[2005] UKSSCSC CSDLA_765_2004 (10 March 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/765/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  D J MAY QC

Appellant:	 Respondent:  Secretary of State
Tribunal:	Edinburgh     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the appeal tribunal given at Edinburgh on 13 September 2004 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a rehearing.

2.	The claimant has appealed to the Commissioner against the decision of the tribunal which refused the claimant’s appeal against the decision of the decision maker and found that the claimant was entitled to the care component at the lowest rate only with effect from 29 September 1997 for an indefinite period upon the basis of satisfaction of the cooked main meal condition.  The claimant had been in receipt of such an award by virtue of a decision of the 29 January 1998.  The decision appealed against to the tribunal is recorded at page 135 and 137.  That was a decision which decided not to supersede the decision of 29 January 1998.  The reasons given for the decision at page 137 appear to have considered only the merits of whether the claimant satisfied the conditions for the allowance.  That was also the approach of the tribunal in its findings of fact and reasons at pages 154 and 155.

3.	In granting the claimant leave to appeal I directed the Secretary of State to make a submission as to whether the tribunal erred in law by considering the merits of whether the claimant satisfied any of the conditions for the allowance without first being satisfied as to whether there were grounds to supersede the existing award.

4.	The response to that submission was as follows:

“I submit that in a case like this involving an application for supersession on the grounds of a change of circumstances, the correct approach is firstly to determine entitlement and then to identify grounds for supersession if the findings on entitlement so justify.  I submit that authority for such an approach is contained in paragraphs 13 and 14 of CDLA/4507/03 and paragraphs 6 and 7 of CDLA/1934/04.

The tribunal made findings of fact and gave reasons about substantive entitlement to DLA.  They do not, however, apart from a brief mention in the opening paragraph of the statement, suggest that their findings showed whether or not there were grounds to supersede.  However, by confirming the existing award of DLA, I submit that the tribunal was confirming the decision makers (sic) decision not to supersede and was effectively finding that there was (sic) no grounds for supersession.  I submit that the tribunal’s failure to state that in explicit terms does not amount to an error of law.

I submit that, if the Commissioner rejects that argument, I invite him to take the approach adopted by the Tribunal of Commissioners in R (IB) 2/04 and perfect it by substituting his own decision to the effect that there are no grounds to supersede.

I submit that the tribunal, from the evidence available and having regard to the claimant’s oral evidence, made adequate findings and gave sufficient reason in respect of the claimant’s entitlement to DLA”. 

5.	The claimant’s representative was given an opportunity to respond to that submission but has not done so.

6.	I do not accept the Secretary of State’s submission that the tribunal in approaching the case in the manner did not err in law.

7.	There seems to me generally to be in relation to the approach to the alteration of what are final decisions, a somewhat cavalier attitude.  Section 17(1) of the Social Security Act 1998 provides that subject to the provisions of the chapter of the Act in which the section is placed, any decision made in accordance with these provisions shall be final.  These provisions followed the now repealed provisions of section 60 of the Social Security Administration Act 1992 which they replaced.  In a decision by a Tribunal of Commissioners in R(IS) 2/97 it was said in the appendix to that decision that such decisions are made final and indisputable by section 60 subject to the provisions in the 1992 Act for appeal and review.  There is no doubt that the same principles apply under the new scheme contained in the 1998 Act whereby supersession and revision replaced review.  In this case as the decision of 29 January 1998 had not been altered by appeal, and there was no apparent basis for revision, it could only be altered if there was a statutory basis for supersession of the type set out in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  This is of crucial importance for without a basis for superseding it, it could not be altered by a fresh determination relating to the merits of the case.  Further what is involved is not an exercise in looking at the merits of the case afresh and if only the conditions originally satisfied are still satisfied, simply inferring that there are no grounds to supersede.

8.	In these circumstances I consider that it is incumbent upon me to deal with what Mr Commissioner Jacobs said in the cases cited in the Secretary of State’s submission.  In the latter case, what Mr Commissioner Jacobs said was:

“6.	However, there is a ore important flaw in the representative’s argument on supersession.  The ground for supersession was that there had been a change of circumstances.  That was a practical approach, which is often taken even if there may be a suspicion in some cases that the claimant was never entitled to the award.  In order to decide whether there had been a change of circumstances, the tribunal had to investigate the facts and decide on the nature and extent of the claimant’s entitlement.  Until that had been done, the tribunal could not decide whether there had been a change of circumstances.  In other words, the supersession is undertaken after the fact-finding stage.

7.	Some argue, even I believe some Commissioners, that there is a two stage process in which grounds are first established and the facts then investigated.  That approach may be appropriate for some grounds of supersession.  Regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 on new medical evidence in incapacity cases is a clear example.  The approach may also be appropriate in some cases when supersession is being consider by a decision-maker and investigations are ongoing.  However, that is no the case of a change of circumstances supersession when the decision has been take by the decision-maker.  When the case comes before an appeal tribunal, the decision has already been made and all but the oral evidence will be available before the hearing.  All that remains is for the tribunal to receive the oral evidence.  In those circumstances, it is unrealistic to impose a two stage process.  The practical, convenient and sensible approach is to proceed as I set out in the previous paragraph”.

9.	Unlike him I take the view there are two clear stages both of which involve the finding of facts.  There is also a clear order to these stages.  Supersession in terms of section 10 of the Social Security Act 1998 is dependent upon one of the statutory conditions for it set out in regulation 6 being satisfied.  Only when grounds for supersession are established can the merits of whether the conditions for satisfaction of the allowance be considered.  To reverse the order undermines the integrity of the legislation.  Mr Commissioner Jacobs suggests that for the purposes of determining whether there has been a change of circumstances in terms of regulation 6(2)(a) a tribunal has to investigate the facts and decide on the nature and extent of the claimant’s entitlement before it can decide whether the statutory condition has been satisfied.  If what he means by that is the claimant’s entitlement at the date of the decision appealed against to the tribunal that would allow for a fresh view on the merits prior to grounds for supersession being established.  This is contrary to the purposes of the statutory scheme which is intended to limit and restrict the circumstances in which a final decision can be altered.  The fact that a tribunal might determine that none of the conditions are satisfied for entitlement or different conditions to those contained in the awarding condition are satisfied, may simply mean that a different view on the merits has been taken rather than any change of circumstances.  

10.	Thus the approach of the tribunal in the instant case in determining that the claimant satisfied the condition upon which the original award was made does not imply that the tribunal had regard to regulation 6 in making its determination.  On the face of it, it is nothing more than a fresh determination on the merits which is not something which is statutorily permitted without grounds for supersession having been established.

11.	In these circumstances I find that their decisions errs in law.  Having determined that the tribunal err in law I set it aside.  I am not in a position as a matter of fact to determine whether any of the grounds for supersession are satisfied, and if they are what the effect of such grounds would be.  Accordingly the case is remitted to a freshly constituted tribunal for a rehearing.

12.	That tribunal is required to approach the issue of supersession as set out by me above.  I underline that before they can consider the merits as to whether any of the conditions for the allowance are satisfied they must have satisfied themselves that there are grounds to supersede and do so.  I also direct them that if the consider that grounds for supersession are established, they should identify these grounds in the decision notice.

13.	The claimant has raise unrelated matters in related to the constitution of the tribunal and the merits.  It is not I think desirable for me, having dealt with the appeal in the manner I have, to deal with these in detail.  I should perhaps note that I am not impressed with the ground of appeal  in respect of the constitution of the tribunal at page 171.  This ground was only added at a late stage and I am rather inclined to accept what was said by the district chairman in his paragraph 6 of the memorandum he prepared in response to the direction of the Legal Officer to the Commissioner of 21 January 2005.  It may well be for the avoidance of any subsequent challenge to the constitution of the tribunal who are now to hear the case if the chairman were to raise with the representatives of the claimant whether they have any submissions to make on the constitution of the tribunal at the outset.  The other grounds of appeal are related to the merits.  The claimant will be able to make such submissions as he sees fit before the freshly constituted tribunal.  Clearly however the merits will only be reached if the tribunal are satisfied that there are grounds for supersession made out.

14.	The appeal succeeds.

(Signed)
D J MAY QC
Commissioner
Date:  10 March 2005