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[2002] UKSSCSC CI_2730_2001 (18 July 2002)

 


PLH Commissioner's File: CI 2730/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Disablement Benefit

Appeal Tribunal: Newcastle

Tribunal Case Ref: U/44/228/2001/00486

Tribunal date: 4 May 2001

Reasons issued: 31 May 2001

1. This claimant's appeal on how far his increased entitlement to disablement benefit should be backdated is one of a number deferred to await the result of other test cases where the same issue was raised. The judgment of the Tribunal of Commissioners deciding the question of principle in those test cases, CI 2107/01 & 2540/01, was issued on 13 May 2002 and has not been appealed further. A copy of it was supplied to the claimant or his representative with the Legal Officer's direction of 10 June 2002 and the time allowed for further submissions to be made in the present case has now elapsed. In those circumstances I am now proceeding to determine this appeal.

2. The single question of law on which this case depends is whether the claimant is entitled to have the extra disablement pension awarded to him on a reconsideration of his case by the Secretary of State backdated to include the period before 24 July 1995. His right to the backdated benefit for the period from and after that date is not disputed and has already been awarded to him, on the reconsideration of his case which took place following the request he made on 10 July 2000 for previous (less favourable) decisions on his disablement benefit entitlement to be looked at again.

3. Under the provisions of the Social Security Act 1998 which apply to a request for reconsideration made on that date, the normal rule is that there can be no backdating at all for any period before the request for reconsideration is actually made. Thus even if the original adverse decision is found in the course of the reconsideration to have been wrong, this can only be put right for the future. The past is treated as water under the bridge, for which the finality of the original decision against the claimant is preserved. The exception to this general rule, which has been applied in favour of the claimant in this case, is that where a case is reconsidered because the department's understanding of the law as originally applied to it has been shown in another later case to have been wrong, any extra benefit found due on the reconsideration is backdated to the date of that other case, so that the correct law is applied to all cases alike from that date on.

4. For the reasons explained in the Tribunal of Commissioners' judgment in the test cases, that is the principle that applies here: because in this case (just as in the test cases) the reason why the earlier less favourable decisions on the claimant's disablement benefit had to be reconsidered was that they had been based on an assumption that he was not entitled to have his disablement percentage from an earlier accident or disease for which a "disablement gratuity" had been paid under the law in force before October 1986 added into the calculation of his "aggregate percentage" on a later claim. That assumption was held wrong in law in the Commissioner's decision in case CI 522/93, given on 24 July 1995 (the first decision so to hold). Consequently it is accepted by the Secretary of State that this is a case within the exception to the general rule against backdating, and that the claimant is entitled to have his corrected benefit award given effect back to 24 July 1995 as well as for the future.

5. Again as explained in the test case judgment, that is the maximum possible backdating that any claimant can legally get on a reconsideration in these circumstances. There is in my judgment no doubt that the same principle applies to this case, and no arguable way in which it can be said this claimant's case is different from those already decided, or gives him any claim to more backdating than he has had already.

6. I decline the claimant's request for an oral hearing of his appeal, as the stated reason on page 100 (to provide oral evidence) is not going to assist me on the point of law at issue in the case, and I am satisfied this is identical to that already decided in the test cases so that the present proceedings can be properly determined without a hearing.

7. For those reasons, I dismiss this appeal.

(Signed)

P L Howell

Commissioner

18 July 2002