[2005] UKSSCSC CSDLA_791_2004 (27 January 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/791/04

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:  Stirling			Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Stirling on 6 August 2004 is erroneous upon a point of law.  I set it aside.  I remit the case to a freshly constituted appeal tribunal for a re-hearing.

2.	The claimant has appealed to the Commissioner against the corrected decision of the tribunal, which is recorded at page 175, with the correction recorded in the statement of reasons at page 176.  That decision allowed the claimant’s appeal against the Secretary of State’s decision and found her entitled to the care component at the lower [sic] rate only with effect from 8 August 2003 for an indefinite period.  The tribunal found that the claimant did not meet the statutory conditions for an award of the mobility component.  

3.	The claimant’s grounds of appeal are set out at page 191.  The Secretary of State does not support the appeal, as can be seen from his submission at pages 222 – 226.  The claimant has responded to the Secretary of State’s submission at pages 227 – 228.  

4.	I am satisfied that the tribunal’s decision errs in law and must be set aside.  I do so on different grounds to those advanced in the grounds of appeal.

5.	The claimant was awarded the higher rate of the mobility component and the lowest rate of the care component for an indefinite period by a decision of 29 August 2001.  She applied for a supersession of that decision on 14 July 2003 on the basis that her health had deteriorated and she needed more personal care.  The Secretary of State in a decision of 8 August 2003 decided not to supersede the awarding decision, though the reasons at page 115 appear to address the merits as to whether the claimant satisfies the middle rate of the care component rather than whether the grounds for supersession had been made out.

6.	The claimant appealed to a tribunal against this decision.  That tribunal sat on 21 May 2004.  It adjourned the hearing with a direction that further medical evidence was required from an examining medical practitioner (EMP).  At that hearing, it is recorded in the record of proceedings that the claimant’s representative was told that such a report could result in the level of the existing award being brought into question and that the claimant’s representative would no doubt wish to check with the claimant whether she would be agreeable to this course of action.  It is recorded in the record of proceedings that the claimant’s representative withdrew to consult the claimant and returned within a few minutes.  The claimant’s representative confirmed that the claimant would be agreeable to an adjournment.  

7.	Thereafter, an EMP’s report was obtained.

8.	The adjourned hearing of the tribunal was held on 6 August 2004.  It is noted in the record of proceedings that the chairman reiterated to the claimant’s representative that the award could be changed either way or not changed.  The claimant was not present at the appeal hearing.  In the event, having heard the appeal, the tribunal in effect withdrew the award of the higher rate of the mobility component by finding that the claimant was entitled to the lowest rate of the care component only, with effect from 8 August 2003.  

9.	The award of the allowance made by the decision of 29 August 2001 was a final decision which was not appealed.  In these circumstances it could be altered only if there were grounds to supersede it or revise it.  The decision appealed against to the tribunal had determined that there were no grounds to supersede it.  In other words, the decision maker did not accept the claimant’s assertion of a change of circumstances based upon the deterioration of her health.  The tribunal in their decision notice did not purport to supersede the existing award on any of the relevant statutory grounds.  In the reasons, what they appear to have done was to determine on the merits that the claimant did not satisfy the statutory conditions for the higher rate of the mobility component.  All that they said about supersession was:

“Accordingly, she is not entitled to the higher rate of the mobility component.  It has been established that relevant material facts, such as the results of the exercise tolerance test, were not known to the decision maker who made the decision on 8.8.03.  As stated above, the decision made on 29.8.01 was made on the basis of the claim pack and we have found the appellant’s current claims to be overstated.  It may be that investigation of the appellant’s claims at the time of the awarding decision would have resulted in a different decision or that the appellant’s circumstances have since changed.  We are satisfied that there are grounds to supersede the awarding decision, albeit not to the appellant’s advantage, and have made the decision which we consider ought to have been made.”

10.	I am not at all clear whether, in relation to a supersession, having taken a view on the merits that the claimant did not satisfy the conditions of the higher rate of the mobility component, the tribunal were saying that there had been a change of circumstances since the original decision or that the decision maker had been in ignorance of a material fact.  The sentence which is crucial to the tribunal’s thinking was:

“It may be that investigation of the appellant’s claims at the time of the awarding decision would have resulted in a different decision or that the appellant’s circumstances have since changed.”

This is not sufficiently clear to demonstrate the basis upon which the tribunal proceeded.  Further, the decision does not set out a clear and unambiguous basis for supersession.  It should also be noted that in this case the tribunal were not confirming a decision of the Secretary of State to supersede.  They were carrying out a supersession of the existing award at their own hand.  In these circumstances, the fact of supersession and the statutory grounds for doing so should have been incorporated into the decision notice, as supersession was an essential element of the decision in this case.

11.	That is sufficient to dispose of the appeal.  However, in giving directions to the freshly constituted tribunal, I will address issues raised in the grounds of appeal and the Secretary of State’s submission.  It may well be that, in the light of the directions I give, the claimant may wish to consider whether to withdraw her appeal under regulation 40 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  

12.	My directions to the freshly constituted tribunal are that they are not entitled to consider the merits as to whether the claimant satisfies the conditions of either component of the allowance unless they are satisfied that any of the statutory grounds set out in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 are satisfied.  If they decide that none of the grounds are satisfied, then the existing award will simply remain.  On the other hand, if they determine that the grounds for supersession have been made out, they can conduct a hearing at large as to whether any of the elements of any of the components of the allowance are satisfied, including ones which have been awarded, which in this case includes the higher rate of the mobility component.  If follows from that that I do not accept the proposition contained in the grounds of appeal where it is said:

“The EMP’s report in relation to mobility should therefore not have been used at the appeal on 6.8.04 to establish reasonable grounds for supersession under Social Security and Child Support (Decisions & Appeals) Regulations 1999 Reg 6.  Nor was the Tribunal entitled to question me about mobility and use my replies to establish reasonable grounds.”

I accept what is said by the Secretary of State in paragraphs 5 and 6 of his submission under reference to paragraphs 89 to 94 of R(IB)2/04 quoted therein.  The freshly constituted tribunal will note and follow what was said by the Tribunal of Commissioners.  Revision would appear not to be an issue in this case, though if either party considers that it is then they are at liberty to address the tribunal on it.  The tribunal should set out in their decision notice their decision on supersession and, if they are disposed to supersed, the statutory basis upon which they have done so.

13.	The appeal succeeds.

					(signed)
					D J MAY QC
					Commissioner
					Date:  27 January 2005