CDLA/4222/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the claimant, brought with my permission, against a decision of the Worcester Appeal Tribunal (“the Tribunal”) made on 9 September 2004. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the tribunal’s decision and remit the matter for redetermination by an entirely differently constituted appeal tribunal. The new tribunal must determine the appeal entirely afresh, but apply the law as set out in paragraphs 16 to 23 below. I draw the Secretary of State’s attention to paragraph 22 below; I direct the Secretary of State to send to the Appeals Service, for addition to the papers, such of the evidence before the appeal tribunal which sat on 13 March 1998 as is still available. 

2.	The claimant is a woman now aged 45. 

3.	By a decision of an appeal tribunal made on 13 March 1998 (“Decision 1”) the claimant was awarded the lowest rate of the care component of disability living allowance from 13 January 1997 for life on the ground of a need for attention for a significant portion of the day. None of the evidence which led to the making of that decision is in the papers. The only information in the papers relating to that decision is that tribunal’s Decision Notice. The Tribunal surmised that that decision was made by reason of the claimant’s longstanding back problems and depression.

4.	On 1 October 2003 the claimant completed a claim pack asking for her claim to be looked at again. It stated that the claimant had had a stroke in March in 2003 which had left her with weakness in her left arm and leg. It claimed extensive mobility and self-care problems.

5.	On 22 December 2003 a decision (“Decision 2”) was made superseding Decision 1 on the ground of a change of circumstances (namely the stroke) and awarding the higher rate of the mobility component and the middle rate of the care component, in each case from 3 October 2003 to 2 October 2005. Despite the fact that the decision maker had on 13 October 2003 requested a report from Dr. McClung, the claimant’s consultant physician, Decision 2 appears to have been made without the benefit of that report. Dr. McClung did in fact sign a report on 17 December 2003, but it does not appear to have been received by the decision maker until 31 December 2003, about a week after Decision 2 was made. 

6.	Dr. McClung’s report stated that she had last seen the claimant on 3 April 2003, some 2 weeks after the stroke. It stated that the claimant was then suffering from “minor left weakness of shoulder and elbow”, had no significant impairment of the lower limbs, was able to walk out of doors without the help of another person, and could do all the self care activities listed on the form (although neither the “yes” nor the “no” box was ticked in relation to coping with hot pans and peeling and chopping vegetables). 

7.	On 19 February 2004, following the receipt of that report, the decision (“Decision 3”) under appeal to the Tribunal was made. It superseded Decision 2 and removed entitlement to the higher rate of the mobility component and the middle rate of the care component with effect from 19 February 2004. The lowest rate of the care component was left on foot, but only until 2 October 2005. The reasons for that decision were stated as follows:

“[Decision 2] was made in ignorance as to a material fact of the details contained in the hospital report dated 31 December 2003. [The claimant] is not unable or virtually unable to walk inside or outside, no history of falls, can manage all her personal care needs as she has no significant impairment of lower limbs with minor weakness of upper limbs (left shoulder and elbow) and this condition has a good prognosis with a medical expectation of improvement. Award reduced from date of decision.” 

8.	The Tribunal, by the decision now under appeal to me, not only disallowed the Claimant’s appeal against Decision 3, but went further and removed entitlement even to the lowest rate of the care component, but with effect only from 9 September 2004 (the date of the Tribunal’s decision). 

9.	The claimant chose not to appear before the Tribunal, despite having been requested to do so in two Decision Notices of adjourned hearings. There is no natural justice point which can be taken in relation to the removal of the care component because one of those Decision Notices specifically warned that the Tribunal had the power to reduce as well as increase the existing award.

10.	The Tribunal had very substantially more documentary evidence than had been before the decision maker at the time when he made Decision 3, and in particular (a) an EMP report, which had been directed at one of the adjourned hearings (b) evidence from the claimant’s GP prepared in relation to another benefit claim and (c) the claimant’s medical records from January 2000 onwards. 

11.	The Tribunal’s Statement of Reasons extends to 7 closely typed pages and examines the medical and other evidence with great care. Having made detailed findings as to the claimant’s mobility and as to her care needs it concluded as follows:

“34.	Accordingly, we agreed that the Decision Maker was correct to supersede the award of mobility component by removing it on the grounds that the decision was made in ignorance of a material fact, namely the information contained in Dr. McCLung’s report based on her examination in April 2003 that there was no significant impairment of lower limbs and only minor weaknesses of the left shoulder and elbow resulting from the cardiovascular incident, with a good prognosis and medical expectation of improvement. 

35.	As regards care, we noted that the Decision Maker did not have the medical records available at the time the decision under appeal was made. We considered that the decision was made in ignorance of the fact that the medical notes demonstrated that there was nothing to support [the claimant’s] claim of arthritis affecting the grip power in her hands or other reason to support her claim to be unable to prepare a cooked main meal for one given the ingredients. 

36.	We do not consider that the evidence demonstrated a need for someone to be on hand by day or night to supervise or watch over [the claimant] to avoid substantial danger to her or others.” 

12.	The Tribunal therefore concluded that Decision 2 had been rightly superseded on the ground that it had been made in ignorance of material facts. 

13.	Decision 2 had of course itself superseded Decision 1 on the ground of a change of circumstances, namely a deterioration in the claimant’s condition, and had made a more favourable award than had been made by Decision 1. The Tribunal found that either there had been no deterioration in the claimant’s condition since Decision 1 or (even if there had been) the claimant did not satisfy the conditions of entitlement to any rate of either component. On that basis, the Tribunal was right to hold that Decision 2 ought not to have superseded Decision 1 by making a more favourable award than had been made by Decision 1. 

14.	However, one of the points which the claimant makes with some force in her grounds of appeal is that it was in any event wrong to remove her original award of the lowest rate of the care component, which she had had for some 7 years. The question which I raised at the time of granting permission to appeal was whether the Tribunal could properly remove the award of the lowest rate of the care component, which had been made by Decision 1, without considering whether there was a ground to supersede Decision 1 which would lead to that result. 

15.	The Secretary of State’s response to that is that there was no need to consider whether there was a ground for supersession of Decision 1:

“The decision under appeal before the tribunal was [Decision 3]. It is respectfully submitted that the issue before the tribunal was whether there were grounds to supersede [Decision 2]. I submit that [Decision 1] was not before the tribunal as it was not the decision under appeal and that accordingly the question of grounds for supersession of that decision did not arise. I submit that the tribunal correctly approached the question of supersession of [Decision 2] and that they did not err in law.”

16.	This is in my view a question of some difficulty. If there had been grounds for revision of Decision 2, the Secretary of State’s submission would in my view clearly have been wrong. The exercise on which the Decision 3 decision maker (and therefore the Tribunal on appeal) would have been engaged would then clearly have been that of asking what decision should have been made instead of Decision 2, which was itself a superseding decision. It would then not have been right to remove the award of lowest care made by Decision 1 without identifying a ground for supersession of Decision 1 which warranted removal of lowest rate care. In practice, such a ground would have had to be either an improvement in the claimant’s condition since Decision 1 or ignorance or mistake as to material fact on the part of the tribunal which made Decision 1.

17.	However, in the present case Decision 3 was based not on revision of Decision 2, but on supersession. Mistake of fact which results in the decision being more advantageous to the claimant than it would otherwise have been can be a ground for either revision or supersession, but in the case of disability living allowance revision is available only where the claimant knew or could reasonably have been expected to know of the fact in question (reg. 3(5)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999). However, it has not been contended by the Secretary of State that that was so here, and I do not think it would be right for me now to base my decision on any footing other than that the only available route to altering Decision 2 was that of supersession. 

18.	However, I nevertheless consider that the result is the same. In other words, where Decision 2 supersedes Decision 1, on the ground of deterioration in the claimant’s condition, so as to make a more favourable award than had been made by Decision 1, but Decision 2 is then itself superseded (by Decision 3) on the ground that Decision 1 was reached in ignorance of material facts, in my view Decision 3 cannot remove (or shorten the period of) the award made by Decision 1 without identifying a ground for supersession of Decision 1 which leads to that result. I reach that conclusion for three reasons.

19.	First, the Tribunal of Commissioners held in para. 186 of R(IB) 2/04 that “a decision can only be superseded under Section 10 if there is a ground for supersession and that ground forms the basis of the supersession decision in the sense that the original decision can only be altered in a way which follows from that ground” (my emphasis). Where the ground for supersession of Decision 2 is mistake of fact, but Decision 2 had itself superseded Decision 1 by making a more favourable award than Decision 1 on the ground of a supposed deterioration in the claimant’s condition, it does not seem to me to follow, from the ground for supersession of Decision 2, that even the award originally made by Decision 1 should be removed unless there is also a ground for supersession of Decision 1.

20.	Secondly, although revision and supersession operate with effect from different dates, I think that supersession on the ground of ignorance or mistake of fact (or error of law) has a very close affinity with revision. In my judgment the effect of superseding Decision 2 (which was itself a superseding decision) on the ground of ignorance of material fact is in substance to require the Decision 3 decision maker (or tribunal on appeal from decision 3) to ask what decision should be made instead of the mistaken Decision 2. If the answer to that question were it should simply have been decided to refuse the claimant’s application for supersession of Decision 1, that would require the life award of the lowest rate of the care component to be left on foot. Unless the answer to that question is that Decision 1 ought to be superseded, in effect on the Secretary of State’s own initiative, so as to remove even that award, then the award which had been made by Decision 1 should be left on foot.

21.	Thirdly, it would be anomalous if the claimant were in this particular respect better off if the mistake of fact were a ground for revising Decision 2 rather than merely superseding it. 

22.	The Tribunal did not consider whether there were grounds to supersede Decision 1, and its decision must therefore be set aside as erroneous in law on that ground. Further, as a matter of evidence, in order to consider that question it ought to have had before it the evidence on the basis of which Decision 1 had been made, if it was still available.

23.	It further follows from what I have said that Decision 3 ought not to have changed the life award of the lowest rate of the care component to one which endured for only about a further 18 months without there being a ground for supersession of Decision 1 which led to that result. Unless, therefore, the new tribunal is satisfied that there is such a ground, it should re-instate the award of the lowest rate of the care component for life. 

24.	I should record that the claimant, in this appeal, has also sought to attack the Tribunal’s conclusion that she did not satisfy the conditions of entitlement to the higher rate of the mobility component or the middle rate of the care component on a substantial number of grounds. Those grounds seem to me, however, to be an attempt to re-argue the facts, rather than to allege any error of law on the part of the Tribunal. 

25.	I have considered whether I should simply substitute a decision re-instating the life award of the lowest rate of the care component. That would leave it open to the Secretary of State to make a fresh decision superseding Decision 1, if he considers that that is justified, and that fresh decision would then carry a fresh right of appeal. However, the claimant has asked for an oral hearing of this appeal, and before substituting a decision to that effect (which would of course involve rejecting the claimant’s contentions that the Tribunal erred in law in upholding the removal of higher rate mobility and middle rate care components) I would probably have felt bound to grant that request. I therefore think it preferable simply to remit this appeal to a new appeal tribunal, before which the claimant will have a further opportunity to appear. 

	(signed on the original)	Charles Turnbull
		Commissioner
		7 April 2005