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	UK Social Security and Child Support Commissioners' Decisions
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[2002] UKSSCSC CIS_1330_2002 (19 September 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under section 14(8)(b) of the Social Security Act 1998.
2. 1. The decision of the Derby appeal tribunal under reference S/42/034/1999/01653, held on 7^th June 2000, is erroneous in point of law.
3. 2. I set it aside and remit the case to a differently constituted appeal tribunal.
4. 3. I direct that appeal tribunal to conduct a complete rehearing of the issues that arise for decision. In particular:

The decision of the Secretary of State made on 14^th January 2000 (pages 27 28) was made without legislative authority and was of no force or effect.

The appeal is against the decision of the adjudication officer made on 23^rd April 1999 (page 81). The claimant's appeal against that decision was made late, but time was extended (page 23 and paragraph 2 on page 113).

The findings of fact made by the social security appeal tribunal on 29^th July 1999 (page 22) are not binding on the tribunal that rehears this case.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave.

The history of the case

6. The claimant claimed income support in 1997 on the basis that she was separated from her husband and living in rented accommodation. A property (the former matrimonial home, I assume) was jointly owned and up for sale.
7. On 9^th April 1999, an adjudication officer decided that the claimant was no longer entitled to income support from and including 9^th April 1998 (page 17). The basis of the decision was this. The property had been sold for about £23,000 and the claimant had not shown what happened to her share of the proceeds. Accordingly, she was found to have capital in excess of £8,000 and no longer entitled to income support. The claimant appealed against that decision on 15^th April 1999 (page 18). Her appeal was heard on 29^th July 1999. The social security appeal tribunal found that she had capital of £11.070 on 9^th April 1998 (page 22).
8. In the meantime on 23^rd April 1999, an adjudication officer made a recoverable overpayment decision (page 81). The decision covered the inclusive period from 9^th April 1998 to 18^th February 1999. The recoverable overpayment was £3,279.57. The claimant appealed against that decision (pages 89 and 90). It was written on 29^th July 1999. It was late, but time was extended by a chairman in October or November 1990 (paragraph 2 on page 113, confirmed by the memo on page 23). The date of decision is given in the appeal and at page 23 as 29^th April rather than 23^rd, but the details of the decision identify this as the decision at page 81. Perhaps the later date is that of notification.
9. However, the overpayment was affected by the tribunal's decision on entitlement. The Secretary of State made a new overpayment decision on 14^th January 2000 (pages 27 and 28). It was more favourable to the claimant than the first overpayment decision, but there still remained an overpayment. The amount of the overpayment was reduced to £1,261.12. The period remained the same. The decision was given under the revision power in section 9 of the Social Security Act 1998 and regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
10. The claimant appealed against that decision (page 29). The substance of her appeal, as of her previous appeal, was that she did not have the capital. A hearing took place on 7^th June 2000 (pages 48 and 51 to 53). The tribunal decided that the findings of fact made by the social security appeal tribunal were conclusive of the issue raised by the appeal and binding on it. The claimant's appeal against that decision is now before me.

Was the decision made on 14^th January 2000 of force and effect?

Regulation 3(5)(b)

11. This decision was made on revision under the authority of regulation 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The only potentially head of regulation 3(5) is (b). However, this only applies if the decision to be revised was more advantageous to the claimant than it would otherwise have been. In this case, the decision to be revised was less advantageous than it would otherwise have been. So, regulation 3(5) did not authorise a revision.

Regulation 3(1)(a)(ii)

12. The Secretary of State now submits that the revision was authorised under regulation 3(1)(a)(ii). This authorises a revision if action is taken within one month of: (a) the date when the appeal is made; or (b) if it is late, the time prescribed by regulation 32. Regulation 32 allows time to be extended.
13. As far as I know, action was first taken on 12^th January 2000: see the memo at page 23. Was that within the one month? The letter of appeal (pages 89 and 90) was dated 29^th July 1999. Time was extended under regulation 32. It was only necessary to extent that time until the date the letter of appeal was actually received. That must have been in late July or early August. Time was extended in October or November 1999. I take that date from the file note of a telephone call by the claimant to her representative: see paragraph 2 on page 113. No action was taken with a view to revision until January 2000. That was well outside the one month. Even if the representative's note is incorrect and time was not extended until January 2000, regulation 3(1)(a)(ii) does not apply. The date of the decision to extend time is irrelevant. The relevant date for regulation 3(1)(a)(ii) is the date to which time is extended. That was months before the memo at page 23 was written.

Conclusion

14. So, the decision of 14^th January 2000 could not take effect as a revision.

Effects

15. What is the effect of that? There are two effects.
16. The first effect is that the tribunal had no power to convert the purported revision into a supersession. I decided this in CDLA/4977/2001, paragraph 27:

'27. The representative is correct that the legislation does not give an appeal tribunal the power to make a revision or supersession. If there has been no supersession, the tribunal cannot undertake one. Assume, for example, that the Secretary of State has dealt with a change of circumstances under the revision procedure. There is no power to do that. A change of circumstances cannot only be taken into account under a supersession: regulation 3(9)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. On appeal, the tribunal can only decide that the revision was made without legislative authority and was of no force or effect. That leaves the Secretary of State to undertake a supersession. The claimant will have a right of appeal against the outcome decision. The same applies in reverse if the Secretary of State has used the supersession procedure instead of the revision: see regulation 6(3) of the 1999 Regulations.'

The reasoning in that paragraph applies to Commissioners as it does no appeal tribunals. The power to make a revision or supersession is given to the Secretary of State only.

17. The second effect is that the decision of 23^rd April 1999, and the appeal against it, survived and were properly the subject of the appeal before the tribunal on 7^th June 2000. That appeal was taken to have lapsed as a result of the decision of 14^th January 2000. That was based on section 9(6) of the Social Security Act 1998. This provides that an appeal against a decision lapses if the decision is revised. But, if the decision is not revised, the appeal survives.

Were the findings of fact made by the social security appeal tribunal on 29^th July 1999 conclusive?

18. The point made in the claimant's appeal was the same whether directed against the decision of 23^rd April 1999 or the decision of 14^th January 2000. So, none of my analysis so far would matter if the tribunal had dealt correctly with the substance of the claimant's appeal. Did it? No, it did not. It decided that the issue raised by the claimant had been dealt with by the social security appeal tribunal on 29^th July 1999 and could not be re-opened. That approach was wrong in law.
19. The law used be governed by section 60 of the Social Security Administration Act 1992:

'60.-(1) Subject to the provisions of this Part of this Act, the decision of a claim or question made in accordance with the foregoing provisions of this Part of this Act shall be final; and subject to the provisions of any regulations under section 58 above, the decision of any claim or question in accordance with those regulations shall be final.

(2) Subsection (1) shall not make any finding of fact or other determination embodied in or necessary to such a decision, or on which it is based, conclusive for the purpose of any further such decision.'

20. This was considered by Mr Commissioner Sanders in CIS/1263/1997. An adjudication officer had decided that the claimant was no longer entitled to income support, because his capital exceeded the threshold for an award. An adjudication officer had also given a separate recoverable overpayment decision. The Commissioner was concerned with an appeal against the latter decision. The claimant argued that he did not have the capital in excess of the threshold. The tribunal decided that it was bound by the earlier decision. The Commissioner held that that was wrong. The first decision was final on the claimant's entitlement, but the recoverability of the resulting overpayment was a separate issue. The tribunal was entitled to make its own findings of fact on that issue, even if that resulted in inconsistent findings.
21. The relevant legislation is now section 17 of the Social Security Act 1998. It is differently worded from section 60.

'17.-(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of-

(a) further such decisions;

(b) decisions made under the Child Support Act; and

(c) decisions made under the Vaccine Damage Payments Act.'

The only regulation made under section 17(2) is regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It is irrelevant in this case, as it deals with incapacity for work determinations.

22. Unlike section 60(2), section 17 does not expressly provide that a finding of fact in one decision is not conclusive for further decisions. However, that remains the law. I have come to that conclusion for two reasons. First, the reasoning of Mr Commissioner Sanders was derived from general principle about finality of findings. He remarked (paragraph 4) that it was 'only to be expected' that different findings could be made in decisions dealing with different issues. Second, section 17(2) presupposes that findings of fact in 'further such decisions' are not conclusive. Otherwise, regulations would not be needed to make them so.

Conclusion

23. It follows that the appeal tribunal went wrong in law by treating the findings made by the social security appeal tribunal as conclusive on the grounds of appeal before it.
24. I allow the appeal and direct a rehearing so that the factual issues raised by the claimant may be investigated and determined.

Signed on original

Edward Jacobs Commissioner 19th September 2002