IN THE UPPER TRIBUNAL 		            Appeal No: CE/277/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal disallows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Manchester on 15 august 2013 under reference SC946/13/08118 did not involve any error on a material point of law and is not set aside.

REASONS FOR DECISION 

Introduction 

1.	This appeal no longer matters to the appellant in terms of money as the Secretary of State has paid her the missing amount of her entitlement to employment and support allowance (“ESA”) – the enhanced disability premium (EDP) – for the full period for which she contends.  To that extent the appeal is academic. However her appeal to the Upper Tribunal still needs to be disposed of and, more importantly, the failure to consider the EDP when a person meets the ‘support group’ criteria of ESA is an issue which has caused some difficulty, at least in the past.  Accordingly I am setting out my reasons for this decision in greater detail than might otherwise have been the case.

Relevant background
 
2.	The background to the appeal can be fairly shortly stated.  The appellant had had an award of incapacity benefit from October 2002.  This was converted to an award of (contributory) ESA from 25 October 2011. (It seems this may have been wrong and the correct date is 26 October 2011, but nothing turns on this.) Legally the conversion decision took effect as a decision on a claim for ESA under section 8 of the Social Security Act 1998: see regulation 16(2) and (3) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 (the “Existing Awards Regs”). 

3.	The Secretary of State’s description of what then occurred formed the basis of the decision that the appellant appealed to the First-tier Tribunal.  The Secretary of State’s case was that on 23 October 2012 the appellant made a “claim” for income-related ESA for the period from 23 November 2011.  This date of claim was extended by the Secretary of State back to 6 August 2012 on the basis that a telephone call of that date from the appellant to the relevant Department for Work and Pensions office querying non-payment of premiums was an intention “to claim [income-related] ESA”. However there were in the Secretary of State’s view no grounds to revise the earlier conversion decision awarding contributory ESA. That decision was instead superseded from 25 October 2011 so as to include income-related ESA from 6 August 2012. (Backdating of this alleged claim was said by the Secretary of State not to assist the appellant as backdating for the maximum period of 3 months would not take the claim back to November 2011.)       

4.	It is this supersession decision, dated 16 November 2012, that the appellant then appealed to the First-tier Tribunal. Her grounds of appeal were that she had been placed in the ‘support group’ of ESA from 23 November 2011 following the conversion decision and a successful appeal, and since that date she ought to have qualified for the enhanced disability premium which, when added into her income-related applicable amount, would have qualified her to income-related ESA in addition to her contributory ESA. The gist of the Secretary of State’s response to the appeal grounds to the First-tier Tribunal was to analyse the situation in terms of the appellant seeking to claim income-related ESA only in October 2012.
5.	The appeal was decided by the First-tier Tribunal on 15 August 2013 (“the tribunal”). It dismissed the appeal and upheld the Secretary of State’s decision of 16 November 2012.  In reciting the History of the claim in its statement of reasons the tribunal followed the above ‘claim’ analysis and noted that the appellant had been in receipt of a contribution-based benefit (incapacity benefit) for an extended period, that there had been no review request at the time of conversion of her claim to contributory ESA on 25 October 2011 and that she had made “no application for transfer to the income-based category”. It recorded the appellant’s arguments on the appeal, as made by Mr Gilbert of Salford City Council Welfare Rights Service, as follows:

“…[the appellant had] an underlying entitlement to the EDP in consequence of being placed in the support group following appeal. Mr Gilbert submitted that since ESA was a single benefit IRESA and CESA should not be distinguished in respect of start dates, and that in [the appellant’s] case there had already been a live ESA claim which should simply be adjusted in retrospect from 23.11.2011 to include the EDP. In support he put in a copy article…which suggested that the conversion regulations….envisage award of a unified benefit with no specific distinction between IRESA and CESA, and impose only an undifferentiated obligation to assess the correct entitlement rate in each case……regarding it as appropriate to convert Incapacity Benefit into CESA – in the absence of any intervention, or apparent counter-indication – is misconceived.”                                                                          

6.	Rejecting these arguments for the appellant, the tribunal reasoned, inter alia, as follows.

“Whilst it may be accurate to regard ESA as a single benefit insofar as substantive entitlement conditions are common as between the contributory and income-based allowance – that does not, in the Tribunal’s view, entail there are no significantly distinct areas between the categories of IRESA and CESA, both administratively and in terms of entitlement conditions.  For one thing they are awarded on the contrasting bases of contribution and means……….The conversion regulations insist on a focus upon the nature of the ‘existing award’ prior to conversion….and the conversion in the case of each individual claimant is a conversion of a defined existing award to the level and type of award which is appropriate on the basis of what is known at the point of conversion.  It is open to claimants to appeal conversion decisions, which are treated as though decisions on claims.….since May 2012 [CESA] has been time limited to 365 days, save for somebody in the Support Group, and, as is central to the present matter – in which the appellant has sought transfer specifically because of the contrast in entitlement – premiums are payable only in relation to means-tested benefit.  

The Tribunal did not find within the applicable regulations any specified accommodation of the suggested interpretation that conversion should include, retrospectively, not only the award of a benefit property which was not part of the ‘existing benefit’ previously in award…..but also changes to the terms of a conversion conducted as required by legislation, and undisputed at the time. The Tribunal’s view was that previous contributory awards are to be converted in accordance with criteria appropriate to contributory allowances, and income based awards as appropriate to that category of award…”                                             

(I take “CESA” to mean contributory ESA and IRESA to mean income-related ESA.)

7.	In her grounds of appeal against the tribunal’s decision the appellant criticised it for adopting the claim analysis put forward by the Secretary of State. The appellant did not accept she had ever made a separate claim for income-related ESA. She relied on section 6 of the Welfare Reform Act 2007 (“WRA”) as showing ESA was one benefit.  She further relied on the Decision Makers Guide which at paragraphs 45413 and 45414 provided, and still provides, as follows:

“Obtaining information

45413 The claimant’s duty to disclose information relevant to their existing award of benefit is modified to enable the Secretary of State to require from the claimant information or evidence for the purposes of determining whether that award should be converted to ESA1.

1 ESA (TP, HB & CTB)(EA)(No. 2) Regs, Sch 1, para 13(a); SS (C&P) Regs, reg 32(1)

45414 This enables the Secretary of State to establish whether a claimant whose existing award is IB or SDA, and who is not entitled to IS, might be entitled to ESA(IR) as well as ESA(Cont) on conversion.

Example
Carlton is entitled to IB of £91.40. During the conversion phase the Secretary of State establishes that he has no other income. Following application of the WCA, Carlton is placed in the support group. On conversion, Carlton is entitled to ESA of £110.50 made up of ESA(Cont) of £96.85 and ESA(IR) of £13.65 (EDP).”  

District Tribunal Judge Jones gave her permission to appeal to enable the Upper Tribunal to consider the issues raised by the appeal.

8.	 In giving directions on the appeal I said relevantly: 

“[This appeal] raises potentially important issues as to how claims for ESA are to be determined where entitlement may lie to both the contributory element and the income-related element of ESA because entitlement to premiums may arise in respect of the latter, and how the information needed to decide these matters is to be elicited.
  
The issues are set out in some detail in the papers and I do not consider that I need make much comment at this stage. I do, however, draw the attention of the parties to the decision of Mrs Commissioner Jupp (as she then was) in CJSA/2677/2006, which may provide a useful parallel to this case in some respects.  Further, if ESA is one benefit (with contributory and income-related elements to it), in what sense does it make sense to speak in terms of making a claim for income-related ESA where an award of (contributory) ESA is already in place?  Moreover, if being placed into the “support group” means that a claimant, all other things being equal, ought to qualify for a higher amount of ESA (though the income-related element) because of the enhanced disability premium (“EHP”), in what sense does the claimant need to claim the income-related element of ESA, and with it the EHP, in order to have this award made to her? Would it not be the case that knowing that the claimant qualified for the EHP (because she has been placed into the support group), would call on the decision-maker to investigate this issue and, no other income being  issue, add the income related element of ESA to the award? And if the decision maker did not take these steps would that not provide official error grounds of revision? And, if this is the case, does it apply here? Further, is there anything in the legislation governing conversion of awards to ESA that dictates that an award of incapacity benefit must only be converted to an award of contributory ESA?”  

(I am now using EDP to refer to the enhanced disability premium instead of EHP.)     
           
9.	In his first submission on the appeal the Secretary of State supported it and invited the Upper Tribunal to set aside the tribunal’s decision without giving reasons. In describing the background the Secretary of State noted that the appellant was converted to (contributory) ESA with the support group from 25 October 2011. In other words there was in fact no gap between her being converted to ESA and then being placed in the support group. How that came about “on appeal” I will return to later. The Secretary of State submitted that a claim for ESA is not a claim for contributory ESA or income-related ESA as ESA is a single benefit.  Further, it was submitted that in conversion cases no claim for ESA is as a matter of law required where, as here, a claimant is entitled to an existing award which is subject to conversion: per paragraph 18(b) of Schedule 2 to the Existing Awards Regs.  The Secretary of State then drew attention to regulation 8(1) of the Existing Awards Regs, which provides as follows:

“Amount of an employment and support allowance on conversion
8. (1) For the purposes of regulation 5(3), the amount of an employment and support allowance to which a notified person is entitled shall be determined as follows.
Step 1
Determine in accordance with Part 1 of the 2007 Act and the 2008 Regulations the amount (if any) of an employment and support allowance to which the notified person would be entitled if, on a claim made by that person–
(a) it had been determined that the person was entitled to an award of an employment and support allowance; and
(b) the assessment phase had ended.
Step 2
Determine in accordance with regulations 9 to 12–
(a) whether the notified person is entitled to a transitional addition; and
(b) if so, the amount of the transitional addition.
Step 3
Aggregate the amounts (if any) which result from Steps 1 and 2.”
.      

Regulation 5(3) of the Existing Awards Regs provides that: 

“A notice of a conversion decision under paragraph (2)(a) must specify the amount of an employment and support allowance to which [the claimant] is entitled on the effective date (subject to any relevant deductions)”.
 
10.	The Secretary of State argued that the effect of these provisions was to unequivocally provide that where a claimant’s award qualifies for conversion to ESA, the amount to which they are entitled is to be determined by reference, inter alia, to the amount of main phase ESA to which they would be entitled in response to a successful claim (on conversion). Moreover, there was and is no provision in the statutory scheme to the effect that an award of incapacity benefit can only be converted to an award of contributory ESA, and the tribunal had erred in law in holding the opposite to be the case. 

11.	 The Secretary of State further argued that the outcome of the original appeal – that is, against the conversion decision and upon which the appellant had been found to meet at lest one of the support group criteria from the effective date of that conversion decision – effectively returned the appellant to Step 1 in regulation 8(1) of the Existing Awards Regs, and, having been notified by the First-tier Tribunal of the outcome of that appeal, the Secretary of State should have gathered information to establish if the appellant was entitled to income-related ESA.  This had not happened and so the appellant’s entitlement to ESA as a whole (i.e. contributory and income-related) had not been properly determined.

12.	The Secretary of State in this first submission concluded by saying that the decision-maker had been incorrect not to revise the (post-appeal0 conversion decision to accommodate the EDP and thus income-related ESA.  However, the decision had been revised on 9 April 2014 (the day before the Secretary of State’s first submission to the Upper Tribunal) and arrears had been paid which would have reached the appellant on 14 April 2014.  That payment completely disposed of the issues arising on the appeal.

13.	The appellant, now through Mr Mike Hughes of Salford Welfare Rights Service, in reply observations of 1 May 2014 said she was happy to accept a decision being made without reasons subject to proof of (a) the revision decision, and (b) the arrears in fact having been paid.

14.	This then led me to make a further set of directions on the appeal in which I said:

“Both parties have now made their submissions.  Both agree that the appeal can be allowed without any reasons being given on the basis that the level of ESA (both contributory and income-based) paid to [the appellant] ought to increase on account of factoring in the enhanced disability premium. The Secretary of State says a revision decision was made on 9 April 2014 to correct this error. The terms of that decision are not before me.  It is further said that the relevant arrears payment ought to have reached [the appellant’s] bank account by 14 April 2014.  It is therefore a matter of a little concern that [the appellant’s] representative’s observations dated 1 May 2014 indicate that the arrears have not in fact been paid. Formally speaking, [the appellant’s] consent to a no reasons decision is conditional upon the proper level of arrears being paid.

It is in these circumstances that I make the directions below.

CASE MANAGEMENT DIRECTIONS

The Respondent is directed to file with the Upper Tribunal, and serve on [the appellant’s] representative at the same time, within 14 days of the date of issue of these directions (i) the full terms of the revision decision of 9.04.14 and the powers it was made under, and (ii) verifiable evidence of the sum of arrears due under that decision and when they were in fact paid to [the appellant].     

The appellant is then to provide a short written submission to the Upper Tribunal within one month of the date of issue of these directions setting out (i) whether the above evidence is accepted and disposes of all issues that [the appellant] may properly raise on this appeal, or (ii) if it does not, why that is the case and what else the Upper Tribunal ought to determine.

It would also assist if both parties address in what they are being asked to submit above what the consequence of the revision decision is in terms of the tribunal’s decision under appeal and the mandatory nature of the remedy the Upper Tribunal must give under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 if it sets the tribunal’s decision aside.”
                                      
15.	The Secretary of State then provided proof of payment but not the revision decision of 9 April 2014. Following this he filed a response to the above direction in which he said: 

“the ‘decision’ of 09/04/14 was a well intentioned attempt by the Secretary of State to rectify the error in the calculation of arrears following the initial First-tier Tribunal decision in July 2012.  Although there was no authority to make that decision the claimant has now been paid the full amount of arrears.

The Secretary of State respectfully requests that the Judge sets-aside and remakes the decision to the effect that the purported [decision-maker’s] decision made on 16.11.12 was not made under section 8 or 10 of the Social Security Act 1998. As a consequence there was no right of appeal against that decision.”              

16.	The appellant’s representative, Mr Hughes, responded by saying that he was satisfied that the full arrears payment had in fact been made. He accepted that the case was effectively at an end, but he asked for a reasoned decision confirming that a claim for ESA is a claim for both contributory and income-related elements of ESA. He expressed the view that local decision makers routinely denied this and case law from the Upper Tribunal on the point would be helpful.

17.	However I instead stayed making a decision on this appeal. This was because there was another appeal before me in which the same issue arose and where it was likely to be argued out, and therefore the decision on that appeal might have provided a more appropriate vehicle for giving the guidance Mr Hughes sought.  I pointed out at the time of staying, however, that difficulties remained on this appeal, particularly as to what decision the Upper Tribunal could make in place of the tribunal’s decision if it was set aside.  The Secretary of State appeared to concede that the revision decision of 9 April 2014 was “well intentioned” but without legal authority, but had not explained why that was so.  Moreover, his view that the Upper Tribunal should itself decide that the 16 November 2012 decision was not a decision made under either sections 8 or 10 of the Social Security Act 1998 was a bold submission, problematic and did not explain why that was so or how that would fit with the learning in R(IB)2/04.  The Secretary of State had also failed to work through the consequence of his submission if no lawful decision had been made. For example, if that was so, what was the lawful authority for the payments that have been made to the appellant? 

18.	Sadly, the claimant in the other appeal died, his appeal in consequence was abated, and therefore it could not be the vehicle for giving a reasoned decision on the central issue.  In consequence I gave a further set of directions on this appeal lifting the stay and in which I said, inter alia, the following:

“The underpinning issue that has affected both this case and the decision making in CE/4519/2013 may have been answered by Upper Tribunal Judge Rowland in LH –v- SSWP [(ESA) [2014] UKUT 0480 (AAC)….. that is, how a decision  awarding (contributory) ESA may be changed by way of revision or supersession  Is that accepted? Even if it is accepted, and even if [the appellant] has been paid all the money due to her, what is the proper basis for the Upper Tribunal disposing of this appeal?  If the First-tier Tribunal’s decision was in error of law and needs setting aside (as seems to be the view of the parties) then section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 requires me either to remit it to another FtT or decide the first instance appeal myself. What ought to be the terms of the decision the Upper Tribunal should make on the appeal against the Secretary of State’s decision dated 16 November 2012, and will such a decision fit with the revision decision of 9 April 2014 on page 49?”  

   
19.	The writer of the final submission then filed on behalf of the Secretary of State, Mrs M A Gratrex, helpfully delved further into the facts and uncovered that the history was in some significant respects different from that which previous submissions had reported. This ‘new’ history is accepted by Mr Hughes on behalf of the appellant on all material issues, and I accept it as being accurate.  The important difference is that the decision placing the appellant in the support group with effect from the effective date of her conversion to ESA was a revision decision made by the Secretary of State on appeal and not one made by a First-tier Tribunal.  Further, neither the original conversion decision of 10 October 2011 nor, more importantly, the revision decision of 18 June 2012 revising that original conversion decision, had considered whether the appellant was entitled to the income-related element of ESA.
  
20.	The decision making history therefore was as follows. 

(i)	A conversion decision was made on 10 October 2011 finding the appellant entitled to ESA as she had limited capability for work from and including 26 October 2011. 

(ii)	That decision was then revised on 18 June 2012 following an appeal made by the appellant on 19 December 2011 but before the appeal reached a First-tier Tribunal, and replaced with a decision that the appellant on conversion had limited capability for work-related activity (i.e. she met the support group criteria) from and including 26 October 2011. It was no doubt that decision which led the appellant through her representative to enquire about the EDP.  A form - form ESA3 - was accordingly issued to the appellant on 2 October 2012 to gather information about her financial circumstances.  

(iii)	The return of this form led to the decision of 16 November 2012 (the decision under appeal to the tribunal). This decision superseded the decision of 10 October 2011 (as revised by the decision of 18 June 2012), so as to include the EDP in the appellant’s award of (contributory and income-related) ESA from 6 August 2012, that being the date of application, but refused to (further) revise the decision of 10 October 2011 as the  Secretary of State’s decision maker on 16 November 2012 took the view that the application, if it was for revision, was outside the one month time for seeking an “any time” revision under regulation 3(1)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the “DMA Regs”). 

(iv)	No consideration was given by that decision maker to whether the 18 June 2012 decision could be further revised on the ground of official error under regulation 3(5)(a) of the DMA Regs on the basis of the failure of the 18 June 2012 decision maker to consider whether the EDP was applicable in the light of the appellant being within the support group.

(v)	The decision of 16 November 2012 was upheld by the tribunal on 15 August 2013.

(vi)	A further revision decision was given by the Secretary of State on 9 April 2014.                                           

21.	On this history Mrs Gratrex argued as follows.  The decision of 10 October 2011 as revised on 18 June 2012 was not made in accordance with regulation 8(1) of the Existing Awards Regs, and so was in official error, as it failed to consider whether the appellant might be entitled to income-related ESA (and more particularly, I would say, the EDP).  Rather than superseding from the date of request on 6 August 2012, the decision of 16 November 2012 ought to have revised the 10 October 2011 decision (as already revised by the 18 June 2012 ‘support group’ decision), on the grounds of official error, so as to include the EDP from the effective date of the conversion decision. This was not an error that the appellant had contributed to as she had not been required to provide income-related information on a claim for ESA and no request had been made of her in this respect until she was sent the ESA3 form in October 2012.

22.	However, so argued Mrs Gratrex, on the appellant’s appeal against the supersession decision of 16 November 2012 the tribunal was precluded from making this official error revision decision in place of the supersession decision because the Secretary of State’s decision maker had positively considered revision and refused to revise. She relied in this regard on the Tribunal of Commissioner’s decision in R(IS)15/04 and the Court of Appeal’s decision in Beltekian –v- Westminster CC and another [2004] EWCA Civ 1784; R(H)8/05.  Accordingly, although the tribunal had erred in law in failing to have regard to regulation 8(1) of the Existing Awards Regs and concluding that the award of incapacity benefit could only convert to an award of contributory ESA, such errors of law were not material to the decision it came to as it could not alter the 16 November 2012 decision under appeal to benefit the appellant.

23.	This conclusion, however, was of no material concern as the decision of 9 April 2014 was able properly to revise again the decision of 10 October 2011 so as to include the EDP from the effective date of conversion. The appeal to the Upper Tribunal ought therefore to be dismissed.              

Analysis and Conclusion 

24.	I can see much force in the submissions made by Mrs Gratrex on behalf of the Secretary of State, and in the end agree with them and their  result. Before addressing them, however, it may assist to set out some important features of the ESA statutory scheme.

25.	First, whether a person has limited capability for work-related activity is relevant to the amount of ESA payable, whether contributory or income related (see sections 2(1)(b) and 4(2)(b) of the WRA), once the basic condition of entitlement of the claimant having limited capability for work has been established. ESA therefore does not constitute two benefits, nor does it call for two entitlement decisions to be made on a conversion ‘claim’: one on whether the person has limited capability for work and so is entitled to go into the “work-related activity group”; the other on whether the claimant has limited capability for work-related activity and so can go into the “support group”.  See to similar effect NS –v- SSWP (ESA) [2014] UKUT 149 at paragraphs [11] to [13],  LH –v- SSWP [2015] UKUT 154 (AAC) and AE –v- SSWP [2014] UKUT 005 (AAC); [2014] AACR 23. (Nor are contributory ESA and income-related ESA different benefits: PG –v- SSWP (ESA) [2014] UKUT 0282 (AAC) and LH –v- SSWP (ESA) [2014] UKUT 480 (AAC); [2015] AACR 14.)

26.	Second, the effect of sections 1, 2 and 4 of the WRA, as I explained in MN –v- SSWP (ESA) [2013] UKUT 262 (AAC); [2014] AACR 6 (at paragraph [20]) and DH -v-SSWP [2013] UKUT 573 (AAC), is that a decision that a person has limited capability for work is also an affirmative decision that he or she does not have limited capability for work related activity. This follows from the wording in sections 2(3)(b) and 4(5)(b) in the WRA which confer entitlement to the (amount of the) work-related activity component, respectively for the contributory and income-related allowances, if “the claimant does not have limited capability for work-related activity” (my underlining).    
                                      
27.	Third, it is not disputed before me, and in any event is correct, that as a matter of law it is only if a claimant comes within the support group that they can qualify for the EDP in the prescribed amounts of income-related ESA. This is the effect of section 4(2)(a) of the WRA and regulation 67(1) and paragraph 7(1)(a) in Schedule 4 to the Employment and Support Allowance Regulations 2008. It is also not disputed before me that - in a classic “better off” calculation - qualifying for the EDP may take the prescribed amount of a person’s income-related ESA above the level of contributory (support group) ESA.  For example, taking the figures in place from April 2015, a single person over the age of 24 and in the support group (i.e. who has been found to have limited capability for work-related activity), qualifies for a total allowance of £109.30 per week, whereas the equivalent income-related allowance (assuming the person would not be disentitled for other means-tested reasons, such as having capital in excess of £16,000), with the EDP amounts to £125.05 per week.  The additional sum is here made up solely of the EDP of £15.75 per week. In other words, without the EDP the allowances would be exactly equal. The EDP is thus a valuable (and obvious) additional sum for those who can qualify for it.                                                              

28.	Fourth, and perhaps most importantly for the purposes of this appeal, I accept that the legal effect of regulation 8(1) of the Existing Awards Regs is as contended for by the Secretary of State.  Given the unified nature of ESA as described in paragraph 25 above, the determination by the Secretary of State of the amount of ESA to which a person would be entitled on conversion under regulation 8(1) in my judgment must encompass consideration of both the contributory amount and the income-related amount.

29.	Accordingly, whether on the original conversion decision where the support group criteria are met, or revision of an original conversion decision so as to find the support group criteria are met, given the obviousness of the “better-off” calculation for a person if they are not otherwise disqualified from income-related ESA (e.g. by having too much capital), and ignoring claimant contribution to any error, in my judgment it will amount to an official error for the conversion decision maker or the revision decision maker not to have considered and investigated whether the claimant qualified for the EDP.  To talk in terms of a claimant having to apply for or “claim” the EDP or income-related ESA is, at least in the conversion context, simply wrong and misplaced. The clear effect of regulation 8(1) of the Existing Awards Regs is to impose a legal duty on the Secretary of State to ascertain and determine whether on conversion the claimant qualifies, inter alia, for the EDP regardless of whether the claimant has made a “claim” for income-related ESA or the EDP.      

30.	I therefore accept the argument now put forward by the Secretary of State that the (revising) decision maker of 18 June 2012 made an official error in not considering an award of income-related ESA and the EDP within that revising decision, and the decision maker of 16 November 2012 also erred in not further revising the 10 October 2011 decision (as revised on 18 June 2012) for official error. 

31.	I note what Mrs Gratrex says about R(IS)/15/04. However there may be a material distinction as what the Tribunal of Commissioners were there concerned with was an express refusal to revise for official error decision, which is not the case here. The Commissioners commented at the end of paragraph 78 in R(IS) 15/04 that “[i]t would have been a different matter if the Secretary of State had not made a decision (whether express of implied) on the issue of revision for official error”, and that step was taken by Deputy Commissioner (as she then was)  Humphrey’s in CDLA/1707/2005 and CDLA/1708/2005. It may therefore be arguable that the same exception to the general R(IS) 15/04 rule applies to the supersession decision of 16 November 2012 in this case. Accordingly on the basis, which I accept, that the tribunal erred in law in taking the view it did as to the limits of the conversion process and failing to have regard to regulation 8(1) of the Existing Award Regs, it may be arguable that it further erred in law in not substituting an official error revision decision for the supersession decision of 16 November 2012.        

32.	However, I have heard no argument on this point and I am aware that what I will call the “R(IS) 15/04 end of paragraph 78 exception” may still be controversial: see Judge Rowland’s comments in JA –v SSWP (DLA) [2014] UKUT 44 (AAC) at paragraph 17. I decline therefore to explore these potentially deep waters any further.

33.	A further problem which has troubled me with Mrs Gratrex’s submission is leaving the tribunal’s decision in place. This is because of what I said in paragraph 25 of  VW –v- LB Hackney (HB) [2014] UKUT 0277 (AAC):

“Plainly if the tribunal had set aside Hackney’s decision(s) of 11 April 2011 then there could be no question of the 11 April 2011 decision(s) still existing. But in my judgment the same applies where the First-tier Tribunal confirms the decisions under appeal to it. That, it seems to me, follows from the analysis in R(I)9/63 (at paragraph 19), R(IB)2/04 (at paragraph 15) and ED-v- SSWP (DLA) [2013] UKUT 0583 (AAC).” 

The Court of Appeal in Beltekian expressly left this issue open (see paragraph 13 of its judgment).    

34.	However, in the end I am satisfied (at least for the purposes of this appeal) that the concern does not cut against the Secretary of State’s argument. This is because even on the basis of VW leaving the tribunal’s decision in place only results in the 16 November 2012 supersession decision having been replaced by the tribunal’s decision. That supersession decision confirmed by the tribunal cannot as a matter of law be revised by the Secretary of State. However, the (tribunal’s) supersession decision by its legal nature only took effect from a date after the conversion decision of 10 October 2011 and so arguably did not disturb the 10 October 2011 decision, and thus leaves that decision still capable of being further revised by the decision of 9 April 2014. I am prepared for the purposes of this decision to hold that to be the case, and so side fully with the submissions of Mrs Gratrex. However, this conclusion has not been the subject of any detailed and opposing argument and so should not be treated as legally determinative of this issue (save for on this appeal).

35.	An alternative way of decide this appeal may have been to find that the tribunal had erred materially in law by a combination of (i) its wrong approach to the Existing Award Regs (and regulation 8(1) in particular), as I have found, and (ii) its failure to consider treating the appeal of 19 December 2012 as also (by extending time) being a valid appeal against the 10 October 2011 decision as revised by the 18 June 2012 decision. The 18 June 2012 revision decision was made on appeal and so arguably on an application for revision under regulation 3(1) of the DMA Regs. Therefore the time for appealing would run from 18 June 2012 under (the first) paragraph (c)(ii) in Schedule 1 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. If I had then set aside the tribunal’s decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and either remitted it to the First-tier Tribunal for reconsideration or remade it myself (per section 12(2)(b) of the same Act), then the 9 April 2014 further revision decision would, so the argument would have to run, take effect so as to lapse the appeal and so render any remittal or remaking ineffective. Whether the two options on set aside set out in section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 would fit with this argument will need to await a case where that issue is determinative. It is not so here, however, given the alternative way I have decided this appeal.   
    
36.	A further alternative would be to have found the tribunal to have erred materially in law for the reasons given immediately above and then, in giving the decision the tribunal ought to have given, simply set aside the supersession decision of 16 November 2012 and not replacing it with any other decision, thus leaving it for the 9 April 2014 decision to take effect as a further revision of the 10 October 2011 decision.  The problem with this course, however, would arguably have been identifying the lawful basis for setting aside the tribunal’s decision as being materially in error of law without engaging with the arguments concerning the R(IS)15/04 exception. If that exception does not have force then as the Secretary of State argues it may be difficult to identify a material error of law made by the tribunal in the decision to which it came.                      

37.	However, I do not need to address these alternatives any further as I am satisfied that  the correct course is to dismiss the appeal for the reasons set out above  

Signed (on the original) Stewart Wright
Judge of the Upper Tribunal 
                       
Dated 9th June 2015