- On
this appeal there is a large measure of agreement between the parties, at any
rate as to its practical outcome. The main area of disagreement canvassed in submissions
is not critical to that outcome, but counsel for both parties say that some guidance
would be welcome to assist tribunals which have to operate the relevant social
security legislation in future disputes. That legislation is now contained in
the Social Security Act 1998 (the "Act").
- The
point on which there is agreement is that an existing award of social security
benefit can only be taken away by a decision "superseding" an earlier
decision under the powers contained in section 10 of the Act if one of the conditions
for making a decision under section 10, as defined in the relevant regulations,
has actually been found to exist in fact. The relevant regulations are those set
out in regulation 6 of the Security and Child Support (Decisions and Appeals)
Regulations 1999 (the "Regulations"). Regulation 6(2) sets out a number
of alternative conditions, which have come to be called "criteria",
for the making of a section 10 decision. The one with which this appeal is concerned
is that "there has been a relevant change of circumstances since the [earlier]
decision was made": see regulation 6(2)(a)(i).
- I
will have to set out in further detail below relevant provisions of the Act and
of the Regulations. For the present, however, I turn to the factual background
to this appeal.
- The
appellant, Mr Wood, suffers from cerebral palsy and is partially deaf. He was
born on 21 May 1958. Sadly, he has no prospect of improvement in his physical
condition, which is lifelong. On 16 November 1992, following a review, he was
awarded mobility allowance from and including 17 September 1991 on the basis that
he was suffering from a physical disablement such that he was unable or virtually
unable to walk. The award was made for life. It was subsequently converted into
an award of the mobility component of Disability Living Allowance ("DLA")
at the higher rate.
- On
13 December 2000, Epping citizens’ advice bureau applied on behalf of Mr Wood
for his claim for DLA to be looked at again as his care (not his mobility)
needs had changed. In terms of the statutory scheme, this was an application for
the Secretary of State for Work and Pensions, the respondent to this appeal, to
make a decision under section 10 of the Act "superseding" the prior
decision on the basis of a relevant change of circumstances.
- Mr
Wood completed a DLA434 form setting out his personal circumstances and the extent
of his disabilities, in particular in response to the form’s questions under its
section 2A headed "Help with personal care". The statement from "the
person who knows you best" explained that whilst Mr Wood had always had mobility
problems, his condition over the last two years had deteriorated to the extent
that his mother had increasingly to care for him. A doctor from his GP’s practice,
in response to a standard questionnaire, commented that his prognosis was poor
and that his difficulties were longstanding from birth. His GP in a further letter
wrote that "The longer term outlook is that of very little change for the
better as his condition is a permanent one…" In these circumstances it is
common ground that there was no evidence before the Secretary of State that there
had been any change in Mr Wood’s ability to walk.
- Nevertheless,
on 9 March 2001 the Secretary of State made a "Decision on Supersession"
that with immediate effect not only was Mr Wood not entitled to the DLA care component,
for which he had applied, but he was not entitled either to the DLA mobility component,
in respect of which Mr Wood had made no application. The reasons given were as
follows:
"C
of C [Change of Circumstances] care needs claimed.
Mr
Wood can walk 400-1000m on a good day. He has occasional loss of balance but he
is not VUTW [virtually unable to walk]. He can be left safely alone outdoors.
Mr
Wood can manage his own personal care. He can be safely left alone by day and
night. He does have 1-2 falls per month but overall this is not enough. He can
do all tasks to cook a main meal."
- The
decision was reconsidered on 9 April 2001, but not revised. In effect, therefore,
the earlier decision of 16 November 1992 had been superseded by a new decision
under section 10 of the Act.
- Mr
Wood appealed against that new decision, as he was entitled to do (see section
12(9) of the Act set out at para 33 below). The Harlow appeal tribunal dismissed
the appeal after an oral hearing on 8 June 2001. The tribunal gave its Statement
of Reasons on 23 June 2001. As to the mobility component, it stated that Mr Wood
could walk for at least 150 yards and was not virtually unable to walk within
the meaning of section 73 of the Social Security Contributions and Benefits Act
1992. It accepted that Mr Wood’s renewal pack (ie DLA434) did not deal with his
mobility problems, but based itself on the responses of the GPs and on Mr Wood’s
oral evidence. It concluded that Mr Wood’s tendency to fall down on occasions
and to be unable to get up by himself could be overcome by summoning help from
a stranger in case of need. It is common ground that the tribunal did not consider
whether Mr Wood’s condition had changed since the life award of mobility allowance
was made.
- Subsequently,
Mr Wood has reapplied for DLA and has been reawarded the mobility component at
the higher rate: it has been accepted that he is virtually unable to walk.
- In
the meantime, however, Mr Wood sought leave to appeal on 31 July 2001 on the ground
(inter alia) that the Secretary of State and the appeal tribunal had no grounds
to consider the life award of the mobility component as it was clear from the
medical evidence that his condition was permanent and not subject to change.
- Mr
Wood was granted leave to appeal, indeed the Secretary of State supported the
appeal on the ground that the facts did not warrant the Secretary of State’s decision
that there had been a change of circumstances, and that the appeal tribunal had
erred in law in failing to find whether there had been any change of circumstances.
(I interpolate the comment that on my reading of the Secretary of State’s decision,
there is no finding of a relevant change of circumstances to be discovered there
either.) The Social Security Commissioners’ decision on the appeal (Case No CDLA/3912/2001,
Mr Commissioner Jacobs) was given on 28 February 2002. It is from that decision
that the present appeal to this court comes. Mr Commissioner Jacobs’ decision
was (inter alia) as follows:
"1.1
The decision of the Harlow appeal tribunal, held on 8th June 2001,
is erroneous in point of law.
1.2
I set it aside and remit the case to a differently constituted appeal tribunal.
1.3
I direct that appeal tribunal to conduct a complete rehearing of the issues that
arise for decision.
The
tribunal must follow the analysis of the supersession procedure laid down by the
Tribunal of Commissioners in CDLA/3466/2000 and CI3700/2000…
The
tribunal must accept that the threshold criterion in regulation 6(2)(a)(i) of
the Social Security and Child Support (Decisions and Appeals) Regulations 1999
is satisfied.
The
burden is on the claimant to show entitlement to the care component, but on the
Secretary of State to justify the termination of the award of the mobility component…"
- I
shall have to explain some of those references in due course. For the present
I observe that it is common ground on this appeal that a decision to award a DLA
mobility component cannot be removed by a superseding decision without finding
a relevant change of circumstances and that the appeal tribunal had not made any
such finding. There is not the same unanimity on whether the Commissioner’s decision
has perpetuated the same error. As to that, there is no express reference in the
decision to the need for a finding of change of circumstances. There is, however,
a question as to whether such a need can be found in the "analysis of the
supersession procedure" incorporated by reference to the earlier decision
in CDLA/3466/2000 (which is more conveniently known as the "6/02 decision".
It has not been suggested that CI/3700/2000 – the "5/02 decision" –
takes that analysis any further). On behalf of the Secretary of State, Ms Nathalie
Lieven submits that the 6/02 decision is a correct analysis and does contain a
reference (at its para 41) to the fact that –
"If
the Secretary of State finds that there has been no change of circumstances, the
supersession decision will contain the same award."
She
also observes that Mr Commissioner Jacobs was a member of the Tribunal of Commissioners
in the 6/02 decision.
- On
the other hand, not only does Mr Commissioner Jacobs in his decision here under
appeal make no express reference to the need for a finding of change of circumstances,
when that was the principal bone of contention in these proceedings, but in a
passage headed "The error of law" he identifies (at paras 5/6 of his
decision) the appeal tribunal’s error in different terms, viz:
"The
mistake made by the appeal tribunal was to concentrate on the distance that the
claimant could walk without taking account of the manner of his walking."
- He
then refers to the relevant statutory provision which defines the concept of being
"virtually unable to walk" and continues:
"The
key word in head (ii) is ‘or’. It contains 4 factors which have to [be] taken
into account – distance, speed, time, manner. It is sufficient for the claimant
to be virtually unable to walk having regard to any one of them. The tribunal
must take that approach at the rehearing."
- There
is no sign here whatsoever that the approach that the appeal tribunal must take
at the rehearing is first to decide whether there has been any relevant change
of circumstances with regard to Mr Wood’s mobility component award. On the contrary,
in para 1.3 of the decision cited above, Mr Commissioner Jacobs states that the
appeal tribunal "must accept that the threshold criterion in regulation 6(2)(a)(i)…is
satisfied", sc whether it was in fact satisfied or not. This view
of the matter is also consistent with other passages in the Commissioner’s reasoning:
eg paras 12ff, headed "The criteria to be applied by the Secretary of State",
where it is stated that under the 6/02 decision analysis –
"there
are no legislative outcome criteria. The Secretary of State had to decide whether
or not the conditions of entitlement for an award were satisfied."
- That
appears to mean that the Secretary of State does not have to decide whether the
regulation 6(2) criteria are fulfilled in any case ("no legislative outcome
criteria"), but rather has to decide whether the original "conditions
of entitlement for an award", viz the concept of being virtually unable to
walk, are satisfied. Thus the Commissioner goes on to accept, but to deprecate
the importance of ("those cases are very rare"…"the burden is on
the Secretary of State"), the logic of the consequence that
"there
are circumstances in which different decision-makers could apply the same law
to those facts and reach opposite but legitimate conclusions."
- In
the circumstances I am inclined to agree with Mr Richard Drabble QC, counsel on
behalf of Mr Wood, that Mr Commissioner Jacobs’ decision is itself in error. Since
the parties are agreed that there must in fact be a relevant change of circumstances
for Mr Wood’s award to be revoked, it may not matter much whether I am right or
wrong in this conclusion. It is possible that Mr Commissioner Jacobs has merely
expressed himself incautiously, or too elliptically. The only practical difference
to the outcome of this appeal is that on the Secretary of State’s submission,
while declaring for the sake of clarity that a finding of a relevant change of
circumstances is a condition precedent to any new decision revoking Mr Wood’s
mobility component, this court should nevertheless dismiss this appeal; while
on Mr Drabble’s approach, that declaration should be accompanied by the allowing
of this appeal. In my judgment Mr Drabble’s approach is preferable: both because
on balance I have concluded that the Commissioner’s decision is in error, and
also because at least one of Mr Wood’s stated grounds of appeal has been accepted
by the Secretary of State, viz his third ground that –
"The
proper approach is to consider whether there has in fact been a change
in circumstances (such as a change in an underlying medical condition), not merely
that the claimant has applied for supersession or the Secretary of State has initiated
a reconsideration process of his own motion."
- Since
it is common ground that for an earlier award to be altered by a decision under
section 10 there must be a finding in fact of one of the criteria for the making
of such a decision – such as for instance a relevant change of circumstances –
it is perhaps unnecessary to highlight other considerations which point in the
same direction. However, it is still relevant to observe, in the light of the
background to Mr Wood’s case, three matters. The first is the opening language
of regulation 6 itself. This provides –
(1)
Subject to the following provisions of this regulation, for the purposes of section
10, the cases and circumstances in which a decision may be superseded under that
section are set out in paragraphs (2) to (4).
(2)
A decision under section 10 may be made on the Secretary of State’s or the Board’s
own initiative or on an application made for the purpose on the basis that the
decision to be superseded –
(a)
is one in respect of which –
(i)
there has been a relevant change of circumstances since the decision was made…"
- It
is common ground, and Ms Lieven expressly accepts on behalf of the Secretary of
State, and in my judgment correctly so, that the words "on the basis of"
follow on from the words "A decision under section 10 may be made",
so that the intervening words could have been expressed in parentheses. That to
my mind makes it clear that without a finding of one of the stated criteria, such
as the very first one mentioned in paragraph (2)(a)(i), a decision under section
10 which supersedes an earlier decision may not be made.
- The
second matter is criterion (g) in regulation 6(2), which reads as follows:
"(g)
is an incapacity benefit where there has been an incapacity determination (whether
before or after the decision) and where, since the decision was made, the Secretary
of State has received medical evidence following an examination in accordance
with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations
1995 from a doctor referred to in paragraph (1) of that regulation."
- That
criterion indicates that the Secretary of State cannot supersede an earlier decision
just because he takes a different view of existing or even new medical evidence,
unless such new evidence amounts to a "relevant change of circumstances"
or to evidence obtained in the circumstances defined subparagraph (g).
- The
third matter is established jurisprudence under the pre-existing legislative regime.
Thus under section 25(1) of the Social Security Contributions and Benefits Act
1992 or section 30(2) of the Social Security Administration Act 1992, the concept
of "a relevant change of circumstances" had been used to restrict the
conditions under which an existing entitlement to benefit might be reviewed or
changed. In R v. Social Security Commissioner, ex parte Chamberlain (unreported
7 July 2000) Lightman J had made the point that such provisions ensured that decisions
"enjoy a degree of finality" since they can only be reviewed "if
one of the statutory grounds stipulated are satisfied" (at para 8). In Cooke
v. Secretary of State for Social Security [2001] EWCA Civ 734 (unreported,
25 April 2001) Hale LJ, giving the leading judgment of this court, cited Chamberlain
with approval, agreeing that although production of a new medical report or of
a new medical opinion could evidence a relevant change of circumstances, it did
not in itself suffice to constitute such a change, without which the jurisdiction
to review did not exist.
- That
is enough to decide this appeal. However, the submissions have ranged more widely,
and it has been suggested on behalf of both parties that decision makers, appeal
tribunals and the Social Security Commissioners are in need of the guidance of
this court on a slightly different albeit linked area of dispute, namely the right
of appeal from a decision made by the Secretary of State under section 10. As
will appear, it is that dispute which has driven the Commissioners’ jurisprudence
in the 6/02 decision and related decisions. The kernel of the dispute is to be
found in section 12 of the Act. That provides for a "right to appeal to an
appeal tribunal" from decisions of the Secretary of State (section 12(2))
but in the case of a decision under section 10 that right appears to be limited
by the terms of section 12(9) to a right to appeal only from "a decision
superseding" an earlier decision. That provision immediately raises the question:
What if a claimant applies under section 10 for a decision superseding an earlier
decision, but the Secretary rejects the application on the ground that none of
the criteria for making a decision under section 10 had been fulfilled, for instance
that there had been no relevant change of circumstances? Would that be "a
decision superseding" an earlier decision? Unless every decision in response
to the invocation of section 10 amounts to a "decision superseding"
an earlier decision, it is not easy to see that that is so. Nevertheless, the
Secretary of State accepts that there is, and by reason of article 6(1) of the
European Convention of Human Rights, must be a right to appeal before an independent
tribunal from the Secretary of State’s decisions properly so called. Excepted
from that concession lies what Ms Lieven describes as hopeless applications, viz
those which do not even invoke any of regulation 6(2)’s criteria for the making
of a decision under section 10: in rejecting such hopeless applications the Secretary
of State is not making a "decision" at all. He is merely responding
to what I suppose might be said to be something which does not even amount to
an application properly so called.
- Here
then is another area of common ground: that there not only ought to be but is
a right of appeal from the Secretary of State’s rejection of a properly formulated
application for a decision under section 10 superseding an earlier decision. The
question remains: how is that area of common ground to fit within the statutory
scheme? That is where unanimity breaks down.
- In
essence, Ms Lieven for the Secretary of State submits that where an application
properly invokes one of the legitimate legislative criteria under regulation 6(2),
then, however the Secretary of State decides, his or her decision, whether in
favour of or against the applicant, is a "decision superseding" the
earlier decision. Where he or she decides in favour of the applicant, there will
be some new and different award. Where, however, he or she decides against the
applicant’s application, there will be no change. That is described as "supersession
at the same rate". The Secretary of State can also make a decision under
section 10 on his or her own initiative. In such a case, the only decisions arrived
at would presumably be decisions involving a change in award based upon one of
regulation 6(2)’s criteria. Hopeless applications however involve no decision
and do not give rise to a right of appeal.
- Mr
Drabble on the other hand submits that every response by the Secretary of State
to an application for a decision under section 10 is a decision for which there
is a right of appeal, whether the decision supersedes an earlier decision or not.
Mr Drabble therefore would seem to accept that "a decision superseding"
an earlier decision is prima facie referring to a decision which involves change.
But he does not accept that section 12(9)’s reference to "a decision superseding"
should be construed in so limited a way. He relies on the suggestion of Messrs
White and Rowland, authors of the Commentary contained in Social Security,
2002, Vol III, at para 1.315 to the effect that –
"An
alternative construction requires there to be read in after "superseding"
the words "or refusing to supersede" on the basis that the purpose of
the subsection is merely to emphasise that any decision under s. 10 may
be the subject of an appeal and not just the first such decision."
- To
elucidate these positions further it is necessary to set out the statutory regime
and the Commissioners’ jurisprudence in further detail.
- Chapter
II of the Act is headed "Social Security Decisions and Appeals" and
section 8, the first section in Chapter II, contains the basic provisions relating
to decisions by the Secretary of State. Thus section 8 begins:
"(1)
Subject to the provisions of this Chapter, it shall be for the Secretary of State
–
(a)
to decide any claim for a relevant benefit…"
- Section
8 decisions may be "revised" under section 9, either on an application
made for that purpose or on the Secretary of State’s own initiative. Section 9(1)
refers to regulations governing the procedure for the revision of decisions, and
these are also to be found in the Regulations. Subject to an opportunity to extend
time in limited circumstances, the time limit for making or applying for a revision
is within one month of the initial decision. The revision normally takes effect
retrospectively as from the effective date of the original decision (section 9(3)).
It is a procedure intended to cover official or factual error.
- Section
8 decisions, as originally made or as revised under section 9, may also be superseded
under section 10, again either on application or on the Secretary of State’s own
initiative. Normally section 10 decisions take effect from the date they are made
or the date of application: in other words they are not retrospective. Section
10 provides:
"(1)
Subject to subsection (3) and section 36(3) below, the following, namely –
(a)
any decision of the Secretary of State under section 8 above or this section,
whether as originally made or as revised under section 9 above; and
(b)
any decision under this Chapter of an appeal tribunal or a Commissioner,
may
be superseded by a decision made by the Secretary of State, either on application
made for the purpose or on his own initiative.
(2)
In making a decision under subsection (1) above, the Secretary of State need not
consider any issue that is not raised by the application or, as the case may be,
did not cause him to act on his own initiative.
(3)
Regulations may prescribe the cases and circumstances in which, and the procedure
by which, a decision may be made under this section…
(5)
Subject to subsection (6) and section 27 below, a decision under this section
shall take effect as from the date on which it is made or, where applicable, the
date on which the application was made.
(6)
Regulations may provide that, in prescribed cases or circumstances, a decision
under this section shall take effect as from such other date as may be prescribed."
- Regulation
6 (headed "Supersession of decisions") of the Regulations has already
been set out in part above, but I repeat its relevant provisions for the sake
of convenience:
"(1)
Subject to the following provisions of this regulation, for the purposes of section
10, the cases and circumstances in which a decision may be superseded under that
section are set out in paragraphs (2) to (4).
(2)
A decision under section 10 may be made on the Secretary of State’s or the Board’s
own initiative or on an application made for the purpose on the basis that the
decision to be superseded –
(a)
is one in respect of which –
(i)
there has been a relevant change of circumstances since the decision was made;
or
(ii)
it is anticipated that a relevant change of circumstances will occur…"
and
then there are set out other criteria for supersession (b) to (h), such as error
of law or mistake of fact provided the application or the decision to act on the
Secretary of State’s own initiative was made more than one month after the date
of notification of the decision which is to be superseded.
- Section
12 of the Act provides as follows:
(1)
This section applies to any decision of the Secretary of State under section 8
or 10 above (whether as originally made or as revised under section 9 above) which
–
(a)
is made on a claim for, or an award of, a relevant benefit, and does not fall
within Schedule 2 to this Act; or
(b)
is made otherwise than on such a claim or award, and falls within Schedule 3 to
this Act.
(2)
In the case of a decision to which this section applies, the claimant and such
other person as may be prescribed shall have a right of appeal to an appeal tribunal…
(6)
A person with a right of appeal under this section shall be given such notice
of a decision to which this section applies and of that right as may be prescribed.
(9)
The reference in subsection (1) above to a decision under section 10 above is
a reference to a decision superseding any such decision as is mentioned in paragraph
(a) or (b) of subsection (1) of that section."
- On
a literal approach to these provisions it would seem that "a decision may
be made under this section", viz section 10 (see section 10(3)), only in
the cases and circumstances set out in regulation 6(2) ("A decision under
section 10 may be made…"). It follows that where there has been no relevant
change of circumstances nor any of the other criteria (regulation 6(2)’s "cases
and circumstances") for a section 10 decision, there can be no section 10
decision. It remains unclear whether such a section 10 decision must necessarily
lead to a change in an earlier decision. The language of supersession might suggest
that result, but it may not necessarily follow. In theory there might be jurisdiction
to make a section 10 decision, because one of the regulation 6(2) criteria had
been found to exist, but the ultimate decision was nevertheless to leave things
where they stood (what has been called "supersession at the same rate").
The decision then made would be a decision under section 10, but would it be properly
called a "decision superseding" an earlier decision? That is not perhaps
a natural form of expression, but it is a possible solution, since a case could
be made for such a decision to "take effect as from the date on which it
is made" (etc, as per section 10(5) or (6)) in the sense that there would
be a decision that the finding of a relevant criterion as of a certain date did
not affect the earlier decision. On this basis all decisions "under this
section" (see section 10(1), (5) and (6)) or "made under this section
(see section 10(3)) would be a decision superseding an earlier decision, whether
there was a change to the earlier decision or not. So far the language of section
12(9) apparently limiting a right of appeal to "a decision superseding"
an earlier decision would present no problems.
- What
however of decisions rejecting an application for a section 10 decision
on the basis that the criterion invoked under regulation 6(2) was not made good?
What is their status? Since the making of a section 10 decision appears to require,
and it is common ground does require, the establishment of one of regulation 6(2)’s
criteria, decisions rejecting their existence would seem to have no status within
section 10 at all. Nevertheless, it is also common ground, accepted by the Secretary
of State, that such decisions should also have a right of appeal. Moreover, although
such decisions do not appear to be decisions under section 10 superseding earlier
decisions, they also would seem to share with "supersession at the same rate"
decisions under section 10 the ability to determine something important at a certain
date, namely that what had been claimed to be, for instance, a relevant change
of circumstances was in fact not.
- The
solution to this problem proposed by the Secretary of State, adopted by the Tribunal
of Commissioners in the 6/02 decision, and submitted by Ms Lieven to this court,
is to say that regulation 6(2) is not concerned primarily with the circumstances
which have to be found in fact for the making of a section 10 decision, but with
the allegations that have to be made by an applicant to permit the making of a
section 10 decision. (I suppose that in the case of the Secretary of State acting
on his own initiative, it is said that regulation 6(2) is concerned primarily
with the considerations which, in his breast (in pectore), have led him
to at least consider making a section 10 decision.) Thus Ms Lieven submits that
regulation 6(2) is dealing expressly with those allegations or considerations,
and only implicitly with the need for one of those criteria to be established
in fact before any change is made to an earlier decision. I emphasise the
word change, because the submission as I understand it is that once the
right (in the sense of legislatively validated) allegations are made (or the right
considerations entertained by the Secretary of State of his own initiative) any
decision then made by the Secretary of State becomes a "decision under
section 10" and thus a decision superseding an earlier decision. In that
way the terms of section 12(9) apparently limiting a right of appeal to "a
decision superseding" an earlier decision are more properly explained: for
every validly constituted application, whether successful or not, leads to a section
10 decision superseding an earlier decision with a right of appeal.
- In
the 6/02 decision the claimant, as in Mr Wood’s case, had an award for the mobility
component but wished to obtain an additional award for the care component. The
Secretary of State issued a "Decision to supersede but not to change"
the earlier decision (a case of so-called "supersession at the same rate").
This led, in the early days of the new regime under the 1998 Act, to a detailed
examination of the legislative provisions set out above, with particular attention
being focused on the question of the right of appeal. In essence the Tribunal
of Commissioners accepted Ms Lieven’s submissions to it on behalf of the Secretary
of State. Thus it said:
"35.
We broadly accept Ms Lieven’s analysis of sections 8, 10 and 12 of the Act. Section
10 authorises the supersession of decisions. Supersede means replace. It refers
to a process. There is no implication that the decision superseded must be wrong
in fact or law, out of date, or deficient in any other respect. That leaves no
scope for a refusal to supersede…It also follows that section 12(9) merely makes
clear what was the case anyway.
36.
This analysis does not result in a violation of Article 6(1) of the European Convention
on Human Rights and Fundamental Freedoms. The reason is found in the Regulations
and in the availability of judicial review.
37.
Regulation 6 prescribes threshold criteria, not outcome criteria. By that we mean
this. It prescribes cases and circumstances in which an application is brought
within the scope of section 10. That is in accordance with the interpretation
of supersession as a process that is neutral on the correctness of the decision
that has been superseded. It does not prescribe criteria that determine whether
a new outcome is appropriate. That is not governed by regulation 6. It is left
to be determined, without prescription, by reference to the facts of the case
and the conditions of entitlement.
38.
The first question for the Secretary of State when a letter is received from a
claimant who has an award is: is this an application for a supersession? The Secretary
of State is entitled to treat a letter that contains no more than abuse or irrelevance
as not amounting to or containing an application. This covers two categories of
letter. The first category consists of cases where the letter contains nothing
that is relevant to the benefit that the claimant has been awarded. An example
is the claimant who asks for an increase in income support because the price of
cat food has gone up. The second category consists of cases where the claimant
already has the maximum award of benefit. An example is the letter asking for
an award of disability living allowance for a period earlier than the date of
claim. Those two categories are linked by this common thread, that no further
investigation of fact or law could possibly produce a different award from the
one that has been made. The Secretary of State is entitled to keep those cases
out of the adjudication scheme. Judicial review provides an adequate procedure
for challenging this limited class of case in which the claimant has no possibility
of success. There is no violation of Article 6(1) in this regard.
39.
If there is no application, the Secretary of State is not required to give a decision
on it and need do no more than explain to the claimant why that will not be done.
40.
In all other cases there will be an application. It will contain an assertion,
for example that there has been a change of circumstances. That is sufficient
to satisfy a threshold criterion for entry into the supersession procedures. Once
within those procedures, the Secretary of State has to investigate and determine
the facts. The Secretary of State then supersedes the earlier decision. The decision
given will depend on the facts found.
41.
If the Secretary of State finds that there has been no change of circumstances,
the supersession decision will contain the same award. The Secretary of State
must identify an effective date for the supersession decision…
42.
If the Secretary of State finds that there has been a change of circumstances,
the supersession decision will contain a different award. A new effective date
has to be determined…
44.
We have explained our analysis in terms of supersession on an application that
confirms or increases an award. However, it applies also to supersession decisions
that reduce or terminate an award and to supersessions on the Secretary of State’s
own initiative."
- This
is an impressive attempt to seek out an interpretation of the legislative scheme
which, in the Tribunal’s own words (at para 33), could produce a result which
would be "rational, coherent and workable", against a background where
it had been left "with the indelible impression that there had been a confusion
in, or perhaps a change of policy, probably in the course of the passage of the
Bill through Parliament and certainly between the passing of the Act and the making
of the Regulations."
- In
my judgment, however, Ms Lieven’s construction of regulation 6(2) will not work.
It seems to me that regulation 6(2) is not dealing expressly with the criteria
or conditions for making an application (or for the Secretary of State’s proceeding
on his own initiative) and only implicitly with the conditions for changing an
earlier decision, but on the contrary is dealing expressly with the conditions
for making a decision under section 10 (even if also perhaps implicitly dealing
with the conditions for applying for such a decision to be made). After all, the
regulation begins "A decision under section 10 may be made…" not "A
decision under section 10 may be applied for…" Similarly, section 10(3),
the primary legislation, looks forward to regulations which may prescribe "the
cases and circumstances in which…a decision may be made under this section".
Moreover, whatever might be said in other circumstances about implying from a
regulation setting out the conditions for an application the need for the establishment
of those conditions in fact, it is difficult to see why the proposed implication
should be concerned with the changing of an earlier decision as distinct
from the mere "supersession" of earlier decisions in circumstances
where ex hypothesi supersession does not necessarily involve change. Ms Lieven
described her construction as involving a two-stage process whereby a section
10 decision is only in play once the Secretary of State decides he is willing
to make a section 10 decision but not otherwise. But I find nothing in the legislative
scheme to support such a two-stage process, and Ms Lieven accepts that there is
nothing in the primary legislation to support it and seeks to derive it solely
from regulation 6(2). However, it seems to me that regulation 6(2) gives her no
support. In this connection Ms Lieven accepted that the words "may be made"
led directly on to the words "on the basis of" (see para 20 above).
- There
was some discussion in this context as to the meaning of the words "on the
basis of". Are they simply a synonym for the word "if", and if
so, why not say "if"? It was common ground that this wording at any
rate requires the establishment of the relevant criterion in fact. It seems to
me that a possible answer to the question just posed is that "on the basis
of" means both "if" and "substantially on the ground of".
In other words, the establishment of the criterion is not a mere gateway, which
can then be lost sight of once jurisdiction to make a superseding decision has
been established in fact, but must also be used as a substantial ground in the
making of the decision to supersede. Otherwise, there would need to be no connection
between the jurisdictional threshold for the making of a decision and the ultimate
merits of the decision – which strikes me as an odd way to proceed. I am inclined
to think, therefore, that if the 6/02 decision is to be understood as saying that
once a so-called threshold criterion has been established (let alone merely invoked)
the Secretary of State is entitled to revisit the merits of the earlier decision
on any basis he wants, then it is in error. A fortiori, if that decision were
to be read, as in my judgment Mr Commissioner Jacobs himself appears to have done,
as not even requiring the establishment as distinct from the mere invocation of
one of the threshold criteria.
- That
the 6/02 decision has been so read is apparent from decisions by social security
commissioners which have post-dated the 6/02 decision and Mr Commissioner Jacobs’
decision in the present case. Thus in CDLA/3875/2001 Mr Commissioner Rowland
(one of the editors of Social Security Legislation) said this –
"12…I
would therefore suggest that, when considering a case on his own initiative, the
Secretary of State must find that one of the threshold criteria is actually satisfied
before he can supersede a decision. Alternatively, if for the sake of consistency
the Secretary of State’s mere assertion that there has been a change of circumstances
is to be regarded as sufficient to justify a supersession, I would hold that,
although regulation does not prescribe outcome criteria, the threshold criteria
must be satisfied if the outcome is to be different from the decision under consideration.
Indeed, that seems to me to be the case whether the supersession is on the Secretary
of State’s initiative or on an application by a claimant. Otherwise the obvious
purpose of section 10(3) (ie that a decision should be altered on supersession
only in prescribed circumstances) would be entirely defeated…
17.
This case illustrates the value of the threshold criteria. Once a judgment – inevitably,
to some extent, a value judgment – is made that a person is virtually unable to
walk, it stands until it has shown to be flawed by error or no longer to be valid
because circumstances have changed. This is important. Claimants need a degree
of certainty about their entitlement to benefits and this is particularly so where
the higher rate of the mobility component of disability living allowance is concerned."
- In
sum, it seems to me that Ms Lieven’s submissions and the 6/02 decision analysis
have taken a false turning. Prima facie, as the citation from Mr Commissioner
Rowlands decision itself indicates, a decision under section 10 based on a finding
of one of the relevant criteria is a decision to alter an earlier decision; an
earlier decision that has been superseded is a decision which has been altered.
That is the natural meaning of the terms "superseding" (the heading
of section 10: "Decisions superseding earlier decisions"), "superseded"
(section 10(1): "any decision…may be superseded"), and "supersession"
(the heading of regulation 6) in this context. The alternative, which is to construe
"superseded" as merely meaning "replaced", irrespective of
whether the earlier decision is altered or not, would be inconsistent with regulation
6 and the concept that an earlier decision is superseded "on the basis of"
something like a change of circumstances, or an error of fact or law in the earlier
decision. Moreover, if "superseded" does not mean "altered"
or "altered and thus replaced", then there is no word used to express
what to my mind is the essential focus of a section 10 decision. The meaning I
would ascribe is also consistent with the concept of revision and of revised decisions
(section 9). A revised decision is a decision which has not merely been reviewed
but altered. That is why the effective date of a revised decision normally goes
back retrospectively to the date of the original decision. There is a close affinity
between superseded and revised decisions, since, subject to the one month time
limit prima facie in place for the concept of revision, both revision and supersession
may be grounded on an error of law or mistake of fact.
- Reading
section 10 and regulation 6 together I find nothing there which is discordant
with the hypothesis that a superseded decision is an altered decision and a superseding
decision is one that alters an earlier decision. There remains the problem of
section 12(9), which would then seem to restrict a right of appeal to superseding
decisions, ie decisions which alter earlier decisions. The question remains: what
about failed applications under section 10? A right of appeal is an important
matter, and all the more important perhaps in the light of article 6(1) of the
Convention. However, I would be reluctant to turn the structure of the provisions
for supersession of decisions upside down (or inside out) for the sake of a discordant
provision in the different context of appeals. Perhaps it is time to look more
closely at section 12 and its subsection (9) itself.
- Ms
Lieven submits that it is impossible, even with the assistance of section 3 of
the Human Rights Act 1998, to give to the expression "a decision superseding"
a meaning extending to "or refusing to supersede", as suggested in Social
Security Legislation. Even so, by giving to the words "decision superseding"
the special meaning to be derived from her submissions and the 6/02 decision,
she achieves the position where every properly constituted application at least
asserting one of the regulation 6(2) criteria will lead to such a decision superseding
an earlier decision, whatever its outcome, whether or not there is any change
to an earlier decision, and even if the criterion asserted is not established
in fact. The only difference between her solution, and Mr Drabble’s, who adopts
the suggestion in Social Security Legislation, is that hopeless applications
which do not even bring themselves within the legislative criteria would not lead
to a "decision superseding" and would not earn a right of appeal.
- In
support of her submission that to construe section 12(9) as Mr Drabble would wish
would not be interpretation but amendment of the statute (cf Lord Nicholls
of Birkenhead in Re S, Re W [2002] 2 All ER 192 at para 39: "Interpretation
of statutes is a matter for the courts; the enactment of statutes, and the amendment
of statutes, are matters for Parliament"), Ms Lieven calls in aid the parliamentary
history of section 12(9) and submits that it is impossible to mistake from that
the parliamentary intention that refusals to act under section 10 cannot amount
to a decision under section 10. Section 12(9) was first introduced in the House
of Lords on 2 April 1998 as a "technical amendment". At that time section
10 was described as clause 11 and section 12(9) was an addition to clause 13.
- Lord
Hardie said:
"In
bringing forward this technical amendment we are seeking to clarify which applications
made under Clause 11 will attract a right of appeal under Clause 13. As noble
Lords will be aware, under our new proposals decisions of the Secretary of State
will either be revised or superseded depending generally upon the timing of the
application. Where an application is made to revise the Secretary of State’s decision
within one month after that decision is made, it will be revised under Clause
10 [now, section 9]. Once that period has ended, cases will be superseded under
Clause 11 only where the application is made for specified reasons – such as ignorance
of or a mistake as to a material fact, an error of law on the original decision
or where there has been a relevant change of circumstances.
Where
an application for supersession has no prospect of success – that is, where it
is clear that there has been no relevant change in the claimant’s circumstances
– the Secretary of State will not act on the application. The decision not to
act will not be a decision under Clause 11. Therefore, it will not fall within
Clause 13(1) and will not attract appeal rights. Of course, if the Secretary of
State gets it wrong in refusing to entertain the application, there would be a
remedy by way of judicial review.
That
approach should be seen in the context of creating a modernised social security
system which will allow customers to exercise their rights more effectively. If
the Secretary of State has to deal with nugatory applications this must affect
her ability to operate processes effectively. Moreover, if we were to offer appeal
rights on applications which could not succeed, then more nugatory work would
be created for the new appeal service, causing delays to claimants who had a justifiable
case.
I
have explained when appeal rights will not be offered. I will now briefly explain
when they will be offered under Clause 11. Appeal rights will be granted where
the Secretary of State acts on an application. This will include those circumstances
when the amount of the award is not changed; in other words, by acting, the Secretary
of State decides that there should be no change. It may seem odd to describe a
decision as superseded where there is no change. However, that will be the case.
A decision will be superseded every time that the Secretary of State issues a
benefit decision in response to an application. That will be a new outcome decision
which will attract appeal rights and a period of one month in which to appeal."
- In
the House of Commons on 13 May 1998 the amendment was introduced in similar terms,
viz
"Lords
amendment No 16 is technical and puts beyond doubt the circumstances that will
attract a right of appeal under Clause 11…Appeal rights will be granted where
the Secretary of State acts on an application for a decision to be superseded,
even if ultimately the amount of the award is not changed…"
- It
seems to me that a number of points emerge from this parliamentary history. First,
section 12(9) arose by way of amendment to clarify or put beyond doubt not only
a limitation on a right of appeal but also an affirmation of a right to appeal
in all cases outside the intended limitation. Secondly, that limitation was expressed
in terms of applications, and in particular hopeless applications where the applicant
has no chance of success. I comment that it seems odd to use the language of "decision"
to identify a class of "application". Thirdly, one example of such a
hopeless application is "where it is clear that there has been no relevant
change in the claimant’s circumstances". Fourthly, therefore, the mere fact
that a claimant applies on the basis of (for instance) a relevant change of circumstances
was not intended to preserve to him a right of appeal where the Secretary of State
regarded that assertion as hopeless. In other words Ms Lieven’s current solution,
the submission put forward on behalf of the Secretary of State, and the 6/02 decision,
are all different from and inconsistent with the explanation put before Parliament:
for their analysis is that any application asserting a criterion validated
by regulation 6(2) earns a section 10 decision, a superseding decision, even if
it turns out to be a negative one; and that in any event in respect of any such
application there should be a right of appeal; and any such application
must include a number of what might even be described as hopeless ones. Fifthly,
if what Parliament had really intended to do was to restrict rights of appeal
by reference to whether an application was "acted on" or not, the statute
could presumably have easily said so directly. Sixthly, it was recognised that
it would be "odd" to describe a decision as superseded where there is
no change.
- In
the circumstances it seems to me that this parliamentary history is of dubious
value, especially where there is every possibility that regulation 6 has emerged
in a form which had not been precisely anticipated in the debates in question.
This is because "superseded" in regulation 6 can only refer to an earlier
decision in respect of which a subsequent section 10 decision has been based on
one of the regulation 6(2) criteria. Unless one of those criteria has been established,
and, I would suggest, forms the basis of the new superseding decision, a section
10 decision superseding an earlier decision can not even be made. Thus "superseded"
and the doctrine of "supersession" in regulation 6 cannot match the
special (but "odd") meaning of "superseding" spoken to by
Lord Hardie in the House of Lords. In any event, what these extracts show is that
there was a positive intention that every decision under section 10 (in Lord Hardie’s
terms, every case where the Secretary of State was minded to act) should give
rise to a right of appeal. Such decisions would include every case save that of
the "hopeless" application where the Secretary of State would decline
to act: thus it would include the arguable but unsuccessful application where
the legislative criteria are not established and the even more arguable application
where the legislative criteria are established but there is ultimately perhaps
no change in the earlier decision, as well as the paradigm case where the legislative
criteria are established and there is a change in the earlier decision.
- In
these circumstances there is no happy and consistent meaning that can be given
to the word "superseding" and its related forms throughout the relevant
provisions of the Act and its regulations.
- In
such a case I would be inclined to give to the concept of supersession what I
think is its natural meaning in its context, ie one that involves change to an
earlier decision, and find, if possible, a special interpretation for section
12(9) which is compatible with what it is common ground is demanded by article
6(1) of the Convention and which would also be as far as possible compatible with
the intentions expressed in Parliament. I would be inclined therefore to say that
the term "a decision superseding" in section 12(9) means on this occasion
no more than a "decision taken pursuant to the power to supersede" (which
is again what Lord Hardie was saying on the hypothesis that "superseding"
is given a special, anodyne, meaning, divorced of any suggestion of alteration).
I say that because it seems to me that the word "superseding" has been
used in error, in summary on the following grounds discussed in greater detail
above: (1) because "superseding" and other cognate forms of that word
prima facie refer to a decision altering an earlier decision, in which case it
is too narrow a term to achieve the stated governmental intention; and (2) because
regulation 6 confirms that an earlier decision can only be superseded, and a decision
under section 10 to supersede can only be made, on the basis of validated criteria,
in which case the concept of supersession is again shown as too narrow a term
for the stated intention.
- I
would add this. It is natural to think of any decision made in response to an
(at any rate validly formulated) application or in response to the Secretary of
State’s own initiative as capable of being a "decision under section 10",
which ever way it goes: whether the application or initiative, if once acted on,
results in change or not, and in particular whether an application is turned down
or granted. It may be said that it is only in the subsidiary legislation of the
regulations that the wording of regulation 6(2) creates the problem that a decision
under section 10, or at any rate a decision under section 10 to supersede, can
only be made if any of the legislative criteria is established. It may be therefore
that a distinction could be made between "a decision under section 10"
and a decision "to supersede" under section 10. Another way of saying
the same thing, perhaps, is to observe that the creation of a special jurisdiction
to make decisions of a certain kind also necessarily and inherently authorises
negative decisions which refuse the relief which the jurisdiction, in an
appropriate case, might otherwise allow. On this basis, section 10, which is concerned
to establish the power to supersede and to have earlier decisions superseded may
be thought of as speaking of decisions to supersede when speaking of decisions
"made under this section" (section 10(3)) or simply "under this
section" (section 10(5)). Similarly, regulation 6 is concerned with regulating
the same power to supersede and can be interpreted in the same way: thus regulation
6(1) says that earlier decisions "may be superseded" in the cases and
circumstances set out in paragraphs (2) and (4): so that when regulation 6(2)
begins "A decision under section 10 may be made" it is referring to
a decision to supersede. Section 12, however, is dealing not with the creation
of a jurisdiction or power to supersede, but with rights of appeal: which necessarily
raises the question of appeals against negative decisions refusing to exercise
the power granted. When therefore section 12(1) begins by speaking of "any
decision of the Secretary of State…under section…10", it is natural to think
in terms of decisions refusing to supersede as well as in terms of decisions to
supersede. It might be said in that context that the distinction between section
12(1)’s "any decision" under section 10 (my emphasis) and section
12(9)’s "a decision superseding" is particularly telling in favour of
giving section 12(9) a limited meaning. However, for the reasons I have given
I would prefer to regard "a decision superseding" as an error for "a
decision taken pursuant to the power to supersede".
- That
leaves open the question whether an application which is not even in the right
form and therefore cannot possibly lead to a supersession can be said to lead
to a "decision under section 10" at all. I would be prepared to assume
that it can not and therefore earns no right of appeal.
- I
would accept that my attempt to resolve the conundrum posed by these provisions
leaves section 12(9), as reinterpreted, as a fairly redundant provision. But then
it was only introduced in the first place for the purposes of clarification, and
therefore might be expected to be formally redundant. In one sense it is not redundant
at all to emphasise that the right of appeal extends to unsuccessful, but properly
constituted, applications. I would also accept that in the absence of section
3 of the Human Rights Act 1998 it might not have been open to reinterpret section
12(9) as I would ultimately suggest is possible. But where both parties, including
the Secretary of State, are agreed that a right of appeal was intended and ought,
on article 6(1) grounds, to exist in the case of any validly formulated application,
and where the parliamentary history itself shows an intention to extend rights
of appeal beyond the case of a decision which alters an earlier decision: it seems
to me that there is room for an application of what Lord Steyn in R v. A [2002]
1 AC 45 at para 44 referred to as the necessity "to adopt an interpretation
which linguistically may appear strained".
- I
have sought to put my own explanation on the matters debated in full before the
court. However, I am conscious of the fact that in the present appeal there was
indeed a decision which altered an earlier decision (albeit one which did so,
as it would seem, without jurisdiction to do so), and that no one has disputed
Mr Wood’s right to appeal. Therefore the whole discussion of the topic of right
to appeal is in any event obiter. It seems to me that in such circumstances it
is better to say that I have given my opinion of the matters debated, in the hope
that it may be of some assistance to future cases: but that I have not sought
to decide the point. In any event, in practical terms I have reached a result
which is more or less common ground between the parties. If I am wrong, the same
result could, I suppose, be achieved by construing "superseding" in
the "odd" way suggested above, as meaning no more than a decision which
supplants but need not change an earlier decision, albeit I have given my reasons
for ultimately finding that construction even less attractive and more difficult.
Lady
Justice Arden:
- The
questions which arise in this appeal are: (1) in what circumstances can the Secretary
of State decide under section 10 of the Social Security Act 1998 ("the SSA
1998") to supersede a decision to award benefits? and (2) what rights of
appeal arise in respect of a refusal by him to supersede a prior decision of that
nature?
- I
have reached a similar conclusion to Rix LJ but for different reasons. In my judgment:
- To
"be superseded" for the purposes of section 10(1) means "to be
replaced". Accordingly, a decision to award benefits can be "superseded"
by a new decision to maintain the benefit at the existing level.
- Regulation
6(2) sets out threshold criteria but not outcome criteria. Applications which
do not meet these criteria do not have to be actioned under section 10 and give
rise to no right of appeal.
- Section
12(9) bears its literal meaning. It encompasses both decisions to award benefits
at the same rate as before and decisions to award benefits at a higher rate. There
is no need to take the extreme step of applying section 3(1) of the Human Rights
Act 1998 to section 12(9).
- I
start with the relevant statutory framework. Section 10 is contained in Chapter
II of the SSA 1998, which replaced the scheme under the Social Security Contributions
and Benefit Act 1992.
- Section
8 of the SSA 1998 provides for the Secretary of State to take decisions on benefit
claims. Once made, such a decision may be revised or "superseded" under
sections 9 and 10 of the SSA 1998 respectively. In general, decisions may be revised
with retrospective effect whereas decisions may only be "superseded"
with effect from the application for supersession. Section 10 applies not only
to decisions of the Secretary of State but also to decisions of an appeal tribunal
or commissioner. Section 10 provides in material part as follows:-
"(1)
Subject to subsection (3) and section 36(3) below, the following, namely:
(a)
any decision of the Secretary of State under section 8 above or this section,
whether as originally made or as revised under section 9 above; and
(b)
any decision under this Chapter of an appeal tribunal or a Commissioner,
may
be superseded by a decision made by the Secretary of State, either on an application
made for the purpose or on his own initiative.
(2)
In making a decision under subsection (1) above, the Secretary of State need not
consider any issue that is not raised by the application or, as the case may be,
did not cause him to act on his own initiative.
(3)
Regulations may prescribe the cases and circumstances in which, and the procedure
by which, a decision may be made under this section.
…
(5)
Subject to subsection (6) and section 27 below, a decision under this section
shall take effect as from the date on which it is made or, where applicable, the
date on which the application was made.
(6)
Regulations may provide that, in prescribed cases or circumstances, a decision
under this section shall take effect as from such other date as may be prescribed."
- The
relevant regulation is Regulation 6 of the Social Security and Child Support (Decisions
and Appeals) Regulations 1999, which provides in material part as follows:-
"(1)
Subject to the following provisions of this regulation, for the purposes of section
10, the cases and circumstances in which a decision may be superseded under that
section are set out in paragraphs (2) to (4).
(2)
A decision under section 10 may be made on the Secretary of State’s or the Board’s
own initiative or on an application made for the purpose on the basis that the
decision to be superseded:
(a) is one in respect of which:
(i)
there has been a relevant change of circumstances since the decision was made:
or
(ii)
it is anticipated that a relevant change of circumstances will occur;
…
(g)
is an incapacity benefit decision where there has been an incapacity determination
(whether before or after the decision) and where, since the decision was made,
the Secretary of State has received medical evidence following an examination
in accordance with regulation 8 of the Social Security (Incapacity for Work) (General)
Regulations 1995 from a doctor …"
- Section
12 of the SSA 1998 then provides as follows:-
"(1)
This section applies to any decision of the Secretary of State under section 8
or 10 above (whether as originally made or as revised under section 9 above) which:
(a)
is made on a claim for, or on an award of, a relevant benefit, and does not fall
within Schedule 2 to this Act; or
(b) is made otherwise than on such a claim or award, and falls within Schedule
3 to this Act;
(2)
In the case of a decision to which this section applies, the claimant and such
other person as may be prescribed shall have a right of appeal to an appeal tribunal,
but nothing in this subsection shall confer a right of appeal in relation to a
prescribed decision, or a prescribed determination embodied in or necessary to
a decision.
…
(9)
The reference in subsection (1) above to a decision under section 10 above is
a reference to a decision superseding any such decision as is mentioned in paragraph
(a) or (b) of subsection (1) of that section."
- In
my judgment, on its true interpretation Regulation 6 creates threshold criteria
for consideration of an application for supersession. It sets out the conditions
which must be fulfilled before a decision is made under section 10. Thus the Secretary
of State can only consider whether to supersede an earlier benefit decision if
the circumstances come within paragraph (2)(a) to (g) of Regulation 6. Thus, under
paragraph (2)(a)(i) of Regulation 6, the decision by the Secretary of State to
initiate a fresh decision under section 10, and any application for the purpose
of the Secretary of State making any such decision, must be on the basis that
there has been a relevant change of circumstances since the original decision.
The words "on the basis that" mean "on the grounds that",
and qualify "initiative" and "application". They denote the
state of mind of the person triggering the section 10 process as manifested by
their initiative or application. Thus, to qualify under regulation 6(2)(a), the
change of circumstances, actual or anticipated, must be the bona fide ground for
initiating that process. Accordingly, an application which is transparently not
upon the ground of a relevant change of circumstances, or is otherwise misconceived
for the purpose of Regulations 1 and 46 of the 1999 Regulations, is not one which
meets the conditions in paragraph (2) of Regulation 6. In those circumstances,
there is no obligation on the Secretary of State to proceed to make a decision
under section 10, and no decision lies against his refusal to do so. Indeed, the
court may strike out the application under Regulation 46.
- The
contrary argument is primarily based on the opening phrase of regulation 6: "A
decision … may be made …" but this language merely mirrors the enabling
power in section 10(3). It is logically neutral as to whether the conditions which
follow are threshold or outcome criteria: whichever type of criteria they are,
a decision can only be "made" if one of them is present. The words "initiative"
and "application" point to the conditions being threshold conditions.
So indeed does the substance of regulation 6(2). To be of use, an outcome criterion
must be capable of being applied to determine the outcome. But take, for instance,
regulation 6(2)(g). The fact that there is medical evidence which qualifies under
this subparagraph (i.e. there must have been a qualifying examination) tells the
decision maker nothing about what outcome may be justified. In all the circumstances,
in my judgment, regulation 6(2) contains threshold criteria.
- Under
section 10, the Secretary of State must make a decision on any application properly
made under that section and qualifying under regulation 6. However, if the Secretary
of State is not satisfied that there has been a sufficient change of circumstances,
the decision may simply be to continue the benefit at the previous rate. The old
decision is still "superseded" by the new decision even if there is
no change of rate: the word "supersede" does not mean that there must
be a change in the rate. This can be seen, for example, from the meaning of "supersede"
as given by the Shorter Oxford English Dictionary (2002) (ignoring obsolete or
technical meanings):
"6.
verb trans. Take the place of; succeed and supplant in some respect; in
pass., be replaced by something regarded as superior. M17 [date
of first recorded use: 1630 – 1669]
7.
verb trans. Adopt or appoint a person or thing in place of (also foll.
by by, with); promote another over the head of; in pass., be removed
from a position or office to make way for another. E18. [date of first recorded
use: 1700 – 1729]."
- A
supersession may involve the notion that that which supersedes is, in fact,
superior, but this is inapposite to section 10 as the new decision could be to
withdraw or reduce a benefit. No particular inference can be made from the use
of the passive tense as section 12(9) used the same word in the active tense.
The essence of supersession is that the new decision replaces the old.
- Parliament
has often used the word "supersede" to mean simply "replace".
Thus, for example, section 15 of the Administration of Justice Act 1982 provides:
"The
provisions mentioned in subsection (5) below (which this section supersedes
so far as they apply to the High Court and county courts) shall cease to have
effect in relation to those courts."
- Reference
may also be made to paragraph 6 of schedule 10 to the Enterprise Act 2000, which
provides:
"Paragraph
7 applies where the relevant authority is proposing to –
(a)
release any undertaking under section 73 or 82 or paragraph 3 or 9 of Schedule
7 (other than in connection with accepting an undertaking under the enactment
concerned which varies or supersedes an undertaking under that enactment);
or
(b) revoke any order under section 75, 83 or 84 or paragraph 5, 10 or 11 of Schedule
7 (other than in connection with making an order under the enactment concerned
which varies or supersedes an order under that enactment)."
- If,
therefore, a decision is made under section 10 which supersedes an earlier decision,
then, whether or not there is any change in the rate, there will be a right of
appeal under section 12. Accordingly, if the Secretary of State declines to accept
that the grounds on which the application was properly made are good grounds for
an increase in benefits, there will be a right of appeal. Accordingly, in my judgment,
in respectful disagreement with Rix and Dyson LJJ, there is no need to read into
section 12(9), as contended by the appellant, after the word "superseding"
the additional words "or refusing to supersede" or to interpret those
words in the way proposed by Rix LJ.
- I
thus agree with the following analysis by the Tribunal of Social Security Commissioners
(Mr W M Walker QC, Mr J M Henty and Mr E Jacobs) in decision R (DLA) 6/02 (20
December 2001) in case number CDLA/3466/2000:
"Supersede
means replace. It refers to a process. There is no implication that the decision
superseded must be wrong in fact or law, out of date or deficient in any other
respect. That leaves no scope for a refusal to supersede."
- When
the Secretary of State considers the position, the only question for decision
is whether there should be a change in the benefit due to the relevant change
of circumstances or other basis on which the application is made. It is not appropriate
to re-open the original decision except on a ground on which the Secretary of
State decided to consider supersession within the application made to him under
section 10 or on which such a decision or application could have been made. This
is because the statutory framework draws a distinction between the revision of
a decision and the supersession of a decision. The former process entails consideration
of the propriety of the original decision as of the date it was made. The latter
process involves consideration of the grounds set out in Regulation 6 for making
a fresh decision. It would be inconsistent with the general scheme of Chapter
II, and separately, section 10(3) and regulation 6, for the Secretary of State
to consider extraneous grounds. Section 10(2) does not detract from this decision
since it refers to additional issues rather than further grounds.
- On
any application properly brought under section 10 the appellate tribunal will
be able to consider whether there was, in fact, a change of circumstances which
ought to have led the Secretary of State to some other decision. As Regulation
6 only defines the threshold criteria, the Secretary of State must consider whether
the grounds are made out. It would make no sense, and be potentially unfair to
the party who did not trigger the supersession process, if it had to be assumed
that the grounds were correct.
- Accordingly,
in the present case, I would allow the appeal. The matter must be remitted to
the Appeal Tribunal on a different basis from that on which it was remitted to
them by Mr Commissioner Jacobs. The Tribunal of Commissioners is not entitled
to consider matters not related to the change of circumstances on which the applicant
relied.
Lord
Justice Dyson:
- I
agree that this appeal should be allowed on the ground that, without a finding
that there had been a relevant change of circumstances as required by regulation
6(2)(a)(i), a decision to supersede under section 10 of the 1998 Act could not
lawfully be made.
- The
difficult issue that was debated in argument was the relationship between sections
10(1)(3) and 12 of the 1998 Act when read in conjunction with regulation 6(2),
and in particular the scope of the right of appeal and the meaning of section
12(9). It is common ground that there is a right of appeal from the rejection
by the Secretary of State of a properly constituted application for a decision
under section 10 superseding an earlier decision. But there is disagreement as
to how, as a matter of statutory interpretation, that conclusion should be reached.
Rix LJ is inclined to hold that (a) a decision under section 10 to supersede an
earlier decision is one which alters the earlier decision; and (b) the phrase
"a decision superseding" where it appears in section 12(9) means, or
at any rate includes, "a decision taken pursuant to the power to supersede".
Arden LJ is of the opinion that a decision may supersede an earlier decision even
if it does not effect an alteration of it, so that there is no need to read words
into section 12(9), and the phrase "a decision superseding" means exactly
that, no more and no less.
- I
agree that section 12(9) must be construed so as to give a right of appeal from
the rejection by the Secretary of State of a properly constituted application
for a decision under section 10. This is required by Article 6(1) of the European
Convention on Human Rights, and/or because it cannot have been rationally intended
by parliament to give a right of appeal where a properly constituted application
results in a decision to alter an earlier decision (where the applicant wishes
to challenge the extent of the alteration), but not to confer a right of
appeal where the Secretary of State refuses to alter an earlier decision altogether.
It is worth noting that, as is clear from the extracts from Hansard to which Rix
LJ has drawn attention, it was not the aim of government when enacting the 1998
Act to confine the right of appeal to cases where an earlier decision has been
altered and the applicant wishes to challenge the extent of the alteration. The
concern of government was simply to deny a right of appeal in hopeless cases.
- Like
Rix LJ (paras 39-42 of his judgment), I have great difficulty in interpreting
regulation 6(2) as dealing expressly with the conditions for making an application
(or the Secretary of State’s proceeding of his own initiative). Section 10 and
regulation 6(2) must be read together. So read, the natural and obvious meaning
of "a decision under section 10" is a decision made by the Secretary
of State to alter an earlier decision if one of the criteria for such alteration
is found to exist.
- As
against that, the phrase "a decision superseding" most naturally means
"a decision made actually to supersede" an earlier decision, and not
"a decision taken pursuant to the power to supersede" (ie a decision
either to alter or not to alter an earlier decision).
- It
seems to me that each of the rival interpretations faces real linguistic obstacles.
Neither of the routes to the conclusion which it is agreed is the correct conclusion
is free from difficulty. I am not persuaded that the choice of route makes any
practical difference. It is for this reason, and because what we are saying are
no more than obiter dicta in any event, that I do not propose to give a fully
reasoned judgment explaining why, on balance, I would adopt the reasoning of Rix
LJ in preference to that of Arden LJ. In brief, I find less difficulty in giving
his suggested extended meaning to section 12(9) than in giving what I conceive
to be a very strained meaning to the phrase "a decision under section 10"
(and like phrases). Bearing in mind Article 6 of the ECHR and the injunction contained
in section 3 of the Human Rights Act 1998, I would add that it seems to me that
it is perhaps better to give a strained interpretation to the provision which
deals directly and explicitly with the right of appeal, than to the other provisions
which do not.