THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIB/501/03

SOCIAL SECURITY ACT 1998

APPEAL FROM THE GLASGOW APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER:  SIR CRISPIN AGNEW OF LOCHNAW BT QC

Appellant: John Dewar				          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  U/05/095/2002/00790

DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1.	I hold that the tribunal erred in law.  I therefore allow the appeal and hold that the Secretary of State was not entitled to supersede the award of incapacity benefit now a “transitional award of long-term incapacity benefit” under Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  I remit the case to the Secretary of State for such further reconsideration, as he considers appropriate.

Issues

2.	The sole issue in this appeal is whether or not the Secretary of State was entitled to treat an award of invalidity benefit from 25 July 1990 as an award of incapacity benefit and so susceptible to supersession under Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The legislation

3.	The relevant legislation includes:

3.1	Section 10 of the Social Security Act 1998, which provides:

“10(1) … the following, namely-
(a) any decision of the Secretary of State …
(b) … may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.
…
(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.
…”

3.2	Regulation 17 of the Social Security (Incapacity Benefit)(Transitional) Regulations 1995 provides:

“17(1) Where a person is entitled to invalidity benefit immediately before the appointed day, that award of invalidity benefit shall have effect on or after the appointed day as if it were an award of long-term incapacity benefit; and such an award shall be referred to in these Regulations as a transitional award of long-term incapacity benefit.
(2) Subject to the provisions of Part VI, a person’s entitlement to a transitional award of long-term incapacity benefit shall be subject to him being incapable of work as determined in accordance with Part XIIA of the 1992 Act (Incapacity for Work)
…”.

3.3	The Social Security and Child Support (Decisions and Appeals) Regulations 1999 provide:

“6(2) A decision under section 10 may be made on the Secretary of State’s or the Board’s own initiative or on an application made for the purpose on the basis that the decision to be superseded-
…
(g) 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; and
(h) …

7A (1) For the purposes of regulations … 6(2)(g) … -

“incapacity benefit decision” means a decision to award a relevant benefit or relevant credit embodied in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA of the Contributions and Benefits Act,””

The Tribunal’s determination

4.	The tribunal set out the argument and its decision on this point in the Statement of Reasons as follows:

“At the outset of the appeal the appellant’s representative took issue with the adjudication process in the appellant’s claim.  She pointed out that the decision superseded by the decision maker on 14 April 2002 had been stated to be one made on 25 July 1990 by which decision the appellant had been awarded Invalidity Benefit.  The representative’s submission was that the Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the DMA) Regulations) could not be used as a ground on which to supersede such a decision as said regulation related only to Incapacity Benefit decisions.  As the decision to be superseded had been an Invalidity Benefit decision regulation 6(2)(g) could not be used as a ground to supersede it.  She submitted that the decision under appeal was accordingly invalid.  The Secretary of State had earlier been given an opportunity to respond to this submission and submitted that the Invalidity Benefit decision made in 1990, by virtue of Regulation 17 of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (the IB Transitional Regulations), should be treated as an Incapacity Benefit decision for the purpose of the DMA Regulations.  The representative disagreed with the Department’s response but did not expand this.”

Having set out the statutory provisions the tribunal continued:

“An “Incapacity benefit decision ” is defined in Regulation 7A of the DMA Regulations which states “incapacity benefit decision” means a decision to award a relevant benefit [or relevant credit] embodies in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA Contributions and Benefits Act.”

The tribunal rejected the primary submission of the representative.  It was satisfied that the decision awarding invalidity benefit of 25 July 1990 was to be treated as an incapacity benefit decision by virtue of the IB Transitional Regulations, Regulation 17(1) which reads – “Where a person is entitled to invalidity benefit immediately before the appointed day, that award of invalidity benefit shall have effect on or after the appointed day as if it were an award of long-term incapacity benefit.”  Regulation 17(2) provides “Subject to the provisions in Part VI, a person’s entitlement to a transitional award of long-term incapacity benefit shall be subject to him being incapable of work as determined in accordance with part XIIA of the 1992 Act (Incapacity for Work).  The appointed day was 13 April 1995.  Part VI of the IB Transitional Regulations provided for exemptions from the need to satisfy the Personal Capability Assessment in certain prescribed circumstances.  The appellant did not satisfy the criteria for exemption.”

Appeal to the Commissioner

5.	The claimant appealed to the Commissioner on the following ground:

“The tribunal rejects the primary submission on the basis that “the decision awarding invalidity benefit of 25 July 1990 was to be treated as an incapacity benefit decision by virtue of the IB Transitional Regulations, Regulation 17(1)   ”.  The tribunal then reiterates the terms of Regulation 17(1) and (2).  The department, at page 77, had made a similarly bald statement the “Regulation 17 provides for Invalidity Benefit to be regarded as an award of Incapacity Benefit.”  The tribunal provides insufficient reasons for this statement.

Regulation 17(1) provides than an award of long-term invalidity benefit “shall have the effect. as if it were an award of long-term incapacity benefit.”  It does not have the effect of transforming decisions made several years prior to the existence of Incapacity Benefit into incapacity benefit decisions.  An invalidity benefit decision made on 25 July 1990 does not become an incapacity benefit decision by the operation of Regulation 17(1) and is not therefore open to supersession under Regulation 6(2)(g) of the DMA Regulations.”

6.	The Secretary of State did not support the appeal and submitted:

 “Secretary of State’s submission

I submit that the third page of the statement of reasons [page 133] shows that the tribunal fully considered the claimant’s primary grounds of appeal and explained why it rejected them.  The statement quotes regulation 17(1) of the Incapacity Benefit Transitional regulations which says that “Where a person is entitled to invalidity benefit immediately before the appointed day, that award of invalidity benefit shall have effect on or after the appointed day if it were an award of long-term incapacity benefit.”  What does it mean by saying that the IVB award “shall have effect … … … as if it were an award of long-term incapacity benefit”?  It must mean that an award of IVB, as far as Social Security legislation is concerned, will perform as if it were an award of IB and so, effectively, be an award of IB.  Since an award of IB is an award of a “relevant benefit”, as defined in Section 8(3) of the Social Security Act 1998, an award of IVB must also, effectively, be an award of a relevant benefit.  This means that it must effectively come within the definition of an “incapacity benefit decision” in regulation 7A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and must therefore effectively be open to supersession under regulation 6(2)(g).”

7.	The claimant’s representative responded:

“Comments ON THE Secretary of State’S SUBMISSION 

In the penultimate paragraph of the submission, the Secretary of State argues that “taken to its logical extreme, the claimant’s representative’s argument would mean that it was impossible ever to change or end an award of ivb, since sections 9 and 10 of the Social Security Act could never be applied to them.”  This conclusion is based either on a misinterpretation of my argument or a misunderstanding of the law: clearly there are various potential bases for revision or supersession within Regulations 3 and 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  My argument relates only to Regulation 6(2)(g) of the same regulations.  This, of course, was the part of Regulation 6 relied on by the department in the appellant’s case as providing grounds for supersession.

	The Secretary of State’s statement suggests he believes that Regulation 6(2)(g) provides the only route to revising or superseding an invalidity benefit decision.  This is not the case.
	Regulation 6(2)(g) allows for a supersession on the basis that the decision to be superseded,
		“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,”

	“Incapacity benefit decision” is defined in Regulation 7A of the same regulations:
		“incapacity benefit decision” means a decision to award a relevant benefit or relevant credit embodies in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA of the Contributions and Benefits Act”

	Part XIIA of the Contributions and Benefits Act 1992 was inserted by the Social Security (Incapacity for Work) Act 1994 ss.5 and 6 with effect from 13 April 1995.

	The decision of 25/7/90 to award invalidity benefit cannot be construed as an incapacity benefit decision under the above definition.  Regulation 17 of the Social Security (Incapacity Benefit)(Transitional) Regulations 1995 does not alter that decision: it remains an invalidity benefit decision.  Regulation 17 affects the ongoing award, not the decision to award.  It has no retrospective application and therefore cannot bring a decision made in 1990 within the scope of a definition which relies upon part XIIA of the Contributions and Benefits Act 1992 (effective from 13 April 1995).”

Reasons for my decision

8.	I agree that “shall have effect” in Regulation 17(1) of the Transitional Regulations means that the award falls to be treated “as if it were an award of long-term incapacity benefit”.  However, it is only to “have effect” as, but it is not to “become”, incapacity benefit.  I also consider that the provision in Regulation 17(2) is important in that it provides that “person’s entitlement to a transitional award … shall be subject to him being incapable of work”.  If the award is subject to the claimant continuing to be incapable of work, then the decision must be capable of being changed [to use a neutral word] if the claimant becomes capable of work under Part XIIA of the 1992 Act.  The question is whether this change can be effected under Regulation 6(2)(g).

9.	The Transitional Regulations calls the award “a transitional award of long-term incapacity benefit” and provides that it shall be referred to as such in those Regulations.  It does not specify how they are to be referred to in other Regulations.  Regulation 6 of the 1999 Regulations refers to an “incapacity benefit decision”, a term which is defined in Regulation 7A.

10.	The critical point in this case is the definition of “incapacity benefit decision”, because Regulation 6(2)(g) relates only to such a decision.  The definition relates to “a decision to award a relevant benefit” and one, which is “embodied in or necessary to which is a determination that a person is or is to be treated as incapable of work under Part XIIA”.  I agree with the submission for the claimant, that the decision to award, what is now called “a transitional award of long-term incapacity benefit” to the claimant in 1990 cannot be “a decision to award a relevant benefit … which is a determination … under Part XIIA”.  Any determination in 1990 could not have been a determination under Part XIIA which came into effect in April 1995.  I also consider that the “take effect” does not convert the 1990 decision into an incapacity decision, because it relates only to the continuing effect and not to a change into the new benefit.

11.	I have considered whether or not the words “a decision to award” could be construed to include a decision to continue an award or a decision to stop an award, which would now be made under Part XIIA by virtue of Regulation 17(2).  I consider that “to award” must be read in its normal sense and relate only to a decision to make an award.  The award in this case was made in 1990.

12.	For those reasons I hold that the tribunal erred in law on this preliminary point.  The Secretary of State’s decision was founded on a supersession under Regulation 6(2)(g).  As this Regulation cannot be used in these circumstances the Secretary of State’s decision cannot stand, so the case must go back to him for re-consideration.

					(Signed)
					Sir Crispin Agnew of Lochnaw Bt QC
					Deputy Commissioner
					Date:  21 January 2004