DECISION OF THE SOCIAL SECURITY COMMISSIONER

Case Reference: CDLA 3759 2001 / CDLA 4075 2001

1	I allow the appeals.

2	The appellant is appealing, with permission of a Commissioner, against two decisions of the Wigan appeal tribunal taken together on 12 June 2001. Appeal CDLA 3759 2001 concerns the appeal from tribunal decision 4 06 079 2001 00627. The tribunal’s decision in that case was that the appellant was not entitled to either component of disability living allowance from and including 11 December 2000 to 5 April 2001. Appeal CDLA 4075 2001 concerns the appeal from tribunal decision U 06 079 2001 00628. The tribunal's decision in that case was that the appellant was not entitled to either component of disability living allowance from and including 6 April 2001. 

3	For the reasons given below, those decisions are erroneous in law. I therefore set them aside. It is expedient that I replace them with the decisions that the tribunal should have made. These are:

CDLA 3795 2001
The appeal is allowed. The decision of the Secretary of State of 11 February 2000 superseding the previous award of the higher rate of the mobility component and lowest rate of the care component to the appellant is set aside.

CDLA 4075 2001
The appeal is allowed. The appellant is entitled to the higher rate of the mobility component and lowest rate of the care component from and including 6 April 2001 to 14 June 2001.
 
For the avoidance of doubt, the effect of these two decisions is to make the award of the higher rate of the mobility component and lowest rate of the care component continuous from before 10 February 2000 until after 15 June 2001 (those being the levels of award in payment on those two dates in any event without these decisions). 

4	I held an oral hearing of these cases at the request of the appellant. She attended with her son but was not represented. However, she made a submission on which she had been advised by a citizen's advice bureau. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Office of the Solicitor to the Department for Work and Pensions.

Background to the appeal 

5	The appellant had been paid the higher rate of the mobility component and the lowest rate of the care component of disability living allowance from and including 8 April 1992 to 5 April 2001. She made a renewal claim for the allowance with effect from 6 April 2001. On receipt of the application, the Department asked the appellant’s general practitioner for information about her, and this was given on 28 November 2000.
       
6	Besides the claim form submitted in support of the renewal application, the appeal papers also contain an application for review of entitlement in 1996, and a report from the general practitioner in February 1997. This led to a decision in February 1997 reviewing but not revising the care component of the benefit. The appellant objected to this. Further medical advice was obtained from the general practitioner in May 1997, and a further decision was taken in July 1997 reviewing but not revising the February 1997 decision. This was then appealed and the appeal was listed but adjourned in October 1997 and January 1998. An examining medical practitioner report was obtained in March 1998 dealing with both mobility and care. It confirmed limited mobility and also need for some help with personal care. The application is also supported by a letter from the appellant’s consultant dated 18 March 1998. There is also a further claim form submitted in February 1998 and a further general practitioner report in February 1998. This was followed by a further decision by way of renewal of entitlement from 6. 4. 1998 to 5. 4. 2001 at the higher rate of the mobility component and lowest rate of the care component. The award of the lowest rate of the care component was confirmed by an appeal tribunal on 23 July 1998.  The application for supersession was made on 11 December 2000. It fails to make any reference to the dates of the decisions being superseded. Nor does the decision on that application. 

The tribunal decision

7	The tribunal decision makes no mention of the long history of review and reconsideration of the appellant’s claims for disability living allowance or of the regular receipt of medical evidence from her general practitioner and others about the case. In particular, it failed to deal at all with the question whether it was right to supersede in November 2000 the decision of the appeal tribunal made in July 1998.

8	Both in the written submissions on the appeal and in the oral submission to me, those representing the Secretary of State contended that the tribunal decision was adequate notwithstanding this failure. They relied on decision CDLA 1820 1998. In that decision the Commissioner records that awards by adjudication officers were often not accompanied by any findings of fact made, so making it very difficult to consider if there was any error of fact or change of circumstances. He also recognises the practical difficulties of a tribunal asked to deal in detail with the issue of review in such a case. I agree that there will be cases of supersession as well as of review where that approach is the best, and often the only, practical approach to the difficulties of reconsidering an old unappealed decision with inadequate records where there is clear current evidence calling a benefit entitlement into question. But that is far removed from this case.

9	I am frankly surprised to hear it argued that the reasoning of CDLA 1820 1998 should be applied here. There are in the papers for these two appeals no less than 180 pages of history about previous decisions, including several medical opinions from several doctors. That of itself is more than enough to render the approach in CDLA 1820 1998 both unnecessary and wrong. But, further, neither of the decisions being considered for supersession is old or unreasoned. One is a recent tribunal decision of which this tribunal had a full record. That also makes the approach in CDLA 1820 1998 wrong here.  

10	Considering if there should have been a supersession for either change of circumstances or mistake or ignorance as to fact in a case like this is a matter of substance, not form. It is not a mere matter of words. On the contrary, the decision under appeal is one in a series of fully documented reviews. The chance of there being some material error or ignorance of fact in the original decision that survived previous reviews is slight and cannot be assumed. None has been identified. The only possible ground for supersession is a change of circumstances since the last operative review. What circumstances changed since the tribunal decision in 1998, and when did they change? Given the appellant’s chronic and serious medical conditions, of which there is repeated medical evidence over a period of years, it is not obvious that any relevant circumstances have changed between 1998 and 2000. They cannot be assumed to have occurred. It was therefore incumbent on the tribunal to deal expressly with that issue. It did not, and its decision must be set aside. I must also set aside the decision about the renewal claim. Failure to deal adequately with the first of the decisions must mean that the second decision is also unsafe, as the two decisions were taken together.
    
My decisions

11	I indicated at the oral hearing that I had not then decided whether I would allow these appeals. But I also indicated that if I were allow them, I considered it expedient to take the decision that the tribunal should have taken rather than refer the matter to a further tribunal. Both parties were content that I should take this course of action.

12	The appellant told me at the oral hearing, and Mr James confirmed, that she had been paid severe disablement allowance throughout the period in question, and that she had been reawarded the higher rate of the mobility component and lowest rate of the care component of disability living allowance from and including 15 June 2001. In January 2002 her entitlement to disability living allowance was increased to the highest rate of the care component because of her worsening condition. The period under consideration is therefore 11 December 2000 (when the award of higher rate of the mobility component and lowest rate of the care component was stopped) to 14 June 2001. The re-award of disability living allowance on 15 June 2001 at the rates stated has a further importance. For the re-award to have been made, the Secretary of State had to be satisfied that the appellant met the required levels of disablement for at least three months before the date of award. In other words, the period in which it is currently contended that any improvement in the appellant’s circumstances applied, and then ceased to apply, is the period from December 2000 to April 2001.  Given the chronic nature of the conditions from which the appellant suffered both before and after that short period, there has to be clear evidence that there was some short-term change of circumstances to justify this break in the appellant’s benefit entitlement.

13	The reason given by the officer for superseding the previous award was:
	“[The claimant] is fully mobile but has difficulty walking when she has an acute exacerbation. She is currently fairly stable on present medication and as such is not unable to walk. She needs no supervision or guidance whilst out of doors. She does not need any help with her person care either during the day or night is able to self-medicate and there is no risk of falls. Benefit stopped from 11/12/00 as she could not be expected to know she was not entitled.”
Those reasons do not deal with the award of lowest rate of the care component at all. The appellant was given the lowest rate of the care component for the “cooking test” because of the combined effect of her main problems with the arthritis in her hands. I see no evidence persuading me that on the balance of probabilities those problems, which are inherently long term problems, improved between the confirmation by the tribunal in September 1998 that they existed and the unexplained stop to this element of her allowance in December 2000. The Secretary of state has not established, or even identified, a basis to supersede the award of the lowest rate of the care component.

14	I turn to the higher rate of the mobility component. The evidence used by the Secretary of State was the report of the general practitioner in November 2000. This contained three relevant pieces of information: that the appellant was fully mobile out of doors unless she had an acute exacerbation; that her exercise tolerance was limited to a few yards if she has an exacerbation; and that she last had an acute exacerbation causing hospitalisation two weeks before the date on which the general practitioner issued the report. Those three pieces of information are inconsistent. There is an obvious ambiguity between “exacerbation” and “acute exacerbation”. An exacerbation must be acute if it causes the appellant to have to go to hospital, and I assume also that her practical walking ability at those times was nil. It is also clear that acute exacerbations are not mere speculation. What about less acute exacerbations? In 1998 the same general practitioner stated in another report in the papers that the appellant had fairly frequent exacerbations day and night, and that the effects were severe. That report also contains the opinion that between exacerbations the appellant had no difficulty walking. I read that as indicating that the general practitioner’s opinion had not materially altered from 1998 to 2000, and nor had his patient’s condition. There is a lack of clarity about the extent of exacerbations in the 2000 report. But reading the 1998 and 2000 reports together, I see no evidence of a material change of circumstances about walking ability between 1998 and 2000. On both occasions the appellant’s ability to walk varied as her condition varied, and her condition was prone to vary severely at any time. And on both occasions her condition was such that she could be, and was, rendered virtually unable to walk by that condition. 

15	My conclusion is that the Secretary of State has not established that there was any ground for superseding the previous award of the higher rate of the mobility component and lowest rate of the care component of the allowance in December 2000, and that the supersession decision should be set aside. It follows that at the date of renewal the previous award was still in place. I see nothing in the evidence to stop the renewal decision being made. On the contrary, the Secretary of State has accepted that the appellant met the conditions a few days after the date of renewal by making a further award within three months of that date. I therefore also make a renewal decision. It is, however, superseded by a later decision to the same effect from June 2001. 

									David Williams
									Commissioner

									18 April 2002
[Signed on the original on the date shown]