IN THE UPPER TRIBUNAL	Case No.  CDLA/310/2015
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I further set aside the purported decision of a decision maker dated 15 October 2013 on the ground that the decision maker had no power to make it as the claim had already been determined by an earlier decision dated 24 September 2013 of which the second decision maker was unaware.

The claimant’s entitlement to benefit is therefore determined by the decision of 24 September 2013 subject to any power now for the Secretary of State to revise or supersede that decision.

REASONS FOR DECISION

1.	This is an appeal by the claimant with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 23 October 2014 dismissing the claimant’s appeal from a purported decision dated 15 October 2013 that the claimant was not entitled to either component of disability living allowance from and including 6 November 2013.  The appeal is supported on the basis that the tribunal failed to give adequate reasons for its decision, but not on the basis on which I have set aside the tribunal’s decision.  

2.	The claimant, who plainly suffers from serious spinal and leg problems, and some resulting mental health problems, had been awarded the higher rate of the mobility component of disability living allowance (DLA) and the lowest rate of the care component from 6 November 2010 to 5 November 2013 by the decision of a tribunal dated 15 July 2011.  In August 2013 he made a further claim for DLA under the provisions of regulation 13C of the Social Security (Claims and Payments) Regulations 1987.  

3.	According to a written statement from the DWP (file pp.243-4) a hospital report and GP report were then requested by a decision maker, KC.  The GP report was returned on 23 September 2013 and it was considered that when it was received it would have been linked to the file which would be passed to KC to deal with and, if possible, make a decision.  On 24 September 2013 KC sent to the claimant notification that he had made a decision awarding him the higher rate mobility component and the lowest rate care component of DLA from 29 December 2013 until 28 December 2015.  A nearly complete copy of that decision notice is at pp.250-256.

4.	There was plainly a mistake in the decision, at least as notified, in that if KC was satisfied that the requirements of regulation 13C were satisfied, the award ought to have commenced from 6 November 2013.

5.	The written statement goes on: “The decision was not put on the system.  There was no copy of it on the file”.

6.	On 15 October 2013, being apparently unaware of the decision that had been made, another decision maker purported to make the decision under appeal.  This disallowed the claim.  The claimant was notified of this decision.  Two weeks later, on 30 October 2013, the claimant telephoned the benefits office to complain that he had received two conflicting notices.  On 11 November 2013 the writer of the statement, a complaints manager, spoke to him, explaining that the original notice was not the correct one and the second decision stood.  The claimant asked for a reconsideration of the second decision, but continued to be unhappy and to say that the first decision had to be the correct one.  The second decision was reconsidered but not revised on 2 December 2013.  

7.	The validity of the second decision was in issue before the tribunal.  In the statement of reasons, the tribunal stated the position as follows:

3. … The Secretary of State had issued a decision notice on 24 September 2013 awarding benefit.  He was directed to explain why it appeared that two separate decisions had been made reaching different conclusions.
4.  The Secretary of State provided an additional submission advising that the decision notice of 24 September 2013 had been sent to [the claimant] in error.  No decision had been entered in the computer system and a correct decision was made on 15 October.
5.  [The claimant’s representative] has submitted that the decision made on 24 September 2013 was valid and should stand.  In response, [the representative of the Secretary of State] makes the point that a different decision was made by the Secretary of State within one month.  Decision makers have the power to revise a decision on any grounds within one month of the date the original notice was sent or given.
6.  The Tribunal accepts that the original decision notice of 24 September 2013 was issued in error.  The dates on the decision notice are incorrect and the decision was not entered into the computer records.  This is consistent with mistake.  It is not our intention to explore further the validity of the decision.  We accept that an official error was made and, having considered the overriding objective in the Tribunal Procedure Rules 2008, we have decided it is appropriate to exercise our power to correct defects in the decision making process and revise any decision made on 24 September 2013.”

8.	It is clear that KC reached a decision on the renewal claim which he then notified to the claimant on 24 September 2013.  I agree with the Secretary of State’s representative on this appeal that the decision is valid even though it included a clear error as to dates.  Nor is there any evidence to support a finding that it was issued in error, and I do not take the tribunal to be suggesting that there was any error in issuing it other than that it had mistakes in it as to dates.

9.	It is also the case that a decision can be revised on any ground within a month of its being notified.  The Secretary of State has submitted that the subsequent decision of 13 October 2013 was, or should be treated as, a revision of the earlier decision and the tribunal has found that it could treat the second decision as revising the earlier decision on the ground of official error.  There are many cases where defective decisions changing earlier decisions have been treated as revisions or supersessions of the earlier decision that was intended to be changed so that tribunals have been able to correct the second decision.

10.	The problem here is that when the second decision was made, the decision maker was wholly unaware of the first decision.  There was no intention to alter the first decision, and in the absence of any knowledge of the first decision, the second decision maker could not revise it.  The second decision was, and could only be, an attempt to do what had in fact already been done, namely reach an original decision on the matter.  As such, the appeal against it was not against the original decision as revised but against an attempt to make a second original decision.  The first decision was not before the tribunal, which had therefore no power to consider it.  In this respect the position is very different from that in the cases cited to me by the representative of the Secretary of State, in all of which the person making the second decision was aware of the original decision and wanted to change it;

11.	That is sufficient to dispose of this appeal, but I would also note that there is a real difference in the decision making process between reaching an original decision and deciding whether to revise an earlier decision on any ground.  Whatever power a decision maker may theoretically have to revise an earlier decision, he or she is unlikely to exercise that power simply because, in a borderline case, there is disagreement between two decision makers as to what decision should be made.  One would certainly not expect a decision maker, knowing that an earlier decision had been made, to revise it without looking at it and considering the evidence and reasoning relied on by the first decision maker.  This is so whatever decision the second decision maker might come to, and by whatever reasoning process, if there was no earlier decision.

12.	The result is that there was no power in the second decision maker to reach an original decision on 13 October 2013.  The tribunal was in error of law in upholding that decision, which must be set aside and, at least for the time being, the original decision, which was not under appeal, must stand.  It is, of course, still open to the Secretary of State to consider whether there are now grounds for revising or superseding it, and if he does so, then an appeal will lie against the decision as revised under section 9(5) of the Social Security Act 1998.

13.	It is unnecessary for me to deal in any detail with the other grounds on which it is said that the tribunal erred in law.  I agree with the representative of the Secretary of State, however, that the tribunal erred in law in failing to deal with the claim for night-time care and to explain why it took such a very different view of the claimant’s condition from the tribunal which made the previous award in 2011, particularly in view of the claimant’s evidence, recorded at paragraph 8 of the statement of reasons, that his condition had gradually deteriorated since 2011.  I am also unable to understand paragraph 8, which appears to suggest that his evidence that his condition has gradually deteriorated since 2011 was irrelevant.  It is clearly relevant, since, if accepted, or if it was accepted that his condition had not improved, it would mean that the medical evidence of his condition in 2011 would be admissible as evidence of his condition in 2013.

14.	There are two further matter to which I should refer and to which attention was drawn by Upper Tribunal Judge Wright in giving directions on this appeal.  The first is that before giving permission to appeal, the District Tribunal Judge had a copy of the application for permission to appeal sent to the presiding judge for her comments, and received back two typed pages of comment which may also be seen to be an attempt to amend the reasons for the decision.  While I see no reason why a District Tribunal Judge considering an application for permission to appeal or a set aside or review application should not, in appropriate cases, seek relevant factual information from the tribunal whose decision is being challenged as to what occurred at the hearing, a roving enquiry as to what the presiding judge thinks of the grounds of appeal is inappropriate.  Further, any enquiry would need to be transparent and is likely to involve giving the parties the opportunity to comment (see JS v SSWP [2013] AACR 30; [2013] UKUT 100 (AAC)).

15.	Secondly, the order giving permission to appeal states, without giving any reasons, “Leave to appeal is granted and the matter shall be referred to the Upper Tribunal”.  If leave to appeal is given, it is for the party given leave to decide whether to take advantage of it by presenting an appeal in accordance with the rules and within the time limits prescribed by the rules.  A District Tribunal Judge giving permission to appeal has no power to refer the matter to the Upper Tribunal, and there is a risk that stating that the matter shall be referred to the Upper Tribunal will give the prospective appellant the mistaken impression that he or she need do nothing more as the case will automatically be so referred.  As Judge Wright pointed out in his directions, “A referral can only arise if the First-tier Tribunal has reviewed the decision and set it aside for error of law (see section 9(4)(c) and (5) of [the Tribunal Courts and Enforcement Act 2007]”.

(signed)

		Michael Mark
		Judge of the Upper Tribunal
		25 June 2015