England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

		The Royal Courts of Justice The Strand London Wednesday 1 May 2002

Wednesday 1 May 2002

1. LORD JUSTICE SIMON BROWN: The applicant, Nicholas John Crossley, is very seriously disabled. In 1976, when he was 17, he had bone cancer and his right leg and hip were amputated. Over 20 years later on 3 November 1998 he was awarded disability living allowance from 8 September 1998 for life, that allowance consisting of the mobility component at the higher rate and the care component at the middle rate. He now applies for permission to appeal, and an extension of time within which to do so, against the decision of a social security commissioner, Mr JP Powell, dated 16 August 2001, dismissing the applicant's earlier appeal against the refusal of the Cardiff Appeal Tribunal on 24 January 2000 (a) to award him the higher rate of the care component and (b) to backdate his claim, and thus his entitlement to benefit, to 1977 or thereabouts. I say "1977 or thereabouts" because it appears that a claim was made initially in 1976 or 1977 and that an award was at that time made for one year.
2. The decision of 3 November 1998 was reviewed by a second adjudication officer but not revised. The Appeal Tribunal dismissed the applicant's appeal. So too did the Social Security Commissioner. There have thus been four successive decisions, each of which in turn has concluded that the applicant is not entitled either to a higher rate of benefit or to have his 1998 claim backdated.
3. Let me deal briefly first with the point as to the higher rate of benefit, although it appears (from the first page of the 19-page document submitted to this court on the applicant's behalf by way of a skeleton argument on the application) that it is really only the backdating point which it is sought to take further. To qualify for the higher rate of the care component the applicant had to establish, pursuant to section 72(1)(c) of the Social Security Contributions and Benefits Act 1992, that:

"he is so severely disabled physically or mentally that, at night -

he requires from another person prolonged or repeated attention in connection with his bodily functions; or

in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him."

4. The tribunal's findings as to that appear at page 45 of the court's bundle in these terms:

"We found as facts that Mr Crossley could turn, move position and get in and out of bed safely without someone's help. He would be able to replace bedcovers and pillows if necessary. He would be able to deal independently with any soiling caused by rectal prolapse and would be capable of using both a commode and a urine bottle safely at night without assistance, avoiding the need to get out of bed and use his crutches or prosthesis. Mr Crossley is an intelligent, fully mentally competent man aware of common dangers."

5. It seems to me inevitably to follow that the Commissioner was right to say, as he did in paragraph 16 of his decision, having set out the terms of section 72(1)(c) as I have already done:

"The appeal tribunal decided that neither of these tests had been satisfied. They made findings that the claimant could attend to his bodily functions when in bed at night and said that they were unable to identify any substantial danger which required someone to watch over him. Those were decisions which the appeal tribunal was entitled to reach."

6. The position with regard to the backdating of the claim is somewhat more complex, and indeed occupied the great bulk of the Commissioner's decision. This was because, besides the initial claim which had been made in 1976 or 1977 and granted for one year, there was a subsequent inquiry as to benefit said to have been made in 1994, and there was a subsequent claim made in late 1997 which was rejected by an adjudication officer in April 1998.
7. The application to appeal, however, relates not to the 1994 inquiry nor to the 1997 claim, but rather to the position arising following the initial claim in the late 1970s. Essentially the question of backdating turns on the provisions of section 76 of the 1992 Act, which is in these terms:

"76 -(1) Subject to subsection (2) below, a person shall not be entitled to a disability living allowance for any period preceding the date on which a claim for it is made or treated as made by him or on his behalf.

(2) Notwithstanding anything in subsection (1) above, provision may be made by regulations for a person to be entitled to a component of a disability living allowance for a period preceding the date on which a claim for such an allowance is made or treated as made by him or on his behalf if he has previously been entitled to that component."

8. As to this issue, the tribunal stated (page 46 of the bundle):

"In relation to the request for backdating, s 76(1) of the Social Security and Contributions Act 1992 clearly states that a person shall not be entitled to DLA for any period preceding the date on which the claim is made or treated as made by him or on his behalf. In this case, Mr Crossley requested a claim form on 8.9.98 and returned it duly completed on 22.9.98. His claim was treated as made on 8.9.98. The only way DLA can be paid for a period preceding the date of claim is where a claimant has previously been entitled to DLA (S 76(2)). As Mr Crossley has not previously been entitled to DLA, he is not entitled to DLA for any period preceding the date of claim."

9. The commissioner dealt with the point in paragraph 8 of his decision as follows:

"I begin with his argument that the award he received in 1998, should be backdated some 20 years to the late 1970s. The simple answer to that contention is section 76(1) of the Social Security Contributions and Benefits Act 1992 which provides that, subject to an exception which is not relevant for present purposes, a person shall not be entitled to a disability living allowance for any period preceding the date on which a claim is made or treated as made by the applicant or on his behalf."

10. The applicant seeks to contest that on the basis that the one-year award of benefit made in 1976 or 1977 (which the commissioner accepted in paragraph 9 of his decision the applicant had had) brings him within section 76(2). In my judgment, however, this cannot possibly be correct. Section 76(2) allows for regulations to be made. It does not say that if a claimant has ever had any award relating to any component of what later became disability living allowance in the past, then any future claim -- even if, as here, made 20 years later -- can be backdated. I do not have the regulations before me but it is inconceivable that they could make any such provision. Even assuming, as the Commissioner was expressly prepared to assume in the applicant's favour in paragraph 9 of the determination, that when the original year's award came to an end in 1977 or 1978 the claimant made a further claim which was then wrongly refused (or, alternatively, that he should initially have had a life award), that in my judgment cannot now, 20 years on, found any rights to backdate his recent award or otherwise provide an escape route from section 76.
11. It follows from all this that I feel reluctantly compelled to dismiss the application - not, I hasten to say, on the basis of any delay in making it -- that delay is readily excusable -- but rather because no appeal here could in my judgment succeed. Sympathetic though inevitably one is to someone in the applicant's position, sympathy, alas, cannot win appeals.
12. I add just this, because Mrs Clare, who has accompanied the claimant to court today, has urged me to do so. There appears to be a possibility that, apparently for the first time, a qualified lawyer, knowledgeable in this branch of the law, may now be able to examine this case. If a qualified barrister or solicitor, having regard to what I have already said in this judgment (the transcript of which I indicate should be prepared as speedily as possible and sent at public expense to the applicant) prepares an opinion indicating that, despite what I have said, it is to be regarded as properly arguable that regulations under section 76(2) do indeed allow backdating here, and if that opinion is submitted in writing to the Court of Appeal Office for my attention within 30 days, the matter should be brought to my attention, and in the light of that, I will consider whether or not to reopen this hearing.
13. With the best will in the world, I would not wish to encourage any sense of optimism in the applicant. It seems to me, as already indicated, in the highest degree improbable that any qualified lawyer in this field could, in all honesty, advise that there remains a sound argument here to be advanced in this case. That, however, is an order that I am prepared to and now do make.
ORDER: Application refused with liberty to apply upon legal advice within 30 days. Transcript of the judgment to be expedited and a copy to be sent to Mrs Clare for the applicant at public expense. (Order not part of approved judgment)