[2007] UKSSCSC CSDLA_251_2007 (16 May 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The decision of an appeal tribunal sitting in Glasgow on 22 November 2006 (the tribunal) is in error of law.  I therefore set aside the tribunal’s decision and return the appeal for a fresh hearing to a new tribunal.  

Error of law

Failure to state or justify what are the grounds for supersession

2.	Section 17(1) of the Social Security Act 1998 is as follows:

“… any decision made in accordance with the foregoing provisions … shall be final; and subject to the provisions of any regulations … any decision made in accordance with those regulations shall be final.”

3.	Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the regulations) is to the following effect, so far as relevant:

“(1)	Subject to the following provisions of this regulation, for the purposes of section 10 [of the Social Security Act 1998], the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).
(2)	A decision under section 10 may be made on the Secretary of State’s … own initiative or on an application made for the purpose on the basis that the decision to be superseded –

(a)	 is one in respect of which –
(i)	there has been a relevant change of circumstances since the decision had effect …
(b)	is a decision of the Secretary of State … and‑
(i)	the decision was erroneous in point of law, or it was made in ignorance of, or was based upon a mistake as to, some material fact …”

4.	The outcome of the above is that decisions cannot be disturbed except through appeals or by revisions or supersessions.  The finality of adjudication is a cardinal principle of justice, as uncertainty would undermine the stability of legal rights and duties.

5.	In the present case, the appellant was entitled to the higher rate of the mobility component of disability living allowance (higher mobility) from and including 4 October 2002.  This was clearly based on the following information from the consultant, undated but received by the Department on 30 September 2002.  The consultant said that the appellant had “post traumatic arthritis right ankle” (which he later described as “severe arthritis”), that his condition was “deteriorating”, and that he walked at a slow speed, experiencing severe discomfort at less than 200 to 300 yards.  

6.	In 2006, the Secretary of State used his power to seek information about a person’s continuing entitlement to benefit with respect to the appellant.  The latter was examined by an examining medical practitioner (EMP) on 26 January 2006.  The clinical findings of the EMP were that the appellant has slight impairment of function of his right lower leg, ankle and foot; his right ankle is still swollen; all its movements are reduced; there is slight reduction in power of the right ankle and mild muscle loss in the right lower leg; there is no hard skin on the feet but “still useful power and function right ankle”.  It was the EMP’s opinion that the appellant is able to walk 200 metres before the onset of severe discomfort at a slow speed, taking 3 minutes, including one 20 second halt to ease discomfort.  

7.	On 21 February 2006, a decision maker (DM) on behalf of the Secretary of State superseded the appellant’s indefinite award of higher mobility as from 21 February 2006.  The stated basis for supersession was the following:

“The award of 04/10/02 was made in ignorance of, or was based on a mistake as to a material fact, that he was not in 2002 as he is not now VUTW.  DLA is disallowed from 21.02/06 only.”

8.	The appellant appealed to a tribunal and there have been numerous hearings and adjournments.  One such adjournment was for a report from the general practitioner (GP) and such a report dated 25 August 2006 was finally submitted.  The GP’s letter says:

“He also got [sic] post–traumatic arthropathy – a type of painful arthritis which developed at the ankle as well as pain higher up at the fracture site.  All in all this was a severe injury with chronic after effects which lasted years – some problems such as the bone infection have settled down but others such as his arthritis and pain are permanent.  I note from your letter that he walks with a crutch – my last note about walking aids is from 2002 and he was using a pair of crutches at that stage.  There is no doubt he has severe permanent mobility problems and this will cause difficulties with any distance and with activities of daily living; I would support his appeal of DLA refusal.”

9.	The tribunal on 22 November 2006 refused the appeal without even stating, let alone explaining or justifying, what was the ground for supersession.  This was a plain error in law.  The DM’s stated ground is clearly wrong.  A conclusion of secondary fact arising from the application of the statutory test of virtual inability to walk is not a material fact; there has to be a material or relevant primary fact about which the DM was ignorant, or mistaken, and there has been no identification of such nor does there appear to be any.  As Mr Commissioner Howell QC said at paragraph 11 of CDLA/2160/03:

“There is all the difference in the world between a decision made on an incorrect factual basis and one which somebody else looking at the same factual basis thinks should have led to a different assessment.”

10.	An alternative basis for supersession is a relevant change of circumstances.  What is required for a relevant change of circumstance is that there is an alteration in some primary relevant fact relating to the appellant’s circumstances.  A different view on the merits as to whether or not a claimant is virtually unable to walk is not a relevant change of circumstances.  A new medical opinion does not in itself constitute a relevant change of circumstances but may provide evidence of such a change.  What has to be demonstrated by the DM is that some relevant primary fact affecting entitlement at the time of the award of higher mobility has altered, providing a ground to look at the decision again; only at that stage could one move to consider entitlement on the merits as at the date of supersession.  

11.	Finally, supersession is possible on the ground that the DM at the time of the award made a decision which was “erroneous in point of law”.  This could be either because the DM applied the wrong legal test or because the DM exercised a judgement in applying that test such as no reasonable decision maker could do on the basis of the facts found and having regard to the evidence.  There is thus no error of law in the latter situation unless the exercise of judgement by the DM can be demonstrated as perverse.  

12.	If the circumstances surrounding the original award are unknown and a claimant’s current non-entitlement is plain, then it may be a legitimate inference, on a balance of probabilities, that either there was an initial error of fact or a subsequent change of circumstances or that a DM must have erred in law in making the original award; so that a ground of supersession is justified and it does not matter too much which.  But such is not the present situation.  The facts underpinning the original award are known and it is difficult to see of what primary fact the DM was then ignorant or mistaken.  Nor does there appear to be error of law.  The only way error of law in exercising judgement in the application of a statutory test could arise is where (per Lord Fraser in G v G [1985] 2 All E.R. 225 at page 229) a tribunal came to a conclusion that “exceeded the generous ambit with which a reasonable disagreement is possible”.  In no respect could the DM’s original decision be regarded as perverse on that basis.  

13.	The Secretary of State argues to the contrary, that the DM’s decision was inevitably perverse, and points particularly to various Commissioners’ decisions which have held that it was not perverse for a tribunal to determine that a claimant was not virtually unable to walk, albeit the walking capacities concerned related to distances of less than 100 yards.

14.	But distance is only one of the statutory criteria relevant to “virtual inability to walk.”  Moreover, as Mr Commissioner Jacobs said at para. 25 of CDLA/1389/1997, now cited by the Secretary of State:

“ … on any particular set of facts, there is a range of decisions that might legitimately be reached.  In deciding whether the facts were such that no tribunal acting judicially and properly instructed as to the relevant law could have come to the conclusion reached, the Commissioner has to decide whether the tribunal’s decision fell outside the range of permissible decisions that might be made.”

15.	In all the cases now relied upon by the Secretary of State, a new claimant appealed to the Commissioner against a determination that he was not virtually unable to walk, so that the onus lay on the claimant to show that the exercise of judgement was not one which could be legitimately so exercised having regard to the evidence.  In the present case, the onus lies on the Secretary of State to demonstrate, as is now submited, that it is perverse “… to consider that someone who does walk much further than 100 yards fulfils the criteria for being virtually unable to walk”; this is because a supersession by the Secretary of State is the decision under appeal to a tribunal.  Having regard to the full terms of the consultant’s report, received 30 September 2002, while I might have formed a different judgement from it on whether the claimant satisfied the test of virtual inability to walk, I remain unable to say that the DM’s award was perverse.

16.	In my judgement, only the possibility of a relevant change of circumstances requires exploration.  The tribunal has undertaken no comparative exercise as to what was the claimant’s walking ability at the time of his award and then subsequently at the time of supersession.  The tribunal has made no adequate primary findings of fact with respect to “then” and “now”; moreover, I am unable to agree with the tribunal that when the consultant in 2002 stated that the appellant would experience severe discomfort at “< 200 – 300 yds”, that this equates to a statement by that consultant to the effect, ‘the assessment of distance which he would be able to walk being 200/300 yards’”.  The Secretary of State in the submission to the Commissioner makes the same mistake, saying “the claimant’s consultant states … that he can walk between 200-300 yards before the onset of severe discomfort”; however “ < ” is a mathematical symbol meaning “less than”.

17.	Once a person is given an award, and it is not suggested that the appellant has been untruthful at any stage, then it is right that he should have the security of that award unless and until the Secretary of State can make out a ground for supersession.  Just because a decision maker considers that a claimant would not satisfy the criteria for entitlement were a new claim required and fresh consideration given to that claim, is insufficient, unless nothing is known about the original award and current non-entitlement is so apparent that a ground of supersession may circumstantially be thus established.  

Summary

18.	The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

19.	On the question of what evidence may be taken during the hearing, which has been somewhat controversial in the present case, I repeat what I said at paragraph 21 of CSDLA/637/2006:

“A tribunal may look at all the evidence before it determines, firstly, whether a basis for supersession has been made out and, secondly, if yes, what is the result.  I do not quite agree with Mr Commissioner May QC insofar as he seems to suggest in CSDLA/765/2004 … that the taking of evidence must be restricted initially to that applicable to a supersession ground and only thereafter, once such is established, moving on to consider material on the merits of current entitlement.  It is sensible rather that a tribunal hears all the evidence, including what is potentially relevant to current entitlement, but without yet making a final determination with respect to that, in order to compare present circumstances with those which surrounded the original award.”

					(signed)
					L T PARKER
					Commissioner
					Date:  16 May 2007