IN THE
UPPER TRIBUNAL Appeal No:
CE/2084/2013
ADMINISTRATIVE
APPEALS CHAMBER
Before:
Upper Tribunal Judge Gray
The
decision of the Upper Tribunal is to dismiss the appeal.
The
decision of the Nottingham Tribunal dated 29 November 2013 is
not in error of law. The decision stands.
REASONS FOR DECISION
The
background
- In
this case the appellant had upon an initial work capability assessment (WCA)
made on 11/8/11, been placed in the work related activity group (WRAG).
She appealed that decision (the initial appeal), but on 28/10/11 prior to
the appeal being heard the decision was revised under regulation 3 (4A)
Social Security and Child Support (Decisions and Appeals) Regulations 1999
and she was placed by the Secretary of State into the support group. That revision
decision was more favourable to the appellant then the original decision,
and therefore lapsed the initial appeal under section 9(6) Social Security
Act 1998.
- The
revision decision of 28/10/11 indicated that the appellant would once again
be subject to the assessment process, and gave a date for that to occur,
26/11/11. That was a period of just less than one month from the revision
decision, although it should be noted that the effect of the decision,
which examined the appellant’s circumstances as they would have been at
the date of the original decision, backdated her entry into the support
group to the effective date of the decision made on 11/8/11.
- The
appellant’s representative purported to appeal against the reassessment
date on the basis that this was a determination embodied in the decision
as revised on 28/10/11, which could be challenged on appeal.
- The
FTT decided on 29/11/12 that it had no jurisdiction to consider the
appeal. The document issued was in fact a headed Directions Notice, but it
was clearly a decision, and upon application for a statement of reasons
the district tribunal judge said that the summary decision notice was to
stand as the statement of reasons.
- I
granted permission to appeal on 16 December 2013 and made directions for
the filing of further submissions which are now to hand.
- No
party has requested an oral hearing. I am in a position to make a
decision upon the papers. The submissions of the parties are clear and
oral submissions or evidence will not assist me.
The position of the Secretary of State
- The
Secretary of State does not support the appeal. He asserts that the FTT
had no jurisdiction over the appeal. I am invited to strike out the appeal
to the Upper Tribunal.
- Put
shortly the Secretary of State’s submissions are that under section 12 of
the Social Security Act 1998 a right of appeal attaches to a “prescribed
decision or a prescribed determination embodied in or necessary to a
decision”. The case of CIB/2338/2000, a decision of Mr Commissioner
Jacobs (as he then was) is cited, in particular paragraphs 22 to 25, which
deal with the nature of a determination, and its distinction from a
decision. The learned Commissioner spoke of the nature of a determination
being that it was a building block of a decision. A decision would be the
result of combining perhaps a number of determinations. Appealable
decisions were in, what he called the “new jargon” outcome decisions. He
expressed the meaning of that, which was not a term of art, as referring
to decisions that have an impact on the claimant’s pocket, that is to say
that they directly affected the money that they received, or might in the
future receive. The determinations upon which a decision was based affect this,
but not directly. The effect is only when the determination is
incorporated into an outcome decision.
- The
Secretary of State contends that the review date is neither part of the
determination in respect of the limited capability for work or
work-related activity, nor is it a separate determination made at the same
time. It is not incumbent on the Secretary of State to set a review date,
and the tenor of the submission is that although a date may be stated, it
is for information only, not part of the decision, and therefore does not carry
a right of appeal.
The position of the appellant
- The
appellant through her representative contends that the reassessment date
is in fact a building block of the work capability decision, or ought to
be treated as one. She says that it would be an artificial distinction to
state that the prognosis which is included in the decision, and made on
the same evidence, is not part of the decision. She accepts that the date
set out in the decision notice does not stop the Secretary of State from
deciding to reassess that person from an earlier date should they wish to
do so, provided that this is outside the three-month period set out in the
legislation. She interprets Judge Jacobs’ decision differently,
emphasising his view that under the then new decision-making procedure of
the Social Security Act 1998, there was a “clear theme uniting most
of the decisions that are appealable”. She submits that the reassessment
date can have an impact on a person’s money because benefit can be totally
stopped under regulations 22 and 23 of the Employment and Support
Allowance Regulations 2008 if they fail to provide relevant information or
attend a relevant medical examination. She says that the reassessment date
is therefore part of the outcome of the work capability assessment
decision.
My conclusions
- I
do not accept the contentions put forward on behalf of the appellant.
There is no obligation on the Secretary of State to put forward a date of
reassessment at the time that the decision is made, and if he does he is entitled
to change it. If the date were part of the outcome decision that decision
itself would fail and require revision or supersession if that change were
then made. That position has not been contended for.
- I
quite accept that these matters are of importance for the person receiving
the decision, and, of course, I accept that the process may be stressful
for many, but that of itself cannot change the status of the reassessment
date. The recent Three Judge Panel dealing with the potentially
disproportionate effect of the process on claimants with mental health
problems, DM-v-SSWP [ 2013] UKUT 0260 (AAC), which was in part
approved by the Court of Appeal, cannot be authority for that proposition.
- What
the representative’s submission is really asking me to do is to agree that
because there have been problems regarding the administration of the work
capability assessment, which have caused delay in the hearing of appeals,
and because that will inevitably be stressful for many people (litigation
of any sort is) an appeal on this issue should be permitted. She points
to what is known as the “revolving door” aspect of ESA, and feels that the
continual reassessments contribute to that.
- Whether
or not that is so (and I am not sure that I agree with her, the primary
reason in my experience for the revolving door syndrome being fresh claims
made six months after an adverse decision) it is no part of my function to
extend rights of appeal beyond what the legislation permits.
- The
decision of Judge Jacobs is clear and I concur with it; it is the outcome
decision which is capable of being appealed, and the mere setting of a
frankly provisional date for reassessment based upon the view of the
health care professional cannot attract a right of appeal.
- I
have been asked by the Secretary of State to strike this appeal out for
want of jurisdiction. I decline to do so. The FTT made a decision which,
under section 11 (5) Tribunal Courts and Enforcement Act 1997 is not an excluded
decision, and it is therefore appealable to the Upper Tribunal. Where a
right of appeal exists it is generally preferable to deal with the substantive
appeal upon the merits rather than using a procedural approach.
- The
decision of the FTT that it had no jurisdiction to hear the appeal was
correct in law and it stands.
Signed on the original on Upper
Tribunal Judge Gray
17 June 2014
