Commissioners’ File no: CDLA/747/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1.      I allow this appeal. For the reasons set out below, the decision of the tribunal is wrong in law and I set it aside. Pursuant to s.14(8)(b) Social Security Act 1998, I refer the appeal to a differently constituted tribunal for determination.

Background

2.      In 1997 the claimant sought and was awarded the higher rate mobility and middle rate care components of Disability Living Allowance. Her award began on 8.8.97 and ran for an indefinite period. In 2001, the Secretary of State set in train enquiries about the extent of the claimant’s disabilities. Information was obtained and on 2.8.01 the matter was considered by a decision maker acting on behalf of the Secretary of State. The decision itself appears in somewhat cryptic form on page 131 of the casepapers. Light is cast on the matter by the reasons for the decision which are given on page 133: it appears that the decision maker has determined that that there were grounds to supersede the decision of the adjudication officer  (as decision makers were then known) of 1997 awarding Disability Living Allowance and removed the care component. The grounds for that supersession were said to be that the adjudication officer had been ignorant of a material fact or that his decision was based upon a mistake as to a material fact. In essence, it seems to be being said that the lady’s condition was never as bad as it had been thought to be. The award of the mobility component was left intact.

The appeal to the tribunal

3.      The claimant appealed to the tribunal. She attended the hearing on 23.11.01 in Preston with her daughter and gave evidence. She was not represented, although it would appear that she had had assistance with the preparation of a submission. The tribunal’s decision was issued on a preprinted form and the effective parts of it read:

“The appellant is entitled to mobility component. Higher rate from 2.8.01 indefinitely is virtually unable to walk. The appellant is not entitled to the care component”.

4.      In due course a statement of material facts and reasons was prepared and the claimant, now represented by Lancashire County Council, sought leave to appeal. Leave was granted by the District Chairman.

The appeal to the Commissioner

5.      The claimant’s representative has added to her application for leave and a submission has been received on behalf of the Secretary of State. It appears at pages 164 and 165. The Secretary of State does not support the appeal and invites me to dismiss it. In view of the decision I have reached I do not need to say a great deal about the grounds of appeal, but they are not persuasive. The representative seems to be seeking to reargue the case on the merits and suggests that the Chairman made errors in “reporting” the evidence. I do not accept that suggestion.

6.      There is a more fundamental problem: the tribunal, as well as the Secretary of State and the representative, has overlooked that this is a case in which the decision which is appealed is a decision taken by way of supersession and thus they have made an error of law. The matter has been treated as if it were an original claim whereas before considering entitlement the tribunal ought to have satisfied itself that a supersession had been carried out by the Secretary of State and that that supersession was justified. The decision maker did appreciate the correct position, although he or she could have made it somewhat clearer, but it is not plain whether the tribunal considered the matter at all. I would not criticise the tribunal for failing to refer to the supersession aspect of the case in its short decision if the position had been made clear in the statement of material facts and reasons that followed. Short decisions are after all meant to be short, and are concerned with the outcome of a case rather than the stages along the way. That said, there was a mistake in the short decision in that it did not say from what date the claimant was not entitled to the care component and that also was an error of law.

Directions

6.	I direct that the new tribunal to which this case is referred carry out complete rehearing. The first consideration is whether the Secretary of State has carried out a supersession because if he has not, then the matter ends at that point. The tribunal has no power to carry out a supersession itself although it can correct an error in the making of a supersession, as for instance where the Secretary of State has relied upon the wrong ground. In fact, this point need not detain the tribunal because it is clear that the decision maker has carried out a supersession although the grounds relied upon were not absolutely clear. The new tribunal will need to identify the provision of r.6(2) Social Security and Child Support (Decisions and Appeals) Regulations 1999 which permits supersession of the awarding decision of 29.9.97. Assuming that grounds to supersede are made out, then and only should the tribunal proceed to making a decision upon entitlement. 

7.      If that stage is reached, then those representing the claimant will appreciate that there is a possibility the award of the mobility component may be at risk. It is not something that need be considered by the tribunal – that is the effect of s.12(8)(a) Social Security Act 1998 – but they will have a discretion to do so. It goes without saying that that is a discretion which must be exercised judicially and reasons for its exercise should be recorded. My decision is not to be taken as any indication of the likely outcome of this case and I certainly do not suggest to the tribunal that it should consider the mobility component. That is entirely a matter for the new tribunal.

                                                                            Stuart McLachlan         
                                                                         Deputy Commissioner      

[Signed on original on date shown]                             9.8.02