JB-v-Department for Social Development (DLA) [2011] NICom 227

Decision No:  C28/11-12(DLA)

APPOINTEE: MRS E B (MOTHER)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 14 September 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 14 September 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

2.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  My decision is that the decision of the Department, dated 28 January 2009, terminating entitlement to disability living allowance (DLA), from and including 3 December 2008 is confirmed.

3.	Accordingly, although the appeal to the Social Security Commissioner succeeds, the outcome, in terms of benefit entitlement, remains the same.  The decision of the Social Security Commissioner will come as a disappointment to the claimant, his appointee, and his father, but I am obliged, as was the appeal tribunal, to apply the relevant legislative provisions to the facts of the case.

Background

4.	Throughout this decision the person to whom an award of entitlement to DLA was made on 5 November 2004, is referred to as the claimant.  On 18 June 2010 the claimant consented to his mother acting as his representative in respect of the proceedings before the Social Security Commissioner.  In the remainder of this decision, the claimant’s mother will be referred to as the claimant’s appointee.  I am also conscious that the claimant’s father has taken a close and active part in the proceedings before the appeal tribunal and before the Social Security Commissioner.

5.	On 5 November 2004, an appeal tribunal, following an oral hearing of an appeal which was before it, made an award of entitlement to the middle rate of the care component of DLA from and including 16 March 2004.  The precise legal status of that award, in terms of its duration, will be examined in more detail below.

6.	Following an exchange of correspondence and relevant forms, the Department accepted the claimant’s mother’s appointment to act on behalf of the claimant in respect of benefit entitlement.

7.	On 7 October 2008 the Department issued Form DLA1000 to the claimant’s appointee, together with Form DLA 250 and an explanatory leaflet.  The basis upon which the Department has the legislative power to issue these enquiry forms will be examined in more detail below.  In short, however, and for the moment, the Department was informing the claimant’s appointee that the claimant’s entitlement to DLA was being examined under what was described as the ‘Periodic Enquiry Process’.  As part of that examination, the appellant’s appointee was asked to complete Form DLA 250 and return it to the Department within a period of three weeks.

8.	The response of the claimant’s appointee was as set out in her correspondence to the Department dated 13 October 2008.  In this correspondence the appointee indicates that she wishes to advise the Department that the claimant’s condition remained unchanged and refers to previous correspondence from the Social Security Agency, dated 25 April 2006, in which the Agency stated that the claimant was entitled to the middle rate of the care component of DLA indefinitely.  Finally the appointee indicated that she will advise the Department should the claimant’s condition change at any time.

9.	Attached to the original appeal submission, as Tab No 9, is a record of a telephone conversation from an officer of the Department to the claimant’s appointee.  The telephone conversation is recorded as having taken place on 17 October 2008.  The report of the telephone conversation is recorded as follows:

‘T/C to Appointee re letter.  I advised her that the DLA250 must be completed.  She agreed (reluctantly) to complete it even though (the claimant’s) condition hasn’t changed and never will.’

10.	On 31 October 2008 a reminder notice was issued by the Department to the claimant’s appointee requesting that the Form DLA250, issued on 7 October 2008, should be returned.  The relevant form had a section indicating that should the enquiry form not be returned the Department might not be able to continue with the payment of benefit.

11.	On 27 November 2008 a further letter was issued to the claimant’s appointee.  This reminder asked for the enquiry forms to be returned by 12 December 2008 and contained the same caveat as was contained in the correspondence dated 31 October 2008 concerning the potential for payment of benefit to be stopped.

12.	On 15 December 2008 a decision-maker of the Department made a ‘suspension’ decision.  A copy of the relevant decision is attached to the original appeal submission as Tab No 12.  It is in the form of a Departmental template ‘SUSP1’ form.  The decision is that payment of benefit is suspended from and including 3 December 2008.  The reason for the suspension is stated to be:

‘Non-return of DLA250 despite reminder action and pre-suspension letter’

13.	The decision makes reference to:

‘Reg 16(3) of the SS & CS (DLA) regs (NI) 1999’

14.	The legislative basis on which the suspension decision was made is key to the decision which I have made in this appeal and its relevance to the issues arising in the appeal will be explored in more detail below.

15.	Notification of the suspension decision was issued to the claimant’s appointee on 17 December 2008.

16.	In correspondence dated 19 December 2008, the claimant’s appointee responded to the suspension decision.  In this correspondence she noted that in her letter dated 13 October 2008 she had indicated that the claimant’s condition had not changed since the award.  Accordingly he remained entitled to his award of DLA as per the original award notice from the Social Security Agency.  The award of entitlement had been made pursuant to a unanimous decision of an appeal tribunal.  The appointee also stated that she could not understand how they were being so aggressively pursued when the paperwork had stated unambiguously that award was indefinite.  The appointee also made reference to her perception of the manner in which aspects of the claim to benefit had been handled and indicated that she felt that her family were being victimised, that the situation was unacceptable and amounted to an infringement of her son’s human rights.  The appointee asked for his award to be reinstated.

17.	On 22 December 2008 the Department issued a response to the correspondence dated 19 December 2008.  In this response a Departmental officer stated that the Form DLA250 had to be completed, and made reference to previous explanations as to why completion was compulsory.  The letter stated that if the relevant form was not returned by 17 January 2009 then the appropriate branch of the Department would continue with the action outlined in the correspondence dated 17 December 2008 ie the potential for termination rather than suspension.  The Department has submitted a copy Form DLA250 and an explanation leaflet outlining the periodic enquiry process were included with the letter dated 22 December 2008.

18.	The claimant’s appointee and father, replied to the Department’s letter of 22 December 2008 by way of correspondence dated 8 January 2009.  In this response reference was made to the previous correspondence of 13 October and 19 December 2008 in which they had advised that the award was indefinite.  In addition, it was submitted that the Agency had failed to explain why the claimant’s case had been selected for the review process, and a query was raised concerning the criteria which are applied for such a process and why the Agency was questioning the decision of its own appeal tribunal.  It was also submitted that the Department already had a plethora of information regarding the claimant’s condition.  Finally the claimant’s appointee and father offered to meet with the Agency to answer any questions which it had.

19.	On 28 January 2009 a decision-maker of the Department made another decision.  A copy of the relevant decision is attached to the original appeal submission as Tab No 17.  Once again, it is in the form of a Departmental template ‘SUSP1’ form but is headed ‘Decision to terminate benefit’.  The decision is that payment of benefit is terminated from and including 3 December 2008.  The reason for the termination is stated to be:

‘Non-return of DLA250 despite reminder action and suspension of benefit’

20.	Once again, the decision makes reference to:

‘Reg 18(1) of the SS & CS (DLA) regs (NI) 1999’

21.	There is an error in this reference.  The nature of the error and its relevance to the issues arising in this appeal will be explored in more detail below.

22.	Notification of this decision was issued on 28 January 2009.

23.	On 11 February 2009 a letter was received in the Department from a solicitor, Nigel Greeves, acting for the claimant’s appointee.  In that correspondence Mr Greeves noted the effect of the decision of the original appeal tribunal and submitted that the Agency should abide by that decision.  While Mr Greeves accepted that the Agency should have a system of checks but he noted that the ‘… Courts require that in the management of all systems discretion should be exercised and in my view the failure of the Agency to exercise its discretion not to require the form to be completed in these circumstances … would be unlawful and … would be struck down by the courts.’  In order to avoid an application to the High Court, Mr Greeves asked for reinstatement of the benefit.

24.	On 27 February 2009 the Department responded to Mr Greeves, by explaining, firstly, the process by which the claimant’s case had been selected for the periodic review process and noted that the claimant’s appointee could appeal against the decision of 28 January 2009 if she remained unhappy with it.

25.	Further correspondence from Mr Greeves dated 2 April 2009, was received in the Department on 7 April 2009.  Once again, Mr Greeves outlined the basis upon which he believed the decision of the Agency not to exercise its discretion could be struck down by the courts and asked for the decision dated 28 January 2009 to be reviewed.

26.	A reply to Mr Greeves was issued by the Department on 7 April 2009.  The content of this response mirrored that of the Departmental letter of 27 February 2009.

27.	By way of correspondence dated 21 April 2009, the claimant’s appointee and father submitted an appeal.  Reference was made to the willingness of the claimant’s appointee and father to meet with Agency staff but that this offer had been refused and that there had been an insistence of the completion of the relevant forms.

Proceedings before the appeal tribunal

28.	An oral hearing of the appeal took place on 14 September 2009.  The record of proceedings for the appeal tribunal hearing, record that the claimant’s appointee and his father were present and were accompanied by Miss D….., a teacher for the deaf.  The Department was represented by a Departmental presenting officer.  I have noted that in the application for leave to appeal, the claimant’s appointee has raised a number of points concerning the appeal tribunal hearing which will be dealt with in more detail below.

29.	The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 28 January 2009.  Following an exchange of correspondence between the claimant’s appointee and the Appeals Service (TAS) in connection with the conduct of the appeal tribunal hearing, on 14 January 2010, an application for leave to appeal to the Social Security Commissioner was received in TAS on 14 January 2010.  On 11 February 2010 the application for leave to appeal was refused by the Legally Qualified Panel Member (LQPM).

Proceedings before the Social Security Commissioner

30.	On 19 March 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 21 June 2010 the claimant’s appointee returned a form of authority authorising her to act in connection with all proceedings before the Social Security Commissioners.  On 5 July 2010 I accepted the late application for leave to appeal for special reasons.  Also on 5 July 2010, observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 27 July 2010.  In these initial written observations, Mr Kirk, for DMS opposed the application on all of the grounds submitted by the claimant’s appointee.  Observations were shared with the claimant’s appointee on 30 July 2010.  There then followed an exchange of observations in reply and further submissions between the parties to the proceedings, represented by Mr Kirk and the claimant’s appointee.

Errors of law

31.	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.

32.	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?

The relevant legislative background relating to the provision of information, suspension and termination

33.	Articles 21 to 23 of the Social Security (Northern Ireland) Order 1998, as amended, provide that:

‘Suspension in prescribed circumstances

21.—(1) Regulations may provide for—

(a) suspending payments of a relevant benefit, in whole or in part, in prescribed circumstances;

(b) the subsequent making in prescribed circumstances of any or all of the payments so suspended.

(2) Regulations made under paragraph (1) may, in particular, make provision for any case where—

(a) it appears to the Department that an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled;

(b) it appears to the Department that an issue arises whether a decision as to an award of a relevant benefit should be revised (under Article 10) or superseded (under Article 11);

(c) an appeal is pending against a decision of an appeal tribunal, a Commissioner or a court; or

(d) an appeal is pending against a decision given in a different case by a Commissioner or a court, and it appears to the Department that if the appeal were to be determined in a particular way an issue would arise whether the award of a relevant benefit (whether the same benefit or not) in the case itself ought to be revised or superseded.

(3) For the purposes of paragraph (2), an appeal against a decision is pending if—

(a) an appeal against the decision has been brought but not determined;

(b) an application for leave to appeal against the decision has been made but not determined; or

(c) in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.

Suspension for failure to furnish information, etc.

22.—(1) The powers conferred by this Article are exercisable in relation to persons who fail to comply with information requirements.

(2) Regulations may provide for—

(a) suspending payments of a relevant benefit, in whole or in part;

(b) the subsequent making in prescribed circumstances of any or all of the payments so suspended.

(3) In this Article and Article 23 “information requirement” means a requirement, made in pursuance of regulations under subsection (1)(hh) of section 5 of the Administration Act, to furnish information or evidence needed for a determination whether a decision on an award of benefit to which that section applies should be revised under Article 10 or superseded under Article 11.

(4) Subsection (2A) of section 5 of the Administration Act shall apply in relation to paragraph (3) as it applies in relation to paragraph (hh) of subsection (1) of that section.

Termination in cases of failure to furnish information

23. Regulations may provide that, except in prescribed cases or circumstances, a person—

(a) whose benefit has been suspended in accordance with regulations under Article 21 and who subsequently fails to comply with an information requirement; or

(b) whose benefit has been suspended in accordance with regulations under Article 22 for failing to comply with such a requirement, shall cease to be entitled to the benefit from a date not earlier than the date on which the payments were suspended.’

34.	Regulations 16 to 18 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, which are made under the enabling posers provided for in Articles 21 to 23 of the Social Security (Northern Ireland) Order 1998, as amended, provide that:

‘Suspension in prescribed cases

16.—(1) Subject to paragraph (2), the Department may suspend payment of a relevant benefit, in whole or in part, in the circumstances prescribed in paragraph (3).

(2) The Department shall suspend payment of a jobseeker’s allowance in the circumstances prescribed in paragraph (3)(a)(i) or (ii) where the issue or one of the issues is whether a person, who has claimed a jobseeker’s allowance, is or was available for employment or whether he is or was actively seeking employment.

(3) The prescribed circumstances are that—

(a) it appears to the Department that—

(i) an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled,

(ii) an issue arises whether a decision as to an award of a relevant benefit should be revised under Article 10 or superseded under Article 11,

(iii) an issue arises whether any amount paid or payable to a person by way of, or in connection with a claim for, a relevant benefit is recoverable under section 69, 69A or 72 of the Administration Act or regulations made under any of those sections, or

(iv) the last address notified to it of a person who is in receipt of a relevant benefit is not the address at which that person is residing; or

(b) an appeal is pending against—

(i) a decision of an appeal tribunal, a Commissioner or a court, or

(ii) a decision given in a different case by a Commissioner or a court, and it appears to the Department that, if the appeal were to be determined in a particular way, an issue would arise as to whether the award of a relevant benefit (whether the same benefit or not) in the case itself ought to be revised or superseded.

(4) For the purposes of Article 21(3)(c) an appeal is pending where a decision of an appeal tribunal, a Commissioner or a court has been made and the Department—

(a) is awaiting receipt of that decision or, in the case of an appeal tribunal decision, is considering whether to apply for a statement of the reasons for it, or has applied for such a statement and is awaiting receipt thereof; or

(b) has received that decision or, in the case of an appeal tribunal decision, the statement of the reasons for it, and is considering whether to apply for leave to appeal, or, where leave to appeal has been granted, is considering whether to appeal, and the Department shall give written notice of its proposal to make a request for a statement of the reasons for a tribunal’s decision, to apply for leave to appeal, or to appeal, as soon as reasonably practicable.

(5) In this regulation “Commissioner” includes a Commissioner within the meaning of section 39(1) of the Social Security Act 1998.

Provision of information or evidence

17.—(1) This regulation applies where the Department requires information or evidence for a determination whether a decision awarding a relevant benefit should be—

(a) revised under Article 10; or

(b) superseded under Article 11.

(2) For the purposes of paragraph (1), the following persons shall satisfy the requirements of paragraph (4)—

(a) a person in respect of whom payment of a benefit has been suspended in the circumstances prescribed in regulation 16(3)(a);

(b) a person who has made an application for a decision of the Department to be revised or superseded;

(c) a person who fails to comply with the provisions of regulation 32(1) of the Claims and Payments Regulations in so far as they relate to documents, information or facts required by the Department;

(d) a person who qualifies for income support by virtue of paragraph 7 of Schedule 1B to the Income Support Regulations;

(e) a person whose entitlement to benefit is conditional on his being, or being treated as, incapable of work;

(f) a person whose entitlement to an employment and support allowance is conditional on his having, or being treated as having, limited capability for work.

(3) The Department shall notify any person to whom paragraph (2) refers of the requirements of this regulation.

(4) A person to whom paragraph (2) refers shall either—

(a) supply the information or evidence within—

(i) a period of one month beginning with the date on which the notification under paragraph (3) was sent to him, or

(ii) such longer period as he satisfies the Department is necessary in order to enable him to comply with the requirements; or

(b) satisfy the Department within the period of time specified in sub-paragraph (a)(i) that either—

(i) the information or evidence required of him does not exist, or

(ii) that it is not possible for him to obtain it.

(5) The Department may suspend payment of a relevant benefit, in whole or in part, to any person to whom paragraph (2)(b) to (f) applies who fails to satisfy the requirements of paragraph (4).

(6) In this regulation, “evidence” includes evidence which a person is required to provide in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations (Northern Ireland) 1976.

Termination in cases of failure to furnish information or evidence

18.—(1) Subject to paragraphs (2) to (4), the Department shall decide that where a person—

(a) whose benefit has been suspended in accordance with regulation 16 and who subsequently fails to comply with an information requirement made in pursuance of regulation 17; or

(b) whose benefit has been suspended in accordance with regulation 17(5), that person shall cease to be entitled to that benefit from the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation.

(2) Paragraph (1)(a) shall not apply where not more than one month has elapsed since the information requirement was made in pursuance of regulation 17.

(3) Paragraph (1)(b) shall not apply where not more than one month has elapsed since the first payment was suspended in accordance with regulation 17.

(4) Paragraph (1) shall not apply where benefit has been suspended in part under regulation 16 or, as the case may be, regulation 17.’

35.	Section 5(1)(h) and (hh) of the Social Security Administration (Northern Ireland) Act 1992, as amended, provides that:

‘(1) Regulations may provide-

…

(h) for requiring any information or evidence needed for the determination of such a claim or of any question arising in connection with such a claim to be furnished by such person as may be prescribed in accordance with the regulations;

(hh) for requiring such person as may be prescribed in accordance with the regulations to furnish any information or evidence needed for a determination whether a decision on an award of benefit to which this section applies—

(i) should be revised under Article 10 of the Social Security (Northern Ireland) Order 1998 or, as the case may be, under paragraph 3 of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000; or

(ii) should be superseded under Article 11 of that Order 􀁦49or, as the case may be, paragraph 4 of that Schedule;’

36.	Regulation 32(1) and (1A) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987, as amended, made under the enabling power provided for in section 5(1)(h) and (hh) of the Social Security Administration (Northern Ireland) Act 1992, as amended, provide that:

‘32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require for determining whether a decision on the award of benefit should be revised under Article 10 of the 1998 Order or superseded under Article 11 of that Order.

(1A) Every beneficiary and every person by whom, or on whose behalf, sums by way of benefit are receivable shall furnish in such manner and at such times as the Department may determine such information or evidence as it may require in connection with payment of the benefit claimed or awarded.

The application of these legislative provisions by the Department in the instant case

37.	The decision-making process undertaken by the Department leading to the decision dated 28 January 2009, and the legislative basis underlying that decision, is as set out above.  I have already referred to the detail of the suspension decision.  It was stated to have been made on the basis of ‘Reg 16(3) of the SS & CS (DLA) regs (NI)’.  In his written observations, dated 17 February 2011, on the application for leave to appeal, Mr Kirk submits that the correct legislative reference should have been to regulation 16(1) and (3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended.  In his further comments on Mr Kirk’s written observations, dated 14 March 2011, the claimant’s father questioned the incorrect legislative reference and the legal ramifications of the application of the wrong legislative provisions.  I will comment on the submissions of both Mr Kirk and the claimant’s appointee below.

38.	Similar principles apply to the termination decision itself, the decision under appeal to the appeal tribunal.  Once again, I have set out the detail of the termination decision above.  It was stated to have been made on the basis of ‘Reg 18(1) of the SS & CS (DLA) regs (NI)’.  Once again, Mr Kirk submits that this is an incorrect legislative reference.  It should have read regulation 18(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended.  Once again, the claimant’s father questions the validity of the decision-making process, given the incorrect legislative reference.  I will also deal with the validity of the termination decision below.

39.	In the appeal submission, prepared for the appeal tribunal hearing, the appeals writer makes reference to the decision having been made under regulations 16 and 18 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended.  In the statement of reasons for the appeal tribunal’s decision the appeal tribunal has referred to the Department’s power to suspend and terminate entitlement to social security benefits under regulations 16 to 18 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended.

Were the correct legislative provisions applied?

40.	I am of the view that the decision-maker of the Department did not apply the correct legislative provisions in arriving at the suspension decision.  I am also of the view that the appeal tribunal’s confirmation that regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended, was the legislative basis for the suspension decision is also incorrect.  It is for that reason that I find that the decision of the appeal tribunal is in error of law.  Why have I arrived at that conclusion?

41.	There is no doubt that regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) as amended, gives the Department the power to suspend entitlement to social security benefits but as the heading to the regulation notes the power to suspend is only available in certain prescribed circumstances.  What are those circumstances?  They are set out in paragraph (3) of regulation 16, as follows:

‘(3) The prescribed circumstances are that—

(a) it appears to the Department that—
(i) an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled,

(ii) an issue arises whether a decision as to an award of a relevant benefit should be revised under Article 10 or superseded under Article 11,

(iii) an issue arises whether any amount paid or payable to a person by way of, or in connection with a claim for, a relevant benefit is recoverable under section 69, 69A or 72 of the Administration Act or regulations made under any of those sections, or

(iv) the last address notified to it of a person who is in receipt of a relevant benefit is not the address at which that person is residing; or

(b) an appeal is pending against—

(i) a decision of an appeal tribunal, a Commissioner or a court, or

(ii) a decision given in a different case by a Commissioner or a court, and it appears to the Department that, if the appeal were to be determined in a particular way, an issue would arise as to whether the award of a relevant benefit (whether the same benefit or not) in the case itself ought to be revised or superseded.’

42.	Could any of those prescribed circumstances have applied in the instant case?  It is arguable that the prescribed circumstances in (3)(a)(i) and (ii) had the potential to apply in the instant case.  It is arguable that the Department, in seeking the relevant information as part of the periodic review process was considering whether an issue arose as to whether the conditions for entitlement to a relevant benefit, in this case DLA, are or were fulfilled, or that an issue arose as to whether a decision as to an award of a relevant benefit should be revised under Article 10 or superseded under Article 11.

43.	I am of the view, however, that despite the potential application of regulation 16(3)(i) and (ii) to the instant case, the proper decision-making should have been as follows.

44.	Regulation 32(1) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987, as amended, imposes a duty on every person entitled to a social security benefit, a ‘beneficiary’, that the beneficiary must provide to the Department in the manner and time determined by the Department such information and evidence as the Department might require in order to decide whether an initial decision awarding the entitlement to benefit should be revised or superseded.

45.	Regulation 32(1A) of the Social Security (Claims and Payments) (Northern Ireland) Regulations 1987, as amended, imposes a duty on every person entitled to a social security benefit, a ‘beneficiary’, that the beneficiary must provide in the manner and time determined by the Department such information and evidence as the Department might require in connection with payment of the benefit claimed or awarded.

46.	It is, in my view, the regulation 32(1) and (1A) requirements which the Department was enforcing when it sought, initially on 7 October 2008, and through subsequent reminders, the information in connection with the claimant’s entitlement to DLA through the completion of Form DLA250.

47.	The claimant’s appointee, acting for the claimant in respect of all aspects of his claim and entitlement to DLA, and by her failure to complete and return Form DLA250, did not satisfy the regulation 32(1) and (1A) requirements.

48.	Regulation 17(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that a person who fails to comply with the provisions of regulation 32(1) of the Claims and Payments Regulations in so far as they relate to documents, information or facts required by the Department subject to paragraph (4) of regulation 17.

49.	Regulation 17(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that a person to whom the paragraph applies must supply the information or evidence within a period of one month beginning with the date on which the notification was sent, (or such longer period as he satisfies the Department is necessary in order to enable him to comply with the requirements; or satisfy the Department within the period of time specified in sub-paragraph (a)(i) that either (i) the information or evidence required of him does not exist, or (ii) that it is not possible for him to obtain it).

50.	The claimant’s appointee failed to satisfy the regulation 32(1) and (1A) requirement and the regulation 17(4) requirement, having been given notice to supply the relevant information and failed to supply it within one month and, indeed, within a longer period, as evidenced by the reminder letters.

51.	Regulation 17(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that the Department may suspend payment of a relevant benefit, in whole or in part, to any person to whom paragraph (2)(b) to (f) applies who fails to satisfy the requirements of paragraph (4).

52.	The claimant’s appointee, someone to whom regulation 17(2)(c) applies and who had failed to satisfy the requirements of regulation 17(4) was subject to the suspension provisions in regulation 17(5).  Those suspension provisions were triggered through the suspension decision of 15 December 2008.

53.	Regulation 18(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that the Department shall decide that where a person whose benefit has been suspended in accordance with regulation 17(5), that person shall cease to be entitled to that benefit from the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation.

54.	Once the suspension provisions had been triggered through the application of regulation 17(5) that permitted the application of the termination provisions in regulation 18(1)(b).  The termination date is, for the purposes of regulation 17(5), the same as the date of suspension.

Why should I rectify errors in the decision-making process?

55.	As was noted above, in his further comments on Mr Kirk’s written observations, dated 14 March 2011, the claimant’s father questioned the incorrect legislative reference and the legal ramifications of the application of the wrong legislative provisions.  It is entirely natural that the claimant’s appointee and his father should question the legal validity of the decision-making process in light of a concession that the original decisions, both suspension and termination, contained incorrect legislative references.

56.	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 Social Security Commissioners in Great Britain in R(IB)2/04.  That decision 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.

57.	What the guidance in R(IB) 2/04 means is that even where there is an error in the decision-making process, the appeal tribunal has the power to remedy defects in the decision-making process, stand in the shoes of the Departmental decision-maker, and make the correct decision.  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.’

58.	These exceptional cases could not be subjected to the newly identified remedying powers.  I do not consider, however, that the defect in the Departmental decisions dated 15 December 2008 and 28 January 2009, namely the incorrect legislative references meant that the decisions fell into this residual inchoate category.

59.	Of course, the appeal tribunal in the instant case did not correct the identified errors.  It confirmed the decision under appeal, the decision of 28 January 2009.  It is the case, however, that a Social Security Commissioner has the power, under Article 15(8)(a)(i) and (ii) of the Social Security (Northern Ireland) Order 1998, as amended, to give the decision which he considers the appeal tribunal should have given.  It is this legislative provision which enables me to give the decision which I have in this case.

What is the legal nature of a termination decision and is there a right of appeal against it?

60.	Considerable guidance to the approach to the answer to these questions is to be found in the decision of the Social Security Commissioner in Great Britain in R(H) 4/08.

61.	The Social Security (Northern Ireland) Order 1998, represented the most major general legislative scheme outlined in the 1998 Order is completed by the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Together their provisions set out the rules relating to the procedure for decision-making on claims to benefit and the determination of appeals arising from those decisions.

62.	Article 9 of the 1998 Order provides that the Department will decide any claim for a relevant benefit, any claim for a social fund payment, and any decision which falls to be made under any relevant statutory provision.  The list of relevant benefits, contained in section 8(3), is comprehensive.  It includes benefits under Part II to V of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, amongst which is DLA.  It also includes a range of other benefits and any other such benefit as might be prescribed.  Under the provisions of Article 9(4) of the 1998 Order, ‘relevant statutory provision’ means most of those pieces of legislation covering the benefits outlined above.

63.	Article 17 of the 1998 Order provides that any decision on entitlement to social security benefits, either by the Department or an appeal tribunal, is final.  This means that the only method of altering a decision of the Department or an appeal tribunal is by appealing that decision to an appeal tribunal or a Social Security Commissioner, successfully applying for the setting aside or correction of the appeal tribunal decision, or through a revision or a supersession of that decision.

64.	Articles 10 and 11 of the 1998 Order make provision for the revision and superseding of decisions.  Under Article 10 of the 1998 Order, any decision of the Department may be revised by the Department, within a prescribed period, either on an application made for the purpose or on the Department’s own initiative.  Under Article 10(3) of the 1998 Order, a revision will take effect as from the date on which the original decision took (or was to take) effect.  Further provision for the revision of decisions is made under Chapter 1 of Part II of the 1999 Decisions and Appeals Regulations.  Supersessions are generally provided for in Article 11 of the 1998 Order.  Under Article 11(1), a decision of the Department, whether as originally made or revised, and any decision of an appeal tribunal or of a Commissioner, may be superseded by a decision made by the Department, either on an application or on its own initiative.  In making the superseding decision the Department need not consider any issue that is not raised by the application or did not cause the Department to act on his own initiative.  The circumstances where decisions may be superseded, and the rules relating to the date from which a supersession may take effect, are provided for in Chapter II of Part II of the 1999 Regulations.

65.	The jurisdiction of an appeal tribunal is set out in Article 13 of the 1998 Order.  The jurisdiction is to hear appeals against decisions of the Department under Articles 9 and 11 (whether as originally made or as revised under Article 10) and which are made on a claim for, or an award of, a relevant benefit.  Certain decisions, a list of which is set out in Schedule 2 of the Order, do not carry appeal rights.  Other decisions, made otherwise than on such a claim or award, and which fall within Schedule 3, also carry appeal rights.  A further list of decisions which do not carry appeal rights is contained in Schedule 1 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  Paragraph 22 of Schedule 1 states that the following decision shall not carry appeal rights:

‘A decision of the Department relating to the suspension of a relevant benefit or to the payment of such a benefit which has been suspended under Part III of these Regulations.’

66.	That means that the suspension decision of 15 December 2008 did not carry appeal rights.

67.	In analysing the effect of paragraph 15 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, and regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 which made provision for suspension and termination of council tax benefit in Great Britain and which provisions were worded in similar fashion to the suspension and termination provisions for social security benefits, as outlined above. Commissioner Jacobs stated, at paragraphs 28 to 34 of R(H) 4/08:

‘28.	Now I come to my analysis.  I begin my noting that neither paragraph 15 nor regulation 14 refers to the making of a decision by the local authority.  They provide only for an effect – that entitlement to benefit shall cease.  They make no provision for how that is put into effect.  It could, of course, take effect simply by operation of law.  However, that would make it unique within the structure of the legislation.  I accept Mr Patel’s argument that the local authority had to make a decision.  This is supported by paragraph 5 of the Schedule to the 2001 Regulations, which assumes that a decision is required.

29.	Given that a decision is required, how does that fit into the structure of the legislation?  There are two possibilities.  One is that the decision fits within the decision–revision–supersession provisions.  The other is that the decision operates outside those provisions.

30.	The decision-revision-supersession provisions are the only express decision-making provisions for council tax benefit once a claim has been decided.  It is possible to fit a termination decision within that framework.  On my analysis, the termination decision takes effect on supersession for a change of circumstances.  My preferred view is that the operation of regulation 14 that entitlement shall cease is a change of circumstances.  Another view would be that the facts underlying the operation of regulation 14 constitute the change of circumstances.  In other words, the failure to comply with the requirement to provide information within the time allowed is a change of circumstances that authorises the local authority to terminate entitlement.  These are merely two different ways of looking at the same thing.  On either view, there is a change of circumstances.  But is it a change that comes within regulation 7(2)(a)(i) of the 2001 Regulations?

31.	To come within regulation 7, it must be made under paragraph 4 of Schedule 7.  And to come within paragraph 4, it must involve the supersession of a relevant decision.  There is no difficulty with this point, because the termination decision ends entitlement on the award of council tax benefit and the decision making that award was a relevant decision because it was a decision on a claim.  The decision can, therefore, be made under paragraph 4 and is within regulation 7.

32.	However, there is an issue on the effective date.  Regulation 8 purports to fix the effective date for decisions made under regulation 7(2)–(7).  But it makes no provision for termination decisions.  The effective date for those decisions is governed by regulation 14.  Regulation 8 must, therefore, be read as subject to regulation 14.  That presents no difficulty.  It is, no doubt, standard drafting to identify that one regulation is subject to another.  But that is just a matter of practice.  The Regulations have to be read as a whole and, when so read, regulation 8 is subject to regulation 14.  This is easily achieved by limiting regulation 8 to matters authorised by paragraph 4(6) of Schedule 7.  Regulation 14 is made under different authority, paragraph 15 of Schedule 7, and that paragraph is identified as one of the enabling provisions in the preamble to the Regulations.

33.	On this analysis, a termination decision is given on a supersession of a relevant decision.  As such it is itself a relevant decision.  And as a relevant decision it is within the right of appeal under paragraph 6(1).

34.	I have tested this analysis against the consequences if the termination decision operates outside the decision–revision–supersession provisions.  First, it is not a relevant decision.  From that it follows that there is no provision for correcting mistakes under the powers to revise (paragraph 3 of Schedule 7) and to correct accidental errors (regulation 10A of the 2001 Regulations).  It also follows that there is no right of appeal.  Second, the finality provision in paragraph 11 of Schedule 7 does not apply.  That provision only applies to decisions made under the preceding provisions.  It does not apply to paragraph 15, which comes later in the Schedule.  Those consequences suggest that it would be preferable if the termination decision fitted into the decision–revision–supersession provisions.’

68.	I accept this analysis and apply it to the suspension and termination provisions for social security benefits, as outlined above.  I conclude, therefore that a termination decision under regulation 18(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, is a supersession decision against which an appeal lies.

Other issues arising

69.	In the application for leave to appeal and in subsequent correspondence the claimant’s appointee and his father have raised a number of additional points all of which require comment and analysis.

(i)	The legal nature of an indefinite award of DLA

70.	I can easily and readily understand how the claimant’s parents were, initially, perplexed by the request from the Department for further information in connection with the claimant’s ongoing entitlement to DLA.  Quite correctly, they pointed to the decision notice of the appeal tribunal hearing held on 5 November 2004 which refers to an award of entitlement to the middle rate of the care component of DLA ‘… with effect from and including 16 March 2004’ and to the correspondence from the Social Security Agency dated 25 April 2006 which refers to an award ‘… from 16/03/2004 indefinitely’.

71.	Section 71(3) of the Social Security Contributions and benefits (Northern Ireland) Act 1992, as amended, provides that a person may be awarded either component for a fixed period or for an indefinite period.  Indeed, at one stage the reference to ‘an indefinite period, in section 72(3) was to an award ‘for life’.  It has always been the case, however, that a decision on a claim to a social security benefit has to be subject to the potential for change.  As outlined above, two of the mechanisms whereby a decision, either on the Department, or an appeal tribunal, can be changed is through revision or supersession.  The rationale behind permitting the alteration of a benefit entitlement decision is that a claimant’s circumstances can and do change. In some circumstances the change is for the good – take the example of a claimant whose entitlement is dependent on very limited mobility but who, subsequently, undergoes a hip replacement operation which improves that mobility.  So too can change be for the worse where an existing illness or disability deteriorates.  The mechanism for change is built in to the legislative provisions relating to decision-making process.

72.	Equally, the Department is given the power to seek evidence to ensure that an existing entitlement remains appropriate.  Details of the legislative source of that power are set out above.  Finally, the Department is given the power to suspend or terminate entitlement where there is a failure to return information.

73.	The claimant’s parents, for their own reasons, believed that the claimant’s circumstances had not changed and, accordingly, that they did not have to provide the relevant information through the completion of Form DLA250.  The Department has stated that it is Departmental policy to undertake regular checks on the entitlement of those with existing indefinite awards of entitlement to DLA.  For the reasons set out above, I agree that the Department does have that power.  I am certain that the claimant’s parents would have been pleased to learn that there is provision for the decision of the appeal tribunal to be altered in the event of any change to the detriment in the claimant’s circumstances.

The proceedings before the appeal tribunal

74.	The claimant’s appointee raised a number of issues about the proceedings before the appeal tribunal.  I am of the view that these various issues have been responded to in both the response of the officer from TAS, in the correspondence dated 1 February 2010, and in the written observations of Mr Kirk, dated 27 July 2010.  I was not present at the appeal tribunal hearing and cannot, therefore, comment on any additional issues not addressed by either TAS or by Mr Kirk.  I am of the view, however, that proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, subject to the comment that the LQPM of an appeal tribunal should introduce all of the members of the appeal tribunal, and outline and explain the presence of others present in the appeal tribunal hearing room.  Additionally, in the record of proceedings for the appeal tribunal hearing, details of all of those who were present should be noted in the appropriate sections of the form used for such a record.

75.	I have noted, in addition, that the claimant’s parents were upset that their invited witness, an audiology expert was not given the opportunity to speak during the appeal tribunal proceedings.  As Mr Kirk has pointed out, the decision under appeal to the appeal tribunal was the termination decision dated 28 January 2009.  The issue before the appeal tribunal was whether the Department had the power to terminate entitlement to DLA.  The appeal tribunal addressed the question of its proper approach to the issues arising in the appeal at paragraph 15 of its decision.

The further appeal tribunal hearing

76.	I have noted that there was a further appeal tribunal hearing on 22 July 2010 the outcome of which was an award of entitlement to the middle rate of the care component and the lower rate of the mobility component of DLA for a fixed period of three years from 14 September 2009.  I have also noted Mr Kirk’s response to the disappointment expressed by the claimant’s father to the fact that there was no Department presenting officer at the oral hearing of the appeal.

The request for meeting with Departmental officials

77.	I have also noted the disappointment expressed by the claimant’s parents, and their solicitor, at the failure of the Department to respond to their frequent requests for a meeting to discuss their concerns at the application of the periodic review process to their son’s claim.  The response to that issue is a matter for the Department, and not one which comes under the jurisdiction of the Social Security Commissioner.  I cannot also comment on why the Department decided to exercise its power to apply the periodic review process to the claimant.  I have noted, however, the legal basis upon which it has the power so to do.

Disposal

78.	The decision of the appeal tribunal dated 14 September 2009 is in error of law.  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.

79.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.  My decision is that the decision of the Department, dated 28 January 2009, terminating entitlement to DLA, from and including 3 December 2008 is confirmed.

80.	Accordingly, although the appeal to the Social Security Commissioner succeeds, the outcome, in terms of benefit entitlement, remains the same.

(signed):  K Mullan

Chief Commissioner

29 November 2011