Abbas v Secretary of State for Work & Pensions

A decision awarding disability living allowance may be superseded before the original award period ends, but only where the statutory regulations permit supersession, including a relevant change of circumstances since the earlier decision. The new decision must apply the entitlement conditions in the Social Security Contributions and Benefits Act 1992.

For the care component, the highest rate requires both the night and frequent-day attention conditions. The middle rate requires one of them. If neither is satisfied, only the lowest rate is available. A Commissioner who finds an error of law and has sufficient findings must consider an applicable renewal claim after the existing award expires.

The applicant appealed from a decision of the Social Security Commissioner dated 17 July 2003. The Commissioner had found an error of law in a majority decision of an Appeal Tribunal dated 8 February 2002, substituted an award of the care component at the lowest rate from 20 September 2000 to 23 January 2001, but declined to determine entitlement after the existing award expired.

The appeal concerned whether supersession had been lawfully exercised, the appropriate rate of the care component, and whether the Commissioner should have determined the applicant’s renewal claim from 24 January 2001. The court also considered whether the hearing should be adjourned because the applicant’s father and litigation friend was unwell.

Appeal allowed in part. The Court of Appeal set aside the Commissioner’s refusal to determine entitlement after 24 January 2001 and, consequently, set aside the Appeal Tribunal’s refusal to award benefit for that period. The matter was not remitted because the Secretary of State undertook to issue a new decision awarding the care component at the lowest rate from 24 January 2001 to 31 December 2005. There was no order for costs.

1. Under section 10 of the Social Security Act 1998, a later decision may supersede an earlier award before its period expires. The power remains subject to the applicable regulations, which required a relevant change of circumstances since the earlier decision. The substituted decision had to be made by reference to section 72 of the Social Security Contributions and Benefits Act 1992.
2. The court explained the rate structure under section 72. The highest rate required both prolonged or repeated attention at night and frequent attention throughout the day. The middle rate required one of those conditions. Where neither was satisfied, attention for a significant portion of the day could support only the lowest rate.
3. The Commissioner was entitled to find that the number and variety of medications required parental assistance for a significant part of the day. No error of law had been shown in awarding the lowest rate for the residue of the earlier award period.
4. Once the Commissioner had made findings capable of supporting an award, section 14(8)(a)(ii) of the Social Security Act 1998 empowered him, and required him where expedient, to determine the renewal claim for the period after 23 January 2001. His failure to do so was an error of law.
5. The court refused a further indefinite adjournment. The applicant’s interests required resolution, the delay had become intolerable, and extensive written submissions provided sufficient assistance despite the litigation friend’s illness.

• Court of Appeal (Civil Division): in [2005] EWCA Civ 652, allowed the appeal to the extent necessary to determine entitlement after 24 January 2001; no remittal was ordered because of the Secretary of State’s undertaking.
• Social Security Commissioner: on 17 July 2003, found an error of law in the Appeal Tribunal’s failure to address the change-of-circumstances requirement, substituted a lowest-rate award from 20 September 2000 to 23 January 2001, but did not determine the renewal period.
• Appeal Tribunal: on 8 February 2002, by a majority, refused entitlement to the care component from 20 September 2000.
• Benefits Agency: in September 2000, superseded the earlier award and refused continued entitlement.