WC-v-Department for Social Development (DLA) [2010] NICom 86

 				Decision No: C19/10-11(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 16 December 2008

	DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

2.	The decision of the appeal tribunal dated 16 December 2008 is in error of law. The error of law identified will be explained in more detail below.

3.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

4.	I am able, however, to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. My substituted decision is that there is not in place a decision which properly and effectively supersedes (or revises) the decision of the Department dated 8 March 1995. Accordingly, that latter decision remains in effect giving the appellant an entitlement to the higher rate of the mobility component and the lowest rate of the care component of disability living allowance (DLA) from and including 1 December 1994.  

Background

5.	The decision-making process giving rise to the appeal before the appeal tribunal is complex. In short, however, on 18 July 1994, an adjudication officer (the predecessor of the decision-maker) disallowed a claim to DLA from and including 23 June 1994. The decision dated 18 July 1994 was then reviewed by another adjudication officer on 6 October 1994 who awarded the lowest rate of the care component of DLA from and including 23 June 1994. 

6.	The decision dated 6 October 1994 was reviewed by an adjudication officer on 8 March 1995 who awarded the lowest rate of the care component and the higher rate of the mobility component from and including 1 December 1994.  

7.	Requests for a review or supersession of the decision dated 8 March 1995 made on 3 November 1995, 18 July 2002 and 9 October 2007 were all refused.

8.	On 15 October 2007 the appellant again requested that the decision dated 8 March 1995 be superseded and, on 27 December 2007, a decision-maker revised the decision dated 9 October 2007 (a decision refusing to supersede) and gave a decision disallowing DLA from and including that date. 

9.	The appellant’s appeal against the decision dated 27 December 2007 was received on 3 January 2008.  On 20 May 2008 the decision-maker purported to supersede the decision dated 9 October 2007 on the grounds of a relevant change of circumstances, namely an improvement in the appellant’s functional ability and gave a revised decision disallowing DLA from and including 27 December 2007.  

10.	The appeal made on 3 January 2008 was accepted as an appeal against that decision.

11.	In the appeal submission prepared for the appeal tribunal hearing, the appeals writer, at page six, indicated that the decision dated 20 May 2008 contained an error and, further, that the decision dated 20 May 2008 had incorrectly read that there were grounds to supersede the decision dated 9 October 2007 when the decision to be superseded should have been that of 8 March 1995. The appeals writer invited the appeal tribunal to correct the error in the decision in line with the principles in R(IB) 2/04.  

12.	The appeal tribunal hearing took place on 16 December 2008. The appellant was present with his wife and was represented. The Department was represented. The decisions which were made by the appeal tribunal will be the subject of more detailed analysis below. 

13.	On 3 March 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 7 March 2009 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

14.	On 2 April 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. 

15.	On 30 April 2009 observations were sought from Decision Making Services (DMS) and these were received on 22 May 2009. DMS opposed the application on all of the grounds submitted by the appellant. Observations were shared with the applicant on 10 June 2009. There then followed an exchange of written observations and replies from the appellant and DMS.

Errors of law

16.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

17.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

Was the decision of the appeal tribunal in the instant case in error of law?

18.	The record of proceedings (ROPs) for the appeal tribunal hearing runs to five A4 pages, and it is recorded in the ROPs that the oral hearing of the appeal lasted for one hour and forty minutes. It is clear from this that the appeal tribunal went about the forensic evidence-gathering process in a careful and thorough manner. Equally, the appeal tribunal has provided detailed, analytical statements of reasons for its decision with respect to the care and mobility components of DLA. Where then did the appeal tribunal go wrong in law?

19.	It is accepted that the decision under appeal to the appeal tribunal is the decision of the decision-maker dated 20 May 2008. A copy of that decision was attached to the appeal submission as Tabs 31 and 32A. It was submitted in the appeal submission that:

(i)	‘On 20/5/08, the decision of 27/12/07 was removed and revised as an official error had occurred in that the decision maker had not identified grounds for removing entitlement to DLA from and including 27/12/07. The decision maker went on to state grounds for superseding the decision dated 8/3/95… ’and

(ii)	the decision under appeal dated 20/5/08 contains a typing error in that it incorrectly reads that there are grounds to supersede the decision dated 9/10/07. I submit that it should read that there are grounds to supersede the decision dated 8/3/95. I submit however that the Tribunal have the power to correct this error in accordance with the Tribunal of Commissioners R(IB) 2/04.’	

20.	In written directions to DMS, I requested DMS to comment on the legal status of the decision dated 20 May 2008. In a reply dated 26 September 2009, DMS submitted:

‘Following (the claimant’s) request to have his award of DLA (higher rate mobility and lowest rate care components) increased the decision maker decided on 9 October 2007 that there were no grounds to supersede the previous decision of 8 March 1995.  As a decision not to supersede has no effective date and does not replace an earlier decision (see R(DLA) 1/03, Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53) the decision of 8 March 1995 remained the extant decision. 

(The claimant) requested that the decision of 9 October 2007 be looked at again. In view of this request further information was sought by way of a GP report and an examining medical practitioner’s (EMP) report. 

Following consideration of this information the decision maker on 27 December 2007 decided that (the claimant) was no longer entitled to any rate of DLA and purported to supersede the decision of 9 October 2007.  This decision was defective on two counts namely no grounds for supersession were identified and the decision that was subject to supersession was the decision of 8 March 1995 and not 9 October 2007. 

(The claimant) asked that the decision removing his award of benefit be reconsidered however the decision maker, on 26 January 2008 did not change the decision of 27 December 2007.  

On 20 May 2008, the decision maker, having identified the errors in the decision of 27 December 2008 (as stated above), revised and replaced this decision as shown in tabs 32 and 32A of the appeal submission.’  

21. 	The reference to ‘27 December 2008’ in the final paragraph of this reply should read ’27 December 2007’. 

22.	In a further direction to DMS, I asked for comment on the following issue:

‘Assuming that the decision of 20 May 2008 was intended to remedy a defect in the decision of 27 December 2007, which purported to supersede the decision of 9 October 2007 rather than 8 March 1995:

1.	Did the wording of the decision of 20 May 2008 as set out in Tabs 32 and 32A achieve that aim?
2.	… 
3.	… ’

23.	In a reply dated 22 November 2009, DMS submitted:

‘Did the wording of the decision of 20 May 2008 as set out in Tabs 32 and 32A achieve that aim?

Tab 32 and 32A are computer generated forms headed ‘Decision (DLA)’ and ‘Reasons for Decision’ respectively and are used in revision, supersession and reconsideration cases.

In this case the decision maker, on 20 May 2008, was purporting to revise the decision dated 27 December 2007 which was defective (i.e. it revised an ineffective decision made on 9 October 2007 rather than supersede the award made on 8 March 1995) and then supersede the decision dated 8 March 1995 which awarded (the claimant) the lowest rate care component and higher rate mobility component from and including 1 December 1994.

The wording of Tabs 32 and 32A did not remedy the defects in the decision dated 27 December 2007 as it did not state that that decision should have been by way of supersession nor did it identify the decision that was being superseded.’ 

24.	In my view, the decision dated 20 May 2008 is wholly defective. If the purpose of the decision dated 20 May 2008 was to correct errors in the decision dated 27 December 2007, then it has failed to achieve that purpose. The correction of errors, in a Departmental decision, can be achieved through a revision of that decision under Article 10 of the Social Security (Northern Ireland) Order 1998, and regulation 3 of the Social Security (Decision and Appeals) Regulations (Northern Ireland) 1999 or by way of supersession under Article 11 of the Social Security (Northern Ireland) Order 1998, and regulation 6 of the Social Security (Decision and Appeals) Regulations (Northern Ireland) 1999.

25.	Perusal of the decision dated 20 May 2008, as set out at Tabs 32 and 32A of the appeal submission, demonstrates that the purported effect of the decision is not to correct the errors in the decision dated 27 December 2007 but, rather, to supersede another decision of the Department dated 9 October 2007, on the ground of a relevant change of circumstances. As was noted in the written observations from DMS, the decision dated 9 October 2007 was itself defective. It is clear, in my view, that the decision dated 20 May 2008 was wholly defective in:

(i) 	failing properly and effectively to remedy the errors in the decision dated 27 December 2007; and

(ii)	purporting to supersede the decision dated 9 October 2007 when that latter decision was itself defective.

26.	Did the appeal tribunal have the power to remedy the errors in the decision-making process?

27.	As was noted above, in the appeal submission, an error in the decision dated 20 May 2008 was accepted (albeit acknowledged only as a typing error) but with the submission that the appeal tribunal had the power to remedy the error in line with the principles set out in the decision of the Tribunal of Commissioners in Great Britain in R(IB) 2/04. 

28.	There is no doubt that R(IB) 2/04 is clear authority for the proposition that where an appeal tribunal identifies defects in a decision which purports to change the effect of a previous decision (eg failure to use the terms ‘revise’ or supersede’, failure to indicate that a previous decision is being revised or superseded, failure to identify the previous decision being revised or superseded, failure to specify the ground for revision or supersession, or reliance on the wrong ground for revision or supersession), the appeal tribunal has the jurisdiction to remedy those defects and make the decision which the Department ought to have made.

29.	The power to remedy defects is limited, however. The Tribunal of Commissioners in R(IB) 2/04 recognised, at paragraph 72, that:

‘there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions … at all.’

30.	These exceptional cases could not be subjected to the newly identified remedying powers.  

31.	In the instant case, how did the appeal tribunal deal with the decision dated 20 May 2008? The appeal tribunal issued two separate decision notices, for the care and mobility components of DLA. In respect of the care component, the decision notice reads as follows:

		‘Appeal Allowed

The appellant is entitled to the Lowest Rate of the Care Component of DLA from 22.12.07 to 26.12.10. (Main meal and day needs). Grounds existed on 27.12.07 to supersede the decision dated 08.03.95.’

32.	In respect of the mobility component, the decision notice reads as follows:

		‘Appeal Dismissed

The appellant is not entitled to the Mobility Component of DLA from 27.12.07. Grounds existed on 27.12.07 to supersede the decision dated 08.03.95.’  

33.	There is an immediate error in the decision notices for both components in that the appeal tribunal has determined that grounds existed on 27 December 2007 to supersede the decision dated 8 March 1995. The Department had accepted, in the appeal submission, that the decision dated 27 December 2007 was defective. Rather than find that the decision was defective, the appeal tribunal has concluded that a decision-maker, on 27 December 2007, had grounds to supersede the decision dated 8 March 1995. 

34. 	It is clear, therefore, that the defects in the decision dated 27 December 2007 have not been rectified by the decision notices completed and issued by the appeal tribunal.      

35.	In the statement of reasons for the appeal tribunal’s decision with respect to the care component of DLA, the appeal tribunal has recorded that:
 
‘It is important to state at the outset that the Department must satisfy the Tribunal, on the balance of probabilities, that there were grounds to supersede the decision of 08.03.1995 by showing to the satisfaction of the Tribunal in this case that there had been a relevant change of circumstances to an extent that would justify the supersession decision resulting in the Appellant’s entitlement to an indefinite award of the lowest rate of the care component of Disability Living Allowance being ended …’

36.	At first glance, therefore, it would appear that the appeal tribunal has, broadly, identified the relevant decision-making issue. Later in its statement of reasons for its decision with respect to the care component, the appeal tribunal has recorded:

‘The Tribunal, in this appeal, on considering all of the evidence, concludes that there were no grounds to supersede the decision giving entitlement [sic] the lowest rate of the care component of Disability Living Allowance from the Relevant Date for all of the reasons stated. However, this was a fine balance and the Tribunal might equally have concluded, on the evidence, that there were grounds to supersede on the Relevant Date.’

37.	Once again, and at first glance, there appears to be nothing wrong with the appeal tribunal’s analysis here. The statement, in the statement of reasons for the care component, that there ‘…were no grounds to supersede the decision giving entitlement …’ is, however, inconsistent with what is recorded in the decision notice for the care component, namely, ‘…  Grounds existed on 27.12.07 to supersede the decision dated 08.03.95…’

38.	Additionally, one has to look at what the appeal tribunal has recorded in the statement of reasons for the mobility component. To begin with, the appeal tribunal has reminded itself that:

‘It is important to state at the outset that the Department must satisfy the Tribunal, on the balance of probabilities, that there were grounds to supersede the decision of 08.03.1995 by showing to the satisfaction of the Tribunal in this case that there had been a relevant change of circumstances to an extent that would justify the supersession decision resulting in the Appellant’s entitlement to an indefinite award of the higher rate of the mobility component of Disability Living Allowance being ended…‘

39.	Later in its statement of reasons for its decision with respect to the mobility component, the appeal tribunal has recorded:

‘The Tribunal, in this appeal, on considering all of the evidence, concludes that there were grounds to supersede the decision giving entitlement [sic] the higher rate of the mobility component of Disability Living Allowance from the Relevant Date for all the reasons stated …’

40.	The conflicting approach of the appeal tribunal to the supersession issue, as set out in the statements of reasons for the care and mobility components, is problematic in one of two different ways. 

41.	Firstly, in considering the issue of whether the Department had grounds to supersede, an appeal tribunal should note the remarks of Mrs Commissioner Brown, at paragraph 7, of the decision in C14/04-05(DLA) that DLA is a composite benefit. This means that the appeal tribunal should be considering whether the Department had grounds to supersede one of its earlier decisions not individual components within that decision. Either there were grounds to supersede the decision or there were not. Where I think the appeal tribunal has gone wrong is that it has confused the separate questions of supersession and entitlement. There can be no consideration of the entitlement question unless there has been a consideration of the supersession question. In turn the entitlement question only becomes relevant where it has been established that there were grounds to supersede. What the appeal tribunal wanted to find was that the appellant should have no entitlement to the mobility component of DLA but should have an entitlement to the lowest rate of the care component. It arrived at that conclusion without properly addressing the supersession issue.

42.	Even if the analysis in the previous paragraph is incorrect, there is another way in which the decision of the appeal tribunal is defective. The decision under appeal to the appeal tribunal was the decision of the decision-maker dated 20 May 2008. That decision purported to supersede the decision dated 8 March 1995. In turn, the decision dated 8 March 1995 had awarded an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 1 December 1994. 

43.	As was noted above, in respect of the care component of DLA, the appeal tribunal’s decision notice reads as follows:

		‘Appeal Allowed

The appellant is entitled to the Lowest Rate of the Care Component of DLA from 22.12.07 to 26.12.10. (Main meal and day needs). Grounds existed on 27.12.07 to supersede the decision dated 08.03.95.’

44.	The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, are Article 11 of the Social Security (Northern Ireland) Order 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

45.	As was noted by the Tribunal of Commissioners in R(IB) 2/04, at paragraph 10, in considering the Great Britain equivalent regulation to regulation 6, there can be no supersession under unless one of the grounds for supersession specified in regulation 6 was actually found to exist, and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.

46.	Applying that principle to the decision notice in the instant case, the appeal tribunal has identified that a ground for supersession did exist, although without specifying what that ground was. If the ground was a relevant change of circumstances then the retention of the existing award means that there has been no alteration of the decision in a way which followed from that ground. 

47.	In R(IB) 2/04, the Tribunal of Commissioners in Great Britain stated, at paragraph 74:

‘It is plainly desirable, in the interests of claimants and the appeal process, that decisions made on behalf of the Secretary of State should be properly and fully spelled out.’

48.	The Tribunal added, at paragraph 72:

‘72.	We agree with the proposition implicit in the submissions of all parties that there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions under section 10 at all.’

49.	The reference to section 10 is a reference to section 10 of the Social Security Act 1998, the Great Britain equivalent to Article 11 of the Social Security (Northern Ireland) Order 1998.

50.	In my view, the decision of the Department dated 20 May 2008 has so little coherence or connection to legal powers that it cannot amount to an effective and proper Article 11 supersession. It failed to rectify the errors in the decision dated 27 December 2007 and purported to supersede the wrong decision of the Department. In turn, the appeal tribunal’s decision has been ineffective to rectify the errors in the decision-making process.

Disposal

51.	The decision of the appeal tribunal dated 16 December 2008 is in error  Security (Northern Ireland) Order 1998, I set aside the decision appealed against. 

52.	I am able, however, to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given. My substituted decision is that there is not in place a decision which properly and effectively supersedes (or revises) the decision of the Department dated 8 March 1995. Accordingly, that latter decision remains in effect giving the appellant an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 1 December 1994.

53.	In R(IS) 13/05, in disposing of the appeal before him, Commissioner Mesher made the following observation:

‘… there is nothing in law to stop the Secretary of State from taking action now to make a proper revision or supersession decision …’

54.	I would note that there is nothing, in the instant case, to prevent the Department from carrying out remedial decision-making action. 

	(Signed):  K Mullan

	COMMISSIONER

	10 September 2010