Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1994] NISSCSC C2-93(DLA) (22 April 1994)

 


Decision No: C2/93(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 DISABILITY LIVING ALLOWANCE Appeal to the Social Security Commissioner on a question of law from the decision of the Dungannon Disability Appeal Tribunal dated 21 June 1993 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Adjudication Officer against the decision of a Disability Appeal Tribunal and comes by leave of the Chairman of that Tribunal.
2. I held an oral hearing at which the Adjudication Officer was represented by Mrs Fearon. The claimant was not present nor represented. The facts are that on 20 October 1992 a claim for disability living allowance was made by the claimant and the claim was backdated to 30 April 1992 because a previous application had been made on that date. On 26 November 1992 an Adjudication Officer awarded disability living allowance at the middle rate from 30 April 1992 to 31 July 1995. But because an attendance allowance application had been made in respect of claimant's child who suffered from asthma and required attention another Adjudication Officer disallowed the claim for disability living allowance from 22 July 1992. The Adjudicating Authorities considered that because there were two decisions in respect of the same period all the papers were passed to a review Adjudication Officer due to determine the claim and having considered all the evidence he decided that E..., the child was not entitled to disability living allowance. Claimant appealed against this decision and when the appeal was received a further Adjudication Officer, in a submission, was prepared to concede that the lower rate disability living allowance care component was payable. The Disability Appeal Tribunal which heard the appeal found the following:-

"The claimant is entitled to

(1) The lower rate of Care Component of Disability Living Allowance for the period 30 April 1992 to 1 August 1992.

(2) The Highest rate of Care Component of Disability Living Allowance from 2 August 1992 to 4 December 1992.

(3) The lower rate of Care Component of Disability Living Allowance from 5 December 1992 for a period of five years until 4.12.1997."

and the Tribunal gave reasons for its decision as follows:-

"The Tribunal is satisfied from all the evidence available that E... has asthma but that it is not severe enough to warrant benefit at middle or higher rates except for the period when she suffered encephalitis (2 August 1992 to 4.12.1992). The Tribunal accepts that she requires attention from her mother for a significant portion of the day in connection with bodily functions."

3. The Adjudication Officer sought leave to appeal to the Commissioner against that decision and in his application for leave set out his reasons as:-

"The Tribunal erred in awarding the highest rate of the care component of disability living allowance from 2 August 1992 to 4 December 1992; although the evidence was to the effect that the requisite care was required by night and day for this period, the tribunal failed to take account of both the qualifying period and the prospective test which must be satisfied for entitlement to commence. Section 72(2) of the Social Security Contributions and Benefits (NI) Act 1992 stipulates a qualifying period of 3 months prior to the date entitlement commences, together with a period of 6 months beginning with that date. The claimant could not satisfy these conditions on the facts of the case.

It does appear that the submission to the tribunal could have been more helpful by pointing out the need to take account of these conditions. Arrangements have been made to include an appropriate paragraph in future submissions."

Leave to appeal was granted by the Chairman and I arranged an oral hearing of the application at which claimant did not appear nor was she represented, but the Adjudication Officer was represented by Mrs Fearon who readily conceded that an error had been made.

4. Mrs Fearon said there was also a lot of discussion at the Tribunal as to whether or not a Disability Appeal Tribunal should have access to hospital reports and also whether or not the duration of the award should be for a fixed period without any explanation as to why that period was arrived at. However, these matters have no bearing on the actual ground of appeal set out by the Adjudication Officer, and it is quite clear that an error of law appeared in the Tribunal's decision and that the Adjudication Officer in his notice of appeal is correct in saying that the Tribunal failed to take account of the qualifying period and the prospective period.
5. For this reason I allow the appeal by the Adjudication Officer and must now consider how the matter should be dealt with. While there may be great force in the argument that a Disability Appeal Tribunal should not have access to hospital records, nevertheless that access has no ill-effect as far as this claimant was concerned and I consider that this would not be an appropriate occasion to deal with that argument. However, the arguments relating to the length of the award and the period of time in which the award will operate has more force because this award was given for 5 years from December 1992 without any explanation as to how that period was arrived at.
6. Section 71(3) of the Social Security Contributions and Benefit (Northern Ireland) Act 1992 reads:-

"A person may be awarded either component for a fixed period or for life."

Normally benefits are for an indefinite period and if a Tribunal is awarding a benefit for a fixed period it should give an explanation as to how that period was arrived at. One may assume that in this particular instance, because a child in December 1992 was 5 years of age and suffered severely from asthma that the Tribunal took the view that in the fullness of time the complaint may clear up or her requirements might be less, but I think that it is both advisable and desirable that an explanation should be given as to how a fixed period was arrived at. It may well be that some of the medical reports may have referred to this, but then this creates another problem because neither party to the appeal has access to these medical reports. In any event as I have said this is not a proper time to deal with this complicated issue, as the only point appealed by the Adjudication Officer related to the period from 2 August to 4 December 1992. Sufficient it is to say that I allow the Adjudication Officer's appeal in this instance and give the decision which the Tribunal should have given. I adopt the decision of the Tribunal, except number (2) relating to the higher rate component from 2 August 1992 to 4 December 1992 because on the reasons given it is clear that it is only during that period that the Tribunal considered that there was an entitlement to the higher rate. Neither the 3 months qualifying period or the 6 months prospective test would create an entitlement for that period. I am satisfied that for the period from 2 August 1992 to 4 December 1992 claimant is only entitled to the care component of the disability living allowance at the lower rate. In other words claimant would be entitled to the lower rate from 30 April 1992 to 4 December 1997.

(Signed): C C G McNally

COMMISSIONER

22 April 1994