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Neutral Citation Number:
Reported Number: R(FC)3/98
File Number: CFC 2298 1995
Appellant:
Respondent:
Judge/Commissioner: Judge J. Mesher
Date Of Decision: 09/04/1997
Date Added: 26/07/2002
Main Category: Revisions, supersessions and reviews
Main Subcategory: reviews under the 1992 Act
Secondary Category: Revisions, supersessions and reviews
Secondary Subcategory: other
Notes: Review - arrears payable - whether limit to backdating if application for a review of a decision for error of law on the basis of the decision of a Court made by way of a consent order The claimant was awarded family credit from 31 December 1991 to 29 June 1992. When calculating entitlement, the gross receipts of her husband’s business were taken into account. This included capital he himself introduced into the business. Subsequently, in Kostansczuk v. Chief Adjudication Officer, it was agreed by the parties that such capital should not be included in the assessment. A consent order to this effect was given by the Court of Appeal on 21 August 1992. The claimant sought a review of her benefit award, which was refused. On appeal, a tribunal agreed that the original assessment should be reviewed as it had been made in error of law. However, they decided that review was ‘in consequence of’ the order of the Court of Appeal, which was a “relevant determination” pursuant to section 69 of the Social Security Administration Act 1992. Accordingly, no arrears were payable for any period before the date of that determination. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. the consent order given by the Court of Appeal in Kostansczuk v. Chief Adjudication Officer was not a “relevant determination” for the purposes of section 69 of the Social Security Administration Act 1992 (para. 6); 2. even if it was a “relevant determination”, the review was not carried out “in consequence of” it. The order, made by consent without argument or reasons, was not binding authority save for the re-hearing of Kostansczuk v. Chief Adjudication Officer itself: CFC/3/1992 [R(FC) 1/97] followed (paras. 5 and 6); 3. had the tribunal been correct in applying section 69, they were wrong to adopt a two stage approach of revision of entitlement and refusal of arrears. Section 69 affects the question of whether there should be revision on review at all (para. 8); 4. as there was no other “relevant determination” of a court or Commissioner, or other restriction, the original assessment could be revised on review for error of law, and the claimant paid arrears of the increased benefit awarded. Accordingly, the Commissioner substituted his own decision to this effect for that of the tribunal.
Decision(s) to Download: FC3_98.doc FC3_98.doc