R(DLA) 1/03
(Wood v. Secretary of State for Work and Pensions [2003] EWCA Civ 53)
CA (Rix, Arden and Dyson LJJ) CDLA/3912/2001
31.1.03
Supersession satisfaction of grounds removal of existing award of benefit
The claimant who suffered from cerebral palsy and was partially deaf had a life-time award of mobility allowance which became an award of mobility component of disability living allowance in 1992. In December 2000 he applied for supersession on the basis that he had care needs. A doctor from his GP practice completed a standard questionnaire about his mobility and care needs. His GP also wrote a letter saying his condition was permanent.
The Secretary of State made a decision on supersession that the clamant was not entitled to the care component and was no longer entitled to the mobility component. In relation to mobility he gave as his reason that the claimant could manage to walk 400-1000 meters on a good day and was not virtually unable to walk. A tribunal confirmed the Secretary of State's decision. The Commissioner allowed the claimant's appeal but not on grounds relating to supersession of the life-time award. The claimant appealed. It was agreed by both parties that there was no evidence of a change in the claimant's ability to walk.
Held, allowing the appeal, that:
- a decision awarding benefit could not be superseded under section 10 of the Social Security Act 1998 unless one of the grounds for supersession set out in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 was satisfied. There had been no finding of a relevant change of circumstances in this case and the Secretary of State was not entitled to supersede the claimant's award of mobility component;
- (per curiam) section 12(9) of the Social Security Act 1998 must be construed so as to give a right of appeal from a rejection by the Secretary of State of a properly constituted application for a supersession under section 10 of the 1998 Act.
DECISION OF THE COURT OF APPEAL
Mr. Richard Drabble QC and Mr. Ben Jaffey (instructed by Messrs Leigh, Day & Co) appeared for the Appellant.
Ms. Nathalie Lieven (instructed by the Office of the Solicitor to the Department for Work and Pensions) appeared for the Respondent
Judgment (reserved)
LORD JUSTICE RIX:
- 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 Social 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.
- 2 I set it aside and remit the case to a differently constituted appeal tribunal.
- 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") [reported as R(DLA) 6/02]. It has not been suggested that CI/3700/2000 [reported as R(I) 5/02] 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) [now reported as R(DLA) 6/01] 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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 is 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 Rowland's 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, i.e. 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:
i) 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.
ii) 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.
iii) 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]
- 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.
Order:
- Appeal allowed
- Order as agreed between counsel- Matter to be remitted to the appeal Tribunal to be determined in accordance with principles of court and with the directions of Mr. Commissioner Jacobs save and in so far as they are consistent with the court.
- Secretary of State to pay Mr. Wood's costs of the appeal to be assessed if not agreed.
- Paper application for leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)
