Wood v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lady Justice Arden,Lord Justice Dyson |
| Judgment Date | 31 January 2003 |
| Neutral Citation | [2003] EWCA Civ 53 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2003 |
| Docket Number | Case No: A1/2002/1357 |
[2003] EWCA Civ 53
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Rix
Lady Justice Arden and
Lord Justice Dyson
Case No: A1/2002/1357
Mr Richard Drabble QC and Mr Ben Jaffey (instructed by Messrs Leigh, Day & Co) for the Appellant
Ms Nathalie Lieven (instructed by Office of the Solicitor, Dept of Work & Pensions) for the Respondent
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 8 th 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...
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