement of reasons certainly leaves a considerable amount to be desired and one wonders whether the chairman read it before signing it.  On the other hand, it is plain that the tribunal broadly accepted the evidence of the examining medical practitioner and so reading into the statement of reasons the examining medical practitioner’s report supplies most of the detail missing from the statement.  (The Secretary of State has ascertained that the medically qualified member of the tribunal has not himself worked as an examining medical practitioner so that the problem identified in CSDLA/1019/99 does not arise in this case.)  There were two particular elements to the claimant’s case in which the examining medical practitioner’s report was challenged.  One was that the only toilet was upstairs and it was said that the claimant required assistance going up the stairs in case she fell.  The examining medical practitioner had said that the recent installation of rails on both sides of the stairs had overcome that problem but that view was specifically challenged on the appeal.  The tribunal were told that the claimant had stumbled and fallen against her carer while on the stairs since the rails had been installed.  Secondly, there was a specific challenge to the examining medical practitioner’s view that the claimant did not need attention at night, although it appears that the claimant at some time acquired a commode.
12.	It seems to me that the tribunal accepted that the claimant did have the requirements she identified but not to the extent that she satisfied the conditions of sections 72(1)(b) or (c).  The mystery of paragraph 9 is unravelled if it is assumed that the decision was dictated and that the words “Higher rate Mobility Component”, “Night attention or watching over”, “Frequent attention or continual supervision during the day” and “Attention for a significant portion of the day” were intended to be headings with the other words the findings under each of those headings.  It then becomes clear that the tribunal accepted that the claimant “sometimes” needed help at night but not repeatedly or for prolonged periods and that they accepted that she required supervision on the stairs but not continual supervision throughout the day and not frequent attention.  (The carer’s evidence did not suggest that the claimant required “attention” when on the stairs, except on the rare occasions when she stumbled.)  In my view, those were findings the tribunal were entitled to make on the evidence before them and the tribunal’s reasons are sufficient to show that they had in mind the correct legal tests.
13.	Accordingly, I am not satisfied that the tribunal’s decision is erroneous in point of law.  Mr Johnson told me that the award of disability living allowance had been superseded in 2001, so as to remove the care component from 26 September 2001, but that an appeal had been allowed on 7 March 2002, so as to reinstate the care component at the lowest rate.  Although not relevant to the question whether the tribunal sitting on 24 November 2000 erred in point of law, the decision given on 7 March 2002 does tend to suggest that the tribunal sitting on 24 November 2000 were correct on the facts to decide that the appropriate rate of the care component was the lowest rate, rather than the middle or highest rate.

(signed)	MARK ROWLAND
Commissioner
1 November 2002