Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A94/96(DLA) (28 July 1997)

 


A94/96(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

to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 12 February 1996

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an unusual case in which the claimant seeks leave to appeal against the decision of the Disability Appeal Tribunal sitting at Ballymena, to adjourn the hearing of her appeal against the disallowance of her claim for the care component of disability living allowance.
2. Briefly, the background facts are that the claimant, who was then in receipt of the higher rate of the mobility component of disability living allowance and the highest rate of the care component, submitted renewal claim forms on 27 July 1994. Following receipt of a GP's report and an examination by an Examining Medical Practitioner, an Adjudication Officer on 12 December 1994 awarded the higher rate of the mobility component of disability living allowance from 23 December 1994 to 24 December 1995, but disallowed the care component. The claimant requested a review, and on 27 February 1995 a different Adjudication Officer confirmed the refusal of the care component but revised the decision of 12 December 1994 by extending the award of the higher rate of the mobility component to an award for life. In so deciding, the Adjudication Officer stated that "the evidence clearly shows that customer's condition is chronic and is deteriorating."
3. The claimant's appeal against the Adjudication Officer's decision on review dated 27 February 1995 was of course directed against the refusal of the care component. However, before the date of the hearing the claimant, by letter received on 27 October 1995, stated that she could not come through an appeal. The Adjudication Officer considered that abandonment of her appeal would be disadvantageous to the claimant. Consent to withdrawal was accordingly withheld, and when the appeal came on for hearing on 12 February 1996 the claimant was not present or represented. In her absence the Appeal Tribunal decided to adjourn the hearing of the appeal. In form DAT8 Chairman's note of submissions and evidence was in the following terms:-

"After perusing the scheduled documents and other available medical

evidence we are satisfied that there is information giving us

reasonable grounds for believing that entitlement to higher rate

mobility component ought not to continue. As Mrs D... is not

present to be advised of this, the interests of justice require

that the matter be adjourned to notify her that the Tribunal will

be considering not only whether there ought to be entitlement to

care component, but also whether the higher mobility component

awarded from 23 December 1994 ought to continue."

The documents considered were:-

"1. Scheduled documents.

*2. General Practitioner notes.

*3. Antrim Area Hospital notes.

*4. Letter from General Practitioner - 12 January 1996.

*These have been seen by Mr G(. [Social Security Agency

Representative] They should be made available again at the

adjourned hearing."

It was further recorded that the reason for the adjournment was to advise the claimant that the question of her continued entitlement to the higher rate mobility component would also be considered, and to enable the Independent Tribunal Service to obtain a further report from the claimant's General Practitioner on a number of aspects of his evidence.

4. The grounds of the claimant's application for leave to appeal to the Commissioner were set out in her letter to the Independent Tribunal Service received on 11 April 1996. It was submitted that it was implicit in the Appeal Tribunal's request for further information that there was not at that stage sufficient evidence available to the Tribunal to entitle them to consider the claimant's entitlement to the award for life of the higher rate of the mobility component. A Tribunal's power to consider such an issue is expressly restricted by section 31(6) of the Social Security Administration (Northern Ireland) Act 1992, (the Administration Act), which is in the following terms:-

"31(6) The Tribunal shall not consider -

(a) a person's entitlement to a component which has been awarded

for life;

(b) the rate of a component so awarded; or

(c) the period for which a component has been so awarded,

unless -

(i) the appeal expressly raises that question; or

(ii) information is available to the Tribunal which gives it

reasonable grounds for believing that entitlement to the

component, or entitlement to it at the rate awarded or for

that period, ought not to continue."

It was said that the Tribunal were required to "decide the case on the basis of the information available at the first hearing alone in order to comply with statutory intention", and that the Tribunal's request for more medical evidence was in this context an error of law.

5. In response to an invitation to comment upon this application for leave to appeal Mr Shaw, the Adjudication Officer now concerned with this case, in his letter of 10 September 1996 raised a number of points in relation to the provisions of section 31(6) of the Administration Act. He expressed the opinion that the Adjudication Officer had been fully entitled to make an indefinite award of the higher rate of the mobility component; but acknowledged that he did not have access to all the medical evidence which was available to the Tribunal.
6. I held an oral hearing at which the claimant, who was not present, was represented by Mr O Stockman of Law Centre (NI), 7 University Road, Belfast. The Adjudication Officer in attendance was Mr G L Shaw.

I trust that Mr Stockman and Mr Shaw will forgive me if I make little or no reference to the lengthy and interesting discussion which developed at the hearing. As I endeavoured to explain, the view which I take is that, in the particular circumstances of this case, the Appeal Tribunal had really no option but to adjourn their hearing. The claimant was neither present or represented, and it was the view of the Appeal Tribunal that the evidence before them gave reasonable grounds for believing that entitlement to the higher rate of the mobility component for life ought not to continue. I do not accept Mr Stockman's submission that they required further evidence to enable them to reach that conclusion. In my opinion it would have been entirely wrong, and a breach of the rules of natural justice, for the Appeal Tribunal to proceed to hear and determine the appeal without affording the claimant an opportunity to be heard on that issue. It should be borne in mind, moreover, that, when it adjourned, the Tribunal had not reached any decision on the issue of the claimant's entitlement to the mobility component. They had merely concluded that this was a case in which that issue fell to be considered. Having studied the various decisions of the GB Commissioners on the subject of a right of appeal against a decision which does not purport to dispose of, and finally conclude the issues in the case in question, the conclusion which I have reached is that there is no right of appeal against this Tribunal's decision to adjourn. I should perhaps add that even if the Tribunal's decision to adjourn were subject to appeal, there are not in my view any grounds for holding that that decision was or might be erroneous in point of law. Leave to appeal is accordingly refused.

7. The fact that the claimant has been refused leave to appeal does not mean that she will be deprived of the opportunity of arguing that this is not a case for the application of the provisions of section 31(6) of the Administration Act. At the further hearing it will be open to the claimant to submit that her entitlement to the higher rate of the mobility component for life ought not to be considered, and if she loses on that issue, to go on to argue that, on the evidence, she is entitled to the existing award. Mr Stockman's principal argument before me was that the adjournment of the hearing effectively deprived the claimant of the opportunity of disputing the Tribunal's decision that this was a proper case for the application of the provisions of section 31(6) of the Administration Act. As I have indicated, I do not accept that this is so. That issue will still arise at the further hearing, and in this connection I would refer to GB Decision CSDLA/251/94; one of the cases upon which Mr Stockman relied. As explained in paragraph 15 of that decision, the Appeal Tribunal will be required to "set out sufficient factual foundation to demonstrate that they are entitled to consider entitlement because the case fell within the statutory exception relied upon by them." They will also be required to make their own findings of fact on the further issue of the claimant's entitlement or non-entitlement to the mobility component.
8. My only further comment on this case is that it should go back to the same Tribunal as sat on 12 February 1996. If that is not possible there must be a complete rehearing.

(Signed): R R Chambers

CHIEF COMMISSIONER

28 July 1997