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Notes:
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Tribunal practice and procedure – appeal against decision that claimant is not entitled to benefit – whether tribunal required to determine entitlement
The claimant gave her parents £13,000. She subsequently borrowed a further £15,000 and she and her parents then bought a flat in their joint names. The Secretary of State decided that she was not entitled to income support because she had disposed of the £13,000 for the purposes of obtaining income support and should be deemed still to possess it. A tribunal allowed her appeal, deciding that she did not have notional capital, but it did not record a decision on the question whether she possessed actual capital as a result of the purchase of the flat and it did not state that she was entitled to income support. The Secretary of State then made a supersession decision to the effect that the claimant was not entitled to income support because she had actual capital exceeding £8,000 following the purchase of the flat. The claimant appealed on the ground that the issue had been determined in her favour by the first tribunal, which had been aware of all the relevant circumstances. She succeeded before one tribunal but that decision was set aside by a Deputy Commissioner, on the ground that the tribunal had failed to consider whether the Secretary of State’s decision was a proper supersession decision, and her appeal was dismissed by a third tribunal. The claimant made a further appeal. The Chief Social Security Commissioner directed that the appeal be heard by a Tribunal of Commissioners following a request by the Secretary of State, who sought an authoritative ruling as to whether a tribunal hearing an appeal against an “outcome” decision was obliged to substitute another “outcome” decision.
Held, allowing the appeal, that:
1. as a tribunal is entitled to cure defects in a decision of the Secretary of State, it is not always necessary for a tribunal to determine the nature of the decision under appeal to it and, in this case, it was sufficient for the third tribunal simply to decide what decision the Secretary of State should have given, taking account of any new evidence available to it (R(IB) 2/04 followed) (paragraph 32);
2. although regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 appears to permit the Secretary of State to supersede a decision of a tribunal on the ground that there has been a change of circumstances since the tribunal’s decision took effect, he should not do so where the change of circumstances occurred before the decision that was under appeal to the tribunal and the tribunal was well aware of the change of circumstances and could have taken it into account (paragraph 38);
3. when an appeal against an outcome decision raises one issue on which the appeal is allowed but it is necessary to deal with a further issue before another outcome decision is substituted, a tribunal may set aside the original outcome decision without substituting another outcome decision, provided it deals with the original issue raised by the appeal and substitutes a decision on that issue; the Secretary of State must then consider the new issue and make an outcome decision giving effect to the tribunal’s decision on the original issue unless, at the time he makes the outcome decision, he is satisfied that there are grounds on which to supersede the tribunal’s decision so as, for instance, to take account of any changes of circumstances that have occurred since he made the decision that was the subject of the appeal to the tribunal (paragraph 48);
4. in this case, the first tribunal had set aside the first decision of the Secretary of State based on notional capital but had not decided that the claimant was entitled to income support and so it was still open to the Secretary of State to decide that the claimant was not entitled to income support because she possessed actual capital exceeding £8,000 following the purchase of the flat but, as the claimant’s interest in the flat was valued at only £7,650, he and the third tribunal had erred in failing to consider whether her total capital still exceeded £8,000 at the date of his decision (paragraphs 50 to 52).
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