Smith v Secretary of State for Work and Pensions (ESA): [2018] UKUT 270 (AAC) [2018] UKUT 0270 (AAC)
UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
[2018] UKUT 0270 (AAC)Case No JR/1249/2018
Between
SmithAppellantSecretary of State for Work and PensionsRespondentDate 10 August 2018Category: Revisions supersessions and reviewsSubcategory: Employment and support allowance pre 28 3 11 wca activity 3 bending or kneeling, Revisions supersessions and reviews official error
[1]Permission to apply for judicial review is granted, and the claim is allowed on ground 1. In the circumstances, ground 2 does not arise.[2]It is DECLARED that:a. the decision effective from 14 September 2012 was made pursuant to an official error within the meaning of Reg 1 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999; andb. SK v Secretary of State for Work and Pensions CSE/33/2017 (Upper Tribunal, 18 January 2018) is not to be followed, insofar as it held to the contrary at paragraphs 9-17.[3]The Defendant shall pay the Claimant’s costs of the claim on the standard basis, to be assessed if not agreed.[4]There shall be a detailed assessment of the Claimant’s publicly funded costs. Signed (on the original) Christopher Ward Judge of the Upper Tribunal Stewart Wright Judge of the Upper Tribunal Paula Gray Judge of the Upper Tribunal Dated 10 August 2018 DS v SSWP [2018] UKUT 0270 (AAC) SCHEDULE Summary reasons for disposal without a hearing[1]The Claimant’s award of incapacity benefit was, by a decision of the Defendant effective from 14 September 2012 (‘the 2012 decision’), converted to an award of employment and support allowance (‘ESA’). The Claimant was awarded the contributory element of ESA under s 1(2)(a) Welfare Reform Act 2007, but not the income-related element under s 1(2)(b) of the 2007 Act.[2]The Claimant asked the Defendant to revise the 2012 decision, on the ground of official error, on 15 December 2017.[3]On 25 January 2018 the Defendant refused to revise the 2012 decision, and instead superseded it, adding entitlement based on the income-related element of ESA from 21 October 2014. The Defendant’s reasoning was as follows:a. the 2012 decision was erroneous in point of law because the Defendant ought to have determined the Claimant’s entitlement to both parts of ESA;b. the 2012 decision had been shown to have been an error by virtue of a subsequent decision of the Upper Tribunal; it now fell to be made in accordance with that subsequent decision;c. in respect of a decision ‘shown to have been an error by virtue of a subsequent decision of the Upper Tribunal’, the Defendant has no power to revise under Reg 3(5) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 DS v SSWP [2018] UKUT 0270 (AAC) for official error, because of the Reg 1 definition in the 1999 Regulations of ‘official error’;d. in respect of a decision erroneous in point of law, which ‘falls to be made... in accordance with’ a subsequent decision of the Upper Tribunal, s 27 of the 1998 Act applies and the appropriate outcome is therefore supersession of the original decision under Reg 6(2)(b) and Reg 7(6) of the 1999 Regulations, from the date of the relevant ‘subsequent decision’.[4]Step (b) in the above reasoning is agreed now to have been wrong in the circumstances of this case. Subsequent to the 2012 decision, there was an Upper Tribunal judgment, decided on 21 October 2014, which concerned the issues in (a) above (in the context of a new claim for ESA as opposed to a conversion case): LH v Secretary of State for Work and Pensions [2014] UKUT 480 (AAC), [2015] AACR 14. However, it is now agreed that LH did not ‘show’ the 2012 decision to have been erroneous because it was already clear prior to LH that the 2012 decision was erroneous in point of law. Thus the Defendant’s decision in 2018 did not ‘fall to be made... in accordance with’ LH.[5]The decision in SK v Secretary of State for Work and Pensions CSE/33/2017 (Upper Tribunal, 18 January 2018) which determined (at paragraphs 9-17) that LH was a relevant determination pursuant to section 27 of the 1998 Act and accordingly made findings as to the consequential application of Regs 3 and 6-7 of the 1999 Regulations, should accordingly not be followed.