PH v Secretary of State for Work and Pensions (DLA) [2013] UKUT 0268 (AAC)

UKUT-AAC
PH v Secretary of State for Work and Pensions (DLA)
[2013] UKUT 0268 (AAC) · 2013-05-28
[1]This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal given on 28 September 2010, expressed as awarding the claimant the higher rate of the mobility component of disability living allowance from 21 December 2009 to 7 March 2010. No challenge is made to the First-tier Tribunal’s decision not to award the care component but it is contended on behalf of the claimant that the award of the mobility component should have been for a period that stretched at least until the date of the First-tier Tribunal’s decision. The Secretary of State opposes the appeal, contending that the First-tier Tribunal had no power to make an award in respect of any period after 7 March 2010.[2]The issue arises out of the procedural history of the case, from which it can readily be seen why the First-tier Tribunal made its award for such a limited period. The claimant had been entitled to disability living allowance for some time. On 18 December 2006, a renewal claim was allowed and the higher rate of the mobility component was awarded from 8 March 2007 to 7 March 2010. On 1 September 2009, the claimant made an application for supersession with a view to obtaining the care component. Not only was that unsuccessful but, in the light of an examining medical practitioner’s report, the Secretary of State decided on 21 December 2009 that the claimant was entitled to neither component from 21 December 2009. The claimant appealed, but her appeal was not heard until 28 September 2010, when the First-tier Tribunal dismissed the appeal in respect of the care component but allowed the appeal in respect of the mobility component and restored the original award.[3]However, the period of the original award had expired on 7 March 2010, before the date of the First-tier Tribunal’s decision. I am told that a new claim was made on 22 November 2010, shortly after the claimant had been sent the First-tier Tribunal’s statement of reasons. The claim was disallowed. I am not sure on what ground. The claimant had reached the age of 65 but that fact ought not to have been the reason for the disallowance because her claim was a renewal claim within the terms of paragraph 5 of Schedule 1 to the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890), having been made within 12 months of the end of the period of the previous award. Nonetheless, the new claim could not cover the period from 8 March 2010 to 21 November 2010 because section 76(1) of the Social Security Contributions and Benefits Act 1992 provides that a person is not entitled to disability living allowance for any period preceding the date on which a claim for it is made. The issue in this case is whether the First-tier Tribunal should have made a decision in terms that prevented such a gap in potential entitlement from arising.[4]Normally, the claimant would have been invited to make a renewal claim under regulation 13C of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) in or about September 2009, to be effective from 8 March 2010. I do not know whether she received such an invitation but did not complete the renewal claim form because she had just answered all the same questions in her application for supersession and was waiting for the decision on that application or whether her application had the result that a renewal claim form was never sent to her or whether a renewal claim form was sent by her but not received. It does not matter. The claimant could, of course, have made a new claim while her application for supersession and subsequent appeal were pending but she certainly did not need to do so until 8 March 2010 and she could not be expected to realise that the position might have changed on that date because, with her previous award having been terminated prematurely by the Secretary of State (erroneously as the First-tier Tribunal subsequently decided), there was, from her point of view, no longer anything significant about that date. Once the Secretary of State had made his decision on the claimant’s application for supersession, a renewal claim cannot have appeared relevant because there was no current award to renew. Equally, a new claim based on a change of circumstances cannot have appeared relevant when the claimant’s case in relation to the mobility component was that there had been no relevant change in her condition. The claimant probably quite reasonably believed that, if she was successful on her appeal, the First-tier Tribunal could make an award for any appropriate period. The Secretary of State says that its powers were more limited.[5]On an appeal under section 12 of the Social Security Act 1998, the First-tier Tribunal has the powers that the Secretary of State had when making the decision being challenged (R(IB) 2/04). It has no greater powers and, in particular, is not entitled to have regard to circumstances not obtaining at the time of the original decision (section 12(8)(b)) but it is entitled to consider issues not considered by the Secretary of State even if they are not raised by the appeal (section 12(8)(a)).[6]So, the questions in the present case are, firstly, whether the Secretary of State had the power, on 21 December 2009, to extend the award of the mobility component of disability living allowance and, secondly, whether the First-tier Tribunal doing so would have involved impermissibly having regard to circumstances not obtaining on 21 December 2009.[7]The decision on 21 December 2009 was made by way of supersession under section 10 of the Social Security Act 1998. Strictly speaking, there were two decisions. First, on the claimant’s application, there was the refusal to supersede the existing award so as to include within it the care component. That decision should have been expressed as being effective from 1 September 2009, the date of the claimant’s application (see section 10(5)). Secondly, the Secretary of State decided on his own initiative to supersede the award in respect of the mobility component and find that the claimant was no longer entitled to it. That decision was rightly expressed as being effective from the date of the decision (see section 10(5) again). Had the Secretary of State not decided to supersede the award of the mobility component adversely to the claimant, could he, on the claimant’s application for supersession or on his own initiative, have extended the period of the award?[8]Regulation 17(1) and (3) of the 1987 Regulations provides that – “ 17 –(1) Subject to the provisions of this regulation and of section 37ZA(3) of the Social Security Act 1975 (disability living allowance) … a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be made for an indefinite period. … (3) …., if it would be inappropriate to treat a claim as made and to make an award for an indefinite period (for example where a relevant change of circumstances is reasonably to be expected in the near future) the claim shall be treated as made and the award shall be for a definite period which is appropriate in the circumstances”[9]The reference to section 37(ZA)(3) of the Social Security Act 1995 must now be read as a reference to section 71(3) of the Social Security Contributions and Benefits Act 1992, which re-enacted it and provides – “(3) A person may be awarded either component for a fixed period or for an indefinite period, but if his award of a disability living allowance consists of both components, he may not be awarded the components for different fixed periods.” Although the word “appropriate” does not appear in that provision, it seems to me that the question whether an award should be for a fixed period or an indefinite period may be said to depend on what is considered at the time of the decision to be appropriate.[10]Section 8 of the Social Security Act 1998 provides for the Secretary of State to decide claims and subsection (2) provides – “(2) Where at any time a claim for a relevant benefit is decided by the Secretary of State –(a) the claim shall not be regarded as subsisting after that time; and(b) accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.” Sections 9 and 10 provide for the Secretary of State to revise or supersede such decisions, or decisions made under section 10, in prescribed cases or circumstances. Regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) provides that a decision may be superseded under section 10 on the basis that the decision to be superseded is one in respect of which there has been, or will be, a relevant change of circumstances. Section 10(5) provides that a supersession is generally effective from the date of the supersession itself or, where made on a claimant’s application, the date of the application, but regulation 7 of the 1999 Regulations provides for exceptions. The concepts of revision and supersession have replaced the concept of review in previous legislation.[11]At first sight, there appears to be no reason why, where the Secretary of State decides under section 8 to award benefit for a fixed period, the period of the award should not be changed on supersession under section 10, provided there are grounds for doing so. However, the Secretary of State refers me to two decisions of Mr Commissioner Mesher, as he then was, which he submits show that the period of an award cannot be extended on supersession.[12]In R(IS) 8/95, Mr Commissioner Mesher had to consider the effect of regulation 17 of the 1987 Regulations. He said, at paragraph 4 of the appendix – “The question of what definite period or periods are appropriate should be determined, in my judgment, at the time at which the adjudication authority, of whatever level, is making its decision on the claim.” In CJSA/3979/1999, he said – “I accept that the nature of the original claim sets the nature of the award, as I said in R(IS) 8/95. If the original claim is for a definite period, I do not think that the claim can later be converted into one for an indefinite period.”[13]On the basis of the latter decision, the Secretary of State argues that it must equally be true that an award for a definite period cannot be turned into an award for an indefinite period on the basis of a change of circumstances because that would require an amendment of the original claim and section 8(2)(a) of the 1998 Act provides that a claim ceases to subsist once it has been determined. He continues – “In short, in my submission, at the point at which a change of circumstances occurs, there is no on-going claim that can be altered (from then onwards) as a step towards altering the award, and no scope for amending the claim as originally made. Whatever the change of circumstances may be, it cannot be relevant to the original determination as to the duration of the award and thus cannot constitute grounds for a supersession under regulation 6(2)(a)(i) of the Decisions and Appeals Regulations. If a claimant wishes to have a definite period award converted into an indefinite award, he must show that there should have been an indefinite award from the outset and then demonstrate that there are grounds to revise the original award under regulation 3 of the Decisions and Appeals Regulations.” (emphasis in the original) The Secretary of State also mentioned that that argument had been raised in proceedings before the Upper Tribunal on file CDLA/1669/2010, in which the claimant’s appeal has subsequently been dismissed.[14]In my judgment, the cases cited do not support the proposition advanced by the Secretary of State. Indeed, if the Secretary of State were right, how could he ever terminate an award made for a fixed period on the ground that the claimant’s condition had improved?[15]In R(IS) 8/95, the question was whether a claim for a fixed period could be treated as made for either an indefinite period or a series of fixed periods so that an award or awards of income support could be made accordingly under regulation 17 of the 1987 Regulations. The case concerned a worker who was on short time under an arrangement whereby he worked only for alternate weeks. It was held that his claim made in respect of the weeks when he did not work could be treated as a claim in respect of an indefinite period, with the claimant’s hours of work being averaged over each fortnightly cycle so that he was not entitled to benefit. Mr Commissioner Mesher was therefore concerned only with the determination to be made on the initial claim under what would now be section 8 of the 1998 Act and what he said has to be viewed in that light. The point that arises in this case did not arise in that case.[16]In CJSA/3979/1999, one question was whether the claimant could withdraw a claim after an award had been made and it was held that he could not do so in respect of any past period but could in respect of a future period because, although there had been an adjudication in respect of the future period, through the making of an indefinite award, it was “only in a fairly technical sense”. Importantly, immediately after the passage cited by the Secretary of State, Mr Commissioner Mesher said – “The original claim cannot be unmade or amended. If the running of the award was to be stopped it had, by virtue of section 60(1) of the Social Security Administration Act 1992, to be by the operation of the provisions on the review of decisions (although the result may not be the same under the new regime of the Social Security Act 1998 in cases of relevant changes of circumstances: see CI/1132/2000).” Section 60 of the Social Security Administration Act 1992 has now been re-enacted as section 17 of the 1998 Act. Thus, although the original claim could not be amended after it had been determined, the award made on the claim was subject to review. A review could, in some circumstances, be retrospective just as revision now almost invariably is and supersession may be, but a review based on a change of circumstances obviously could not take effect before the date of the change of circumstances.[17]It seems to me that, despite the way Mr Commissioner Mesher expressed himself in CJSA/3979/1999, the terms of the original claim are set by regulation 17(1) where it applies and by the terms of the appropriate award where regulation 17(3) or section 71(3) of the Social Security Contributions and Benefits Act 1992 applies, although the terms in which a claim is expressed by a claimant may have a bearing on what is “appropriate”. But the point he was making in that decision was that, once the claim is determined and an award is made, the terms of the claim become fairly irrelevant and the material question is whether an award may be reviewed or, now, revised or superseded. He held that, if a claimant withdrew a claim, the award still had to be brought to an end by what was then a review on the ground of change of circumstances, the withdrawal of the claim being a change of circumstances.[18]In the light of section 8(2)(a), it would now be inapt to talk in terms of a claimant withdrawing a claim after a decision has been made on it. It would be more appropriate to talk of a claimant stating that he wished the award to cease. That, on Mr Commissioner Mesher’s analysis, would be a material change of circumstances consistent with his statement that “[s]ome regard must be had for the autonomy of claimants”, although in reality I suspect that the reasons behind the claimant’s desire that the award should cease will usually supply more conventional grounds of revision or supersession. But, ultimately, the issue in CJSA/3979/1999 was whether the claimant could resile from his statement that he wished to withdraw his claim (or have his award cease) and the importance of the statement amounting in itself to a material change of circumstances was that he could not necessarily do so. In CI/1132/2000, to which Mr Commissioner Mesher referred, the point that section 8(2)(a) now provides that a claim ceases to subsist after a decision is made upon it is emphasised, but I see nothing in that decision that suggests that the basic analysis in CJSA/3979/1999 is flawed and, in my judgment, provided language appropriate to the 1998 Act regime is used, the analysis still holds good.[19]R(IS) 8/95 and CJSA/3979/1999 simply do not support the proposition that, once a decision has been made on a claim and an award made for the period that appears appropriate, the period of the award cannot subsequently be changed on revision or supersession. The former case does not address the issue and the latter, if anything, undermines the Secretary of State’s argument. Moreover, I do not see why the legislature should have wished to deny the Secretary of State the power to adjust the period of an award if a change of circumstances suggested that a different period had become appropriate. The Secretary of State does not suggest that he does not have the power to bring an award to an end prematurely, as he did in this case. Nor, as far as I am aware, has it ever been suggested that a claimant with a fixed rate of one component cannot on a supersession be awarded the other component indefinitely. If, in the present case, the Secretary of State had decided that the claimant’s condition had deteriorated and she was entitled to the care component although not for an indefinite period, section 71(3) of the 1992 Act would have required him to ensure that the same fixed period applied to both components. There is nothing that I can see in either section 71(3) of the 1992 Act or section 10 of the 1998 Act that would have required him to award the care component only for the remainder of the period for which the mobility component had originally been awarded. If he was of the view that it was unnecessary to require the claimant to make a new claim almost immediately, I do not see why he could not have extended the award of the mobility component so that the award of both components would run for two or three years or such other period as seemed appropriate at the time of the supersession. Equally, if the medical report obtained for the purposes of the supersession decision had suggested that there was no entitlement to the care component but that there had been a deterioration in the claimant’s mobility that was unlikely to change for at least two years, it would be odd if the Secretary of State could not have made such an award immediately instead of requiring the claimant to make an unnecessary renewal claim.[20]Moreover, even if there had not been a change in the claimant’s mobility and the only difference was that there was then a clear prognosis which there had not been when the award was originally made, that would, in my judgment, be a change of circumstances (or be evidence of a prospective change of circumstances) justifying a supersession. Because, under section 8(2)(a) a claim ceases to subsist when an award is made, an award for a fixed period amounts to a disallowance of the claim in respect of the period after the end of the fixed period. That may be so “only in a fairly technical sense” (to borrow Mr Commissioner Mesher’s phrase), because the fixing of an appropriate fixed period of an award does not involve a finding that the claimant will probably not satisfy the conditions of entitlement after the end of that award. Such a finding cannot be taken into account in the light of section 8(2)(b) of the 1998 Act. It seems to me that the reason for making a fixed award is therefore likely to be that the current prognosis is uncertain and the decision-maker is not sufficiently satisfied that the claimant will continue to qualify for entitlement after the end of the fixed period for it to be appropriate to make an award for an indefinite period or a longer period. Nonetheless, if the Secretary of State is later satisfied that in fact the conditions of entitlement will be met after the end of the period of the award, there will, again in a fairly technical sense, be a change of circumstances, or an expected change of circumstances, allowing the disallowance to be superseded under regulation 6(2)(a) of the 1999 Regulations so as to extend the period of the award. It may be possible to analyse the decision process on supersession in more than one way but it seems to me that the firmer prognosis is the change of circumstances making a longer fixed term award appropriate. See, in this regard, R(DLA) 3/01 in which, incidentally, Mr Commissioner Jacobs, as he then was, clearly considered that an award of disability living allowance might be extended on review.[21]I have some difficulty in seeing how regulation 7(2)(a)(ii) of the 1999 Regulations could apply in this context so as to enable the effect of a supersession to be backdated. It therefore appears that the period of an award may be extended only if an application for supersession is made, or the Secretary of State acts on his own initiative, before the award expires.[22]I acknowledge that Judge Pacey appears, in his decision on file CDLA/1669/2010, to have rejected the idea of the period of an award being extended on supersession. However, he did so when dismissing briefly an argument advanced by the claimant in respect of which he had refused permission to appeal and, in any event, that case is distinguishable from the present one. In that case, the First-tier Tribunal had been considering an appeal against the decision made on a new claim received some time after a previous award had expired. There was a question as to whether the First-tier Tribunal had adequately considered whether an earlier claim had been received but, once the appeal on that ground was rejected, the claimant plainly was not entitled to disability living allowance between the date of expiry of the first award and the date when the new claim was eventually received and I therefore respectfully agree with Judge Pacey’s conclusion to that effect. No supersession extending the period of the award was possible in that case because no action had been taken before the expiry of the previous award whereas, in the present case, the First-tier Tribunal had before it an appeal against a decision made before the expiry of the relevant award.[23]There may well be good administrative reasons for the Secretary of State not often exercising his power to extend the period of an award before it ends, save insofar as that may be the effect of making an award on a renewal claim. However, I am satisfied that he does have such a power. The existence of a claimant’s right to make a prospective renewal claim may limit the need to exercise the power but it does not remove it. Claimants seldom ask him to exercise the power unless the period of an award causes them some substantial practical disadvantage, such as preventing them from acquiring a car through the Motability Scheme. However, in the present case, the First-tier Tribunal was placed in a position that the Secretary of State does not have to face and the importance of the Secretary of State having the power prospectively to extend the period of an award through supersession, even if he does not use it, is that the First-tier Tribunal also had that power in this case.[24]For all these reasons, I am quite satisfied that, in December 2009, the Secretary of State did have the power to extend the period of the award of the higher rate of mobility allowance so that it would end on a date alter than 7 March 2010.[25]I turn then to the question whether the First-tier Tribunal erred in law in not considering whether to extend the period of the award in the present case. It expressed its decision as being an award of the higher rate of the mobility component from 21 December 2009 to 7 March 2010 but, technically, it decided that there were no grounds to supersede the existing award so as to award the care component from 1 September 2009 and there were no grounds to supersede the existing award so as to terminate entitlement to the mobility component from 21 December 2010 so that, without more, the original award continued in force until 7 March 2010. It is apparent from the record of proceedings and the statement of reasons that it did not consider whether to extend the period of the original award and was not asked to do so. Ordinarily, if neither party asks for the period of an award to be extended, the First-tier Tribunal need not consider the issue.[26]However, it seems to me that, whenever the First-tier Tribunal reinstates an award that has been terminated by the Secretary of State but would in any event have come to an end before the First-tier Tribunal gives its decision, it is necessary for the First-tier Tribunal to consider whether the period of the award should be extended in order to avoid unfairness to a claimant who may reasonably not have considered it necessary to make a new claim as well as to appeal. That is inevitably an issue that arises in such cases and I am satisfied that the First-tier Tribunal errs in law in not considering it. The First-tier Tribunal should be informed whether a new claim has been made and, if so, the date it was made. If a new claim has been made before the previous award expired, there is no need to consider extending the period of the previous award and the First-tier Tribunal is unlikely to be held to have erred in law in not doing so.[27]If a new claim has been made since the previous award expired there is a need to consider extending the reinstated award until immediately before the new claim was made or, if the new claim has not been determined, for a longer period (in which case the new claim will lapse). If no new claim has yet been made, the original award may need to be extended at least for a sufficiently long period to enable the claimant to make a new claim and it can be extended for longer if it is considered that the claimant should not be required to make a new claim immediately. However, it seems to me that the Secretary of State ought to be given an opportunity to express a view if an extension of an award for a period longer than necessary to take it up to the date of a new claim or by which a new claim might be made is contemplated.[28]I accept that this exercise involves a degree of hindsight but I remain of the view I expressed in CDLA/3293/2000:
“I do not consider that section 12(8)(b) of the Social Security Act 1998 prevents me from using hindsight for the purpose of fixing the period of an award of benefit, where a fixed-term award is permitted. The consequences of any other approach would just be too absurd.”
Section 12(8)(b) is clearly intended to prevent the First-tier Tribunal from having regard to such changes of circumstances as a change in a claimant’s condition but I do not think that the legislature contemplated that the First-tier Tribunal should ignore administrative events such as the making of a new claim if that would force it to make a potentially overlapping award that might require unscrambling through a further supersession decision.[29]In the present case, the Secretary of State had no reason to consider extending the award because he was terminating it altogether and even if he had not decided to supersede the existing award so as to terminate it, there would have been no need to extend the period rather than requiring the claimant to make a renewal claim. However, at the date of the First-tier Tribunal’s decision, the question of extending the period of the award did arise because the original award was for a period that ended before the claimant’s appeal was allowed and she had not made a new claim. It is clear from the use of the present tense in paragraph 18 of the statement of reasons that the First-tier Tribunal did not regard the claimant’s condition as having improved between 21 December 2009 and the date of its decision on 28 September 2010 although it anticipated that “the restriction through pain may be alleviated through further hip surgery”. The general practitioners report of 1 July 2010 and the claimant’s oral evidence did not suggest that such surgery was imminent. The Secretary of State was not represented at the hearing. In these circumstances, an extension of the award for long enough to enable the claimant to make a claim should have been considered.[30]I now know that a claim was made on 22 November 2010. I am also entitled to have regard to the evidence that was before the First-tier Tribunal in considering what circumstances obtained at the time of the Secretary of State’s decision (see R(DLA) 2/01 and R(DLA) 3/01). Adopting the First-tier Tribunal’s unchallenged findings and having regard to that evidence, I am satisfied that not only was the claimant virtually unable to walk at 21 December 2009 but also it could at that date have been anticipated that she would remain virtually unable to walk after 7 March 2010 until at least 21 November 2010.[31]Accordingly, I allow the claimant’s appeal. I adopt the First-tier Tribunal’s findings there are no grounds for superseding the award of disability living allowance made on 18 December 2006 in respect of the period from 8 March 2007 to 7 March 2010 so as to alter the award with effect from 1 September 2009 or 21 December 2009 but I am satisfied that there are grounds for extending the period of the award so that it ends on 21 November 2010. Mark Rowland 28 May 2013

Cited in 1 later judgment