R(IB)2/04 (tribunal of commissioners)held that generally speaking a revision or supersession decision, however ineffectively expressed, should be regarded as a valid decision with any defect of form or substance being correctable by the tribunal. Does anyone have any later decisions which throw doubt on this? I have a case where the decision maker has failed to identify the date of the decision being changed and the grounds for revision/supersession, and there is no copy of the decision maker's initiation of the procedure nor the outcome decision R(IB)2/04 held that such defects were of no consequence.

In CSDLA/612/06 Commissioner May found an error in law in the tribunal's decision and set it aside, but refused to remit it for re-hearing, and remitted the case back to the Secretary of State. He said "The Secretary of State in this case gave erroneous decisions both in relation to supersession and overpayment. No adequate submission was made to the tribunal as to the approach the Secretary of State wished the tribunal to take, either in the written submission on appeal or by the presenting officer. There are, I consider, limits to the extent which the Commissioner or the tribunal should assist the Secretary of State with poor decision-making."

this case is not as helpful to the claimant as the quote might suggest, however, and the case law on the whole is strongly for tribunals remedying defects in the decision. Nevertheless, it throws down a marker for the notion of limits, which could become increasingly significant...

also...don't know if this is any help, CSDLA/637/2006 (paras 29-30) - another in a line of decisions critical of SoS's failure to record reasons for decisions.

From R(IB) 2/04 itself

"72. We agree with the proposition implicit in the submissions of all parties that there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions under section 10 at all."

the problem, i think, is that while that is repeated in the conclusions (para 192), it is in the context of exceptions to the general rule - basically of tribunals getting behind whatever defects are in the decision by identifying it as a revision or supersession from the effective date and regarding it as having been made under section 9 or 10.

(if it sounds as if i have a clue what i'm talking about, it's only because it happens that i've been pouring over this for a recent hearing and is purely coincidental : )) -... and just now i have another case, in which the decision is clearly meant to be a revision, but isn't identified as such, not even in the appeal submission, with all the defects that wwrs mentions...

i assume that the very incoherent decisions which do not amount to valid decisions do not give the tribunals jurisdiction to substitute their own decision for, and they would either find the decision is not valid (so the SoS has no legal basis for its implementation, or adjourn for the SoS to have another go???)

i think, tentatively speaking, that the R(IB) 2/04 effect attempts to shut the door on 'technical arguments' which would oblige tribunals to reject decisions because they were technically defective in form, and to proceed to deal with the substantive matters...but there are significant dangers of unfairness in this approach imo if this undermines the formal requirements to show grounds, and raises questions of fairness if the tribunals discharge the secretary of state's burden of proof for him...??? particularly if the SoS now thinks he doesn't have to bother because the tribunals will sort it out...

Thanks for all these - my concerns are really the same as jj's - the undermining of the requirement that grounds be shown and that Secretary of State no longer has to bother to show grounds as tribunal will find them - the decision in my case was fairly incoherent in that it failed to do anything a decision should do, but it will still be possible for a tribunal to say, on the facts, that the SoS must have intended to revise, so that's what they'll do. I do see that it wastes everyone's time to get an adjournment on a technicality only to have the case come back with the decision properly formed, but allowing the SoS to have no regard to the requirements of the law may not be seen as fair by appellants and doesn't seem likely to lead to better decision making in either form or substance...?

Hmmm - whilst I agree that it is desirable that the department gets the technicalities right and R(IB)2/04 hasn't helped in that regard (or at least tribunals' interpretation of it hasn't helped), I'm not certain the situation is quite so bleak....

I'm still having a reasonable amount of success by taking the approach of conceding the fact that the SoS has made a decision, but arguing that he has failed to make out grounds to revise or supersede. Recently had a £25k overpayment of DLA (client had worked p/t as a cleaning supervisor) thrown out on this basis. The argument has also worked in other DLA cases - eg. renewal of claim, EMP report commissioned, decision to renew award at existing rate made prior to receipt of EMP report, SoS receives report and sits on it for five months before purporting to "revise".