Judge Bano and Regulation 26(1)(a)

I agree with what you have stated.  I have a case next week which I had prepared to use the Wykeley decision but am wondering how to tackle it now.  I will use your very useful comments.

I think you’re wrong - because you’ve misunderstood what Judge Bano is actually saying. Here is what paragraph 7 of LS actually says;

7. That approach was in my judgment in error of law. So called ‘planned reviews’ of PIP awards are authorised by regulation 26(1)(a) of the Universal Credit (Decisions and Appeals) Regulations 2013 (“the 2013 Regulations”) in all cases where the Secretary of State has “received medical evidence from a healthcare professional or other person approved by the Secretary of State” since the original awarding decision was made. Regulation 26(1) stands apart from the other supersession grounds now found in the 2013 Regulations and, once the conditions entitling the Secretary of State to carry out a review under regulation 26 have been satisfied, it is not necessary to establish a change of circumstances under regulation 23 or any of the grounds for supersession permitted by regulation 24 of the 2013 Regulations in order to justify a supersession (although that does not of course relieve tribunals in regulation 26 cases from the need to give an adequate explanation for their decision in those cases where they decide to depart from an earlier award). Because the supersession decision in such cases is not on the ground of a change of circumstances, the effective date of the decision is not governed by Part 2 of Schedule 1 to the 2013 Regulations, and under section 10(5) of the Social Security Act 1998 the ‘effective date’ in regulation 26 cases is therefore always the date of the supersession decision itself.

My emphasis added in bold.

Read properly, all that Judge Bano is saying here is that reg. 26 (1)(a) is a provision which grants the legal power to carry out a supersession - and that this is separate to the other legal provisions which empower the Secretary of State to supersede a decision. The question of whether a decision should be superseded is different - the evidence in the round has to be capable of justifying a supersession.

Nothing in what Judge Bano says is at odds with Judge Wikeley’s decision in TH - the sentence in parentheses which I’ve highlighted in bold says exactly the same thing, but in summary.

I was gonna say the same thing PC, but thought it might be rather gauche as Judge Bano is saying what I’ve said in a number of threads over the past couple of years.

The only point I would add is that the case is a good example of how spectacularly dangerous the “you can’t supersede under reg 26” argument gets. The natural end date of the claimant’s award was in January 2017. The hearing was in February 2018. If the claimant had simply persuaded the Tribunal to set the decision aside (which is the natural consequence of the argument being right - the Tribunal’s attempt to get around that by making another decision was plainly in breach of s12(8)(b) SSA), then he would have lost a year’s benefit with absolutely no comeback.

Dear past caring,

I would be a lot happier if you were correct and there is no contradiction between Judge Wikeley’s decision and Judge Bano’s. The principle that there has needed to be an evidential basis to change a formal legal decision has been part of Social Security law for many years. This same issue cropped up when the Social Security Act 1988 was introduced and we then had the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to interpret. I think I am worried that the new “Decision-making” regulations provide another opportunity for these established principles to be put to one side, because it makes things easier (especially for Case managers and Decision Makers).

Obviously, we don’t have the case papers and the Directions so a lot of what is surmised is supposition. What the text of the decision does confirm, however, is that the First-tier Tribunal’s decision was on the basis that:

“Although the Respondent seeks to rely on S26(1) [a reference to regulation 26 of the Universal Credit etc. (Decisions and Appeals) Regulations 2013] they must still be able to establish some reason for the early termination of the award beyond a change in opinion. 

No reason is given in the Respondent’s submission beyond S26(1), this is inadequate”

Judge Bano stated that this approach, which appears to follow Judge Wikeley’s decision, is wrong in law. If you were correct, Judge Bano would not have stated that the First-tier Tribunal’s approach was in error in law. In the part that you have highlighted, Judge Bano states that tribunals are not relieved of the from the need to give an adequate explanation …in those cases where they decide to depart from an earlier decision.” But he does not say that the Secretary of State is not relieved from the need to give an adequate explanation. This would be a strange omission in the circumstances if it were not deliberate.

When this issue came up in Incapacity Benefit and ESA cases, 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 was introduced to bring in a similar “planned review” process for those benefits. In CIB/1509/2004, Judge Jacobs confirmed that Regulation 6(2)(g) authorises the process of conducting a supersession but it does not dictate the outcome of the supersession. “That is determined by the decision-maker’s analysis of the evidence and the conditions of entitlement.”  The DWP concession in Judge Wikeley’s case reflects that lonmg-established principle and case law.

It is perfectly possible that I have misunderstood Judge Bano. But it seems to me that the statement of law he has made is possible of more than one interpretation and that this can include that the Secretary of State deciding that simply obtaining a medical report is sufficient grounds to terminate an award. I think my concern is that Case Managers and Decision Makers will attempt to use Judge Bano’s stated interpretation of the law as a means to make their lives easier by just relying on the new PIP or WCA assessment as a legal basis for a new decision without any reference to a change in circumstances since a previous assessment and award.

This is turning into a submission and I want to avoid that. Suffice to say that I am not yet convinced that I have misunderstood Judge Bano’s decision. I do want to be convinced because that would make our lives a lot easier.

The TH FtT made two (relevant) errors.

First, it failed to identify a ground for supersession. (i.e. SF ground 3)

Second, it failed to explain why its own decision was at variance with a prior decision contrary to R(M)1/96 (i.e. SF ground 2).

The distinction between the two grounds is important - if a ground for supersession doesn’t exist, that invalidates the whole exercise. But the second of these principles is an adequacy of reasons point - it is not a point about the validity of the decision, but about the quality of reasoning.

The SSWP’s failure to give adequate reasons for her own decision is regrettable but it does not invalidate the decision in the same way as the non-existence of grounds does. This is because the FtT “steps into her shoes”  as per R(IB)2/04. It assumes her role as decision maker and it then goes about the decision making process for itself. Any failures in the reasoning of the SSWP fall by the wayside because it is for the Tribunal to consider the evidence for itself, reach its own decision and justify that decision (and any variance with prior decisions) on the evidence in the way that CIB/1509/2004, FN, DS, SF, VH, JL, PM, TH and now LS have described.

The LS Tribunal’s error was in purporting simply to set aside the supersession in a “summary” sort of fashion before it went on to consider the evidence because it felt that the SSWP’s reasoning was inadequate. There is no authority for that. It might have been appropriate in an error of law jurisdiction but it just isn’t how social security tribunals work.

I post with some trepidation as Bano’s decision was my case. . . and my dear manager hasn’t stopped laughing at me since it turned up.

There were two factors in the appeal - the first was the argument that the supersession was not properly made out; and the second was that the order the Tribunal made was completely contrary to the principles of natural justice, as well as tribunal rules, civil evidence act rules and probably the magna carta!

I argued on what I thought were strong grounds at the first tier, that the supersession wasn’t made out. The Judge said that she wanted to leave that until the end of the case. I objected on the obvious ground that if I was right then there wasn’t a case. The judge then carried on and having reminded the appelant forcibly about the date of decision, took evidence from her.

The Tribunal then delivered a decision that said that there were no grounds for a supersession BUT that they were going to make an order to come into effect on the date that the original award expired. Of course I applied to appeal this (leave being granted by the first tier judge) on the basis that they had not specifically taken any evidence as to the clients condition as at the ‘second’ date of decision and they had specifically told her that they were not looking beyond the first date of decision. Simply put, nobody knkew what evidence could or would have been given had the appellant been allowed to participate in their own case.

The Bano decision has actually been through three UT Judges in terms of making directions and the final order.

The final order as you can all see, essentially says that the DWP can review at any time and that HCP evidence is sufficient and - this was the killer bit to me - the other grounds therefore fell away as irrelevant.

I maintain that my client has been treated very poorly by this decision and it sets a dangerous precedent.

There are some you just cannot win - and this is another of mine

We should always be asking ourselves: “Is this something that is, or is not, in my control?”

- Epictetus, Enchiridion

PV V SECRETARY OF STATE FOR WORK AND PENSIONS [2019] UKUT 82 (AAC)
UPPER TRIBUNAL CASE NO: CPIP/1917/2018

For what its worth Judge Wikelely did not say that the Secretary of State was not entitled to consider supersession on the sole ground of receipt of an HCP report.  Judge Wikeley held at paragraph 18 of TH

18. For the avoidance of doubt, it seems to me as a matter of principle that the two stage test set out by Judge Mesher applies whether the original decision was made by the Secretary of State or a First-tier Tribunal. My decision in MR v Secretary of State for Work and Pensions (PIP) [2017] UKUT 46 (AAC) should not be read as
suggesting in planned review cases, and where the previous award was by a tribunal, that a supersession is only possible for change of circumstances (regulation 23 of the D & A Regulations) or mistake of fact (regulation 31). Receipt of new medical evidence under regulation 26 remains a possibility – but the application of the principles set out in R(M) 1/96 and SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) will need to be considered. See further the fuller analysis by Judge Wright in PM v Secretary of State for Work and Pensions
(PIP) [2017] UKUT 37 at paragraphs 9-17.

A Tribunal stands in the shoes of the decision maker and is able to restore and extend the period of an award that has been terminated on planned review.  This has been confirmed by Judge Sutherland-Williams in SC v SSWP (PIP) [2019] UKUT 165 (AAC)

You might find my attached template argument for PIP planned review cases useful

It’s a point which I think can be made in less than 2,300 words… (I kid).

Reg 26 opens the door to supersede but does not dictate the outcome, which must be determined on the basis of all the evidence - including old assessments - and the Tribunal must justify itself with regard to departure from what was decided before. It then stands to reason that, if the old report was accurate to the claimant’s needs at the time and those needs are unchanged, the same award ought to be made.

But of course if you can make good on the propositions (1) that the old report was accurate and (2) that the claimant’s needs are unchanged, then you already won and needn’t have made the point.