Wood v Secretary of State for Work and Pensions

This Court of Appeal held that a decision under section 10 of the Social Security Act 1998 to supersede an existing benefit award cannot lawfully be made unless one of the threshold criteria in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 has in fact been found to exist in fact (for example, a relevant change of circumstances under regulation 6(2)(a)(i)). The tribunal below had not made any finding that the threshold criterion of a relevant change of circumstances was satisfied before the Secretary of State purported to revoke a life award of the mobility component of DLA; the Commissioners' decision remitting the matter on the basis that the threshold criterion must simply be accepted was in error. The appeal was allowed, the matter remitted for rehearing consistent with the court’s principles, and costs awarded to the appellant.

Background and parties. The appellant, Mr Wood, held a life award of the mobility component (originally mobility allowance) on the grounds he was unable or virtually unable to walk. He applied (by way of a DLA434 renewal form, assisted by Epping Citizens' Advice Bureau) for reconsideration under section 10 of the Social Security Act 1998 to vary his care component. The Secretary of State issued a decision on supersession which both refused the care component and, without evidence of any factual change to mobility, removed the mobility component. Mr Wood appealed to the appeal tribunal which dismissed his appeal; the Social Security Commissioner (Mr Jacobs) set that tribunal decision aside and remitted for rehearing, apparently instructing that the threshold criterion should be accepted. The present appeal is from the Commissioners' decision.

The appellant sought to overturn the Secretary of State's supersession decision which removed the mobility component and to challenge the Commissioners' directions to the appeal tribunal.

Issues framed.

• Whether a supersession decision under section 10 may lawfully be made removing or altering an existing award without a factual finding that one of the regulation 6(2) criteria (in particular a relevant change of circumstances under regulation 6(2)(a)(i)) is satisfied.
• The scope of the right of appeal under section 12(9) of the 1998 Act: whether appeals lie only from decisions that actually alter an earlier decision or also from refusals to supersede and other responses to applications under section 10.
• How to interpret regulation 6(2) and the words "on the basis of" that follow the formulation of the criteria.

Court’s reasoning (concise). The court agreed unanimously that an existing award may not be taken away by a supersession under section 10 unless one of regulation 6(2)’s stated criteria is in fact found to exist. Rix LJ emphasised that regulation 6(2) requires establishment of the criterion in fact and preferred to treat section 12(9) as meaning a right of appeal extends to decisions taken pursuant to the power to supersede; he found the Commissioner’s decision in error for failing to require a finding of change of circumstances. Arden LJ adopted a somewhat different construction, reading "supersede" as "replace" and treating regulation 6(2) as setting threshold (not outcome) criteria; she held that a decision under section 10 that maintains the award at the same rate is nevertheless a supersession that attracts a right of appeal. Dyson LJ agreed the appeal should be allowed and endorsed the practical result while preferring Rix LJ's interpretative route. As a result the appeal was allowed and the matter remitted to the appeal tribunal for rehearing consistent with the court's directions.

Subsidiary findings and context. The court reviewed earlier authority (including Chamberlain and Cooke) for the proposition that finality is protected by requiring statutory grounds for review; it considered the parliamentary material dealing with section 12(9) and accepted that hopeless or improperly formulated applications need not be acted upon and do not give a right of appeal. The court noted the disagreement in the Commissioners' jurisprudence (notably the so-called 6/02 decision) and provided guidance about the proper reading of section 10 and regulation 6.

Appeal allowed. The court held that a decision under section 10 of the Social Security Act 1998 superseding an earlier decision cannot lawfully remove or alter an award unless one of the threshold criteria in regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (for example a relevant change of circumstances under regulation 6(2)(a)(i)) has been found to exist in fact. The Commissioners’ direction that the threshold criterion should simply be accepted was in error. The matter was remitted for rehearing and costs were ordered for the appellant.

The appeal proceeded from the Harlow appeal tribunal (appeal dismissed on 8 June 2001; Statement of Reasons 23 June 2001) to the Social Security Commissioners (Commissioner Jacobs: CDLA/3912/2001 decision 28 February 2002), and thence to the Court of Appeal (A1/2002/1357; [2003] EWCA Civ 53).