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Neutral Citation Number:
Reported Number:	R(IS)15/04
File Number:	CIS 4 2003
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	10/03/2004
Date Added:	19/03/2004
Main Category:	Human rights law
Main Subcategory:	article 6 (fair hearing)
Secondary Category:	Revisions, supersessions and reviews
Secondary Subcategory:	official error
Notes:	Human rights - refusal to revise on the ground of official error a decision made more than 13 months before the refusal - no right of appeal against such refusal - whether absence of a right of appeal contrary to Article 6 or 14 of the Convention The claimant was awarded income support from 24 November 1997 to 14 February 1998 and again from 16 February 1998 indefinitely. Although the claimant was liable to pay a service charge in respect of a communal boiler, this charge was not included in his housing costs although it qualified for inclusion. On 14 March 2002 the claimant asked for inclusion of the service charge in his award and for this to be backdated for 5 years. On 12 April 2002, the decision-maker superseded the current award so as to include the service charge with effect from 28 February 2002 but declined to revise the last awarding decision made on 20 February 1998 because he could not identify any ground for so doing. On appeal to the tribunal, the claimant argued that he had been misadvised by the Benefits Agency and that the awarding decisions could be revised on the ground of official error under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the Regulations"). The tribunal dismissed the appeal but did not deal with the possibility of revision for official error in their reasons for the decision. The tribunal did accept that the claimant had been misadvised. The claimant appealed to the Commissioner, contending that the absence of a right of appeal in the event of a refusal of an application, made more than 13 months after the original decision, for revision of that decision on the ground of official error would be in breach of Articles 6 and 14 of the European Convention on Human Rights. The case was directed to be set down for hearing before a Tribunal of Commissioners under section 16(7) of the Social Security Act 1998 ("the 1998 Act") as involving questions of law of special difficulty. Held, allowing the appeal to the extent only of setting aside the tribunal's decision and substituting a decision to very similar effect, that: 1. a decision under section 9 of the 1998 Act to revise or not to revise it is not itself appealable under the 1998 Act; the only decision which can be appealed is the original decision as either revised or not revised; regulation 31(2) of the Regulations did not extend the time for appealing against the original decision in the case of a decision not to revise for official error (paragraph 17); 2. a decision of the Secretary of State whether to revise for official error does involve a determination of the claimant's civil rights for the purpose of Article 6 of the Convention because as a matter of construction of section 9(1) of the 1998 Act and regulation 3(5)(a) of the Regulations, the claimant was entitled to apply for revision on the ground of official error and entitled to have the original decision revised if, owing to an official error, that decision was less favourable to him than it should have been; the Secretary of State did not have a discretion to revise or not to revise for official error; although the claimant's "civil right" for the purpose of Article 6 was the right (if he had one) to the social security benefit which was the subject of the original decision on his claim, the provisions permitting decisions to be revised should be regarded as part of the process whereby a claimant's entitlement to social security benefits was determined and therefore within the scope of Article 6, even in circumstances in which the claimant had the opportunity of an appeal in satisfaction of his Article 6 rights in relation to the original decision; a decision by a decision-maker was not one of a merely administrative nature (paragraph 39 of R(IS) 6/04 followed) (paragraphs 37 to 49); 3. the absence of a right of appeal to an appeal tribunal against a decision refusing to revise for official error (where that decision is made more than 13 months after the date of the original decision) did not involve a breach of Article 6; the right to a full rehearing on appeal against the original decision and the ability to apply for judicial review of a decision not to revise for official error rendered the procedure as a whole compliant with Article 6 (paragraphs 50 to 54); 4. there is no discrimination within the meaning of Article 14 against someone in the position of the claimant (seeking revision for official error, in a social security context) compared with someone seeking revision on a similar ground in a housing benefit context; neither category of person has a right of appeal against a refusal of an application to revise for official error made more than 13 months after the original decision; regulation 18(3)(b) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 refers to an application for revision for which regulation 4 itself of those regulations makes express provision, that is to say to an application under regulation 4(1) (paragraphs 65 to 73); 5. in the circumstances of this case where the tribunal was dealing with an appeal against a supersession decision and there had been an express refusal by the Secretary of State to revise the original decision which was not capable of being appealed and was "final" by section 17 of the 1998 Act, the tribunal could not itself on appeal, substitute a revision decision for the supersession decision (aragraph 55, under Issue 1A, of R(IB) 2/04 considered) (paragraphs 77 to 78) 6. the tribunal erred in law (a) by failing in its statement of reasons to deal expressly with the question whether there was before it an appeal against the decision of 12 April 2002 refusing to revise for official error the decision of 20 February 1998 and (b) because the correct ground for supersession was not a change of circumstances as identified by the decision-maker but ignorance of a material fact, namely payment of the service charge and (c) the supersession decision should have taken effect from 14 March 2002, the date of application for the supersession (see the primary rule in section 10(5) of the 1998 Act which was not varied by any of the provisions of regulation 7 of the regulations) (paragraphs 79 to 81). The Tribunal of Commissioners substituted its own decision that the decision made on 20 February 1998 was to be superseded with effect from 14 March 2002 by taking the service charge into account.
Decision(s) to Download:	R(IS) 15_04 bv.doc