Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C26-95(DLA) (14 September 1995)

 


Decision No: C26/95(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 Dungannon Disability Appeal Tribunal dated 27 March 1995 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by Mr G L Shaw, the Adjudication Officer now concerned with the case, against the decision of the Disability Appeal Tribunal sitting at Dungannon, whereby it was held that the claimant was entitled to the middle rate of the care component of disability living allowance from 17 September 1993 to 16 September 1998, but was not entitled to the mobility component of the allowance.
2. Although the Adjudication Officer is the appellant, the appeal has been brought in the interests of the claimant. It concerns a short technical point as to the date from which the Tribunal decided that the award should take effect. The case file does not include a written submission, which no doubt accounts for the Tribunal's lack of awareness of the technical point. It also makes it somewhat difficult to ascertain the background facts. As I understand it, the claimant was in receipt of the middle rate of the care component of disability living allowance until 28 August 1993. However, it was not until 17 September 1993 that she made her renewal claim. This was refused by the Adjudication Officer by decision dated 4 October 1993, and the refusal was confirmed by a decision on review dated 10 February 1994. It was the claimant's appeal against the decision on review which was considered by the Appeal Tribunal at the hearing on 17 March 1995. As indicated in paragraph 1 above, the appeal was successful to the extent that the claimant's previous award of the middle rate of the care component of the allowance was reinstated. It was, however, directed that entitlement was to commence on 17 September 1993, which meant that there was a short gap between the ending of the claimant's previous award and the commencement of the new one. No doubt the Appeal Tribunal had in mind the provisions of section 76 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which precludes entitlement to a disability living allowance for any period preceding the date on which a claim for it is made. However, as Mr Shaw has pointed out, regulation 5 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, also provides that, notwithstanding section 76, where a person's entitlement to disability living allowance has ended and that person makes a claim for the allowance after entitlement has ended, but within a period of 6 months immediately following the day on which it ended, entitlement will commence prior to the date of claim, provided the disability conditions are satisfied. The Tribunal found that the conditions for the middle rate of the care component were satisfied for at least 3 months prior to the date of claim, and in Mr Shaw's submission the award should therefore have been made from the day after the previous award ended, ie from 29 August 1993.
3. This appeal having been brought in the claimant's interests, it is not surprising that there has been no response from her to the usual invitation to submit written observations upon it. Having considered the grounds relied upon by the Adjudication Officer I find myself in full agreement with his conclusion that the Appeal Tribunal erred in law in failing to apply the provisions of regulation 5 of the Disability Living Allowance Regulations. As has been pointed out, this was no doubt due to the absence of a written submission. I accordingly allow this appeal and set aside the decision of the Appeal Tribunal.
4. This is clearly a case in which I should exercise my power to give the decision which I consider the Tribunal should have given, without making any fresh or further findings of fact. I accordingly confirm the Tribunal's decision in all respects save that the claimant's entitlement to the middle rate of the care component of disability living allowance will be from 29 August 1993 to 28 August 1998.

(Signed): R R Chambers

CHIEF COMMISSIONER

14 September 1995