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[2005] UKSSCSC CDLA_301_2005 (20 July 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Chester appeal tribunal dated 27 August 2004 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 28 below (Social Security Act 1998, section 14(8)(b)).
2. The claimant is a lady who was born on 14 September 1931, so that she reached the age of 65 on 14 September 1996. She appears to have first claimed disability living allowance (DLA) on 6 June 1995. The initial decision, after a report dated 17 July 1995 from an examining medical practitioner (EMP), was to award the lowest rate of the care component, on the main meal test, from 6 June 1995 for life. The EMP had accepted that the claimant could not peel or chop vegetables or cope with hot pans, because of problems with her right elbow and hand. The claimant appealed, with the assistance of the local Citizens Advice Bureau. Part of what was argued for her was that she spoke with a strong Italian accent and had not been properly understood by the EMP. On 9 May 1996, the disability appeal tribunal (DAT) allowed the appeal and awarded the middle rate of the care component from 6 June 1995 for life. The DAT found as facts that the claimant had cervical spondylosis and probably lumbar spondylosis and arthritis in the right knee and reasonably required help in and out of bed, getting to and from the toilet and getting on and off the toilet two or three times a night, seven nights a week. She therefore needed prolonged or repeated attention in connection with bodily functions at night. What was then called the record of proceedings (incorporating decision, findings of fact and reasons) is in the papers before me, but not the chairman's note of evidence, which would have been destroyed after 18 months if no-one asked for a copy.
3. In 2003 a periodic enquiry form was sent to the claimant, which she completed and returned on 13 October 2003. On the form she described her illnesses and disabilities as pain in the back and legs, limited movement of the arms and limited grip in the hands. She said that because of pain and stiffness in her back and legs it could take over 10 minutes to get from lying to standing and that she needed to visit the bathroom frequently during the night (three or four times) and needed help doing so. On cooking, she said that she did not have sufficient grip to manage to peel, chop and prepare vegetables, had difficulty turning taps and could not carry a pan of water or lift a pot from the oven. A GP's report mentioned essential hypertension, osteoarthritis of both knees causing pain and back pain, with degenerative changes in the lumbar spine. The GP did not know how that affected the claimant functionally. An EMP examined the claimant on her own on 12 January 2004. He recorded the claimant as saying that she had no problem with toilet needs at night (although she had mentioned slowness getting out of bed) and that she could not chop or peel vegetables or lift a pan due to hand pains. The EMP found good grip bilaterally and ticked that she could safely do all the listed tasks relevant to cooking. He ticked no to bladder incontinence at night and stated that she did not admit to any night-time care needs.
4. The decision was then given on 27 January 2004 to supersede the decision of 9 May 1996 on the ground that it was given in ignorance of or was based on a mistake as to a material fact, because the claimant did not then and still did not need prolonged or repeated attention at night. The superseding decision that she was not entitled to either component of DLA was made effective from 27 January 2004 as it was said that she could not have known that she was getting the wrong amount of benefit.
5. The claimant appealed. Crewe and Nantwich Citizens Advice Bureau provided a detailed written submission, reiterating the case for continued qualification for the middle rate of the care component on the basis of either night-time or day-time conditions and also for meeting the main meal test for the lowest rate.
6. The claimant attended the hearing on 27 August 2004 with her daughter. An interpreter also attended, as had been directed on an earlier adjournment. The appeal tribunal said this in its statement of reasons about the need for an interpreter:

"The case was also complicated by the fact that the appellant did speak English relatively well although her native language was Italian. Whilst an interpreter was present it was clear that the appellant did understand much of what was said. There was a fear [expressed by the claimant's daughter] that she would guess at certain technical language and would give an incorrect answer. The Tribunal, therefore, endeavoured to ask and receive answers via the interpreter but this did prove difficult as the appellant was readily willing to answer the questions although perhaps not always able to give the correct information."

Extensive evidence from the claimant and from her daughter was recorded.

7. The appeal tribunal dismissed the appeal, having very largely accepted the oral evidence of the claimant and her daughter. In relation to the middle rate of the care component, the appeal tribunal explained in its statement, in a way that I do not think can be faulted in law, why it considered that the day-time conditions were not met. In relation to the night-time conditions, the appeal tribunal mentioned what the claimant's daughter (or her husband) did when visiting the claimant every evening and sometimes in the morning. It noted that, despite some knowledge of falls, the family had not arranged any other form of supervision and that there was no need for watching over at night and recorded that the claimant did not state any needs during the course of the night. The statement continued:

"The appellant told the Tribunal today that she was progressively and slowly getting worse and that had been the pattern of her difficulties since the date of the award. If that were the case then it logically followed to the Tribunal that if she did not satisfy the conditions for an award of the middle rate care today then she did not do so upon her first application and subsequent renewals. It therefore followed to the Tribunal that the earlier decisions had been due to ignorance of material fact as opposed to change of circumstances."

8. In relation to the lowest rate of the care component on the main meal test, the appeal tribunal accepted that as at 27 August 2004 the claimant would satisfy the conditions, because she needed help with the planning and preparation of a main meal. The presenting officer on behalf of the Secretary of State submitted that the appeal tribunal, if it decided against the claimant on the middle rate of the care component, could make an award of the lowest rate, but only if the conditions for that rate were met before the claimant's 65th birthday. The statement continued:

"The appellant also told the Tribunal that she had had her current needs since she moved to Crewe from Hanley some three and a half years ago. It was stated by the appellant, and her daughter, that prior to her move to Crewe she had been able to make her own meals herself and did do so and that it was only since she had moved to Crewe that her daughter made her meals for her. As her move to Crewe was only some three and a half years ago this meant that at that time the appellant was over the age of 65 and, therefore, the Tribunal concluded that it was only three and a half years ago that the appellant would have satisfied the conditions for entitlement to lowest rate care. On that basis the Tribunal felt that they could not make an award of the lowest rate of the care component today."

9. The claimant now appeals against the appeal tribunal's decision with my leave. Crewe and Nantwich CAB argued that the appeal tribunal had given inadequate reasons for concluding that a ground existed to supersede the decision of the DAT, no particular material fact having been identified of which the DAT was ignorant or mistaken, and for concluding that the main meal test had only been satisfied for three and a half years, not having considered all the evidence about earlier dates. When granting leave, I said this:

"It is arguable that the appeal tribunal failed to give adequate reasons for concluding that the [DAT's] decision of 9 May 1996 was given in ignorance of or under a mistake as to some material fact, when the nature of the evidence given to that appeal tribunal was not known and the claimant apparently told both the EMP of 17 July 1995 and the EMP of 12 January 2004 that she had no needs for help to go to the toilet during the night. Given the widely differing statements made by the claimant at different times, it is arguable that the appeal tribunal did not adequately explain why it was satisfied that the [DAT] of 9 May 1996 had got the facts at the time wrong."

I also mentioned a number of difficulties in the terms of Schedule 1 to the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations) on persons aged over 65. I shall come back to those below.

10. In the submission dated 3 May 2005 the representative of the Secretary of State did not support the claimant's appeal. It was submitted that the appeal tribunal had, in the light of the direct evidence it received, been right to supersede the award of the middle rate of the care component:

"In my submission the evidence presented to tribunal 2 shows that the need for repeated help at night was not reasonably required. The question then is whether tribunal 1 was ignorant of or mistaken as to material facts. They could not be held to be ignorant of the statements she made to the EMP in 1996 about her toilet needs. However, they could have been mistaken about the weight to be given to the evidence in the claim pack, and in particular about her command of English. It is clear from tribunal 2, who had the advantage of questioning her daughter and asking questions through an interpreter, that her ability to communicate in English was better than was thought to be the case in 1996. I therefore submit that tribunal 2 was correct to find that there were grounds to supersede tribunal 1's decision."

11. That submission seems rather to confuse questions of evidence with the question of whether the DAT was ignorant of or mistaken as to a material fact, ie a primary fact that was in existence as at 9 May 1996 and which was relevant to the question of entitlement to the care component. Sometimes, the process of reasoning used by the appeal tribunal can be proper without too much specification of the particular material fact about which there was ignorance or mistake. If an appeal tribunal is persuaded that on the current state of facts no reasonable person could conclude that the claimant qualified for, say the middle rate of the care component, and that her condition has either stayed the same or got worse since the award of that component was made by a decision maker, it can be proper to conclude that either there must have been ignorance or mistake of a material fact or an error of law when the award was made.
12. However, when the award was made by an appeal tribunal (or by a DAT under the pre-1999 adjudication system: Social Security Act 1998 (Commencement No 11, and Savings and Consequential and Transitional Provisions) Order 1999, Schedule 16, paragraph 12(1)), the position is not quite the same. A decision of an appeal tribunal cannot be superseded for error of law. That ground applies only to decisions of the Secretary of State or adjudication officers (Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 6(2)(b)). A decision of an appeal tribunal or a DAT may be superseded for ignorance or mistake of material fact under regulation 6(2)(c), but it is then necessary to identify some particular fact of which the DAT was ignorant or about which it was mistaken. It behoves a later appeal tribunal or decision maker to be slow to conclude that there was such ignorance or mistake by a DAT that has fully examined the evidence available. A mere difference of opinion on the conclusions to be drawn on essentially the same primary facts does not justify supersession. If the later appeal tribunal or decision maker concludes that other evidence that has now become available shows that the earlier DAT in fact got the facts at the time wrong, that conclusion needs to be carefully established.
13. In my judgment, the appeal tribunal's reasons in the present case did not (but only just) come up to that standard. It is not entirely clear what the appeal tribunal meant by saying that the claimant did not state any needs during the course of the night. In the record of proceedings (ie the chairman's note of evidence), a question about using the toilet at night is recorded. The reply was that she had a downstairs toilet (she slept downstairs), to which she had to walk through the kitchen, the door was left open and she could sit on it as it had a raised seat. But there seem to be no more detailed questions recorded. In the written submission from Crewe and Nantwich CAB the frequent need to use the toilet at night and the claimant's struggle to get from lying to sitting and standing, because of stiffness after lying or sitting for a time, was reasserted. The DAT must have accepted in 1996 that there was a reasonable requirement for attention from another person, even though no such attention was in fact provided and no explanation had been given of the need for frequent visits to the toilet at night. The claimant's answer recorded above implied that she still did use the toilet at night without in fact receiving assistance from anyone else. The appeal tribunal might well have considered that the claimant's condition was such that she was able to attend to her toilet needs at night without the need for assistance from anyone else and, given what she had said about the gradual worsening of her condition, must have been able to do so in 1996. However, that needed to be spelled out expressly by the appeal tribunal, with a more specific explanation of why this was not merely a case of the appeal tribunal taking a different view, for instance of what attention was reasonably required by the claimant, based on the same primary facts.
14. Thus, on this issue I effectively accept the submission of Crewe and Nantwich CAB in reply to the Secretary of State's submission.
15. Before considering the legal difficulties of the rules on entitlement over the age of 65, I need to look briefly at the appeal tribunal's reasoning on the lowest rate of the care component. The representative of the Secretary of State, in the submission of 3 May 2005, took the view that the appeal tribunal's reasoning was that the claimant did not qualify for that rate as at August 2004 and so could not have qualified at any earlier date. I disagree. It seems clear to me that in paragraph 6 of its statement the appeal tribunal accepted that the claimant did meet the conditions of entitlement to the lowest rate of the care component as at August 2004, but concluded that she could not have done so for more than three and a half years. As the qualification started after the age of 65, the appeal tribunal accepted the submission made to it that it could not award entitlement.
16. However, I find that the appeal tribunal's conclusion rested on a finding of fact for which there was insufficient evidence. The appeal tribunal said that the claimant and her daughter stated that before her move to Crewe she had been able to make her own meals and did so. However, all that appears in the record of proceedings is a statement from the claimant's daughter that she had only been making the claimant's meals since she had moved to Crewe and had not done so before. That seems entirely reasonable, as a reason for the move from Hanley was for the claimant to be near her daughter, who had not been able to visit her so frequently when she lived in Hanley. But it does not necessarily follow from the fact that the claimant's daughter was not then preparing meals daily and that the claimant was living on her own that the claimant was able to prepare a cooked main meal for one. If the claimant or her daughter had made such a clear and specific statement about her cooking abilities as relied on by the appeal tribunal, I am sure that it would have been included in the record of proceedings (which in general is full and careful). The appeal tribunal's finding and conclusion therefore cannot be supported, leaving an inadequacy in its reasoning. The claimant had been accepted as unable to do two cooking tasks in the EMP's report of 17 July 1995 and as qualifying for the lowest rate of the care component in the adjudication officer's decision of 28 July 1995. Although the EMP of 12 January 2004 found no problems with cooking tasks, the appeal tribunal took a different view of the claimant's current abilities. There was no adequate explanation of why the appeal tribunal did not accept qualification for the lowest rate of the care component throughout.
17. The appeal tribunal's decision must be set aside for those two reasons, but I need (for the guidance of the new appeal that will rehear the case) to consider whether the appeal tribunal erred in law by declining to find the claimant entitled to the lowest rate of the care component even on the basis that she did not satisfy the conditions of entitlement until after she had reached the age of 65. The reason why this matters is of course that attendance allowance, which is available to those over 65, does not contain an equivalent of the lowest rate of the care component of DLA.
18. The general rule is in section 75 of the Social Security Contributions and Benefits Act 1992. No person is to be entitled to either component of DLA for any period after attaining the age of 65 otherwise than by virtue of an award made before that age is attained. But that is subject to regulations providing otherwise. The DLA Regulations do provide otherwise in many different circumstances, but the question is whether any of those circumstances cover the claimant's case. It is agreed that the only potentially relevant provisions are those in Schedule 1 on persons over 65. It is also agreed that none of the provisions in paragraph 3 to 7 can apply because paragraph 2 limits their application to cases of revision or supersession where the decision being reviewed or superseded was made on or after the claimant reached 65 or, if it was made before that date, is being superseded on the ground of a change of circumstances after that date. Here, the ground of supersession was ignorance or mistake of material fact in the decision made on 9 May 1996, before the claimant's 65th birthday.
19. That leaves paragraph 1 of Schedule 1, which as amended with effect from 18 October 1999 provides:

"1.--(1) This paragraph applies where--

(a) a person is aged 65 or over;

(b) the person has an award of disability living allowance made before he attained the age of 65;

(c) an application is made in accordance with section 9 of the 1998 Act or section 10 of that Act for that award to be revised or superseded; and

(d) an adjudicating authority is satisfied that the decision awarding disability living allowance ought to be revised or superseded.

(2) Where paragraph (1) applies, the person to whom the award relates shall not, subject to paragraph (3), be precluded from entitlement to either component of disability living allowance solely by reason of the fact that he is aged 65 or over when the revision or supersession is made.

(3) Where the adjudicating authority determining the application is satisfied that the decision ought to be superseded on the ground that there has been a relevant change of circumstances since the decision was given, paragraph (2) shall apply only where the relevant change of circumstances occurred before the person attained the age of 65."

20. The claimant appears to come squarely within paragraph 1(1) apart from the troublesome sub-paragraph (1)(c). Immediately before the decision under appeal to the appeal tribunal was made, she was a person aged over 65 and had an award of DLA made before she reached 65. Then the Secretary of State and the appeal tribunal (both within the definition of adjudicating authority) were satisfied that the DAT's decision ought to be superseded. The superseding decision on that ground could only take effect from 27 January 2004, as the Secretary of State accepted that the claimant did not fall into the category where the new decision takes effect from the date on which the superseded decision took effect (Decisions and Appeals Regulations, regulation 7(5), and Social Security Act 1998, section 10(5)). When considering the decision to be put into effect from 27 January 2004, if all the conditions of paragraph 1(1) were met, paragraph (2) would operate to remove the age bar from entitlement. As the ground of supersession was not relevant change of circumstances after reaching 65, paragraph (3) would not exclude the operation of paragraph (2). That much is agreed and accepted by both parties.
21. Although the representative of the Secretary of State did not specifically deal with this point in her submission of 3 May 2005, I do not think that there can be any distinction, using the circumstances of the present case as an example, between a finding that the claimant had always qualified for the lowest rate of the care component, although wrongly awarded the middle rate, and a finding that she did not qualify for the lowest rate until a date after her 65th birthday. Both those states of affairs would fall within the scope of paragraph 1(2) in removing the age bar. I have considered whether the rule in paragraph 1(3) has to be applied by way of analogy, especially as the rule put forward to the appeal tribunal by the presenting officer was simply that, if the claimant first qualified in fact for the lowest rate of the care component after reaching 65, no award could be made on supersession. However, it seems to me that paragraph 1(3) is too specific in its concentration on the ground of supersession for it to be used to support any such general rule as that put forward by the presenting officer.
22. The problem is that paragraph 1(1)(c) of Schedule 1 appears to restrict the operation of the paragraph to cases where there has been an application by a claimant for revision or supersession. In the present case, although the claimant did complete the periodic enquiry form, which had warnings that the answers supplied might affect benefit, I do not think that that form can be regarded as an application for supersession, as submitted by the Secretary of State's representative in the submission of 3 May 2005. It is true, as is pointed out in that submission, that paragraph 1(1) does not require that the supersession should follow from the application, merely that an application has been made. However, the form did not have any declaration asking for DLA to be changed and both section 9 (on revision) and section 10 (on supersession) of the Social Security Act 1998 carefully distinguish between action on the Secretary of State's own initiative and action on an application "made for the purpose of" either revision or supersession. I see no way that the periodic enquiry form could be regarded as an application in accordance with section 10.
23. The apparent limitation in paragraph 1(1)(c) is both surprising and artificial. It is surprising because if it has to be applied it would create a significant difference, to the detriment of claimants, from the practical position as it was in the pre-1999 adjudication system when the DLA Regulations were first introduced. As I noted when granting leave, that system as it applied to DLA required an application either by the claimant or by the Secretary of State before a review could be carried out by an adjudication officer. Thus, as it stood before 18 October 1999 (when it referred to an application in writing in accordance with the legislation for that award to be reviewed), paragraph 1(1)(c) added nothing beyond a description of the process. In any case where an adjudicating authority was satisfied that there ought to be a review so as to satisfy paragraph 1(1)(d), and had given effect to that opinion for there to be any issue under paragraph 1, there would have to have been an application in writing under paragraph 1(1)(c). Miss Chapman of Crewe and Nantwich CAB has pointed out that the Commencement No 11 Order, which made the amendments to paragraph 1, was made under section 87(2) and (3) of the Social Security Act 1998, which allowed transitional or consequential provisions to be made only where necessary or expedient in preparation for or in connection with the coming into force of any provision of the Act. It would therefore be particularly surprising if amendments intended to ensure the consistency of the DLA Regulations with the terminology and structure of the new system of adjudication in fact made a significant change in substantive rights.
24. The apparent limitation in paragraph 1(1)(c) of Schedule 1 is artificial because it draws lines between claimants that have no relation to the merits of their cases. That is reinforced by the factor mentioned in paragraph 22 above, that paragraph 1(1) does not require the revision or supersession under sub-paragraph (d) to follow from the application under sub-paragraph (c). Take a not uncommon example where a claimant over 65 in receipt of the middle rate of the care component applies for supersession saying she has got worse and seeking the highest rate, but the Secretary of State on investigation of all the circumstances considers that the existing award was not warranted and makes a superseding decision reducing entitlement to the lowest rate. That would be a supersession on the Secretary of State's own initiative, rather than on the application, because the necessary link between a decision adverse to the claimant and the ground of the supersession could not be found in the claimant's application (see paragraphs 10(5) and (6) and 96 of Tribunal of Commissioners' decision R(IB) 2/04). Yet the apparent condition in paragraph 1(1)(c) of Schedule 1 would be met. How would that case differ on any relevant basis from one in which the Secretary of State, after an investigation set in train by the Department, decided that the existing award of the middle rate of the care component was not warranted and made a superseding decision reducing entitlement to the lowest rate? It would be entirely anomalous if the accident of whether the claimant had made an application or not determined the outcome.
25. Accordingly, it would require the most compelling of statutory language to persuade me that paragraph 1(1)(c) has to be construed as containing the apparent limitation having the results identified in paragraphs 23 and 24 above. The language of paragraph 1(1)(c) falls far short of that. The fundamental reason is that paragraph 1(1)(c) had no substantive effect, as contrasted with a merely descriptive effect, before 18 October 1999. It should therefore not be given a substantive effect after that date, merely by virtue of the amendments in the Commencement No 11 Order. It must be construed as applying to any revision or supersession properly carried out in accordance with section 9 or 10 of the Social Security Act 1998. Very much a subsidiary reason is that the language of paragraph 1(1)(c) is technically inaccurate, in that one could never apply for review of an award, and cannot now apply for revision or supersession of an award in accordance with section 9 or 10. One can only apply for revision or supersession of a decision. If it is technically impossible to meet the condition in paragraph 1(1)(c), that is a good reason for construing the whole of paragraph 1(1) as not containing the condition.
26. I do not then need to explore the other interesting points made by the parties' representatives. In particular, I do not need to explore in detail the argument of the Secretary of State's representative that the exercise carried out by the Secretary of State on 27 January 2004 was different from that contemplated under section 75 of the Social Security Contributions and Benefits Act 1992 and Schedule 1 to the DLA Regulations and that it would be iniquitous for a claimant wrongly awarded a higher rate of DLA from the outset to be deprived of the lower entitlement that ought to have been in place from the outset. There are difficulties with such an approach when section 75 places such emphasis on the award by virtue of which entitlement flows and on the date on which the award is made, rather than the date on which the award takes effect. And in R(DLA) 5/02 I held that entitlements to the different rates of the care component are separate and mutually exclusive, so that it cannot be said that someone entitled to the middle rate has any kind of underlying entitlement to the lowest rate. Thus, in the present case, even if it were eventually decided that the claimant ought not to have had the middle rate of the care component from 6 June 1995, but should only have had the lowest rate, I think that that entitlement could not be said to be by virtue of an award made before she reached the age of 65. Thus the questions of the interpretation of paragraph 1 of Schedule 1 to the DLA Regulations have to be faced.
27. It is a consequence of my conclusions of law that the appeal tribunal further erred in law, if its conclusions of fact could have been supported, by not awarding the claimant the lowest rate of the care component in its superseding decision with effect from 27 January 2004, as the age bar did not apply in those circumstances. For that and the other reasons already given, I set the appeal tribunal's decision aside as erroneous in point of law. The claimant's appeal against the decision of 27 January 2004 is referred to a differently constituted appeal tribunal for determination in accordance with the directions below.
28. There must be a complete rehearing of the appeal against that decision on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 27 August 2004. The first issue for the new appeal tribunal will be whether the Secretary of State has proved on the balance of probabilities that the decision of the disability appeal tribunal of 9 May 1996 was made in ignorance of or under a mistake as to some material fact, applying the approach set out in paragraphs 10 to 12 above. If neither that nor any other ground of supersession has been proved, that is the end of the case and the award made by the disability appeal tribunal continues in effect. If the appeal tribunal does find that ground of supersession proved and is satisfied that the claimant was not entitled to the middle rate of the care component from 6 June 1995, it must go on to consider whether she was entitled to the lowest rate of the care component on the main meal test from any date in the period from 6 June 1995 to 27 January 2004. I direct the new appeal tribunal as a matter of law (in consequence of my conclusion in paragraph 25 above) that it must give effect in its superseding decision to any such entitlement that it finds regardless of whether the entitlement begins before or after the claimant's 65th birthday. I do not need to give any directions of law on the conditions of entitlement to the middle and lowest rate of the care component themselves. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

(Signed) J Mesher

Commissioner

Date: 20 July 2005