Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C34-95(DLA) (4 August 1995)

 


Decision No: C34/95(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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 8 August 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer who reviewed her entitlement to disability living allowance (DLA) and withdrew the mobility component which she was receiving.
2. Briefly the facts are that the claimant who is now 65 years of age claimed DLA on 3 April 1992 and she was awarded the lower rate mobility component from 6 April 1992. She was medically examined as a result of a letter which she wrote on 10 February 1993 by a Medical Officer in July 1993. Having received this report a different Adjudication Officer purported to review the decision of the Adjudication Officer of 18 August 1992 and revised it to disallow her claim and withdraw the benefit from 18 August 1993. The decision of the Adjudication Officer is recorded in the submission to the Tribunal as:-

"My revised decision is that Miss B... is not entitled to

the mobility component of Disability Living Allowance at the

lower rate Disability Living Allowance is not payable from and

including *18.8.1993."

There is an asterisk which says, "this date is incorrect and should read 6.4.1992". I am not sure whether or not the Adjudication Officer in the submission to the Tribunal thought that that was a sufficient way to amend an error. However, the DAT upheld the decision of the Adjudication Officer, dismissed the appeal and held that she was not entitled to either the mobility or the care component of the DLA.

3. Claimant sought leave to appeal against that decision to the Commissioner and the Adjudication Officer, who was asked to comment on her application, replied as follows:-

"In her application, Miss B... does not appear to have raised

a specific point of law. I submit, however, that the tribunal has

erred inasmuch as they addressed the incorrect question. They dealt

with the appeal as though it were an appeal against a decision made

on a claim, whereas the question before them was whether there were

grounds for review of the award made on 18 August 1992 to award the

lower rate of mobility component of disability living allowance for

life.

The requisite grounds are set out in S28(2) of the Administration

Act 1992 (S100(2) of the 1975 Act) and are, in brief

a. the decision was given in ignorance of, or was based

on a mistake as to, some material fact;

b. a relevant change of circumstances subsequent to the

decision;

c. an anticipated relevant change of circumstances;

d. an error in point of law;

e. where the award was subject to a condition which is not

fulfilled.

There is one more legal basis for a review, that is in regulation

17(7) of the Claimant and Payments Regulations -

(7) In any case where benefit is awarded in respect of days

subsequent to the date of claim, the award shall be subject to

the condition that the claimant satisfies the requirements for

entitlement; and where those requirements are not satisfied the

award shall be reviewed.

Whether a review is carried out under S28(2), or regulation 17(7),

the burden of proof lies on the adjudication officer to show that

the grounds for review are satisfied, in the case of a disallowance

(as here). Reported Commissioner's decisions R(I)1/71, R(S)4/86

may be of relevance.

I notice that the adjudication officer who carried out the S28(2)

review on 17 August 1993 based his decision on the grounds that the

decision of 18 August 1992 was made in ignorance of a material fact -

"that Miss B...'s disability is not so severe as to allow an

award of Disability Living Allowance". This did at least attempt

to address the issue of review. However the adjudication officer's

decision to withdraw the allowance from 18 August 1993 (the day

following his decision) would not be consistent with the basis for

his review, which would extend back to the beginning of the original

award.

Unfortunately the review under S28(1)(any ground) carried out on

11 February 1994, dealt only with the disability aspect, as though

deciding the whole claim de novo. The submission to the tribunal,

likewise, neglected the important review considerations. Should

the Commissioner decide to allow the application and refer the matter

back to another tribunal, I will undertake to have an additional

submission prepared which will address the relevant issues concerning

the review aspect of the appeal.

Should the Commissioner decide to grant leave, I consent to his

treating the application as an appeal and determining any question

arising on the application as if it arose on appeal."

4. Both parties having consented to me dealing with the application as though it was an appeal, I propose to do so.
5. In the light of the concession by the Adjudication Officer I allow the appeal, refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal for the reasons given by the Adjudication Officer.
6. I note that the Adjudication Officer undertakes to have an additional submission prepared which will address the relevant issues concerning the review aspect of the appeal as the original submission left a lot to be desired.

(Signed): C.C.G. McNally

COMMISSIONER

4 August 1995