[2007] UKSSCSC CA_3800_2006 (28 February 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14 of the Social Security Act 1998:
The decision of the Leeds appeal tribunal under reference U/01/013/2006/00673, held on 5 June 2006, is not erroneous in point of law. 

The issue and how it arises
2.	The claimant was awarded an attendance allowance at the higher rate from 1999. Her entitlement to that allowance is not in doubt. The issue on this appeal is whether she should be paid the allowance for the period when the local authority was responsible for funding the costs of her residential care, which the claimant has now reimbursed. 
3.	The claimant originally funded the costs of her residential care. It then became necessary to sell her home. This was done and the money was invested, on advice. The investment performed badly and the claimant was unable to pay her fees. As a result, her local authority funded her care from December 2003. The Secretary of State, on supersession, ceased payment of the attendance allowance. 
4.	The claimant, through her daughter, complained about the quality of advice she had received and the Financial Services Ombudsman decided that she should be compensated. This compensation was paid in June 2005. The local authority then required the claimant to reimburse the full costs of her care from 18 December 2003. The claimant resumed paying her own costs from 22 August 2005.
5.	The Secretary of State was informed and, on supersession, reinstated payment of the attendance allowance from 29 August 2005. 
6.	The issue in this case is: should the payment start from 18 December 2003 or from 29 August 2005? The claimant’s daughter, who is her appointee and representative on this appeal, argues that as the claimant has been expected to pay her fees retrospectively from December, she should also be paid the attendance allowance from that date. In general terms, that would be fair and sensible. But does the law allow it? That is what I have to decide. 
The law
7.	The law distinguishes between entitlement to an attendance allowance and payment of that allowance. The claimant’s entitlement to an attendance allowance has never been in doubt. The issue has only been as to payment. 
8.	Regulation 7 of the Social Security (Attendance Allowance) Regulations 1991 provides that 
‘(1) … a person shall not be paid any amount in respect of an attendance allowance for any period where throughout that period he is a person for whom accommodation is provided-
 (a) in pursuance of-
  (i) Part III of the National Assistance Act 1948’.
9.	However, that provision is expressly made ‘subject to regulation 8’. And regulation 8 provides that
‘(6) Regulation 7 shall not apply … in any particular case for any period during which-
 …
 (b) the whole of the cost of the accommodation is met-
  (i) out of the resources of the person of the person for whom it is provided, or partly out of his own resources and partly with assistance from another person or charity’.
10.	The claimant’s residential care was funded from December 2003 to August 2005 by her local authority under Part III of the 1948 Act. On the face of it, it may look as if the law did not allow the claimant to be paid her attendance allowance for that period. However, the Court of Appeal in Northern Ireland has decided, on equivalent legislation, that claimants ‘met’ the cost of their accommodation for the purpose of regulation 8(6)(b) even if that payment was deferred and was initially met by a local authority. This applies even if there was no arrangement in advance that the costs would be reimbursed. See Chief Adjudication Officer v Creighton reported as R 1/00 (AA), which has been followed in Great Britain (R(A) 1/02). The tribunal came to that conclusion and it was right to do so.
11.	So far, so good. However, the tribunal did not deal with the date from which payment was reinstated. The decision-maker had terminated payment and reinstated payment under the supersession provisions. The Secretary of State obtained leave to appeal from a district chairman on the ground that the tribunal had failed to consider the effective date provisions in regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The representative for the Secretary of State who drafted the grounds of appeal argued that payment was reinstated on a change of circumstances when the claimant began again to pay her own fees. The change occurred when she resumed payment of her fees and payment of attendance allowance could only be reinstated from that date under regulation 7(9)(c). 
12.	I issued a direction, in response to which a different representative for the Secretary of State has suggested another approach. This representative submits that this case should have been handled differently. Instead of terminating payment on supersession, the representative submits that the payment should have been suspended under regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Regulation 16(1) authorises the Secretary of State to suspend payment of a relevant benefit in prescribed circumstances. Attendance allowance is a relevant benefit: see section 39(1) and 8(3) of the Social Security Act 1998. The prescribed circumstances are set out in regulation 16(3). The representative suggests that either 16(3)(a)(i) or (ii) may apply:
‘(3) The prescribed circumstances are that-
(a) it appears to the Secretary of State … that-
(i) an issue arises whether the conditions of 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 section 9 or supersession under section 10’.
Regulation 16(3)(a)(i) did not apply in the circumstances of this case, because payment is not an issue of entitlement. However, regulation 16(3)(a)(ii) did apply. If the claimant ceased to be able to pay her own fees permanently, payment would cease and that could be given effect under a supersession. But if the claimant’s lack of funds was, or might be, only temporary, it would be premature to supersede until the position became clear. In those circumstances, suspension would be appropriate. If the claimant was able to resume payment of her fees, the suspension could be lifted under regulation 20, which allows payment to be reinstated. If it became clear that the claimant would not be able to resume payment of her fees, a supersession could then be made terminating payment.
13.	I accept that analysis. It produces a fair outcome by preserving the link between payment of fees and payment of attendance allowance. It also produces a result that is in line with that taken by Mr Commissioner Howell under the former review provisions in R(A) 1/02 at paragraphs 46 to 50. I notice that Mr Howell referred to suspension of payment in paragraph 50.
14.	There is, of course, the problem that the decision-maker used the supersession provisions rather than the suspension provisions. That is easily overcome. The tribunal was entitled to take any decision that the decision-maker could have taken when making the decision under appeal: see the decision of the Tribunal of Commissioners in R(IB) 2/04 at paragraph 25. 
15.	What decision should the decision-maker have made? The Secretary of State’s representative accepts that the approach course should have been suspension rather than supersession. In effect, there was an official error. That mistake can be corrected by revision under regulation 3(5)(a), substituting a suspension of payment. That suspension could then be lifted under regulation 20. Alternatively and more simply, the decision-maker could have acted with the benefit of hindsight and simply decided that neither supersession nor suspension was not required and payment could be made under the original award of attendance allowance. 
Disposal
16.	The tribunal was wrong to fail to consider the effective date of reinstatement. However, as the Secretary of State now accepts, its outcome was correct. It would, as former Commissioner Mr Mitchell used to say, be an empty exercise to set the tribunal’s decision aside only to substitute one to the same effect. I have, therefore, dismissed the appeal. 
Two final comments
17.	I draw attention to the practical advice given by Mr Commissioner Howell in paragraph 51 of R(A) 1/02. On the admittedly limited experience of this case, it appears that it is not being followed. That experience may not be typical in view of the unusual facts of this case. 
18.	I also suggest that the Secretary of State may wish to consider whether an amendment to the revision or supersession provisions of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is appropriate to make express provision for cases of this sort. A suitable amendment to the effective date provisions would bring those provisions into line with the suspension provisions. That would remove the risk of claimants suffering as a result of the choice of procedure adopted by a decision-maker. 

Signed on original
on 28 February 2007	Edward Jacobs
Commissioner