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[2007] UKSSCSC CDLA_1945_2006 (16 May 2007)

CDLA 1945 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This decision deals with two decisions made by a tribunal at the same time. The first is a decision not to revise an award of disability living allowance in 1995. The second was a decision to supersede the 1995 decision in 2005. For the reasons set out below these have been dealt with as if they were one decision. I set the decision of the tribunal aside. And, with consent of both parties, I take the decision that the tribunal should have taken. I deal with the two decisions separately. My decisions on the two issues are:

With regard to the application on 14 02 2005 to revise the decision made with effect from 5 03 1995, appeal dismissed. The appellant is entitled to the lowest rate of the care component and lower rate of the mobility component of disability living allowance from and including 5 03 1995.

With regard to the application on 14 02 2005 to supersede that decision

with effect from 14 02 2005, appeal allowed. The appellant is entitled to the middle rate of the care component and lower rate of the mobility component from and including 14 02 2005.

2. The claimant and appellant (Mrs GS) is appealing with permission of Commissioner Pacey against the decision of the Swansea appeal tribunal on 8 02 2006 under reference U 03 204 2005 01783.
3. I held an oral hearing of the appeal at the request of Mrs GS. It was held at Cardiff Civil Justice Centre on 24 04 2007. Mrs GS was present and was represented by Mr R Southall of Port Talbot Citizens Advice Bureau. The Secretary of State for Work and Pensions was represented by Miss S Wise of the Office of the Solicitor to the Department for Work and Pensions.

REASONS FOR THE DECISION

Background to the appeals

4. Mrs GS has been registered as blind for several years. In 1992 she was awarded the lower rate of the mobility component and in 1995 also the lowest rate of the care component because of the limitations on her because of her blindness.
5. In 2005 she applied for supersession of that award, asking for the award to be increased to include the middle rate of the care component. She did so on a standard form that set out four grounds for supersession:

(a) "as a result of the House of Lords ruling in Mallinson (21.04.04) the previous decision was erroneous in law. The AO failed to take into account the attention I need in connection with the bodily function of seeing";

(b) "as a result of the Commissioner's ruling in Halliday/Fairey (14.10.94)

the previous decision was erroneous in law. The AO failed to take into account the attention I need to enable me to perform a reasonable level of social functions";

(c) "there has been a relevant change of circumstances";

(d) "the previous decision was made in ignorance of some material fact".

Mrs GS ticked against (a), (b) and (c) but not (d).

6. The claim form submitted in 2005 did not comment on physical mobility needs outside, although it did raise issues about guidance and supervision outside. Nor did it claim any nighttime needs. It claimed a number of daytime care needs including communication needs. It stated that in addition to the limits caused directly by loss of sight, Mrs GS also suffered pain from one of her eyes. Her husband commented at the end of the form that his wife's condition had worsened over the last year and that she had lost confidence.
7. The decision maker acting for the Secretary of State decided on 25 07 2005 not to supersede the original decision from 1995. The decision maker recognised increased care needs and accepted that there had been a change of circumstances but concluded that these did not justify an increased level of allowance.
8. That decision is wrong in law because it ignored the fact that Mrs GS had in fact asked for revision of the decision on the grounds of error of law as well as supersession for change of circumstances. The decision maker acting for the Secretary of State should have taken two decisions: one on the issue of revision from 1995, and the other on supersession from 14 02 2005. Technically, the decision maker acting for the Secretary of State did not deal with the first of those issues. But all concerned appear to have assumed that both issues were decided. Nonetheless the failure to distinguish between the two decisions, and also therefore between the revision and the supersession, has caused some confusion. As they went to the tribunals together, I considered them together. But I must deal with them as separate decisions.
9. Mrs GS asked for the decision to be reconsidered. She submitted a full statement of points to be considered. This indicated that in addition to her problems with lack of sight, she also suffered from vertigo and tendonitis in one leg. There is also a statement from a friend of long standing. As Mrs GS did not ask to attend, the tribunal considered her appeal at a paper hearing on 24 08 2005. This was later set aside by a tribunal chairman for reasons not relevant to this decision. The chairman directed that the new tribunal hold an oral hearing.
10. Mr Southall made a written submission to the new tribunal that stated that he was asking for supersession of the award of the lowest rate of the care component on grounds of error of law. This repeated the earlier error. It is clear from the details that his request was for a revision of the original decision in 1995 on care. He also asked for the highest rate of the care component from the date of claim because of a change of circumstances. That submission is based on Mrs GS's sight problems. It expressly refers to her problems with vertigo and dizziness and also the leg injury in dealing with that aspect of the claim. It is clearly a request for supersession.
11. The tribunal held the oral hearing as directed. The appellant was represented by Mr Southall and the Secretary of State was also represented. The tribunal's record of proceedings and statement of reasons both make it plain that the tribunal looked separately at the request to backdate the award of the middle rate of the care component and also the request for a forward award of the highest rate of the care component. The tribunal rightly treated the backdating issue as a revision request and the change of circumstances request as a supersession request. Its decision was to award both the middle rate of the care component (for daytime attention) and the lower rate of the mobility component from 14 02 2005 indefinitely. Although it does not say so in terms, this partly allowed the request for supersession, but refused the request for a revision. The award of mobility component remained unchanged.

Grounds of appeal

12. The appellant's grounds of appeal were about the revision decision and not the supersession decision. It was contended that the tribunal made no findings of fact relevant to the question whether the Mallinson decision had been taken properly into account in 1995. Further, it was not clear that the tribunal had considered the criteria set out in Mallinson. It was also contended by reference to R(DLA) 10/02 and CDLA 1721 2004 that the tribunal had looked at the general nature of the disablement and not at the appellant's actual attention needs.
13. The secretary of state's representative, in a written submission on the decision, supported the appeal. But the submission did not support the grounds of appeal. In the view of the secretary of state's representative, the error of the tribunal was in making inadequate findings about its award of the middle rate of the care component. It was not clear why it awarded middle rate of the care component from 2005 but not 1995. In the view of the secretary of state's representative, there might be a case for the middle rate of the care component from 1995. It was accepted that there was a case from 2005. The decision refusing the highest rate of the care component was supported.
14. The Commissioner asked for a further submission questioning the basis on which the tribunal could have superseded the decision from any date earlier than the date of application. The Commissioner also drew attention to CDLA 4099 2004. In reply, the secretary of state's representative resiled in part from the earlier submission. In the new opinion, the secretary of state's representative did not need to decide again about the facts in 1995. It was enough that the tribunal dealt with the issue in 1995 on the basis of the evidence before the Secretary of State or adjudication officer at the time.
15. In argument before me, Mr Southall renewed his challenge that the tribunal had not dealt with the Mallinson arguments adequately. He pointed out that the claim form (in the papers) had raised appropriate issues. He drew support for his arguments from CDLA 1721 2004. CDLA 4009 2004 was, in his submission, not relevant to this case. He indicated that his client now accepted the decision refusing the higher rate of the mobility component and accepted the award of middle rate of the care component from 2005 subject to the arguments about backdating. The relevant information about the issues relevant to the Mallinson decision were in front of the adjudication officer at the time but had not been dealt with. And the tribunal had not dealt with the issues either.
16. Miss Wise confirmed the views in the second submission from the secretary of state's representative. She pointed out that the claim form used in 1995 was a revised form issued after the Mallinson decision. The adjudication officer had had that information and had taken the decision at the time in the light of that information. CDLA 4099 2004 imposed a high test on applications such as this, and that test was not met by the appellant. A specific ground for supersession had to be shown, and it had not been shown. But she accepted that there were grounds to supersede the decision with effect from the application in 2005 with regard to the middle rate of the care component.
17. During discussion at the hearing, it became common ground that the forward decision about the middle rate of the care component was not in question. Nor was the award throughout of the lowest rate of the care component. At the conclusion of the arguments, I indicated that the only matter still in dispute was the issue of backdating the award of middle rate of the care component. I suggested that it was expedient, as all the other aspects of the appeal were now common ground, that I take the decision that the tribunal should have taken on both components and both questions about the care component. This was accepted by both parties.
18. Accordingly, I have taken the decision that I consider the tribunal should have taken on all the issues. With regard to the mobility component, this confirms the existing award. With regard to the care component, this rejects the application for the highest rate of the care component but confirms the forward award of the middle rate of the care component on an indefinite basis. As these were both dealt with at the hearing, I give no further reasons for those decisions. I give full reasons only for the decision about backdating the middle rate of the care component.

Revision or supersession of the 1995 decision

19. I assume for the purposes of this decision that as a matter of law the 1995 decision was a new decision. It was made under the procedural rules applying before the introduction of the Social Security Act 1998. It was a decision to make an award of the care component of disability living allowance for the first time. Previously only the lower rate of the mobility component had been in payment. There is no documentation suggesting otherwise than that the 1995 decision was a new freestanding decision made under the old procedure. I therefore take the 1995 decision as the first decision in the current award history of the appellant. It is necessary to establish that to see if the 2005 application was an application to revise the 1995 decision, or an application to supersede the 1992 decision as superseded in 1995. I regard it as an application to revise. That is how it was treated by the tribunal, although not by anyone handling the application and appeal before that stage. Thankfully, I do not need to go further than that into the pre-1998 Act rules or the transitional rules following the 1998 changes.
20. A revision of a decision made more than a month before the application to revise can only be made on limited grounds. These are set out in regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations"). The argument both before the tribunal and before me was put on the basis of a failure to take into account judicial decisions, and in particular the Mallinson decision, in 2005. That is an assertion of an official error within regulation 3(5)(a). That is the only basis in regulation 3 open to Mrs GS on which she can assert that there should be a retrospective changed to the award of the care component to her. The only other grounds for revision in that regulation are grounds that deal with decisions that are more favourable to a claimant than was warranted on the facts. This was confirmed by the Tribunal of Commissioners in R(IS) 15/04, as approved by the Court of Appeal in Beltekian v Westminster City Council [2004] EWCA Civ, 1784, R(H) 8/05.
21. An assertion that the 1995 decision should be changed because of ignorance of, or mistake as to, facts at that time so that Mrs GS is entitled to a higher rate of allowance can only be made as a supersession application. But supersession on those grounds cannot take effect from 1995. The grounds under which supersession may be made on the application by a claimant are set out in regulation 6 of the 1999 Regulations. Under section 10(5) of the Social Security Act 1998, these decisions normally take effect from the date of the application. The only exceptions to that rule are set out in regulation 7 of the 1999 Regulations. Supersessions to correct mistakes of law can be made under regulation 6(2)(b) of those Regulations. Regulation 7 provides exceptions to the general time limit by reference to the various grounds in regulation 6. Put simply, none apply to supersession on the ground of error of law.
22. It follows that if Mrs GS wishes to argue that the decision about the award of middle rate of the care component to her was wrong in 1995, and should be corrected from 1995, then she must show that this was caused by an official error. Any other error of law, or ignorance or mistake as to the facts, will result only in supersession from the date of her 2005 application. But it is now common ground that she is entitled to the middle rate of the care component, and no more, from 2005 in any event. So she can gain nothing from basing her supersession on error of law as well as the changes in circumstances.

Official error

23. "Official error" is defined by regulation 1(3) of the 1999 Regulations. As applied to the standard form of application made for Mrs GS in this appeal, it means

"an error made by … an officer of the Department for Work and Pensions …

acting as such which no person outside the Department … caused or to which

no person outside the Department … materially contributed".

R(CS) 3 /04 made it clear that this applies to decisions of adjudication officers made before the Social Security Act 1998 changes as much as to decisions made under the new procedures since then. As is discussed in CDLA 4099 2004, it must also be shown that the decision in question "arose from an official error".

24. AS CDLA 4099 2004 notes, the decision of the House of Lords in the Mallinson case ([1994] 1 WLR 630, R(A) 3/94) was given on 21 04 1994. In that case the decision in issue was made before that decision but was said to be an error by reference to it. It was, as the Commissioner observed, clear for that reason that the alleged error in that case did not and could not arise from that decision. In this case it is the opposite that is argued for the appellant. The decision was in 1995 and is seen to be an official error, it is argued, because the decision maker did not apply the Mallinson decision. It is also not caught by the rules preventing retrospective decisions as set out in that decision. Nonetheless, the conclusion reached by the Commissioner in CDLA 4099 2004, although applied to a different situation, can also be applied here:

"… the claimant must show not only that the decision was wrong but also that is it more probable that it was wrong due to the adjudicating officer taking a view of the law shown in Mallinson to be erroneous, than that it was wrong due to some other error of law or ignorance of, or a mistake as to, a material fact. That is no easy task."

25. I do not consider that I need recite the relevant parts of Mallinson in this decision at any length. It is extremely well known as the central judicial authority about the disability needs of the blind or partially sighted, and it was rightly cited as setting the relevant tests in this case. The additional argument here is that the adjudicating officer was wrong in 1995 by reference to that decision in awarding Mrs GS only the lower rate of the mobility component. The officer should have awarded the middle rate of the care component.
26. As indicated above, neither the parties nor I saw any point in sending this back to a new tribunal for further decision. The reality is that the papers contain all that is now available to explain the 1995 decision. I can see nothing to be gained by a further hearing or from evidence from anyone, including the claimant, likely to be identified as relevant to the decision.
27. My starting point is that the decision was not, so far as I have been told, appealed or otherwise challenged at the time. I bear that in mind in assessing the probability that the decision was an official error. Certainly no one thought to question with the Department, or within the Department, whether it was wrong at that time or indeed at any time in the following ten years. I consider that I am also entitled to take note of the widespread publicity and knowledge at that time of the terms of the Mallinson decision as they applied to allowance claims by the blind. The failure to make any application or appeal at that time against the award of the lowest rate of the care component suggests that there was not at that time seen to be any reason to appeal.
28. The next point is that the claim form given to the appellant was DLA434 from April 1995. As was pointed out at the oral hearing, this is a form revised to take account of Mallinson. So consideration of the application did not start erroneously. And it led to the award of the lower rate of the care component not previously awarded.
29. The appellant's claim form claimed need for help for some activities only in reply to the usual questions: getting dressed, walking around indoors, some aspects of preparing a cooked main meal and cutting up food. It added also needs for help with reading and with other help at home and also communicating with other people.

Mrs GS stated that she needed help with reading maybe 5 times a day from a few minutes to up to an hour. But it also indicates that she could at that time read some things as she stated that she used a magnifier for short periods. She also claimed to need and receive help 2 or 3 or maybe more times a day at home, again for a few minutes, on matters such as collecting ornaments, writing letters to friends, her dolls house collection, gardening and cats. Outside she needed help with shopping and getting to clubs. She needed help with communicating once or twice a day for a few minutes reading mail and telling her phone numbers. The statement at the end of the form repeats and emphasises this information.

30. The adjudication officer decided, on the basis of this claim (and apparently without any other evidence) to award the lowest rate of the care component in addition to the lower rate of the mobility component. The question for me, applying the test as formulated in CDLA 4099 2004, is whether it is probable that the decision awarding the lowest rate of the care component in addition to the lower rate of the mobility component was wrong because of an official error.
31. The adjudication officer was asked to review the previous award of disability living allowance for the reason stated as "please see letter dated 5 6 95". That is the date of the claim form in the file, and I see no accompanying letter. No other evidence is mentioned as accompanying the application or as seen by the adjudication officer and I therefore consider that it is more likely than not that there was no other evidence or submission. I do no therefore know if the adjudication officer was expressly asked to consider the Mallinson decision. But it is clear that the Department issued Mrs GS with the appropriate post-Mallinson claim form, and that her replies to the questions on it took into account matters relevant to the application of that decision. On that basis I consider it proper to conclude that the adjudication officer is more likely than not in 1995 to have had that decision in mind when considering Mrs GS's 1995 application, and I so find.
32. Having made that finding, can I now also find that the adjudication officer looking at this information with the correct information in the application, and the correct test in mind, made an official error? It is not enough to find that the officer could on the information have awarded the middle rate of the care component rather than the lowest rate of the care component. Nor is it relevant that I might now consider as a matter of fact that the officer should have then awarded the middle rate of the care component. Neither of those findings would indicate an official error at the time. The question is more specifically whether the officer was probably wrong in making that decision then. I also emphasise again that this was an increase in the level of allowance to that previously awarded and that the decision was not challenged in any way for the next ten years.
33. The information from Mrs GS led to the award of the lowest rate of the care component. That recognised that she had needs for a significant part of the day. She now contends through her representative that the information should have entitled her to the middle rate of the care component. I do not agree that that is the only conclusion to be reached on the information given. She identified no needs related to any work undertaken by her. Not all her information was relevant to the award of the care component. Nor should I assume that the officer accepted uncritically her time estimates of her relevant needs as resulting only in an award at the middle rate for help frequently throughout the day. On that basis, I cannot identify any error of law in the decision to award the lowest rate of the care component rather than the middle rate, when taken in conjunction with an award of the lower rate of the mobility component. Nor am I persuaded as a matter of fact that the officer probably made an error in the award in 1995. I find that on the balance of probabilities on all the evidence now before me the officer did not make an official error in 1995. I therefore dismiss that part of the appeal.

David Williams

Commissioner

16 05 2007