[2005] UKSSCSC CDLA_4099_2004 (03 August 2005)

CDLA/4099/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Bolton appeal tribunal dated 29 July 2004.

REASONS

2.	The claimant is blind and, on 28 June 1992, was awarded the lower rate of the mobility component and the lowest rate of the care component of disability living allowance with effect from 27 April 1992.  On 19 December 2003, she submitted a form DLA434 headed “Looking at your claim for Disability Living Allowance again”.  That was treated as an application for supersession, effective from the date on which it was received by virtue of section 10(5) of the Social Security Act 1998 but the Secretary of State refused to supersede the existing award.  The claimant appealed and, on 29 July 2004, the Bolton appeal tribunal allowed the appeal and found the claimant to be entitled to the lower rate of the mobility component and the middle rate of the care component of disability living allowance with effect from 19 December 2003.

3.	Following receipt of the decision, the claimant’s representative, Ms Polly Guest of Bolton Welfare Rights Service, wrote to the Disability Benefits Unit, requesting a revision under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 of the award of disability living allowance, with effect from 21 April 1994, when judgment was given in Mallinson v. Secretary of State for Social Security [1994] 1 W.L.R.630 (also reported as R(A) 3/94), on the ground that there had been an official error in the original award by the adjudication officer.  The Disability Benefits Unit wrote back on 7 September 2004 and advised Ms Guest that the appropriate course of action was to apply for leave to appeal to a Commissioner against the decision of the tribunal.  On 9 September 2004, Ms Guest duly wrote to the clerk to the appeal tribunal to request a statement of the tribunal’s reasons for its decision.  That request was received on 13 September 2004 and was refused on the ground that it was late but the district chairman gave Ms Guest 21 days in which to advance grounds upon which the new award could have been back-dated and to persuade her to reconsider her decision.  In a letter dated 8 October 2004, Ms Guest argued that the claimant’s actual needs for attention and supervision had not changed since 1992 but that the interpretation of the law had changed with Mallinson.  She said that there was no evidence that the Secretary of State had made any attempt to review or revise the award of benefit after Mallinson, despite a Departmental trawl of cases that might be potentially affected.  The district chairman took the view, presumably with R(IS) 15/04 in mind, that revision was a matter for the Secretary of State rather than the tribunal and therefore, having reconsidered on 19 October 2004 her earlier decision that a statement of reasons should not be provided, did not alter that decision.  Meanwhile, on 13 October 2004, the Disability Benefits Unit wrote back to say that the claimant had asked the tribunal to backdate the new award in the light of Mallinson and that the tribunal must be taken to have considered the argument and rejected it.  In those circumstances, it was said that the tribunal’s decision governed entitlement before 19 December 2003 and the Secretary of State had no power to revise any decision.  When the claimant applied for leave to appeal, I granted leave, commenting that the appeal appeared to have little prospect of success but that the question of the tribunal’s jurisdiction needed to be resolved so that it could be determined whether the Disability Benefits Unit’s view of the effect of the tribunal’s decision was correct.

4.	In his clear written submission, Mr David Scholefield for the Secretary of State concedes that the tribunal did have jurisdiction in principle to consider a revision of the award but submits that revision under regulation 3(5)(a) of the 1999 Regulations on account of the decision in Mallinson could not have been appropriate because the definition of “official error” in regulation 1(3) expressly excludes “any error of law which is shown to have been an error by virtue of a subsequent decision of a Commissioner or the court”.  Despite the inappropriate use of the definite article, the context requires that the House of Lords fall within the scope of the term “court” and so Mr Scholefield is clearly right that revision under regulation 3(5)(a) would not have been appropriate on the grounds advanced by Ms Guest.  Mr Scholefield also submits that any failure by the Department to identify the claimant’s case as one warranting review or supersession also cannot give grounds for revision on the ground of “official error”, because revision under regulation 3(5)(a) is justified only where the decision being revised “arose from an official error”.  Again, I agree with him.  Mr Scolefield’s final point in respect of revision is that there was no evidence before the tribunal to justify revision.  Yet again, I agree.

5.	The only point in Mr Scolefield’s analysis of the tribunal’s powers in respect of revision upon which I have some doubt is his concession that the tribunal had jurisdiction to consider revision at all in this case.  There is no appeal against a revision decision as such but, where a decision is revised or there is a refusal to revise under regulation 3(1) or (3), the time for appealing against the original decision is extended under regulation 31(2).  However, where there is a refusal to revise under any paragraph of regulation 3 other than paragraphs (1) and (3), the time for appealing is not extended and there will be no right of appeal if more than thirteen months have elapsed since the decision that the claimant wishes to have revised.  In those circumstances, it was held in R(IS) 15/04 that, where the Secretary of State superseded a decision given more than thirteen months earlier but declined to revise it, a tribunal was not entitled to substitute for the supersession a decision in terms of revision.  The Court of Appeal has confirmed the correctness of that decision (Beltekian v. Westminster City Council [2004] EWCA Civ 1784 (reported as R(H) 8/05)).  However, at the end of paragraph 78 of R(IS) 15/04, the Tribunal of Commissioners said –

“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.”

That sentence was obiter and it is not entirely clear to me why the Tribunal thought that an appeal tribunal would have jurisdiction to consider revision on an appeal against a decision given in terms of supersession in circumstances where it would have no had such power had an adverse decision in terms of revision been given by the Secretary of State, although I equally fail to see why regulation 31(2) extends the time for appealing where there is a decision to revise under regulation 3(5)(a) (with which a claimant might not be entirely satisfied) but not where there is a refusal to revise under that provision.  Happily, I need not resolve these difficulties because, for the reasons I have given, no question of revision arises on this appeal.

6.	Instead, as Mr Scholefield points out, the claimant’s argument based on Mallinson fell to be dealt with by way of supersession under regulation 6(2)(b) on the ground that the original award was erroneous in point of law, in which case regulation 7 would come into play.  Regulation 7(1)(b) and (6) provides –

“(1)	This regulation –
	(a)	…; and
(b)	contains exceptions to the provisions of section 10(5) as to the date from which a decision under section 10 which supersedes an earlier decision is to take effect.
…
(6)	Any decision made under section 10 in consequence of a decision which is a relevant determination for the purposes of section 27 shall take effect as from the date of the relevant determination.”

Section 27 of the 1998 Act provides that, where a decision of a court such as Mallinson has the effect that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law, any claim, revision or supersession in a different case must, insofar as it relates to a period before the decision of the court, be determined as though the adjudicating authority’s decision had not been found to be erroneous in point of law.  Regulation 7(6) is the counterpart of section 27.  The overall effect of the two provisions is that the application of the rule of law established by the court is made prospective instead of being retrospective which is more usual but any subsequent supersession based on the court’s decision is made effective from the date of the court’s decision.  Thus, if the tribunal did accept that the claimant’s circumstances had not changed and that the original award had been wrong in the light of Mallinson, it should have accepted Ms Guest’s submission that the new award should be effective from 21 April 1994.

7.	Mr Scholefield, however, submits that, in the absence of any statement of reasons for the tribunal’s decision, it is impossible to tell whether the tribunal did supersede the original award on the basis that it was erroneous in point of law in the light of Mallinson, or whether it superseded the decision on the ground ignorance of, or mistake as to, a material fact or on the ground of change of circumstances.  The last suggestion seems unlikely but is not altogether fanciful because the Secretary of State had found there to be a change of circumstances although not one justifying an enhanced award.  Error of law or error of fact seem more likely grounds but, in any event, I agree with Mr Scholefield that it is impossible to discern the ground of supersession from the tribunal’s decision and, as the date from which the tribunal held the supersession was effective would have been the correct date had the ground been error of fact or change of circumstances if the change occurred more than a month before the application, it is impossible to find any error of law on the face of the tribunal’s decision.

8.	Finally, Mr Scholefield argues that, as Mallinson was referred to before the tribunal, the tribunal had a duty to determine whether the claimant was entitled to disability living allowance from 21 April 1994 to 18 December 2003 and must be assumed to have decided that the claimant was not so entitled with the consequence that the Secretary of State is not now entitled to award benefit in respect of that period unless there are grounds for supersession of the tribunal’s decision.  Error of law is not a ground for supersession of a tribunal’s decision.  Ms Guest, however, submits that Mallinson was relied upon in the submission to the tribunal only because it was relevant to the claimant’s entitlement to benefit from 19 December 2003 and that it was always intended to pursue the question of arrears with the Department after the hearing.  She understood the Department’s presenting officer to agree that that was the appropriate course.  On that analysis, the question of entitlement to benefit before 19 December 2003 was not before the tribunal and it remains open to the Secretary of State to supersede the decision of 28 June 1992 on the ground of error of law, because that part of that decision was not affected by the tribunal’s decision (Chief Adjudication Officer v. Eggleton (reported as R(IS) 23/95).

9.	There is much to be said for each of those submissions and, for reasons I shall explain, I do not consider that on the facts of this particular case it matters very much whether I accept the central part of Mr Scholefield’s analysis or the central part of Ms Guest’s analysis.  However, again on the facts of the case, I prefer Ms Guest’s analysis.

10.	There is no doubt that the tribunal had the power to consider the claimant’s entitlement to benefit in respect of the period from 21 April 1994 to 18 December 2003.  The crucial difference between the respective submissions of Mr Scholefield and Ms Guest is whether the tribunal was under a duty to do so.  I accept that the reference to Mallinson in Ms Guest’s submission to the tribunal was capable of raising the issue of entitlement in respect of that period, in the light of regulation 7(6), but I also accept that she did not expressly raise it and that Mallinson was in any event relevant to the tribunal’s determination whatever the ground of supersession.

11.	Section 12(8)(a) of the 1998 Act provides that a tribunal “need not consider any issue that is not raised by the appeal”.  Generally, an issue implicitly raised by the material before a tribunal is considered to be “raised by the appeal”, but that approach seems to me largely to be justified by the fact that, generally, a failure of a tribunal to deal with an issue leaves the claimant with no other way of having it fully dealt with because there are few circumstances in which supersessions can be retrospective.  In the present case, where the question whether Mallinson by itself justified a supersession on the ground of error of law can still be dealt with by way of supersession, it seems to me that the tribunal was not obliged to deal with it when it was not expressly raised as an issue before the tribunal and the evidence did not inevitably lead to the conclusion that the original award should have been superseded on that ground.  The contrary approach would prevent the parties before a tribunal and the tribunal itself agreeing that a fresh application for supersession would be a more appropriate way of dealing with a particular case and that loss of flexibility would be undesirable and contrary to the apparent purpose of section 12(8)(a).

12.	If there was no duty to deal with the question of entitlement to benefit before 19 December 2003, then the inference to be drawn from the tribunal not making any reference to a decision in respect of entitlement before 19 December 2003 is that the claimant tribunal did not address the question.  Consequently the question can be addressed on an application for supersession.  There is no challenge to the decision in respect of the period from 19 December 2003 and accordingly I dismiss this appeal.

13.	The reason why it would not make much difference in this particular case if I accepted Mr Scholefield’s submission is that, if the tribunal was under a duty to consider entitlement before 19 December 2003 I would set aside its decision on the ground of a failure to provide reasons.  It is true that the duty to provide a statement of reasons arises only if the request for the statement is made within time or time is extended and that in this case the request was late and time was not extended.  However, it is clear that, for good and proper reasons relating to Ms Guest’s correspondence with the Disability Benefits Unit, the district chairman would have extended time had she been persuaded that the claimant had any arguable ground for having the decision of the tribunal backdated and had she not thought that the question of entitlement to benefit before 19 December 2003 could be dealt with subsequently be way of an application for revision.  She was wrong on the first point because her attention was not drawn to regulation 7(6) and she was wrong on the second point because, if the tribunal had been under a duty to consider entitlement to benefit before 19 December 2003, I would accept Mr Scholefield’s submission that the tribunal should be presumed to have considered that issue so that no subsequent supersession of the adjudication officer’s original award would have been possible and, of course, there were no grounds for revision.  The question whether time should be extended is a matter for the discretion of the legally qualified panel member considering it but where a refusal to extend time is clearly based only on an error of law and where it is too late for it to be a remedied by giving the chairman of the tribunal an opportunity to provide a statement of reasons, the tribunal’s decision must be regarded as being erroneous in point of law on the ground that the duty to give reasons has been breached.  Therefore, had I accepted Mr Scholefield’s principal submission, the claimant would have had the opportunity to seek benefit in respect of the period before 19 December 2003 on a rehearing before a tribunal, although the question of her entitlement from that date would also have been in issue.  I would have referred the matter to a tribunal because I have received no detailed submissions as to whether supersession on the ground of error of law is really justified.

14.	In those circumstances, it is would also be inappropriate for me to express any concluded view as to whether any application for supersession in respect of the period from 21 April 1994 to 18 December 2003 really has any prospects of success in the light of the evidence in this case.  However, as the applicant, the claimant must show not only that the decision was wrong but also that it is more probable that it was wrong due to the adjudicating officer taking a view of the law shown in Mallinson to be erroneous, than that it was wrong due to some other error of law or ignorance of, or a mistake as to, a material fact.  That is no easy task.

	(signed on the original)	MARK ROWLAND
		Commissioner
		3 August 2005