Effect on a decision on a new claim where earlier decision ending benefit via supersession later reversed on appeal

Right, here is one for the anoraks. Would very much appreciate an answer-

1. Claimant has award of ibJSA.
2. SSWP removes that award via supersession.
3. Claimant appeals that decision. DECISION A
4. Whilst appeal pending claimant makes a new claim for ibJSA which is refused.
5. Claimant appeals that decision also DECISION B.
5. Tribunal allows the appeal against DECISION A- restoring to the claimant an award of ibJSA.

I am puzzling over what the status of DECISION B now is (because have to advise on submissions in respect of the appeal on that decision).

These are my current thoughts:

1. The decision of the tribunal on DECISION A restores to the claimant an award of ibJSA. The only way that award can be removed is by a revision or supersession.

2. The decision on the new claim (DECISION B) was a decision on a claim (eg a decision under sec 8 SSA). It was not a decision under sec 9 (revision) or sec 10 (supersession). It did not identify (as it would need to if it was a revision or supersession) any grounds etc.

3. Effectively DECISION B is a nullity.

I am sure there are some old decisions (which I can’t locate) about what happens a sec 8 decision when it then transpires that actually there was an award in place at that time etc….

I can’t immediately identify any case law, but your analysis expresses the precise reasoning I would argue - decision “B” is a nullity as it has been entirely usurped by an earlier award AND there are (presumably) no grounds to supersede / revise the earlier award.

It has not been revised under Reg 3(5A) -the SSWP is acting as if the tribunal decision in respect of Decision A never happened….

I’ll post a proper reply later as I am on my way out the door but have a look at the last paragraph of CDLA/3323/2003, in which Commr Rowland decided he was not bound to limit his decision to the period up to a new DLA claim (and award) and specifically explains that he did not take this course of action in case the secretary of state did not revise under 3(5A). Might depend on the terms of the tribunal decision.

Thanks Damian- I also have R(DLA) 2/04 which looks at effect on ongoing supersession proceedings where the decision to be superseded is itself revised etc before the supersession complete.

My initial thoughts Martin are that you risk being hoist by your own petard if you argue that Decision B lapses.  What does the tribunal considering Decision B do if it agrees with your argument?  Presumably decline to hear the appeal for want of jurisdiction, ie there is no decision for it to consider.  Judge Rowland’s laudable attempt in CDLA/3323/2003 to free the appellant from the effects of a subsequent decision less favourable than the one the Judge was making there appears to fall foul of the settled principle of finality found in section 17(1) SSA, a principle which Judge Rowland appears to acknowledge (“there cannot be two awards in respect of one period” – para 17) but nevertheless declines to follow in order to ensure that justice is done on the particular facts of that case. 

Judge Rowland is motivated above by the prospect of a DM not being prepared to revise Decision B upon the successful appeal of Decision A and the claimant then being out of time to challenge Decision B.  The implication is that there is not a problem where the person actually appeals Decision B as your client has in the present case.  But that doesn’t address the above jurisdictional issue for the tribunal.  The tribunal sits in the shoes of the DM and any DM faced with a new claim for ibJSA where there was an existing ongoing award of ibJSA (effectively the facts facing your tribunal in the present case) would legally be unable to make a decision on that new claim, other things being equal.  And so it would appear to be for the tribunal, its having no greater powers open to it than those available to the DM.

I think that Decision B effectively becomes a supersession decision rather than a section 8 decision as soon as Decision A is successfully appealed.  If that’s correct, the tribunal would then have jurisdiction to consider the appeal against it just as it would with any appeal against a supersession.  The issue would then be: on what legal basis under Reg 6 is Decision B made (change of circs? What change of circs?  Doesn’t appear to be one on the info available).

On further reflection (on the bus going home), I was wrong in my last post to say that the DM would not be able to make an ibJSA decision if he’d known that the claimant already had an ongoing ibJSA award.  He could, of course, have attempted to make a supersession or revision if he disagreed with that ongoing award.

In the present case, the DM had no reason to even consider a supersession etc because at the time he made his decision (Decision B) there wasn’t an ongoing award of ibJSA, just an appeal lodged against a previous refusal of ibJSA (Decision A).  Hence he makes a section 8 decision.

However, the tribunal that sits in the shoes of the DM who made Decision B has the luxury, denied the DM, of knowing the outcome of the appeal against A.  In that situation, it can look at the substance as well as the form of Decision B.  In form it’s a section 8; but in substance it’s clearly a section 10 because there is then an existing award of ibJSA which the DM is purporting to remove by Decision B. That’s a supersession in all but name. The comments in my first post about there being no legal basis for that supersession remain good I think too.

The fact the DM is blameless is irrelevant.  Perhaps not entirely blameless either as I suppose he could have revised Decision B under Reg 3(5A) following the outcome of the tribunal against Decision A.  Presumably he has refused to do that, otherwise you wouldn’t be appealing Decision B.

Maybe I’m missing something here, but I can’t see how Decision B can be a superseding decision.  At the time it was made, there was no award in place to supersede.  Neither can I see any legal basis for a successful appeal on Decision A to retrospectively change the character of Decision B.  In my view, the award by way of Decision A, with no subsequent grounds for supersession or revision, simply renders B a “nothing”; B is just usurped entirely.

On reading this thread from the start, I think I may have muddied the waters by initially conflating Martin’s case with CDLA/3323/2003.  Whilst I think Damian was right to mention the latter, I suspect it’s a red herring.  The fact is that tribunal A in the present case has not declared that Decision B has lapsed, and I don’t think Martin is submitting that it has lapsed.  It follows that I was wrong to give the impression in my 1st post that it was necessary for Decision B to be a supersession before the tribunal could have jurisdiction.  I think I’d come to that conclusion by my 2nd post when I accepted that Decision B remains a section 8 decision in form.

Kevin, I wasn’t saying that Decision B ‘was’ a supersession but that it ‘effectively’ becomes one as far as the tribunal is concerned. Sorry if I didn’t make that clear. And the authority for that is R(IB)2/04. The Tribunal of Commissioners there, although dealing exclusively with questions about a tribunal’s power in relation to supersessions and revisions rather than with section 8 decisions, made some points which I think have general import.  The SOS had submitted in that case that a tribunal could alter any decision made by a DM provided it didn’t alter the “legal nature” of that decision, eg it could alter a supersession by substituting a new Reg 6 ground but could not substitute a revision for a supersession as that would alter the legal nature of the decision.  The Tribunal rejected that submission as unrealistic.  At para 55(4) it held: “The emphasis is on the outcome of the decision, not the narrow technical issue of the section under which [it] was made”

It goes without saying that Decision A is a nullity or invalid.  As I said in my first post a DM/tribunal presented with the fact that there is an existing ibJSA award (here resulting from the retrospective award of Decision A) simply could not make a section 8 decision.  So the fact the DM has made one means it’s a nullity.  However, I feel it would be flawed logic to suggest that Tribunal B in the present case may take into account the retrospective result of Decision A for the purpose of deciding the merits of Decision B (ie holding it a nullity), but then not be able to consider what impact retrospective Decision A has on the nature/character of Decision B (ie whether it’s effectively a supersession)

Martin, you say you’re advising on submissions in this appeal.  I think I’d need to know exactly what the SOS is saying in its submission, though I appreciate you may not be at liberty to divulge.  Is it asking the tribunal to consider substituting a supersession for the flawed section 8.  If not, the tribunal could consider exercising its discretion to do so anyway in accordance with R(IB)2/04.  Of course, as you know, that doesn’t mean that it will exercise its discretion. But it means it might be wise arguing why the tribunal should leave well alone.  Of course, if there are no realistic grounds to supersede anyway, then you’ve nothing to worry about. I’ve assumed without more that that’s the case at present: that Decision B is at best, in substance, a purported supersession but not an effective one.

I thought of an example where Decision A was originally superseded because the DM suspected the claimant worked 50 hours p/w.  He appeals and applies for ibJSA again before that appeal. Decision B rejects him for JSA for the same reason (DM thinks he’s doing 50 hours).  Tribunal A is successful.  Do we really think that the Tribunal B judge would say to the appellant; “I tell you what son, it’s a good job that the decision’s a nullity and I cannot do anything about it, otherwise I’d be all over you now about those alleged 50 hours and how they might affect your current award”.

Of course, if we repped this one at an oral hearing and the judge was getting ready to pack up having been happy to accept our opening submission that decision B was a nullity, we wouldn’t, on being asked whether there was anything more we’d like to add say, “well, sir, only because I’m in the mood to snatch defeat from the jaws of victory, I’d like you to consider whether there are any grounds for making Decision B a supersession”.  It would be more a case of “Oh, and just say on the decision notice ‘appeal allowed’, anything more will just confuse the DM, sir”.

For what it’s worth as well I think I’ve resolved how to get around the problem of the scenario “I wish to appeal decision B because tribunal A says it doesn’t exist” but that’s perhaps for another time.

Just how problematic is section 17 (finality of decisions)?  Imagine the following case.  Where, exactly, is the remedy and how is it applied?  Claimant has worked solidly for years and paid all class 1 contributions.  However, in the last few years work has been sporadic.

In July 2010 he starts a new job but gets made redundant in the December and makes a claim for Con/JSA.  His wife works full time so no question of IB/JSA.  His claim is refused due to occupational pension.  However, claimant says he has no OP and appeals.  In January 2011, upon advice, he makes a new claim.  Now the relevant tax years used for a decision have moved forward and he does not satisfy the first contribution condition.  The claim is refused and is absolutely correct in law and not appealed.  The decision is final under s17.

On appeal on the first claim information provided shows there has been an enormous mix up and claimant not in receipt of OP and appeal allowed.  Now Con/JSA payable for 6 months from December 2010 but stops after a month as the award slams right into ‘the back’ of the second decision which states that there is no entitlement to Con/JSA from Jan’ 2011.

So, what can be done?  There is no dispute about the facts of both claims and thus no dispute about the lawfulness or correctness of the decisions.  The claimant is clearly entitled to JSA on the first claim and clearly not entitled on the second.

Revising the second decision (which is clearly a s8 decision) under reg 35A (or any other part of reg 3 for that matter) is not an option as that decision could not have been made any other way, no matter what the tribunal did in respect of the first decision.  Nor are there any apparent grounds under reg 6 to supersede it either.  But clearly it would be manifestly unjust for s17 to operate to end his award of JSA on the first claim prematurely just because the decision on the second claim could not be ‘shoved aside’ under the D&A Regs.

So does the JSA award on the first claim simply run over the back of the second decision and if so what is the legal status of the second decision?  Does it simply exist in some legal twilight retaining existence without force or does it simply whither on the vine until it becomes nothing but legal dust?  And if so where does that leave s17?

Judge Rowland has clearly opened up the road for the second decision to just lapse but has provided no detailed legal analysis to explain that conclusion so we are none the wiser as to his thinking and my view is that although we can cite the decision in argument on behalf of our clients I would struggle to posit a cogent legal analysis which answered all the relevant questions and left no loose ends.  And, maybe, in the final analysis, that cannot be done and that that is an unfortunate by product of some bad statutory drafting inherent in the 1998 adjudication scheme itself and that all we are left with is vague references to justice needing to be done. 

But, there might be another way out.  In spite of what I said about supersession above, the tribunal’s reversal of the first decision awarding JSA could be seen as a change of circumstances of sorts so if that is accepted the SoS could supersede the decision on the second claim to reinstate the award on the first decision to continue for the rest of the 26 week period from the date he decides to supersede the second decision.  Admittedly this is not very pretty but I think it does the least damage to the statute while effecting a just outcome.  And the advantage with this approach is that a refusal to supersede on the claimant’s application carries a right of appeal leaving the way for further legal clarification.

Thanks everyone…. lots of hoods on display I see. :)