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Notes:
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Jurisdiction - powers of appeal tribunal on an appeal following a revision or refusal to revise or a supersession or refusal to supersede
These four appeals together raised several issues of jurisdiction. This headnote is confined to a brief statement of the primary issues identified by the Tribunal and its conclusions on the major issues. A comprehensive summary by the Tribunal of its conclusions on all the issues before it is contained in paragraphs 186 to 198 of the decision. The primary issues as identified by the Tribunal were as follows.
Issue 1: The general powers of an appeal tribunal on an appeal from a decision on revision (under section 9 of the Social Security Act 1998 ("the Act") and regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) ("the 1999 Regulations") or supersession (under section 10 of the Act and regulations 6 and 9 of the Regulations) which contains two interlinked sub-issues, Issue 1A: the extent, if any, to which an appeal tribunal hearing an appeal against a decision which has been revised, or not revised following a claimant's application for revision, may substitute a decision to supersede or to refuse to supersede or vice versa; and Issue 1B: the extent, if any, to which an appeal tribunal can remedy defects in a decision which (if valid) has the effect of revising or superseding a decision.
Issue 2: The powers of an appeal tribunal to make a decision less favourable to a claimant than a supersession decision under appeal.
Issue 3: The nature of the power in regulation 13C(3) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968, as amended) to revise an award on a renewal claim made in advance of the renewal date if the claimant is found not to satisfy the conditions of entitlement on the renewal date.
Held, dismissing the appeal in CIB/4751/2002 and allowing the appeals in CDLA/4753/2002, CDLA/4939/2002, and CDLA/5141/2002, inter alia, that:
1A on an appeal against a decision superseding or refusing to supersede the tribunal has jurisdiction to make a revising decision, and likewise on an appeal against a decision which has been revised, or not revised following a claimant's application for revision, has jurisdiction to make a superseding decision. In the latter case, however, the tribunal can only take into account circumstances down to the date of the original decision (paragraphs 55 and 191);
1B whilst there may be decisions which have so little coherence or connection to legal powers that they do not amount to decisions under sections 9 or 10 of the Act at all (and a decision however defectively expressed should generally be regarded as made under section 9 if it alters the original decision as from the effective date of that decision and as made under section 10 if it alters it from some later date), if an appeal tribunal finds that a decision has been made under section 9 or 10 of the Act it has jurisdiction to make the decision which the Secretary of State should have made (thereby remedying any defects in the decision whether properly regarded as defects of form or substance) and should not simply set such a decision aside as invalid or "inept" (agreeing with the decision in CSIB/1266/2000 and disagreeing with that in CSIB/1268/2000) (paragraphs 72 to 80, and 192);
2. an appeal tribunal is entitled to make a decision less favourable to the claimant, than the decision under appeal (paragraphs 88 to 197, and 194);
3. the power under regulation 13C(3) of the 1987 Regulations is not subject to a requirement that one of the grounds for revision in regulation 3 of the 1999 Regulations be established but in the usual case, where the issue concerns the condition of the claimant at the renewal date, is exercisable only on the ground that the claimant's condition at that date either has improved to a greater extent than, or has not deteriorated to the extent, anticipated by the decision-maker (paragraphs 106, 107, and 198). |
