Tribunal of commissioners case on supersessions, revisions and tribunal powers in respect of them on appeal (CIB/4751/2002) now available from the OSSCSC site (all 64 pages and 198 paras of it!!) @ http://www.osscsc.gov.uk/Decisions.do

(NB - CDLA/4753/2002, CDLA/4939/2002 and CDLA/5141/2002 were decided at the same time and are dealt with in this decision)

A summary of the decision will be published to the new "briefcase" area of rightsnet shortly (briefcase is available from the what's new section on the homepage)

Still taking it all in ... but there is another decision mentioned in the TOC decision regarding appealing refusal to revise on official error (<B>CIS/0004/2003</B> does anyone know of the result in this or have a copy?

a summary of 4751 is now available in the briefcase area of rightsnet

Mesher said in 4751 that CIS/0004/2003 will be a seperate decision and further submissions asked for. Phoned Commissioners yesterday and still ongoing.

CIS/4/2003 is now out- couldn't be worse from a claimant position.

The Tribunal of Commissioners consider whether there is a right of appeal against a refusal to revise for official error. They say:

1. There isn't.

2. Not content with deciding that for DWP paid benefits, the Commissioners then go on to say that no such right exists for HB/CTB either (when I thought everyone felt it was pretty clear there was, and was intended to be, such a right given the more wacky types of decisions local authorities make and the importance for claimant of getting rent paid).

So not only was no new right created.... HB/CTB punters have lost out as well.

Honestly, I'm not sure that you should let these guys hang out in groups bigger than two: they seem to be tearing up the rules, left, right, and centre when they get into those threesomes.

Read it and weep at:

CIS/4/2003

Okay, as per usual when the law is supposed to be clarified, I am left more confused than I was before.
The commissioners say that a tribunal can now change a revision for a supersession and vice versa, and they can also perfect any defect in a decision.(getting rid of all the arguments on defects of form v substance) So even if an alleged supersession does not identify the decision being superseded, does not give grounds for supersession (or gives the wrond grounds) or even does not mention the word supersession at all, a tribunal can still correct it. However, the commissioners accept that there may be some decisions which have 'so little coherence that they do not amount to decisions at all' What could these be, as they seem to have said previously that tribunals can correct just about anything.
Anyway, after my ramblings, my question is - is anyone bothering with technical arguments against overpayments anymore or is it all a waste of time now?
(Some cynics amongst us may wish they worked in the DWP so they could just not bother doing their job thoroughly, in the safe knowledge that a tribunal will correct any mistakes they make and consider all the other issues which they should have picked up on but couldn't be bothered to do - sigh)

I'm with you Fiona, totally confused. My tiny little mind looks at it this way. If ground for a supersession is not given by the SoS then grounds for supersession not shown. Therefore supersession defective in form and supersession process flawed and incomplete.

If tribunal allowed to complete supersession process then supersession not carried out by SoS as required under s10 SSA 1998.

Thus tribunal usurping functions of SoS.

Before I go for a lie down in a dark room does anyone know if an appeal against this aspect of the decision is being contemplated?

Paul

Fiona:

I don't think that this decision really impacts that negatively on technical arguments about overpayments under Sec 71(5A) SSAA.

Often in overpayment cases the decision under appeal is simply a decision to recover. The decision that allegedly created the overpayment (either a supersession or revision of the decision that paid the wrong amount) is separate (and cannot be touched by a Tribunal). This was the case on the facts of R(IS)2/96- you can spot it by the text of the o/p recovery decision: "As a result of the decision x/x/x, an o/p of IS has been made....."

Whilst the Tribunal of Commissioners are reasonably clear that even quite significant defects in a revision or supersession can be remedied by a Tribunal that is in cases where it is the revision or supersession that has been appealed and is before them.

The Tribunal of Commissioners have only given the power to modify/correct decisions under appeal to them- not to actually alter decisions not before them in any way.

None of the decisions considered in this recent case seems to have been an o/p one.

Another point (where faced with a decision that is both the supersession and the recovery decision) is that it has been suggested in several decisions that the requirements for correct procedure may be stricter in o/p cases than in other cases. So presumably, the comments of the Tribunal of Commissioners need to be read in that light.

So, keep on using the tried and trusted o/p technical arguments in my view.

-Martin.

More power to you Martin. I agree, the decision does not prevent technical arguments being used in OP cases.

There is also, I think, further hope in the decision itself. An apparently offensive paragraph is 192, where the Commissioners seem to endorse sweeping powers of correction and substitution on the part of the tribunal. However this is daid to be "On an appeal against a decision which (if valid) changes the effect of a previous decision but which the tribunal finds to contain defects ..." So the DM still has to show that the decision is valid. Arguments about validity should still be worth making in any revision/supersession case, not just overpayments.

Unless I'm missing something? It is quite a task to digest the whole decision.

A further complication.

In the decision the tribunal of commissioners quote extensively from Commissioner Parker's decision CSIB/1266/00 )paras 66,67,77). As it
lends support to their conclusion.

They do not however appear to have been made aware that this decision is under appeal at the Court of Session.

It was set down for hearing in December 2003 but was put back at the request of the Secretary of State on the basis that it would take longer than the one day that had been allowed.

It cannot be imagined that if there had been a case being heard at the Court of Appeal in thses circumstances that it would not have been drawn to the attention of the Commissioners and that they would have adjourned to await the decision of the superior court.

Clearly it will at times be reasonable for tribunals to adjourn cases
to await the decision of the Court of Session.

If anyone requires material relating to the Court of Session case to allow them to seek an adjournment please leave a fax no.

I am really not sure why the tribunal relied so heavily on Comm Parker's decision in CSIB/1266/00, especially if this has now been further appealed to the Court of Session. They have made no mention of Commissioner Mesher's case in CIS/362/02 in which he stated that defects of substance could not be corrected by a tribunal(and in any event there may be a stricter test in overpayments) However, I note Comm Mesher was on this panel of Commissioners so he must have changed his mind (again! - he originally thought tribunals could correct anything in CIB/16092/96. No wonder everyone is confused!)
Also, Comm Parker changed her mind in CSIS/1298/01 to agree with CIS/362/02. Why have this tribunal of Comms not considered that case? Or indeed any of the others e.g. CDLA/4977/01 which said if a revision/supersession has not been done, then tribunals have no power to carry one out. Surely that should be preferred to the Scottish decision which is only persuasive.

Scottish decisions are binding on English Appeal Tribunals. It is only NI ones that aren't.

OK! I am still not clear. But I have not had a chance to read the full decision yet.

My problem is a real one. I currently have a client who had an indefinite period award of HR mob/MR care. SoS supersedes decision on ground of mistake as to material fact. Material fact as originally thought - "client not safely mobile in own home". Material fact as now thought - "client is safely mobile in own home". Client loses mob' component and care reduced to LR.

First, I always thought material facts were primary facts, such as "client partially sighted", client has arthritis", "client has falls". All facts in my client's case. "Client safely mobile in own home" is a conclusion drawn from a primary fact. Thus a DM can play fast and loose with the law and basically rely on the tribunal to clear his/her mess up. I still don't see how the tribunal can carry out a supersession under s10, even relying on the largely, undefined powers given to it under s12.

But according to the commissioners the tribunal can change the ground of supersession to a change of circ's but then would have to demonstrate that the SoS has discharged the burden of proof that my client's condition has 'in fact' changed.

Second, how does the statement "safely mobile indoors" touch my client's walking ability outdoors in order to remove HR mob.

And why should my client (who also suffers with anxiety) have to go through the ordeal of a tribunal just because a body of commissioners have suddenly decided that the rather vague language of s12 suddenly overides the rather clear language of s10 and thus allows a tribunal to rescue DM's from their own incompetence.

To many client's this aspect of the decision may seem like various parts of 'the system' closing ranks.

OK! Rant over. Seriously though, it does make me angry.

I have another issue/query on all this.

Even if a tribunal wishes to avail itself of the new power to correct flaws in decisions which come before it, maybe it can't always exercise that power even if it would like to.

With some appeals, the tribunal may itself be unable to specify the precise date of the decision being superseded, for example. Surely then it will have insufficient information to 'redo' the decision?

And then they'd have to allow the appeal?

I don't think it would be proper for a tribunal to adjourn to give the DWP time to bring forward the missing info - that would be too much like doing the SoS's job for them.

(I may have an opportunity to see how this works in practice at an overpayment hearing tommorrow.)

Unfortunately, it appears as though the tribunal of comms in 4751 do not have a problem with tribunals doing the job of the SoS - they confirm that an appeal tribunal "in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim." I agree completely with the claimants rep in that case that giving such power to tribunals "will only encourage sloppy decision-making by decision-makers"
Bernard - with regards to your query of whether a tribunal should allow an appeal where they have insufficient info to re-formulate the decision, 4751 does state that if an adjournment would be needed to do so, then tribunals should consider leaving the question to be decided subsequently by the SoS. Hence, back at the position we were in before and the old chestnut of whther DM's can re-do a defective decision in a different form.
Does anyone know if the claimants in 4751 are considering an appeal to the CoA?

Hmmm, not sure how popular I'm going to be with this one. My appeal to the Commissioners was adjourned pending the decision on this case and it reconvened on 3/2/4, so I may have been the first to test this one. Mind you Mesher was on my panel as well, so it may not be tested that severely. I agree with many of the points above, but I was forced to argue for the decision to prevent my case being kicked into the long grass by Commissioner May on the not unreasonable grounds that the DWP had made a serial Horlicks of the decision making process. (they had been spectacularly inept, repeatedly). I think that my point is that there are some useful aspects to the decision as well, for instance where it has taken 3 years to get a case to the Commissioners and you need a decision making so that your clients can stop pulling their hair out, and it looks like the Commissioners are going to send it all the way back to start another 3 year argument from scratch. Which is no fun at all.

I may have misunderstood but I cannot see how a finding of total invalidity is less favourable to your client in an incapacity case.

If the decision is invalid as Commissioner May would say then the
effect of this is to reinstate your client's benefit.

The local office then have two choices.

pay the arrears of benefit and then send them for a new medical .and
start all over again.

take a new decision based on the old medical. The problem with this is that the date of decision will be now and the old medical report from BAMS will be so old it will no longer be relevant to the new decision (typically in these cases they will be at least a year apart)
which means the tribunal will be unable to use the BAMS report as they of course will be looking at matters as at the daye of the new decision.

Indeed some tribunals using "Wood" as the authority will say that such a gap means that 6(2)g cannot be used (so me will say so for even shorter periods.

This has always been the practical result of decisions finding
"nullity".

I cannot see how either of these outcomes is less favourable to a claimant than the commissioner returning matters to a tribunal to correct.

I realise I've assumed above that it was an IB case but it would apply to all other types of appeals e.g.DLA, overpayments.

I can't imagine an example where it would be more favourable for the case to go back to a tribunal.

Nah, more complicated than that. I am hoping that the tribunal of commissioners will substitute their own decision. It was to do with transitional protection of adult dependent increases on IB. If it went back to a tribunal without benefit of CIB 4751 2002 then they might have decided that the DWP mess was irredeemable and that there was no coherent decision to appeal. If however we did win the DWP would commission us for a second time, if we lost we would also appeal. A waste of everyone's time when we needed a substantive decision from a commissioner to put it to bed.

PS I'm as apprehensive as anyone about how CIB 4751 2002 will pan out. It's always handy to be able to argue that the DWP decision was defective, though in practice they can just have another crack at your client and get the paperwork right that time.

You say "in practice they can just have another crack at your client and get the paperwork right that time." Well ... so what? If your client gets their money back in the process, and you didn't have to depend on the success of the merits, what's so bad about that? If they then go on to try and get the paperwork right, then they could just as well have tried another decision if your client had won on the merits. All you're ever going to get is benefit up to a point in time - the DM can still supersede or revise at any time if they have grounds.

The point is that your client has a right to benefit reinstated when there's no valid terminating decision. Am I missing something here?

Do your clients all have such invincible cases on the merits that it's worth avoiding the technical arguments? Does it make sense to put all the eggs into one basket?

The more I think about this decision the less unhappy I am about it....

It would have been lovely had CPAG's arguments about very limited powers to correct inadequate decisions been accepted. It would also have been good had they accepted the notion of implied supersessions and revisions (which CPAG had to argue for on the basis that they were also arguing there was little if any power of a Tribunal to replace a supersession for revision etc. otherwise). This would have created a situation where claimant's could shaft the DWP for errors when a decision was against them but could have things sorted out in their favour when needed.

However, the alternative solution the Tribunal of Comms came up with is not all that bleak (except for the limitation of technical arguments that it suggests). Think of the following situation:

DLA claimant applies for supersession on basis condition worse.

DWP commission new evidence and reduce award.

Claimant appeals- at Tribunal the DWP will still have to show a ground for supersession (and that the decision they have made follows from that ground).

However, say from looking at papers on initial decision, claimant can argue that actually the original awarding decision was in error of law (falls not considered properly or whatever) and hence an official error.

Tribunal could theoretically not only quash DWP supersession decision but replace it with one overturning the original decision and making higher award from that date-

I can't see the logic of leaving the Commissioners to decide on the merits,as against just the the point of law,
rather than returning the matter back down the system to be decided
unless you were very,very certain that the decision is going to be in your favour. If the Commissioners decide against you then you've got nowhere to go but the higher courts with all the obvious difficulties. If however the case is returned down the system either to the decision maker or to the tribunal you have more accessible options on the rehearing should they decide against you.

Closure is nice but winning is better.

To return to a much earlier posting. Correspondence received today indicates that the Commissioners in Scotland are staying at least some cases to await the decision of the Court of Session in Docherty (CSIB/1266/00).

Re; ‘Do your clients all have such invincible cases on the merits that it's worth avoiding the technical arguments? Does it make sense to put all the eggs into one basket?’ Couldn’t agree more, or I wouldn’t have said that ‘It's always handy to be able to argue that the DWP decision was defective.’ Good point, that all we can ever get our clients is benefit up to a point in time. True, and it takes some of the weight off to remember that.

I understand your position better now. Thanks for for your feedback.

I'd just like to add that my client won her overpayment appeal - on reasonableness of failure to disclose, not on the tribunal of commissioners'rulings.

The chairman was interested in those legal points though, as apparently one of the cases dealt with by the Tribunal of Commissioners was one of his appeal decisions.

(Thanks for your comments Fiona)

Please fax me details of the forthcoming Court of Sessions decision on 0191 - 4774922

The up to date position may be of more general interest.

The appeal at the Court of Session is against decision CSDLA/1266/00.

The case is known as "Docherty".

The question before the court is exactly the same as that dealt
with in the Tribunal of Commissioners.

Presumably the Tribunal of Commissioners were not made aware of "Docherty" as they make no mention of why they decided to proceed
given that a superior court had a case on exactly the same point awaiting hearing.

"Docherty" was to be heard at the Court of Session in Dec 03 but
was put back as the S. of State alerted the Court that the case was likely to take more than the one day that had been set aside for it.

The hearing was thought to be going ahead in June/July but we have
this week heard from the Office of the Commissioners in Scotland that the Court of Session will consider the appeal in Docherty in January 2005.

The Commissioners in Scotland are writing to all claimants with
cases where the same point arises asking whether they wish to proceed
or await the outcome of the appeal in Docherty.

At tribunal level where the same point arises the same option should be given to claimants.

Anyone who feels that tribunals may be sceptical of what I say just leave a fax number and I can send a copy of the latest letter
from the Commissioners in Scotland.

What the Commissioners in England are doing about similar cases I
do not know.

A minor further question for a tribunal that wants to use the tribunal of Commissioners' decision to correct a flawed decision - presumably this can only be done if you are sure about what the correct decision should be.
It follows surely that you cannot have this information unless you have access to the case record, particularly bearing in mind that the SoS has already got it wrong or failed to supply information?

Has the necessary information been put before the tribunal? If not then how can the tribunal remedy matters?


Just in case, for future reference ...

See new posting at the following link:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=540&mesg_id=540&page=