CIS/4167/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Birmingham appeal tribunal dated 14 July 2003 and I give the decision the tribunal should have give:  the claimant is entitled to income support from 26 April 2002 to 20 June 2002 because the indefinite award of income support from 12 March 2002 has not been superseded.

REASONS

2.	The claimant claimed income support on the basis that he was incapable of work due to ulceration of his right foot and an award was made from 12 March 2002.  There are in the papers before me medical certificates dated 4 March, 28 March and 30 April 2002, each advising the claimant to refrain from work for four weeks, and a final certificate dated 30 May 2002, advising him to refrain from work until 6 June 2002.  It appears that the claimant intended to return to work on 7 June 2002 but that he had been an agency worker working in a car factory and his job had not been held open for him.  On 8 July 2002, he submitted a new claim for income support on the ground of incapacity for work.  On 23 July 2002, the claimant’s doctor signed a certificate in respect of the period from 9 June to 31 July 2002, although it appears from the certificate that he had last examined the claimant on 30 May 2002.  Benefit was awarded on the new claim with effect from 21 June 2002, which was the date on which the claimant had requested the claim form.

3.	Strictly speaking, there were gaps in the medical certificates from 26 April to 29 April and from 28 to 29 May 2002 but, more importantly, it appears that the certificates dated 30 April and 30 May 2002 were never received by the Benefits Agency and the certificate dated 23 July 2002 was not received until the following day.  That last certificate left another gap of two days, 7 and 8 June 2002, not covered by a certificate.  The apparent lack of certificates had resulted in the claimant’s first claim being “closed” from 26 April 2002.  

4.	After the award was made on the new claim, there was some correspondence and, on 14 January 2003, the claimant formally asked for the new claim to be treated as having been made in respect of the period from 27 April to 28 June 2002 (sic, presumably an error for 26 April to 20 June 2002) but, on 26 March 2003, he was told that he was not entitled to income support for that period because his claim made on 21 June 2002 could not be backdated.  The claimant appealed and the tribunal dismissed his appeal.  He now appeals against the tribunal’s decision with my leave.

5.	The tribunal was plainly right to hold that there were no grounds for backdating the claim.  However, any claim for a period beginning immediately after an earlier period of entitlement raises the question whether the earlier period was correctly terminated and, if necessary, the new claim should be treated as being also an application for revision or, as would have been required in this case, supersession of the decision terminating the earlier award (see CJSA/2327/01 and CJSA/1741/03).  An appeal against disallowance of the new claim should be treated also an appeal arising out of a refusal to revise, or against a refusal to supersede, as the case may be, the decision terminating the first award or it may be treated as a late appeal against the termination decision itself.  Had that approach been followed in this case, the tribunal would have discovered, as I have done, that there never was any decision terminating the previous award of income support so that, as the Secretary of State concedes, the award subsisted until replaced by the new award from 21 June 2002.  Therefore, the claimant is, at the moment, entitled to benefit in respect of the period in issue notwithstanding the dismissal of his second claim in respect of that period.

6.	I say “at the moment” because I accept the Secretary of State’s submission that it is still open to him to supersede the award.  However, he may wish to pause before doing so, both because there is not the eight week hiatus in certificates that he and the tribunal seem to have believed was the case (notwithstanding the fact that copies of the certificates were in the papers before the tribunal) and because the failure to issue a proper decision at the proper time may have prevented the claimant from remedying such defects in the evidence as there may still be or from claiming jobseeker’s allowance.

7.	The Secretary of State may also wish to investigate whether this was an isolated case or whether the closure of cases without the making of appropriate decisions is due to faulty processes that are widely applied.  Closure of a case without a decision was appropriate in the days when each medical certificate constituted a separate claim for sickness or invalidity benefit and an award was made limited to the period specified in the certificate (see regulation 11 of the Social Security (Claims and Payments) Regulations 1975).  The failure to make a renewal claim by furnishing a further certificate justified closure of the case.  However, for the past decade and a half, awards of incapacity benefits and for income support have been, or should have been, made for indefinite periods unless “it would be inappropriate to treat a claim as made and to make an award for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future)” (regulation 17(1) and (3) of the Social Security (Claims and Payments) Regulations 1987).  Except where there are grounds for revision of an award from the date it was originally effective, an indefinite award can be terminated only by supersession, which will, for instance, be justified when a claimant provides a “closed” certificate after an “open” one or when a claimant simply fails to provide a new certificate after the expiry of an earlier one.  If the first certificate provided on a claim is a “closed” certificate, a fixed term award rather than an indefinite one will be appropriate.  It is only where such a fixed term award is made that a case may still be closed without supersession.

	(Signed)	MARK ROWLAND
		Commissioner
		17 March 2004