DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:  CSDLA/1068/01

1.	My decision is that the decision of the tribunal given at Edinburgh 26 June 2001 is erroneous upon a point of law.  I set it aside.  I make the decision I see fit.  It is that the decision of the decision-maker of 2 November 2000 is inept.  It is of no effect.  The case is remitted to the Secretary of State to proceed as accords in light of this decision.  

2.	This appeal came before me for an oral hearing on the 1st and 22nd of May 2002.  The claimant was represented by Miss Whitfield of The Action Group.  The Secretary of State was represented by Mr Brodie, Advocate instructed by Miss Cairns, Solicitor of the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal which refused to award her the higher rate of the mobility component.  

4.	The claimant in this case suffers from Downs Syndrome and was awarded the middle rate of the care component and the lower rate of the mobility component of disability living allowance from 4 August 1992.  Miss Whitfield told me that in 2000 a telephone call was made to the agency to indicate that there had been a deterioration in her condition.  It is accepted by Miss Whitfield that there is no record of the telephone call. The form DLA434 form was sent to the claimant.  The form is headed “Looking at your claim for disability living allowance again”. The form was filled in and was received on 25 October 2000.  Although in the form the claimant made reference to having been recently diagnosed as being partially sighted it was accepted by Miss Whitfield that a change in circumstances from the date of the awarding decision was not specifically raised.  Indeed it was indicated by her that if there was a change it may have been tied up with the merits.  She also indicated that on 23 August 2000 the claimant was found to have met the criteria to be registered as partially sighted.  A photocopy of a certificate to that effect was submitted and is at page 27 of the bundle.  However this registration and diagnosis in themselves do not demonstrate that the claimant’s disability and the extent have changed or altered since the awarding decision was made.

5.	A decision on 2 November 2000 was made on what was clearly regarded and treated as an application by the claimant for supersession of the decision of 4 August 1992. This was done on a standard form DMADEC2.  It indicates that it was a decision of supersession of the decision of 4 August 1992.  It found that the claimant was entitled to awards of the lower rate of the mobility component and the middle rate of the care component from and including 25 October 2000 and in respect of each award the words “(as before)” were inserted.  Included in the law said to have been used in making the decision was section 10 of the Social Security Act 1998 and regulations 6, 7 and 8 of the Decisions and Appeals Regulations 1999.  This decision was reconsidered by a decision-maker on 28 March 2001 but was not revised.  The claimant appealed to an appeal tribunal.  The grounds of appeal to the tribunal are related simply to the decision on the merits that the claimant was not awarded the higher rate of the disability living allowance higher rate mobility component.

6.	The appeal came before a tribunal on 27 June 2001.  The decision was that the claimant was not entitled to an award of the higher rate of the mobility component from and including 25 October 2000.  The tribunal noted that the higher rate was declined and that the lower rate of the mobility component was already in payment.  

7.	The claimant appealed to the Commissioner.  The grounds of appeal are related to the merits of an assertion by the claimant that she satisfied the conditions for the higher rate of the mobility component.

8.	In the event it was accepted and I accept that the tribunal decision errs in law on a more fundamental basis.  This I will explain.  

9.	Section 17(1) of the Social Security Act 1998 provides that subject to the provisions of the chapter of the Act in which the section is placed any decision made in accordance with these provisions shall be final.  These provisions followed the now repealed provisions of section 60 of the Social Security Administration Act 1992 which they replaced.  In a decision by a Tribunal of Commissioners in R(IS)2/97 it was said, in the appendix to that decision, that such decisions are made final and indisputable by section 60 subject to the provisions in the 1992 Act for appeal and review.  It was accepted by Mr Brodie and not disputed by Miss Whitfield that the same principles applied under the new scheme whereby supersession replaced review.

10.	In these circumstances, by virtue of transitional provisions, which it is not necessary to go into for they are not in dispute, the decision of 4 August 1992, the award of disability living allowance in favour of the claimant as it was not appealed, could  only be altered if there was a basis for superseding it.  This is of crucial importance for without a basis for superseding it, it could not simply be altered by a fresh determination relating to the merits of the case.  That was the import of R(DLA)1/96 in relation to review.  That approach was followed in relation to supersession by a Tribunal of Commissioners in CDLA/3466/00.  In that case there was an assertion of a change of circumstances and the Tribunal of Commissioners accepted that there was.  In these circumstances the Tribunal of Commissioners directed the tribunal to whom they remitted the case to make a finding as to whether the claimant satisfied a threshold criterion in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  They directed the tribunal to find that she did upon satisfaction of regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

11.	Notwithstanding the requirements relating to the alteration of a final decision the tribunal in the instant case did not address the essential question as to whether there was a basis of supersession at all.  It further did not concern itself with whether there was a valid application for supersession in the first place.  In these circumstances the tribunal erred in law on both these matters.  The tribunal simply considered the merits of whether the claimant satisfied the conditions for the higher rate of the mobility component without establishing whether there was any basis for the alteration of the existing final decision.  This they were not entitled to do.  Accordingly, their decision is set aside.  I would also note that the focus in the whole process including the initial arguments to me were directed to the merits of the case until I directed submissions on the issue of supersession. Indeed the parties on the first day of the hearing of this appeal addressed me at some length on the merits of the issue as to whether or not the claimant has satisfied the conditions for the higher rate of the mobility component.

12.	The issue in the appeal in these circumstances became principally related to the appropriate disposal of the appeal.  Both parties invited me to remit the case to a freshly constituted tribunal.  However, in the event I have decided that the appropriate course is to find that the decision of 2 November 2000 is inept and to remit the case back to the Secretary of State to proceed as accords in the light of that decision.  

13.	Guidance as to what the Secretary of State should do when faced with a claim pack of the type submitted in this case was set out by the Tribunal of Commissioners in CDLA/3466/00.   That case, as I have indicated, involved an assertion of a change of circumstances.  The Tribunal of Commissioners in their decision set out the relevant law.  They then went on to say:

“37.	Regulation 6 prescribes threshold criteria, not outcome criteria.  By that we mean this.  It prescribes cases and circumstances in which an application is brought within the scope of section 10.  That is in accordance with our interpretation of supersession as a process that is neutral on the correctness of the decision that has been superseded.  It does not prescribe criteria that determine whether a new outcome is appropriate.  That is not governed by regulation 6.  It is left to be determined, without prescription, by reference to the facts of the case and the conditions of entitlement.

38.	The first question for the Secretary of State when a letter is received from a claimant who has an award is:  is this an application for a supersession?  The Secretary of State is entitled to treat a letter that contains no more than abuse or irrelevance as not amounting to or containing an application.  This covers two categories of letter.  The first category consists of cases where the letter contains nothing that is relevant to the benefit that the claimant has been awarded.  An example is the claimant who asks for in increase in income support because the price of cat food has gone up.  The second category consists of cases where the claimant already has the maximum award of benefit.  An example is the letter asking for an award of disability living allowance for a period earlier than the date of claim.  Those two categories are linked by this common thread, that no further investigation of fact or law could possibly produce a different award from the one that has been made.  The Secretary of State is entitled to keep those cases out of the adjudication scheme.  Judicial review provides an adequate procedure for challenging this limited class of case in which the claimant has no possibility of success.  There is no violation of Article 6(1) in this regard.

39.	If there is no application, the Secretary of State is not required to give a decision on it and need do no more than explain to the claimant why that will not be done.

40.	In all other cases there will be an application.  It will contain an assertion, for example that there has been a change of circumstances.  That is sufficient to satisfy a threshold criterion for entry into the supersession procedures.  Once within these procedures, the Secretary of State has to investigate and determine the facts.  The Secretary of State then supersedes the earlier decision.  The decision given will depend on the facts found.

41.	If the Secretary of State finds that there has been no change of circumstances, the supersession decision will contain the same award.  The Secretary of State must identify an effective date for the supersession decision either under regulation 7 or, if the case is not covered by that regulation, under section 10(5).  In the case of a change of circumstances, there are detailed provisions in regulation 7 that turn on whether the change is advantageous or disadvantageous to the claimant.  They are appropriate to cases where a supersession decision changes the terms of the award.  If there is no change in the terms of the award, the case falls more naturally into section 10(5), which fixes the effective date as the date of the decision or of the application.  The point is not of practical significance, because the change of circumstances asserted by the claimant has not resulted in a change in the award.  So, the determination of the effective date can no doubt be taken shortly by the decision-maker.

42.	If the Secretary of State finds that there has been a change of circumstances, the supersession decision will contain a different award.  A new effective date has to be determined.  In this case, change of circumstances asserted by the claimant in the application has led to a new award.  So, it falls naturally into regulation 7(2)(a).”

14.	In this case, unlike the case heard by the Tribunal of Commissioners, the question arises in sharp focus as to whether the claimant properly made an application for supersession.  That is not at all clear from the pack referred to in paragraph 4.  That was accepted, as I understood it, by Miss Whitfield.   It is not sufficient for a claimant simply to seek another decision in respect of an existing final decision which was unappealed without having some basis under section 10(3) and regulation 6 for doing so.  If the application was simply one to attempt to obtain another decision on the merits different to that which was decided by the final decision then the application would be irrelevant and the Secretary of State would be entitled to keep the case out of the adjudication scheme as referred to in paragraph 38 of the Tribunal of Commissioners’ decision.  This is because it would not be an application as envisaged by paragraph 40 of the Tribunal of Commissioners’ decision.  The Tribunal of Commissioners were quite clear about the content of such an application.  They say “It will contain an assertion for example that there has been a change of circumstances.”  They talk of the sufficiency of such an assertion being necessary “to satisfy a threshold criterion for entry into the supersession procedures.”   In this case, there is a serious doubt as to whether there was a relevant application, although as Miss Whitfield pointed out by ticking the box in the proforma relating to the use of the statutory provisions and supersession the Secretary of State has indicated that he was making the decision on the basis of a valid application for supersession.  However, the decision made is in such skeleton form there is no indication as to which if any of the threshold criteria the Secretary of State considered applied and whether what has been described as “the same rate decision” was made on the basis of a threshold criteria having been reached but not being such so as to revise the awarding decision or that the threshold has not been reached but a supersession along the lines set out in paragraph 41 of the Tribunal of Commissioners’ decision has been carried out.  

15.	In these circumstances, despite the submissions to the contrary by both Mr Brodie and Miss Whitfield that I should remit the case to a freshly constituted tribunal, I consider that as there is a serious doubt as to a relevant application for supersession having been made at all and the Secretary of State’s treatment of the application having been recorded in such a skeleton and inspecific way the appropriate course is to hold that the decision of the Secretary of State is inept and that the future progress of the case should be as set out in paragraph 1.  Although I appreciate that a tribunal in an appeal to them can correct a faulty supersession where the position of the Secretary of State is as doubtful and unclear as it is in this case and there is a crucial question as to whether “entry into the supersession procedures” could competently be achieved in the first place then the appropriate course is to let him start again, particularly in the light of the further learning on the subject of supersession set out in the judicial determination of the Tribunal of Commissioners.  It may well be that the forms and proforma decisions used in this case will have to be the subject of alteration so that the threshold criteria for supersession are properly focussed.  I should further add that although when dealing with relevant applications for supersession the Tribunal of Commissioners used what Mr Brodie described as extreme examples an attempt to have “another shot” on the merits on its own would also constitute an irrelevant application which should not admit entry into the supersession procedures.

16.	Standing the course of the appeal and the disposal I have found myself inclined to adopt it does not appear to me to be appropriate to deal with the merits in the special circumstances of this case.

17.	The appeal succeeds.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  30 May 2002