IN THE UPPER TRIBUNAL                                        Appeal No.  CI/2847/2009   
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 7/9/07 under reference 001/09/00414 is SET ASIDE because its making involved an error on a point of law. 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1	I apologise for the delay in giving my decision.  

2	This appeal is formally against the Secretary of State’s decision of 5/2/09 rejecting the appellant’s application for supersession of an existing assessment of 12% disablement in respect of PDA11, vibration white finger.  The date of the original decision was 16/3/01 and the assessment ran from 17/3/00, for life.  However, a careful reading of the submission to the First-tier tribunal reveals that there was an earlier supersession request in 2007 which never appeared to have been promulgated.  It is the interaction of the two supersession applications and decisions which leads to the complexity of this appeal.  I thank the Secretary of State for his helpful investigation into what went awry in the appellant’s case and for his suggestions.

Background:  

3	On 3/9/07 the appellant requested a supersession of his original assessment on the basis that his condition must have worsened.  The original medical report (‘AMA report’) of 15/9/00 has been lost but a medical adviser (‘AMA’) examined the appellant on 28/3/08 and decided that the extent of the disablement resulting from the disease had not changed.  The decision maker filled in a LT54 refusing to supersede the assessment on 11/4/08 but never issued it.  This could be gleaned from the lack of an issue date in the appropriate place on the form (p26).  The Secretary of State has confirmed the omission to issue the decision.  The appellant was, therefore, left in limbo.  

4	On 5/1/09 he telephoned the office dealing with his case and was told that his 2007 request was unsuccessful.  I accept the Secretary of State’s records that on 5/1/09 the appellant was sent a copy of the refusal of 11/4/08 and a fresh application for supersession, form BI 168.  

5	The completed BI 168 was received at the relevant office on 12/1/09.  In the box asking why the claimant wanted the decision ‘looked at again’, the appellant wrote that he would like the Department to ‘re-think the facts or send me for another medical’.  He did not state that he wished to appeal the decision of 11/4/08, but this is not surprising given that the purpose of the BI168 is to initiate a supersession and not invite an appeal.  The office took the BI 168 to be a simple supersession request and sent the appellant for another assessment on 30/1/09.  The AMA who conducted the examination came to the same conclusion as the one who reported on 28/3/08.

6	On 5/2/09 the decision maker refused to supersede the original award.  This was notified to the appellant on 9/2/09.  On 10/2/09 the appellant requested a reconsideration.  On 13/2/09 the decision maker reconsidered the decision and confirmed the decision, though that appears not to have been formally notified to the appellant until 24/2/09.  

7	In the meantime, on 14/2/09 the appellant entered an appeal against the decision of 5/2/09.  He specifically raised the problem of the 2008 supersession decision.  The tribunal heard and dismissed the appeal (following a previous adjournment with directions) on 7/9/09.  Despite requesting an oral hearing the appellant did not attend.  He was given an opportunity to request a set aside but did not do so.  I gave the appellant permission to appeal to the Upper Tribunal on 23/6/10 not on the basis of his written grounds of appeal, which did not raise any arguable issue of law, but because of the tribunal’s failure to address the true nature and scope of the appeal.

8	Several questions arise.  (i) What was the effect of the Secretary of State’s previous, unnotified refusal to supersede the assessment? (ii) What procedural consequences flow from an assessment of disability at less than 14% and a refusal of benefit based on that assessment? (iii) Did the tribunal correctly identify the decision to be superseded? (iv) What period was under consideration?

What was the effect of the Secretary of State’s previous refusal to supersede?

9	I accept that the Secretary of State’s records are correct and that the decision of 11/4/08 was first issued to the appellant on 5/1/09.  There is no doubt that the appellant entered an appeal against the decision on of 5/2/09 on 14/2/09.  Though he complained in his grounds of appeal that that he had not received the 2008 decision, this was no longer correct.  The decision had been sent with the BI 168, and since he returned that document to the office, it is more than likely that he also received the decision that accompanied it.  The time for appealing the 2008 decision accordingly began to run on 6/1/09 and expired on 5/2/09.  His appeal on 14/2/09 was therefore late.   

10	The tribunal did not pick up the Secretary of State’s failure to notify the appellant of the decision of 11/4/08 and what was plainly meant to be an appeal against both decisions.  The tribunal’s failure to identify the full scope of the appeals was a material error of law.  This was a situation where, unless the tribunal was alert, the appellant would be denied a fair opportunity to have his case considered in full.  As a matter of natural justice to the Secretary of State, the tribunal would have had to adjourn for a further submission.  It could also have either admitted the late appeal itself or referred it to a district First-tier Judge or back to the Secretary of State.  

What procedural consequences flow from the assessment of disability and subsequent refusal of benefit?

11	Tribunals are rarely called upon to consider the procedural technicalities associated with decisions on assessments and outcome decisions on entitlement to this benefit flowing from the assessment.  The brief summary which follows may be of some assistance to tribunals.  

12	A claimant is entitled to a disablement pension (‘disablement’ or ‘disability’ benefit) where the extent of his disablement resulting from a relevant cause is assessed at not less than 14%:  section 103(1), Social Security Contributions and Benefits Act 1992.  The assessment is a free-standing decision which can be appealed independently of any entitlement decision made on the basis of it: regulation 26(c), Social Security and Child Support (Decisions and Appeals) Regulations 1999.  

13	The decision maker’s decision on entitlement, in other words the actual outcome decision, is a separate decision based on the assessment, which must be at least 1%.  

14	The period for which an assessment lasts is determined under Schedule 6 by virtue of section 103(5).  Schedule 6, paragraph 1, tells us that the period to be taken into account in the assessment may be limited (i.e. have a definite end date) or unlimited (i.e. for the life of the claimant).  The assessment may be final (and must be final if it is for less than 14%) or provisional (Schedule 6, paragraphs 2 and 3).  The period should cover the whole period during which the claimant is expected to suffer disablement from a relevant cause.  

15	Three possibilities flow from a final assessment for a limited period: (i) the decision maker or tribunal expects that at the end of the period the claimant will either no longer be suffering from disablement due to a relevant cause, or (ii) would have been suffering in the same way at the end of the period even if the relevant cause had not occurred, or (iii) that disablement from a relevant cause will be less than 1% at the end of the period.  On the other hand, if a life award is made, it follows that the tribunal expects that the relevant cause will remain operative to the extent assessed.

16	The result is that the decision maker makes two decisions when deciding a claim for this benefit:  an assessment decision and an entitlement decision.  The assessment has a life of its own which must be considered separately from the outcome decision.  

17	In this appeal, the assessment was at less than 14% for life.  The outcome decision was, therefore, that the appellant was not entitled to benefit.  Since a decision refusing benefit cannot be superseded because of a change of circumstances which occurs after the date of decision, if such a change occurs the claimant must make a fresh claim for benefit.  This is the result of section 8(1) and (2) of the Social Security Act 1998.  

18	So, in a case like this one, even if the application for supersession had been successful, there could not have been an increase in benefit unless a further outcome decision was also made.  This is because there was no decision standing which entitled the appellant to benefit.  The solution is to treat the application for supersession of the assessment as a fresh claim as well:  CI/954/2006.  

19	The Secretary of State issued the correct decisions in relation to both supersession applications:  p25/26 and p34/35.  The refusal to supersede the assessment meant that it continued unchanged from 16/3/01.  At the same time, the supersession application was treated as a fresh claim, which was also refused. The same reasoning would apply to the application of 3/9/07.

Did the tribunal correctly identify the decisions in issue?

20	The tribunal confirmed ‘the decision’ of 12/1/09 but did not pick apart its two elements.  I would have corrected this aspect of the decision myself, if that would have meant the case did not need to be remitted.

Did the tribunal identify the correct period under consideration?

21	The tribunal considered that it could only look at the period from 2008 onward, and not back to 2001.  I do not consider this to be correct, even on the basis that the tribunal confined its attention to the supersession request which resulted in the decision of 5/2/09.  This is an error I could have corrected myself, but since I am remitting the appeal it would be useful to have the Secretary of State’s technical advice in a further submission.  

22	In my view, the tribunal confused the date from which the supersession was effective with the date from which they had to assess whether any change had occurred.  The question was not whether there had been any change since the decision in 2008, but whether there had been a change of circumstances since 2001 which justified supersession of the assessment.  This is because the existing assessment decision continued exactly as before.  There was no relevant change. As it happens, that could have been tested in evidence by looking at the 2008 and 2009 medical reports.  But if there had been a change, the date from which it took effect would be determined under regulation 7 of the Social Security and Child Benefit (Decisions and Appeals) Regulations 1999.  As regards the outcome decision, there was no entitlement to benefit from 12/1/09.  

Other issues for the tribunal

23	I note that the Secretary of State sets out the decision in issue in section 3 of the Submission as ‘the decision of 5/2/09 cannot be revised because there has been no change in the circumstances since the decision of 16/3/01 was made’.  This appears only to refer to the supersession of assessment and may mislead claimants and the tribunal.  It is not clear why the decision has been given this way.  There is no appeal against a refusal to revise.  The appeal is against the original decision:  section 12, Social Security and Child Support (Decisions and Appeals) Regulations 1999.  

24	A previous tribunal had raised the question of whether the diagnosis of the PDA11 was wrong in the first place.  The Secretary of State does not appear to be concerned over the diagnosis question.  

The appellant’s grounds of appeal

25	I do not consider that the appellant’s grounds of appeal to the Upper Tribunal raise any arguable errors of law.  It is unfortunate that the original medical report of 15/9/00 has been lost.  That does not mean, however, that a change (or no change) of circumstance can never be established.  In order for there to be a material change, there must be a change in the level of disablement which results from a loss of faculty caused by the prescribed disease.  The AMA’s report is to the effect that the appellant’s disablement had not increased from the point where 12% was justified.  Indeed, he thought that the assessment was generous.  There was therefore no material change of circumstance.

26	The remaining ground was an allegation of discrimination containing no particulars.  It was entirely unfounded.  

27	I have come to the conclusion that the appeal must be remitted to the First-tier Tribunal so that the appeals that the appellant intended to make can be fully considered.  These are the late appeal against the decision of 11/4/08 and the appeal against the decision of 5/2/09.  

DIRECTIONS

(i)	In relation to the decision of 11/4/08, a First-tier Judge shall decide whether to admit the appeal himself or send the issue back to the Secretary of State first.  

(ii)	     The two appeals should be heard together

(iii)	     There should be an oral hearing.

(iv)	The appellant must understand that if he does not attend the next hearing he is unlikely to succeed in his appeal(s).  He should also consider obtaining further medical evidence to support his submission that his disablement has increased.  Although a tribunal can act on a party’s uncorroborated evidence, it may be reluctant to do so if there is existing medical evidence to the contrary.

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		10 September 2010