[2005] UKSSCSC CDLA_1707_2005 (20 December 2005)

CDLA/1707/2005 and CDLA/1708/2005

DECISION OF THE DEPUTY SOCIAL SECURITY COMMISSIONER
1.	For the reasons given below the appeals of the claimant from the decisions of the tribunal of 9th February 2005 succeed.  My decisions and directions are set out in at 10 and 11 below.  
2.	The claimant is a woman now aged 51 who suffered from chronic fatigue syndrome (ME), fibromyalgia, neuralgia, asthma, depression, high blood pressure, and various allergies.  The appeals relate to disability living allowance (‘DLA’).  Both the care and the mobility components of DLA were in issue although, for the reasons set out below, in this decision I deal in detail only with the mobility component.
3.	The background to this appeal is as follows:
(1)	The claimant made a claim for DLA on 28th February 2003.  In form DLA434 she indicated that she could walk 20 yards in one minute before she had to stop due to severe pain.
(2)	The report of the examining medical practitioner dated 29th March 2003 assessed the claimant’s walking ability before the onset of severe discomfort as 50 metres in 4 minutes at a slow pace with one halt after two minutes for 20 seconds due to pain and shortness of breath – gait and balance were assessed as normal (form DLA140 at pages 53 to 54 of the papers before me)
(3)	By a decision made on 8th April 2003 the claimant was awarded the care component of DLA at the lowest rate from 17th January 2003 to 16th January 2005.  There was no award of the mobility component.  The decision-maker gave as grounds for the decision not to award the mobility component that:
‘[The claimant] can walk slowly 50m. in 4 mins. with a halt for 20 sec. but with a normal gait and balance.’
(form DBD43 at page 72 of the bundle).
(4)	Form DLA434 was received by the Department on 10th March 2004.  This was treated as a request for a supersession of the decision of 8th April 2003 on the grounds of a change of circumstances as the claimant had indicated that her condition had worsened since the initial award was made.  In this form the claimant assessed her walking ability as 10 meters in 30 seconds before needing a rest but stated that she was in severe pain whilst walking this distance (see page 97 of the bundle).  The date of the request is accepted by the Department as being 5th February 2004 (see the decision-maker’s supplementary submission dated 16th December 2004 at page 1B of the bundle relating to CDLA/1708/2005).
(5)	There was a request by the claimant (who was then unrepresented) that the Department ‘look again’ at the mobility and care components.  This request was made on form DBD420 dated 6th March 2004 which accompanied the form DLA434 received by the Department on 10th March and gave as the reason for the request the change in her ME condition since she made the original claim in February 2003.  She also referred to a visit to her consultant physician on 17th February 2004 about the worsening of her ME.  
(6)	On 18th May 2004 a medical report was obtained from the claimant’s consultant physician.  The consultant who had last seen the claimant on 17th February 2004 gave no assessment of the claimant’s walking ability but stated that the claimant would fatigue easily prohibiting her from sustained exercise (see page 127 of the bundle).
(7)	On 29th June 2004 the decision-maker made a decision not to supersede the decision of 8th April 2003.  In relation to the claim for the mobility component the grounds given were that :
… ‘evidence from the consultant indicates that [the claimant] is able to walk a reasonable distance taking care not to exert herself and taking her time lower limb function is normal.’
(form DBD810 at page 131 of the bundle).
(8)	The claimant appealed against the decision of 29th June 2004 on 20th July 2004.  I will refer to this as the First Appeal.  
(9)	The decision of 29th June 2004 not to supersede the earlier decision was reconsidered on 7th September 2004 but was not changed.
(10)	A DLA renewal claim was received on 13th August 2004.  In the claim form the claimant indicated that she could walk 10 metres in 30 seconds but that she would feel severe discomfort whilst doing so.
(11)	On 7th September 2004 the decision-maker decided to award the lowest rate of the care component from 17th January 2005 to 16th January 2007 but made no award of the mobility component on the grounds that:
‘[The claimant] has some problems walking but has normal upper and lower limb function and she does not have any muscle wasting.  Although she fatigues easily which prevents sustained exercise I consider that that [the claimant’s] walking capability is not so restricted that she can be considered to be unable or virtually unable to walk.’
(see page 178 of the bundle relating to CDLA/1708/05)
(12)	The claimant’s consultant physician wrote to the Department on 8th September in the following terms:
‘It is quite clear from our correspondence and from [a second consultant’s] review on 24th August that there has been a significant worsening of her symptonotology over the past six months since I saw her myself on 17th February 2004’.
(13)	The claimant was not represented until 9th November 2004 and until then appears to have been acting on her own behalf.  
(14)	On 16th November 2004 the claimant appealed against the decision of 7th September.  I will refer to this as the Second Appeal.  The Second Appeal was made late but the Department admitted the appeal by fax dated 19th November 2004.
(15)	The decision of 7th September was reconsidered but not changed on 14th December 2004.
(16)	On 9th February 2005 the tribunal heard the First Appeal and the Second Appeal at the same hearing.  The claimant attended and was represented.  The Secretary of State was not represented.  
(17)	Written submissions made to the tribunal on behalf of the claimant are at pages 189 to 200 of the bundle and these raised the following points:
(i)	In relation to the First Appeal, the decision of 8th April 2003 should be superseded either:
(a)	with effect from 5th February 2004 on the grounds of an error of law pursuant to regulation 6(2)(b)(i) Social Security and Child Support (Decisions and Appeals) Regulations 1999 in that the only reasonable conclusion which could be drawn from the facts that the decision-maker had found as to the claimant’s walking ability was that she was virtually unable to walk; or 
(b)	on the grounds of a relevant change of circumstances pursuant to regulation 6(2)(a)(i) Social Security and Child Support (Decisions and Appeals) Regulations 1999 in that the claimant’s ability to walk had deteriorated at some time between 17th February and 24th August 2004; 
and the evidence before the tribunal supported an award of the highest rate of the care component from 5th February 2004 to 16th January 2005.
(ii)	In relation to the Second Appeal, the decision of 7th September 2004 should be superseded on the grounds that the evidence supported an award of the higher rate of the mobility component and the highest rate of the care component.
(18)	The tribunal’s decision on the First Appeal was to revise the decision of 29th June 2004 so as to supersede the decision of 8th April 2003 and award the claimant the higher rate of the mobility component from 5th February 2004 to 16th January 2005.  In relation to the Second Appeal the tribunal revised the decision of 7th September 2004 so as to award the claimant the higher rate of the mobility component from 17th January 2005 to 16th January 2007.  The tribunal confirmed entitlement to the lowest rate of the care component in both the First and the Second Appeal.
(19)	The claimant appeals against the decisions of the tribunal of 9th February 2005 with the leave of a Commissioner.
4.	The grounds of the claimant’s appeal are set out in the document attached to form OSSC1 dated 19th May 2005 (see pages 263 to 271 of the bundle) and can be summarised as follows:
(1)	In dealing with the care component in relation to the First and the Second Appeal, the tribunal erred in law in that it did not explain how it came to the conclusion that the claimant did not satisfy the test set out in section 72(1)(c) Social Security Contributions and Benefits Act 1992 when there was evidence before it that reassurance at night from another person would help the claimant to sleep better.
I agree that this ground is well founded and for this reason the tribunal’s decision is wrong in law.
(2)	In respect of the First Appeal only, the tribunal erred in law in that it failed to consider whether the decision made on 8th April 2003 could be revised on the grounds of official error.
5.	The Secretary of State in the submission to me dated 12th July 2005 supports both appeals on the first ground but does not support the First Appeal on the second ground.
6.	The case came before me for an oral hearing on 18th October 2005.  Mr Martin Williams, an Appeals Representative with the London Advice Services Alliance, represented the claimant.  Mr Wilson represented the Secretary of State. I am grateful to them both for their helpful submissions as well as their skeleton arguments.  Argument at the oral hearing dealt only with the ground of appeal identified in 4(2) above.
7.	The case for the claimant in relation to the First Appeal was, in essence, as follows (in relation to the mobility component only):
(1)	The decision made by the decision-maker on 8th April 2003 not to award the mobility component of DLA was a decision which was, on the facts that decision-maker had found as to the claimant’s walking ability, beyond the bounds of reasonable judgement and was therefore erroneous in law.
(2)	The error of law identified in (1) above meant that the decision of 8th April 2003 arose from an ‘official error’ within the meaning of regulation 1 Social Security and Child Support (Decisions and Appeals) Regulations 1999 because it was it was an error made by an officer of the Department acting as such which had not been contributed to or caused by anyone outside the Department.  That decision could therefore be revised at any time by the Secretary of State (section 9 Social Security Act 1998 and regulation 3(5) Social Security and Child Support (Decisions and Appeals) Regulations 1999).
(3)	Where the Secretary of State has not considered whether to revise a decision on the grounds of official error the tribunal has the jurisdiction to do so (R(IB)2/04 and CDLA/1821/2003).
(4)	The tribunal could not supersede a decision which could be revised (regulation 6(3) Social Security and Child Support (Decisions and Appeals) Regulations 1999) therefore either:
(i)	the tribunal should have considered whether it should revise the decision of 8th April 2003 before superseding it and in not so doing made a mistake of law; or
(ii)	the tribunal by implication decided that the decision of 8th April 2003 was not outside the bounds of reasonable judgement and in so doing erred in law.
8.	The arguments on behalf of the Secretary of State were as follows:
(1)	The tribunal was not under an obligation to revise a decision on the grounds of official error where that issue had not been raised either before it or with the original decision-maker.  
This argument was based on section 12(8)(a) Social Security Act 1998 which provided that:
‘In deciding an appeal under this section, an appeal tribunal – 
(a)	need not consider any issue that is not raised by the appeal;’
and on the absence of a provision replacing the repealed section 36 Social Security Administration Act 1992 which was in the following terms:
‘(1)	Where a question which but for this section would fall to be determined by an adjudication officer first arises in the course of an appeal to a social security appeal tribunal, a disability appeal tribunal or a Commissioner, the tribunal, subject to subsection (2) below, or the Commissioner may, if they or he think fit, proceed to determine the question notwithstanding that it has not been considered by an adjudication officer.
(2)	A social security appeal tribunal may not determine a question by virtue of subsection (1) above if an appeal in relation to such a question would have lain to a disability appeal tribunal.’
The argument based on the repeal and non-replacement of section 36 falls away as the Tribunal of Commissioners in R(IB)2/04 concluded that on appeal the appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim and has power to consider any issue and make any decision on the claim which the decision maker could have considered and made (paragraph 25).  This conclusion was not affected by the absence in the Social Security Act 1988 of an equivalent to section 36 (R(IB)2/04 paragraphs 27 to 30).  
I deal with the Secretary of State’s remaining argument under this head (based on section 12(8)(a)) in 9(4) below.
(2)	In any event, there was no right of appeal against a failure by the Secretary of State to revise a decision on the grounds of official error, even in a case where the Secretary of State had not considered the matter.
(3)	Any error of law made by the decision-maker in relation to the decision of 8th April 2003 was not an ‘official error’ for the purposes of regulation 3(5)(a) Social Security and Child Support (Decisions and Appeals) Regulations 1999.
(4)	There was no error by the decision-maker in coming to the decision of 8th April 2003 as the decision-maker was acting within the margin of appreciation identified by Commissioner Rowland in CDLA/717/98 in applying the test set out in the legislation to the facts before him and came to the conclusion that the claimant was not entitled to the mobility component.
9.	Dealing with each of the points raised in turn and, for convenience, in the order they were raised by the claimant’s representative:
(1)	Was the decision of 8th April 2003 wrong in law?
In order to be entitled to an award of the mobility component of DLA at the higher rate a claimant must satisfy the conditions of section 73(1) Social Security Contributions and Benefits Act 1992.  So far as is relevant to the present case section 73(1) reads as follows:
‘73(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period … throughout which— 
(a)	he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; 
…
(5) … circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in (1)(a) … above.’
The Social Security (Disability Living Allowance) Regulations 1991 set out the prescribed circumstances for the purposes of section 73(1)(a) in the following terms (so far as is relevant here):
‘12—(1) A person is to be taken to satisfy the conditions mentioned in section 73 (1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances— 
(a)	his physical condition as a whole is such that …
…
(ii)	his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk;’
The test of virtual inability to walk set out in regulation 12 has four elements – distance travelled, speed, length of time and manner - which are to be measured up to the point at which severe discomfort is experienced by the claimant.  Guidance has been given on the application of the test in CDLA/608/94 (italics supplied):
‘14.  It is impossible to lay down a priori rules for such questions as the distance a person must be found to walk without severe discomfort before he ceases to count as "virtually unable" to walk, since so much depends on the circumstances and physical state of each particular claimant.  However it has been said that what "virtually unable to walk" means is a question of law (R(M) 1/78 para 11), and some general guidance can be gleaned from the reported decisions.  In the absence of any special indications from the other three factors, if a claimant is unable to cover more than 25 or 30 yards without suffering severe discomfort, his ability to walk is not "appreciable" or "significant"; while if the distance is more than 80 or 100 yards, he is unlikely to count as "virtually unable to walk" as those words have generally been interpreted in s.73 and reg. 12.  In the difficult ground in between, I for my part find helpful the approach of the Commissioner in case CM 379/89 at para 13, where he said that mobility allowance (as it was then) was never designed to - and does not - embrace those who can walk 60 or 70 yards without severe discomfort.  In such a case, therefore, there would have to be some other factor such as extreme slowness or difficulty because of the manner of moving forward on foot before a claimant would count as "virtually unable".’
In reaching the decision of 8th April 2003 not to award the mobility component the decision-maker adopted the evidence of the examining medical practitioner who in a report dated 29th March 2003 had assessed the claimant’s walking ability before the onset of severe discomfort as 50 metres in 4 minutes at a slow pace with one halt after two minutes for 20 seconds due to pain and shortness of breath – gait and balance were assessed as normal (form DLA140 at pages 53 to 54 of the bundle).  This evidence can be broken down as follows in relation to the four elements of the statutory test:
Distance travelled: 50 metres
Speed: slow
Length of time: total of 3.8 minutes of walking with 20 seconds of rest after 2 minutes
Manner: normal gait and balance
The Secretary of State’s representative argued that the decision based on this evidence that the claimant was not virtually unable to walk was one which was neither perverse nor unreasonable as the decision was objective and was within the ‘margin of appreciation’ available to the decision-maker.  
In CDLA/717/1998 Commissioner Rowland referred to the margin of appreciation in the following terms (italics supplied):
‘it is not for a Commissioner to attempt to lay down a precise formula for determining whether or not a claimant is unable to walk when the legislation does not do so.  The legislation allows adjudication officers and tribunals a margin of appreciation.  It is possible that not every tribunal would have reached the conclusion that someone with the present claimant’s limited walking ability was not virtually unable to walk.  I do not consider that a tribunal concluding that the claimant was virtually unable to walk would have erred in law but, equally, I can detect no error of law in the present tribunal’s decision.  The question whether the claimant was virtually unable to walk was a matter for the judgement of the tribunal and, this being something of a borderline case, they were entitled to decide it either way provided they had regard to the relevant factors.’
The claimant in CDLA/717/1998 could walk a total distance of 100 yards in five to six minutes with four rests.  
In my view this case is not borderline and therefore does not fall within the margin of appreciation.  The Department’s own guidelines state that normal walking speed is about 6 km an hour.  This means that it would normally take around a minute to walk 90-100 metres.  In coming to the conclusion that the claimant who walked around eight times slower than normal and could walk only 50 metres before experiencing severe discomfort (having had a 20 second stop after two minutes of walking) was not virtually unable to walk the decision-maker was not acting within the bounds of reasonable judgement.  The decision of 8th April 2003 was therefore wrong in law.
(2)	Did the decision of 8th April 2003 arise from an ‘official error’
An error of law can give rise to an official error which is a ground for revision under regulation 3(5) Social Security and Child Support (Decisions and Appeals) Regulations 1999.  Error of law is also a ground for supersession of a decision under regulation 6(2)(b) of the same regulations.
The definition of official error in regulation 1 Social Security and Child Support (Decisions and Appeals) Regulations 1999 excludes errors of law which are only shown to be errors by virtue of a subsequent decision of a Commissioner or a court.  Also excluded are errors caused by or contributed to by anyone outside the Department.  
The Secretary of State argued that the claimant and/or the claimant’s representative contributed to the error in that neither of them raised the question of whether the decision could be revised until after the tribunal hearing.  I do not agree with this argument.  The error of 8th April could not be ‘caused by’ or ‘contributed to’ by anything which happened (or did not happen) subsequently.  The decision-maker who was an officer of the Department acting as such  made an error of law on which he based his decision in relation to the mobility component - the decision of 8th April therefore arose from an official error.
(3)	Did the tribunal have jurisdiction to revise the decision of 8th April 2003 if the Secretary of State had not considered whether to do so?
In my view the tribunal did have such jurisdiction.  
In R(IB)2/04 the Tribunal of Commissioners concluded (at paragraph 191):
‘On an appeal against a decision under section 10 superseding or refusing to supersede an original decision, if it finds that the original decision ought to have been revised, the appeal tribunal has jurisdiction to make a decision under section 9 revising the original decision.  …The appeal tribunal is entitled (subject in particular to section 12(8)(b) of the 1998 Act) to substitute the decision which it considers the Secretary of State should have made…’
The Tribunal of Commissioners in R(IS)15/04 at paragraph 78 decided:
‘However, in the present case the appeal tribunal had before it an appeal against a section 10 decision in circumstances in which there had been an express refusal to revise by the Secretary of State which (as we have held) was not capable of being appealed, and which by section 17 of the 1998 Act was “final”.  It seems to us that, in those circumstances, if an appeal tribunal were permitted to substitute a revision decision for the supersession decision, that would in effect be to permit by the back door what is not permitted by the front door, namely an appeal against the refusal to revise.  This is another instance where an express statutory limitation on the powers of an appeal tribunal cuts into the general principle set out in paragraph 55 of CIB/4751/2002 and others (see paragraph 12 of that decision).  We do not therefore consider that, in dealing with the appeal against the supersession decision, the tribunal was entitled to consider whether the decision of 20 February 1998 should have been revised for official error.  It would have been a different matter if the Secretary of State had not made a decision (whether express or implied) on the issue of revision for official error.’
The Commissioner in CDLA/1821/2003 considered the decisions of the Tribunal of Commissioners in R(IB)2/04 and R(IS)15/04 in relation to this point and concluded (at paragraph 5)
‘There can be no appeal against a decision of the Secretary of State not to revise an earlier decision on the grounds of official error under regulation 3(5)(a).  … However, it would appear from the reasoning of those decisions that a tribunal can, and in appropriate cases should, consider whether there has been an official error when the Secretary of State has not decided the point.  Further, there is no time limit on such consideration.’
It seems to me that the position can be summarised as follows:
(i)	A decision of the Secretary of State which arose from official error can be revised by him at any time (regulation 3(5) Social Security and Child Support (Decisions and Appeals) Regulations 1999);
(ii)	A claimant is entitled to apply for revision on the ground of official error and entitled to have the original decision revised if, owing to an official error, that decision was less favourable to him than it should have been – in other words, the Secretary of State does not have a discretion to revise or not to revise for official error (R(IS)15/04 at paragraph 39 and see (4) below);
(iii)	A decision under section 9 Social Security Act 1988 Act to revise or not to revise is not appealable; the only decision which can be appealed is the original decision as either revised or not revised (R(IS)15/04 at paragraph 17; Beltekian v. Westminster City Council [2004] EWCA Civ 1784);
(iv)	If the time limit for appealing the original decision in relation to which revision is sought has passed (bearing in mind that the provisions of regulation 31(2) Social Security and Child Support (Decisions and Appeals) Regulations 1999 which extend the time limit within which an appeal can be brought do not apply to an application for revision under regulation 3(5) with the result that an appeal cannot be made more that 13 months after the date of the original decision) the only way of challenging a decision to revise or not to revise on the grounds of official error is an application for judicial review;
(v)	Where there has been no decision on the question of revision for official error the tribunal has jurisdiction to consider the question (R(IB)2/04 at the final sentence of paragraph 78).
Mr Wilson on behalf of the Secretary of State invited me to disregard the views in relation to (v) above expressed by the Tribunal of Commissioners in R(IB)2/04 on the grounds that they were obiter dicta and therefore not binding on me.  Mr Williams is correct in his legal analysis – those words are obiter however I adopt them in deciding this case as they are a correct statement of the legal position.  In coming to this conclusion I am mindful of the doubt cast on the Tribunal of Commissioners’ view by Commissioner Rowland in CDLA/4099/1999 (at the end of paragraph 5).
(4)	Should the tribunal have considered the question of whether the decision of 8th April 2003 could have been revised before superseding it?
Regulation 6(3) Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides that, subject to certain exceptions which are not relevant here, a decision which may be revised under regulation 3 may not be superseded.  The Tribunal of Commissioners in R(IS)15/04 at paragraph 39(3) decided that:
‘Regulation 6(3) only makes sense, in our view, on the footing that, if the claimant establishes that the original decision was wrong owing to an official error, he is entitled to have the decision revised (not superseded).’
In CDLA/1821/2003 Commissioner Williams expressed the following view (at paragraph 5 – italics supplied):
‘Read with regulation 3(5) and CIB 4751 2003, the effect of regulation 6(3) means that a tribunal must, if the point is in issue before it or if it identifies the point as significant, consider any revision necessary to correct an official error in a decision before it, subject to the parties being given the necessary notice.’
The Secretary of State’s representative argued, relying on section 12(8)(a) Social Security Act 1998, that the tribunal was not obliged to consider whether the decision of 8th April 2003 could be revised on the grounds of official error because that was not an issue ‘raised by the appeal’.  
In R(IB)2/04 the Tribunal of Commissioners, adopting the reasoning of Commissioner Jacobs in CH/1229/2002, concluded that ‘raised by the appeal’ in section 12(8)(a) was to be interpreted as meaning actually raised at or before the hearing by at least one of the parties to the proceedings.  In my view an issue can be raised by an appeal without being formally pleaded.  
The claimant’s representative in his submissions to me accepted that he had not raised the question of revision on the grounds of official error in terms but, in my view, all the necessary elements were before the tribunal.  Until 9th November 2004 the claimant was not represented.  In R(I)50/56 the Commissioner made the point that:
‘… claimants may well fail to appreciate the appropriate legal procedure by which their rights ought to be protected and it is essential that the determining authorities should not defeat a meritorious claim by a legal technicality.  ‘
The question of whether the decision of 8th April resulted from an error of law had been raised by the claimant’s representative in his submissions to the tribunal (see pages 192 to 194 of the bundle).  The tribunal did not address this point, deciding to supersede the decision with effect from 5th February 2004.  
Regulation 7(2)(a) Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides that a decision superseding an earlier decision on the grounds of a change of circumstances takes effect from the date that the change occurred provided that the superseding decision is advantageous to the claimant and that the change in circumstances has been notified to the Department within one month of the change.  Section 73(9)(a)(ii) Social Security Contributions and Benefits Act prevents an award of the mobility component of DLA unless the claimant has satisfied one of the conditions in section 73(1) throughout the period of three months immediately preceding the date on which the award would begin.  
The tribunal made no specific findings of fact as to the four factors to be taken into account in deciding whether a claimant was virtually unable to walk and there is nothing in the written record of proceedings in relation to this matter.  Its reasoning was as follows (italics supplied):
‘…In March 2003 the visiting doctor had given his opinion that she would be able to walk 50 metres slowly with one brief halt before the onset of severe discomfort.  Although it was found at that time that this did not represent a virtual inability to walk as required by the Social Security (Disability Living Allowance) Regulations 1991, it certainly represented a significant restriction in walking ability at that stage.  Given that [the claimant’s] symptoms have been slowly worsening since then, and taking into account her own evidence, we found that by the time of the application for supersession [the claimant’s] tolerance to exercise would have decreased and she would have satisfied the conditions for an award of the higher rate of the mobility component.’
(see Statement of Material Facts and Reasons for the Tribunal’s Decision at paragraph 5 – page 233 of the bundle)
The tribunal did not find that the claimant had satisfied the conditions for the three-month period ending on the date of the application for supersession and without such a finding the supersession of the decision of 8th April 2003 so as to award the higher rate of the mobility component with effect from 5th February 2004 was wrong in law.
If the decision of 8th April 2003 had been superseded on the grounds that it was erroneous in law the superseding decision would have taken effect from the date of the application for supersession, 5th February 2004, pursuant to the provisions of section 10(5) Social Security Act 1998.  A decision to revise the decision of 8th April 2003 would have had a different outcome for the claimant as that decision would have taken effect from 8th April 2003 not 5th February 2004.  The question of whether there could be revision on the grounds of official error should have been considered by the tribunal and it was not.  For this reason the tribunal’s decision in relation to the First Appeal is wrong in law.  
10.	For the reasons set out in 4(1) above the decision of the tribunal in relation to the First Appeal is wrong in law and I set it aside.  
As I can do so without making any further findings of fact I make the decision which I consider should have been made by the tribunal in relation to the mobility component of DLA which is that the decision of 8th April 2003 was a decision which arose from an official error and that that decision be revised to award the claimant the mobility component of DLA at the higher rate with effect from 17th January 2003 to 16th January 2005.  Any amount of DLA already paid to the claimant shall be treated as paid on account of the DLA awarded by me.  
I remit the First Appeal in relation to the care component only, to be reheard by a differently constituted appeal tribunal which should, in particular, consider and make appropriate findings of fact on the question of whether the claimant was so severely disabled by her mental disability that soothing her during the night could amount to attention in connection with the bodily function of sleeping.  The new tribunal should, in accordance with the decision of the Court of Appeal in Aparau v. Iceland Frozen Foods Plc (No.2) consider only those matters in relation to the First Appeal which I have remitted to it.
11.	For the reason set out in 4(1) above the decision of the tribunal in relation to the Second Appeal is wrong in law and I set it aside. I substitute my own decision in relation to mobility component and award the claimant mobility component at the higher rate from 17th January 2005 to 16th January 2007. I remit the matter in relation to the care component only to be reheard by the same appeal tribunal as that which rehears the remitted First Appeal and, in rehearing the Second Appeal, the new tribunal should take into account what I have said in relation to the rehearing of the First Appeal.

	(signed on the original)
Ann Humphrey
		Deputy Commissioner
                 1st November 2005
(Corrected on 20th December 2005)

Commissioner’s Case No: CDLA/1707/2005 and CDLA/1708/2005
[the above text incorporates the corrections made by the Commissioner in the determination set out below]
SOCIAL SECURITY ACT 1998
APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE DEPUTY SOCIAL SECURITY COMMISSIONER – CORRECTION

In terms of regulation 30 of the Social Security Commissioners (Procedure) Regulations 1999, I hereby make the following corrections to the Decision dated 1st November 2005:
1.	in paragraph 11, after “…and I set it aside”, insert “I substitute my own decision in relation to mobility component and award the claimant mobility component at the higher rate from 17th January 2005 to 16th January 2007.”

		(signed)

Ann Humphrey
Deputy Commissioner
Date: 20th December 2005