Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C8-93(AA) (19 February 1993)

 


Decision No: C8/93(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Application out of time by the above-named claimant for

leave to appeal and appeal to the Social Security Commissioner

on a question of law from the determination on review by the

Attendance Allowance Board for Northern Ireland

given on 3 April 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a late application on behalf of the claimant for leave to appeal against the decision of an Attendance Allowance Board given on review to refuse an attendance allowance in respect of the child.
2. Briefly the facts are that the child who is now 9 years old has reduced hearing in both ears, his speech is poor, he wears two hearing aids, attends a special unit at a primary school, he is found to be very demanding and aggressive with his brothers and sisters. His mother made a claim on 11 December 1990 for an attendance allowance and after a medical examination the Board refused the application on 19 September 1991.
3. A successful appeal was made to the Commissioner who set aside the decision of the Attendance Allowance Board after the Solicitor on behalf of the Department of Health & Social Services conceded that the Board had erred in several instances in its findings and in the recording of its findings.
4. The Board considered the matter again and on 1 April 1992 the Chairman of the Board signed a document DS202B which would appear to be a review of the determination of the Attendance Allowance Board and while most of the alternatives are left open expressed the opinion relating to day supervision, "Behaviour is a management problem" and it would appear that on that ground the review was carried out but no alteration was made to the previous decision. However a long and reasoned decision of 3 April was sent to the claimant giving reasons why the Board would not award the allowance.
5. Having received this rejection an appeal was lodged to the Commissioner against the Board's decision. In the application for leave to appeal claimant's representative gave the grounds of an appeal as:-

"The Attendance Allowance Board erred in law by failing to set out

the appropriate changes required in relation to parental control

and home environment in order to modify S...' behaviour.

The applicant has no way of knowing (or responding to) the changes

the Board had in mind and no opportunity is provided to determine

whether such changes are reasonable. The Board had previously

recorded that S... lives with his parents and ten brothers and

sisters in two caravans, therefore, it is especially difficult

to envisage the changes of his home environment which would ease

behavioural problems.

In R(A) 5/90, a Tribunal of Commissioners held that the Delegated

Medical Practitioner must identify the precautions to be taken

and activities to be refrained from in order to avoid substantial

danger from falling. This principle applies equally to the

M... case."

6. Having received a copy of the grounds of appeal the Disability Living Allowance Branch of the Social Security Agency wrote as follows:-

"My view is that the Board have erred in arriving at their

decision in this case.

I would have to reiterate the comments made by the

representative from Belfast Law Centre ie that the

Board erred in law by failing to set out the appropriate

changes required, in relation to parental control and

home environment in order to modify S...' behaviour.

The Department consents to this application being treated

as an appeal."

7. I accept the concession made on behalf of the Social Security Agency and both parties having consented to me treating the application as an appeal and determining any question arising on the application as though it were a question arising on appeal I propose so to do. Before that I must deal with the question of the late application for leave to appeal. It would appear that the Department sent out its decision in April 1992 but as it was undelivered it was returned and the Attendance Allowance Board did nothing about that until it was approached in September and would appear that in fact the Attendance Allowance Board had lost the file. In any event I am satisfied that there are special reasons for the late application and I accept it.
8. For the reasons set out in the letter from the Social Security Agency I allow the appeal, set aside the decision of the Attendance Allowance Board again and refer the matter back to be adjudicated upon at second-level adjudication when the facts and the observations by the claimant and the Agency should be taken into account.

(Signed): C C G McNally

COMMISSIONER

19 February 1993