CIB 4751 2002

JurisdictionUK Non-devolved
JudgeThree-Judge Panel / Tribunal of Commissioners
Judgment Date21 January 2004
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberCIB 4751 2002
Subject MatterRevisions, supersessions and reviews
Commissioners Decision

R(IB) 2/04

His Honour Judge Hickinbottom, Chief Commissioner

Mr J Mesher, Commissioner

Mr C Turnbull, Commissioner

21.1.04

CIB/4751/2002

CDLA/4753/2002

CDLA/4939/2002

CDLA/5141/2002

Jurisdiction – powers of appeal tribunal on an appeal following a revision or refusal to revise or a supersession or refusal to supersede

These four appeals together raised several issues of jurisdiction. This headnote is confined to a brief statement of the primary issues identified by the Tribunal and its conclusions on the major issues. A comprehensive summary by the Tribunal of its conclusions on all the issues before it is contained in paragraphs 186 to 198 of the decision. The primary issues as identified by the Tribunal were as follows

Issue 1: The general powers of an appeal tribunal on an appeal from a decision on revision (under section 9 of the Social Security Act 1998 (“the Act”) and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) (“the 1999 Regulations”) or supersession (under section 10 of the Act and regulations 6 and 9 of the Regulations) which contains two interlinked sub-issues, Issue 1A: the extent, if any, to which an appeal tribunal hearing an appeal against a decision which has been revised, or not revised following a claimant’s application for revision, may substitute a decision to supersede or to refuse to supersede or vice versa; and Issue 1B: the extent, if any, to which an appeal tribunal can remedy defects in a decision which (if valid) has the effect of revising or superseding a decision

Issue 2: The powers of an appeal tribunal to make a decision less favourable to a claimant than a supersession decision under appeal

Issue 3: The nature of the power in regulation 13C(3) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968, as amended) to revise an award on a renewal claim made in advance of the renewal date if the claimant is found not to satisfy the conditions of entitlement on the renewal date.

Held, dismissing the appeal in CIB/4751/2002 and allowing the appeals in CDLA/4753/2002, CDLA/4939/2002, and CDLA/5141/2002, inter alia, that:

1A on an appeal against a decision superseding or refusing to supersede the tribunal has jurisdiction to make a revising decision, and likewise on an appeal against a decision which has been revised, or not revised following a claimant’s application for revision, has jurisdiction to make a superseding decision. In the latter case, however, the tribunal can only take into account circumstances down to the date of the original decision (paragraphs 55 and 191);

1B whilst there may be decisions which have so little coherence or connection to legal powers that they do not amount to decisions under sections 9 or 10 of the Act at all (and a decision however defectively expressed should generally be regarded as made under section 9 if it alters the original decision as from the effective date of that decision and as made under section 10 if it alters it from some later date), if an appeal tribunal finds that a decision has been made under section 9 or 10 of the Act it has jurisdiction to make the decision which the Secretary of State should have made (thereby remedying any defects in the decision whether properly regarded as defects of form or substance) and should not simply set such a decision aside as invalid or “inept” (agreeing with the decision in CSIB/1266/2000 and disagreeing with that in CSIB/1268/2000) (paragraphs 72 to 80, and 192);

2. an appeal tribunal is entitled to make a decision less favourable to the claimant, than the decision under appeal (paragraphs 88 to 197, and 194);

3. the power under regulation 13C(3) of the 1987 Regulations is not subject to a requirement that one of the grounds for revision in regulation 3 of the 1999 Regulations be established but in the usual case, where the issue concerns the condition of the claimant at the renewal date, is exercisable only on the ground that the claimant’s condition at that date either has improved to a greater extent than, or has not deteriorated to the extent, anticipated by the decision-maker (paragraphs 106, 107, and 198).

INDEX

Paragraph

Introduction 1

Decisions by the Secretary of State 7

Revision and supersession 9

The jurisdiction and powers of appeal tribunals 11

General 11

Appeal by way of rehearing 19

The significance of the absence of a provision equivalent to section 36 of the Social Security Administration Act 1992 27

Section 12(8)(a) of the Social Security Act 1998 31

Section 12(8)(b) of the Social Security Act 1998 33

Appeals in respect of revision and supersession decisions 34

Supersession 35

Revision 38

Issue 1: The general powers of an appeal tribunal on an appeal from a revision or supersession decision 42

Introduction 42

Issue 1A: The parties’ submissions: the Secretary of State 44

Issue 1A: The parties’ submissions: the claimants 47

Issue 1A: Analysis and conclusions 49

Issue 1A: Implied decisions 56

Issue 1B: Introduction 60

Issue 1B: The parties’ submissions: the Secretary of State 68

Issue 1B: The parties’ submissions: the claimants 69

Issue 1B: Analysis and conclusions 72

Issue 2: The powers of an appeal tribunal to make a decision less83 favourable to a claimant than a supersession decision under appeal

Introduction 83

The parties’ submissions: the claimants 85

The parties’ submissions: the Secretary of State 87

Analysis and conclusions 88

Issue 3: The nature of the power to revise in regulation 13C(3) of the Social Security (Claims and Payments) Regulations 1987 98

Introduction 98

The parties’ submissions 100

Analysis and conclusions 102

Individual cases 108

CIB/4751/2002 109

Decision 109

The facts 110

The parties’ submissions 114

Analysis and conclusions 118

CDLA/4753/2002 129

Decision 129

The facts 130

The parties’ submissions: the claimant 144

The parties’ submissions: the Secretary of State 145

Analysis and conclusions 146

CDLA/4939/2002 154

Decision 154

The facts 155

The parties’ submissions 160

Analysis and conclusions 162

CDLA/5141/2002 166

Decision 166

The facts 167

The parties’ submissions: the claimant 175

The parties’ submissions: the Secretary of State 176

Analysis and conclusions 177

Summary of conclusions on issues of law 186

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Introduction

1. These appeals raise a number of common and important issues concerning the jurisdiction of appeal tribunals generally, and, in particular, a tribunal’s powers on an appeal following a decision under section 9 (revision) or section 10 (supersession) of the Social Security Act 1998. These issues arise essentially from the creation by that Act of two different – albeit, at least in some respects, closely related – means of changing a previous benefit decision, in place of the single mechanism of review and revision which had been in existence for many years previously.

2. Although a benefit decision has to be taken on the basis of the claimant’s circumstances at a particular moment in time, by their nature those circumstances (and hence potentially that claimant’s entitlement to social security benefits) are constantly changing. Furthermore, the number of decisions which are required to be made by the Secretary of State, and the speed with which they are required to be made, mean that the decision-maker will sometimes have less than full knowledge of the relevant circumstances when making a decision. As a consequence, decisions changing a claimant’s entitlement to benefit are inevitably common, and such decisions form the basis of a considerable proportion of appeals to appeal tribunals. The issues raised in these appeals are therefore relevant to many claims, and many claimants. The importance and difficulty of these issues has been further reflected in the number (as well as the sophistication, complexity and diversity of reasoning) of decisions of individual Commissioners...

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