CDLA/884/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal against the decision of the Southampton appeal tribunal dated 6 November 2007.  I set aside that decision and substitute a decision to the effect that the decision of the tribunal dated 7 March 2007 is not superseded.  Accordingly, the claimant remains entitled to the higher rate of the mobility component and the lowest rate of the care component of disability living allowance from 7 July 2006 to 6 July 2008.  (The award is effective only until yesterday and so, if the claimant wishes payments to continue, he should make a new claim immediately.  Equally, the Secretary of State may still consider superseding the decision of the tribunal dated 7 March 2007, if he wishes to do so in respect of the mobility component or the lowest rate of the care component entitlement to which I have not formally considered, before paying to the claimant the arrears otherwise due under my decision.)

REASONS

2.	On 2 October 2006, the Secretary of State awarded the claimant the higher rate of the mobility component of disability living allowance for the period from 7 July 2006 to 6 July 2008 but refused to award the care component.  After an unsuccessful application for revision, the claimant appealed and, on 7 March 2007, a tribunal awarded the lowest rate of the care component, in addition to the mobility component and for the same period. 

3.	On 29 March 2007, the claimant applied for supersession on the ground that his condition had deteriorated since, presumably, 2 October 2006 and that he qualified for the middle rate of the care component as well as the higher rate of the mobility component.  On 29 May 2007, the Secretary of State refused to supersede the tribunal’s decision.  The claimant appealed.  This was not a success.  Rather than increasing the award, the second tribunal took it away altogether, deciding on 6 November 2007 that the claimant was not entitled to either component with effect from 29 March 2007.  The claimant now appeals against the tribunal’s decision with my leave.

4.	The claimant’s grounds of appeal were to the effect that he had written to the Department for Work and Pensions on 2 September 2007, asking them to provide the tribunal with copies of earlier letters he had written on 8 August 2007 and 29 August 2007.  The Secretary of State has not been able to find any copy of those letters and the claimant has neither supplied the recorded delivery reference numbers nor explained why either of the letters written in August might have made any difference to the tribunal’s decision.  Accordingly, I do not accept this ground of appeal.

5.	In an application for the setting aside of the tribunal’s decision, the claimant raised a number of other matters.  However, insofar as they are challenges to the tribunal’s findings of fact, they are immaterial to this appeal, because an appeal to a Commissioner lies only on a point of law (see section 14(1) of the Social Security Act 1998).  Insofar as they raise procedural issues, they are relevant to the grounds upon which I granted leave to appeal and which I shall consider below.  I am satisfied that, insofar as the tribunal decided that the claimant was not entitled to the middle rate of the care component, it did not err in law.  It simply did not accept the claimant’s evidence, for reasons it has given.  It was entitled to take that view of the case.

6.	I granted leave to appeal on two grounds.  The Secretary of State accepts that the tribunal erred in both respects and his representative, Mr Wayne Spencer, has added some further points in his helpful submission.

7.	I am satisfied that, among other errors to which I shall refer below, the tribunal erred in law in failing to explain why it decided to consider entitlement to the mobility component and to the lowest rate of the care component when such entitlement was not in issue between the parties (see paragraph 94 of R(IB) 2/04 and section 12(8)(a) of the Social Security Act 1998) and also in superseding the existing award on the ground of change of circumstances with effect from 29 March 2007, rather than either 29 May 2007 (see paragraph 97 of R(IB) 2/04 and section 10(5) of the 1998 Act) or some earlier date (if the condition of regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which the tribunal failed to consider, was satisfied).

8.	An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal.  It is not surprising that appeals should be brought before Commissioners in such cases, particularly as the consequence of any such decision is that there will have been an overpayment, the recoverability of which will have been left undetermined by the tribunal.  Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  Such errors are too common and are contributing significantly to the caseload of Commissioners.  It is particularly unfortunate that two of the several errors made by the tribunal in the present case were on points in respect of which a Tribunal of Commissioners had relatively recently given clear guidance.

9.	There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case.  Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant’s entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal.  The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant’s entitlement to the mobility component, by questioning him about how he had got to the hearing, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal.  It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.

10.	Mr Spencer also points out that it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal.  He refers me to paragraph 94 of the Tribunal of Commissioners’ decision, in which they said that it was necessary that “the claimant has sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.”  Here, the claimant had no advance notice of the possible case against him in respect of either the mobility component or the lowest rate of the care component and there is no indication that it was explained to him that the risk to his existing award was not merely theoretical.  As the mobility component and the lowest rate of the care component had not been in issue, the grounds upon which they might be awarded were not mentioned in the Secretary of State’s submission to the tribunal.  Nor was there any reason of which I am aware as to why the claimant should have thought that any ability to walk further than 50 to 100 yards might be regarded as fatal to his entitlement to the mobility component.  Even if, as the tribunal found, he had exaggerated his disability in his claim form, it does not necessarily follow that he should have realised that he was not fully entitled to disability living allowance at the rate awarded.  A tribunal is in a difficult position.  If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment.  In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.

11.	If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award.  The chairman is at liberty to draw the doubts to the Secretary of State’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings (including his or her note of evidence) without them having to request it.  That would enable the Secretary of State to consider a supersession or revision and, in disability living allowance cases, would often avoid the possibility of there having been an overpayment, which is often a consequence of a tribunal considering the issue and which often worries claimants more than the mere cessation of entitlement.

12.	In the present case, Mr Spencer asks me to refer the case to another tribunal.  However, I consider that I should give my own decision.  As I am satisfied that the tribunal did not err in law in refusing to supersede the decision of 7 March 2007 in the claimant’s favour so as to award the middle rate of the care component of disability living allowance, I can easily give a decision adopting the tribunal’s conclusion on that issue.  The real question is whether it is necessary to refer the case to another tribunal to consider whether the tribunal decision of 7 March 2007 should be superseded adversely to the claimant. (If the tribunal siting on 7 March 2007 did not consider entitlement to the mobility component, the decision that was the one that might be superseded in respect of the mobility component was presumably the Secretary of State’s decision of 2 October 2006, but nothing turns on the point and I refer only to the tribunal’s decision for the sake of simplicity.)  Mr Spencer has not given any indication as to the Secretary of State’s current position as regards such a supersession but the Secretary of State has never sought a supersession in his own favour.  I am satisfied that consideration should not be given in these proceedings to entitlement to either the mobility component or the lowest rate of the care component, for reasons I will now explain. 

13.	One consequence of the last tribunal having rushed to deal with issues upon which the Secretary of State had not made any submission was that it appears to have got the chronology hopelessly wrong and then failed to ask itself the right questions.  Although the statement of reasons records, under the heading “History of the Claim”, that the lowest rate of the care component was awarded by a tribunal sitting on 7 March 2007, under the heading “The Law” it records that the case before the tribunal was an application for supersession of a decision of “the tribunal of 7th July 2006” and the reasoning is based upon a finding that “the appellant’s condition was considerably improved from that described in the original application”, which was made on 7 July 2006.  

14.	The chronology is important because, at least in relation to the lowest rate of the care component, the starting point had to be the decision of the tribunal of 7 March 2007.  Although a decision of a tribunal may be superseded on the ground of a change of circumstances since it took effect (see regulation 6(2)(a)(i) of the 1999 Regulations), it has been held by a Tribunal of Commissioners in R(IS) 2/08 that there should be no supersession on this ground where the change took place before the date of the decision being superseded and the relevant decision-maker knew of the current circumstances and could have taken the change into account.  Not only could the tribunal sitting on 7 March 2007 have taken account of changes of circumstances up to 2 October 2006 (see section 12(8)(b) of the 1998 Act), but also it could not properly have awarded the care component unless satisfied that at 2 October 2006 the claimant was likely to continue to satisfy the conditions of entitlement until at least 7 January 2007 (see section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992).  Therefore, the tribunal sitting on 6 November 2007 actually had to be satisfied that either there had been a material change of circumstances between 7 January 2007 and 29 May 2007 (not 29 March) or else there had been one before 7 January 2007 but to which the tribunal sitting on 7 March 2007 could not give effect because, at 2 October 2006, the change was not likely.  Moreover, it would have been appropriate to consider whether, if the tribunal sitting on 7 March 2007 had thought that the claimant had ceased to satisfy the conditions at the date of its decision, it was probable that that tribunal would have made an award in the terms it did without mentioning on the decision notice that the conditions of entitlement were no longer satisfied.  If supersession on the ground of change of circumstances was not appropriate, the tribunal sitting on 6 November 2007 could have considered whether the decision of the tribunal sitting on 7 March 2007 was given in ignorance of, or was based on a mistake as to, a material fact (see regulation 6(2)(c)(i)).

15.	Had it asked itself the right questions, it would have adverted to the fact that it had neither the record of proceedings before the tribunal of 7 March 2007 nor a statement of reasons.  It could have ascertained whether there had been an oral hearing before that tribunal and, if so, whether the file had been destroyed or whether the record of proceedings could still be obtained.  But, in any event, it is likely to have concluded that supersession of the award in favour of the claimant on the ground of change of circumstances was probably unrealistic, given the true chronology, and that due deference to the decision of 7 March 2007 made supersession on the ground of ignorance or mistake difficult on the material available, unless the tribunal’s decision had been made on the papers.  The reason why it might have been different if the decision had been made on the papers is that it seems likely that the decision would have been made on the basis of the assertions made by the claimant in his grounds of appeal to the tribunal sitting on 7 March 2007 and the tribunal sitting on 6 November 2007 would have been entitled to take the view that those assertions were not accurate in the light of its own findings.

16.	Similar, but nonetheless slightly different, considerations apply in respect of the mobility component.  Reference was made to the mobility component in the decision notice issued by the tribunal on 7 March 2007.  It does not necessarily follow that the tribunal sitting on that date actually considered that component, which presumably was not in issue before it but, equally, it is quite possible that the tribunal did consider entitlement to the mobility component but decided nonetheless to confirm the Secretary of State’s decision.  If it did consider entitlement to the mobility component, it again seems unrealistic to suggest supersesssion on the ground of a change of circumstances and, in the absence of the record of proceedings or a statement of reasons for the tribunal’s decision, there is certainly insufficient material to justify supersession on any other ground.  If the tribunal did consider the mobility component but the decision was made on the papers, which seems unlikely, or if it did not consider the issue at all but accepted the decision the Secretary of State had made on 2 October 2006 on the papers, I am still doubtful as to whether there were really grounds for supersession.  The finding made by the tribunal on 6 November 2007 that the claimant had walked 120 metres to the tribunal venue, with a stop after 100 metres and then some stumbling does not show that the claimant necessarily was not entitled to the mobility component at the higher rate.  Had this been a new claim, the tribunal might have been quite entitled to take the view that the claimant was not entitled to the mobility component, but, whether or not supersession could be justified, this seems to be the sort of borderline case where the tribunal should not have embarked upon consideration of the existing award when it was not asked to do so.  This is particularly so given that evidence from the claimant’s general practitioner, upon which the tribunal placed some weight, had been available to the Secretary of State before he had made his submission to the tribunal.  

17.	In declining to refer this case to another tribunal, I am mindful that, although the Secretary of State may still supersede the decision of the tribunal of 7 March 2007 in respect of the mobility component and the lowest rate of the care component, any such supersession will now have practical effect only if he can show that regulation 7(2)(c)(ii) or regulation 7(5)(b) of the 1999 Regulations applies.  However, I am also mindful of the fact that, if I referred the case to another tribunal, the claimant could deprive the tribunal of jurisdiction through the simple expedient of withdrawing his appeal.  As I am fairly firmly of the view that the last tribunal should not have interfered with the claimant’s award of the mobility component and should have considered the claimant’s entitlement to the care component only if the decision of 7 March 2007 had been made on the papers, in which case regulation 7(5)(b) of the 1999 Regulations may well apply if the Secretary of State wishes to pursue the issue, I do not consider that I am depriving the Secretary of State of anything valuable and I may be saving both him and the Tribunals Service a certain amount of trouble.

18.	Accordingly, I simply restore the Secretary of State’s original decision of 29 May 2007 (although I correct the date mentioned in the decision, which I think probably refers to the date on which the tribunal’s decision of 7 March 2007 was implemented).  Arrears will be due to the claimant unless the Secretary of State now supersedes the decision of 7 March 2007 in the light of the findings of the tribunal that sat on 6 November 2007 (which are not binding).  I do not encourage him to do so in respect of the mobility component but he may well wish to consider doing so in respect of the lowest rate of the care component if the decision of 7 March 2007 was given on the papers, although he would have to consider section 72(1)(a)(i) of the 1992 Act as well as section 72(1)(a)(ii).  The clerk to the tribunal would be able to use the GAPS computer records to tell him whether or not that hearing was on the papers.  I express no view as to the decision that should be made if the claimant now makes another claim.

19.	I make two final observations.  The first is that, where a claimant applies for supersession shortly after a tribunal has made a decision following an oral hearing, the Secretary of State might find it useful to ask the clerk to the tribunal to send both parties a copy of the record of proceedings (which will contain a note of the evidence given to the tribunal and which the clerk is bound to keep for at least six months after the date of the decision (see regulation 55 of the 1999 Regulations)).  If the application for supersession is received early enough (i.e., within a month of the tribunal’s decision notice being issued – see regulation 53(4) of the 1999 Regulations), he could also ask for a statement of the tribunal’s reasons.

20.	Secondly, the Secretary of State has wide powers to supersede decisions of tribunals but exercises them with restraint, particularly as regards allegations of ignorance or mistake.  He is right to do so because, while it is important not to perpetuate obvious injustice, it is also important that there be finality in decision-making.  It is particularly important that he should not regularly reverse decisions of tribunals that have themselves reversed his decisions, because that would undermine the whole appeal system.  In my judgment, tribunals should accord a similar degree of respect to each other’s decisions and should, in particular, be slow to supersede the decision of another tribunal given following an oral hearing when it has not been asked by any party to do so.

	(signed on the original)	MARK ROWLAND
		Commissioner
		7 July 2008