[2008] NISSCSC C1_08_09_(IS)
Decision No:  C4/08-09(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 8 January 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Both parties to the proceedings before the Social Security Commissioner have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law.

2.	I am in agreement with both parties that the decision of the appeal tribunal was in error of law in that it failed to identify the correct basis upon which the decision-maker, on 18 July 2005, had grounds to supersede the decision of the Department, dated 12 April 2005, giving the appellant an entitlement to income support (IS).

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.	Pursuant to the powers conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998, and adopting the undisputed facts of the case, I give the decision which the appeal tribunal ought to have made, to the following effect:

	(i)	the decision-maker had grounds, on 18 July 2007, to supersede the decision of the Department dated 12 April 2005;

	(ii)	the appellant is entitled to the disability premium (DP) from and including 27 April 2005.  Any payment of the DP made to date is treated as having been made on account of this award;

	(iii)	the appellant is entitled to the severe disability premium (SDP) from and including 27 April 2005.  Any payment of the SDP made to date is treated as having been made on account of this award.

5.	The law used to make the decisions at (i), (ii) and (iii) is as follows - regulations 6(2)(e), 7(7) and paragraphs 1(a), 12(a) and 13 of Schedule 2A of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.

	Background

6.	By way of a decision of the Department dated 12 April 2005 the appellant was awarded entitlement to IS, from and including 4 April 2005.

7.	On 14 July 2005 the appellant was also awarded entitlement to the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) from 29 April 2005.  Notification of the award of the entitlement to DLA was made to IS section through internal Departmental communication methods on 18 July 2005.

8.	On 18 July 2005 a decision-maker in the IS section superseded the decision dated 12 April 2005 and awarded the appellant an entitlement to the DP from and including 4 May 2005.

9.	Also on 18 July 2005 the appellant was issued with a computer-generated form – Form IS10 – the purpose of which was to ascertain whether the appellant also satisfied the conditions of entitlement to the SDP.

10.	A completed Form IS10 was received in the Department on 2 January 2007.

11.	A note dated 10 January 2007, in the appeal papers, indicates that the appellant had made a request for back-dating of the SDP to 19 April 2005.

12.	On 12 January 2007 another decision-maker issued a decision which purported to be a supersession, making an award of entitlement to the SDP from and including 27 December 2006. (In the appeal papers this decision is actually dated 12 January 2006, but clearly it should read 12 January 2007).

13.	An appeal against the decision dated 12 January 2007 was received in the Department on 13 February 2007.

14.	The appeal was first listed for hearing on 25 June 2007 and was adjourned to permit the presenting officer prepare a further addendum.

15.	As a result of the adjournment a further addendum was received on 13 August 2007.

16.	On 14 December 2007 a further letter/submission was received from the appellant’s representative.

17.	A further appeal tribunal hearing took place on 8 January 2008.

18.	The appeal tribunal disallowed the appeal and confirmed the decision dated 12 January 2007.

19.	On 19 May 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.

20.	On 22 May 2008 the application for leave to appeal was granted by the legally qualified panel member (LQPM) of the appeal tribunal.

	The proceedings before the Social Security Commissioner

21.	In the proceedings before the Social Security Commissioner the appellant has been represented by the Law Centre (Northern Ireland).

22.	On 30 July 2008 observations on the appeal were sought from the Decision Making Services (DMS) section of the Department.  In the observations which were received on 22 August 2008 DMS supported the appeal, conceded that the decision of the appeal tribunal was in error of law and requested that the decision be set aside and that the Social Security Commissioner should consider exercising the power to make the decision which the appeal tribunal ought to have given.

23.	The observations from DMS were shared with the appellant, and his representative, on 5 September 2008.

24.	In further correspondence, dated 16 September 2008, the appellant’s representative also requested that the appeal be dealt with using the powers of the Social Security Commissioner under Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998.  In addition, the appellant’s representative requested that the Commissioner consider giving appropriate guidance on how the issues arising in the appeal should be dealt with in the future.

25.	On 25 September 2008 the parties to the proceedings were informed that:

	(i)	the final outcome of the appeal is that it would be allowed and that the Commissioner would be exercising his discretion, under Article 15(8)(a), to set aside the decision of the appeal tribunal and give the decision which he considers the appeal tribunal should have given;

	(ii)	a short oral hearing would be held which would not be considering the merits of the appeal but would be confined to a consideration of the appropriate form, extent and remit of necessary guidance in order to prevent the error which arose in this appeal from arising again;

	(iii)	skeleton arguments should be restricted to the matters at (ii) above.

26.	Skeleton arguments were subsequently received from both parties and a short oral hearing was arranged.  At the oral hearing the appellant was represented by Mr Hatton from the Law Centre (Northern Ireland) and the Department was represented by Mr Smith of DMS, accompanied by Mrs Stewart.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

27.	At the oral hearing of the appeal the format of the decision was agreed with both parties to the proceedings.

	The errors in the decision-making process

	(i)	The decision of the Department dated 18 July 2005

28.	It is clear that the IS section was notified, on 18 July 2005, that the appellant, already in receipt of IS, had also been awarded an entitlement to the lower rate of the mobility component and the middle rate of the care component of DLA.  That notification ought to have been sufficient to prompt the Department to take appropriate further action in connection with the entitlement to IS.

29.	As will be noted, in more detail below, there are procedures in place within the Department which prompt an activation of the appropriate decision-making process in the factual situation arising in this appeal.

30.	It is not that the IS section did not take any action.  The action which did take place was partly in error, but, more significantly, was insufficiently followed up to ensure that the appellant was awarded and entitlement to the appropriate premiums.

31.	The decision-maker was correct to supersede the decision dated 12 April 2005 to include an entitlement to the DP.  As was pointed out by the Department, however, the effective date of the supersession and the award of entitlement to the DP, was incorrect.  It should have been awarded from 27 April 2005 rather than from 4 May 2005.  My corrected decision rectifies this minor error.
 
32.	The Department was also correct to undertake an evidence gathering process to determine whether the appellant also satisfied the conditions of entitlement to the SDP.  The issue of Form IS10 to the appellant was part of the evidence gathering process.  Mr Hatton rightly concedes that the Department is permitted to obtain the necessary evidence to ensure that the conditions of entitlement are satisfied.  What did not happen in this case is that relevant follow-up action was taken to obtain the necessary evidence, and complete the required decision-making process with respect to the SDP.

	(ii)	The decision of the Department dated 12 January 2007

33.	By 12 January 2007 the Department, and IS section, had all of the necessary information to complete the necessary decision-making process with respect to the SDP.  A completed Form IS10 had been received from the appellant.  The decision dated 12 January 2007 purports to be a supersession decision.  Reference is made in the Notice of Decision to ‘SS & CS (D&A) Regs (NI), reg 7(2)(b)’.

34.	In fact regulation 7(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, makes provision for the effective date of certain supersession decisions on the basis of a relevant change of circumstances.  As was noted above, the decision dated 12 January restricted entitlement to the SDP to the period from and including 27 December 2006.  It is clear, therefore, that the decision-maker had supersession on the ground of a relevant change of circumstances in his mind, although without expressly stating such.  The decision-maker also had in mind other legislative provisions relating to time limits for claiming social security benefits.  The Notice of Decision also cites ‘Social sec. Admin (NI) ACT 92 Sect. 1(1), Social sec (C+P) Regs (NI) Reg 19(4)(5)(6) + (7) + Sch 4 ’87’.

35.	What everyone now agrees is that any supersession should have been on the basis of regulation 6(2)(e), 7(7) and Paragraphs 1(a), 12(a) and 13 of Schedule 2A of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  My corrected decision also rectifies this error.

	The proceedings before the appeal tribunal

	(i)	The original appeal tribunal submission

36.	The original submission prepared by the Department for the appeal tribunal hearing(s) was clearly inadequate.  The purported issue(s), identified for the appeal tribunal in that submission, are whether the appellant ‘claimed’ entitlement to the SDP and whether such a ‘claim’ satisfied the relevant legislative provisions relating to the time limits for claiming social security benefits and parallel provisions which extending those time limits.  As has now been conceded by everyone the appellant’s entitlement to the SDP had to be considered in light of the alteration of an existing decision awarding entitlement to IS, rather than through any ‘claim’ provisions.

	(ii)	The addenda to the original appeal tribunal submission

37.	By the time the appeal was first listed for oral hearing someone within the Department had recognised that there were problems with how the original appeal tribunal submission had identified the issues for the appeal tribunal.

38.	Following an adjournment of the first oral hearing an addendum was prepared which sought to identify and remedy those original mistakes.  The writer of this first addendum correctly identifies that the decision dated 12 January 2007 purported to be a supersession but failed thereafter to identify that the legislative provisions relating to supersession decisions had not been applied correctly to the obvious factual situation arising in the appeal.  Further, the addendum is clearly misleading in submitting that the receipt of the completed Form IS10, and a further request from the appellant for back-dating, should be treated as notification of a relevant change of circumstances.

39.	Following receipt of a further submission from the appellant’s representative yet another addendum was prepared by an officer of the Department.  The writer of this addendum reinforces the earlier submission that the receipt of a completed Form IS10 and a request for back-dating by the appellant should be treated as notification of a relevant change of circumstances sufficient to justify the making of a supersession decision.  The writer also concedes, and correctly, that the citation of the relevant legislative provisions relating to the time limits for claiming social security benefits, and parallel provisions which extends those time limits, in the Notice of Decision dated 12 January 2007, and presumably in the original appeal submission, was erroneous.

	(iii)	The decision of the appeal tribunal

40.	Mr Smith, in his original observation on the appeal and in conceding that the decision of the appeal tribunal was in error of law, submitted that the appeal tribunal was misdirected by the Department in the original submission and subsequent addendum.  The appeal tribunal confirmed the decision dated 12 January 2007 and in so doing relied primarily on the addenda prepared by the Department.  In particular, the appeal tribunal, erroneously, was satisfied that the receipt of the completed Form IS10 was notification of a relevant change of circumstances sufficient to justify the Departmental decision-maker making the supersession decision which was eventually made.

41.	The duties of an appeal tribunal, in determining an appeal against either a revision or supersession decision were comprehensively analysed and reviewed by a Tribunal of Commissioners in Great Britain in R(IB) 2/04. At paragraph 55(8) of their decision, and in referring to parallel decision-making legislative provisions in Great Britain, the Commissioners state:

‘an appeal tribunal’s task on an appeal following either a [revision] or a [supersession] decision is first to decide whether the Secretary of State was right to change (or not change) the claimant’s entitlement to benefit in the way that he did.  If it decides that the Secretary of State was wrong, its power is, subject to the express limitation in section 12(8)(b), to make the decision which the Secretary of State ought to have made.’

42.	This guidance reminds an appeal tribunal that it must identify the decision under appeal, and decide whether that decision is correct.  In so doing the appeal tribunal may be directed by the submissions of the Department on what the decision under appeal is, on the factual, evidential and legal issues arising, on the legislative provisions and case-law applicable to the issues arising and on the correctness of the decision which has been made.  The Departmental submission, and any addenda, should be as accurate, comprehensive and useful as possible.  The submission is for direction, however, and does not negate the responsibility of the appeal tribunal to make its own examination and analysis.

43.	The legislative provisions which make provision for the supersession of decisions, and the date from which a supersession decision should take effect, namely 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, are complex.  There is a temptation to assume that the natural ground on which a supersession decision has been made is ‘change of circumstances’.  The cases and circumstances under which a decision may be superseded are more varied, however, and specific provisions have been included to deal with discrete situations.  It is essential that appeal tribunals are satisfied that the correct ground has been identified and that the supersession decision takes effect from the correct date.

44.	In this particular case the appeal tribunal’s error was to find that the receipt of the completed Form IS10 was notification of a relevant change of circumstances sufficient to justify the Departmental decision-maker making the supersession decision made on 12 January 2007.

	Guidance

45.	Mr Hatton was correct to submit that regulation 6(2)(e) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, must have a clear objective and that the factual situation arising in the present appeal was made for its application.

46.	As was noted above Mr Hatton invited the issue of appropriate guidance to ensure that the unfairness which arose from the misapplication of the relevant legislative provision in the present case did not arise again.  In the present case the appellant (eventually) had the advantage of expert guidance on the appropriate rules of entitlement and he has now been awarded benefit at the apposite rate for the correct period.  Concern could arise, however, if suitable mechanisms were not in place to ensure that everyone with a parallel entitlement, whether represented or not, also obtained the relevant award.  It was in this light that both parties were invited to make oral and written submissions as to how Departmental procedures might address any such concerns.

47.	I have been reassured through the information provided by Mr Smith in the skeleton arguments, and in his and Mrs Stewart’s oral submissions, that the error which occurred in this case was singular, that appropriate remedial action was being taken through reinforcement of existing guidance and direction and the provision of additional training to decision-makers.  Effective communication between different branches and sections of the Department is essential to ensure that claimants establish their correct entitlement to social security benefits.

48.	It is also encouraging to learn that the existing guidance to decision-makers is comprehensive and that the existing routine procedures should alert decision-makers to omissions or failures to act.  I am satisfied that the current Departmental systems are sufficiently robust to negate any future problems in parallel situations.  It is vital, however, that there is continued adherence to, and reinforcement to, good practice and procedure.

49.	It is also suitable for appropriate representative organisations to remain as informative as possible to claimants and appellants, particularly in relation to the complex rules concerning the inter-relationship of social security benefits.

(signed)  K Mullan

Commissioner

17 November 2008