Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C24/96(DLA) (12 September 1996)

 


C24/96(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

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 21 February 1996

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 Belfast; whereby it was held that the claimant was entitled to the highest rate of the care component of disability living allowance and the lower rate of the mobility component; both awards to run from 28 May 1993 to 27 May 1998.
2. The grounds of Mr Shaw's appeal to the Commissioner, as set out in his letter of 2 April 1996 to the Tribunal Chairman are as follows:-

"The Tribunal erred in failing to have regard to the issue before

them which was whether grounds existed to review the decision of

2 February 1994. (Mistakenly given as 22 February 1994) If they

did have regard to this issue then the Tribunal erred in law

because the Chairman failed to record findings and reasons as he

was obliged to do by regulation 29(5) of the Social Security

(Adjudication) Regulations (Northern Ireland) 1995. Findings

were required to show -

. the grounds which were satisfied to enable review to be

carried out;

. any relevant material facts;

. the date the decision was effective from;

. the question of restriction on payment of arrears including

good cause if appropriate; regulations 57 and 59 of the

Social Security (Adjudication) Regulations (Northern

Ireland) 1995 refer.

I submit that decision number CSDLA/128/94 confirms that tribunals

should determine review questions along the above lines.

The Tribunal made a decision which no reasonable tribunal properly

instructed as to the law could have made by restricting the award

of disability living allowance to a period of 5 years from the date

of claim, because the claimant is undergoing experimental treatment

in relation to torticollis. The question of whether an award

should be indefinite or should be restricted to a particular

period is governed by regulation 17(6) of the Social Security

(Claims and Payments) Regulations (Northern Ireland) 1987.

This states:-

If, in any case outside paragraph 4, it would be

inappropriate to treat a claim as made, and to make an

award, for an indefinite period (for example where a

relevant change of circumstances is reasonably to be

expected in the near future) the claim shall be treated

as made and the award shall be for a definite period

which is appropriate in the circumstances.

I submit that this regulation consists of 2 tests. The first

is whether it is inappropriate to make an indefinite award.

It is not clear whether the tribunal had regard to this

provision, but if they did, it appears that the decision that

an indefinite award was inappropriate in the circumstances of

this case may have been based on incorrect considerations. The

claimant was 35 years old at the time of the hearing; her

condition was of a chronic nature and substantially unchanged

since 1993. The tribunal had no evidence before them of any

improvement which would be likely to occur. The application

of an unproved treatment would appear to be an irrelevant

consideration to the question of whether an indefinite award

is appropriate."

3. As in many cases involving this benefit, the background facts are somewhat complicated. In response to her initial claim for disability living allowance, the Adjudication Officer on 7 July 1993 awarded the claimant the lowest rate of the care component from 28 May 1993 to 27 May 1995. On 19 October 1993 the claimant requested a review, and on 2 February 1994, following examination by an Examining Medical Practitioner (EMP) a different Adjudication Officer reviewed the decision of 7 July 1993 and revised it so as to award the lowest rate of the care component for an indefinite period from 28 May 1993, and the lowest rate of the mobility component from 28 May 1993 to 27 May 1996. In making this award the Adjudication Officer declared himself satisfied that the decision of 7 July 1993 was given in ignorance of the material fact that the claimant suffers from panic attacks and cannot walk out of doors unaccompanied. After receipt of a further request for review on 31 January 1995, medical reports were obtained from the claimant's General Practitioner and she was again examined by an EMP. On 24 April 1995 an Adjudication Officer refused to review the decision of 2 February 1994: it being stated that he was not satisfied that any of the grounds for review set out in section 28(2) of the Social Security Administration (Northern Ireland) Act 1992, (the Administration Act) had been established. On 3 July 1995 the claimant requested a further review, and on 11 September 1995 a different Adjudication Officer reviewed the decision of 24 April 1995 but did not revise it. The basis of this refusal to revise was that the Adjudication Officer was satisfied that the decision of 25 April 1995 had been correctly reached, in that there were no relevant grounds for revision of the previous decision.
4. The Social Security Agency was not represented at the hearing of the claimant's appeal against the Adjudication Officer's decision of 11 September 1995, and it appears that the Tribunal overlooked the fact that they were not concerned with a refusal to review an original disability living allowance decision. The Appeal was against a refusal to review the decision of 24 April 1995, which in its turn was a decision to the effect that there were no relevant grounds for the review of the previously existing award. The Appeal Tribunal should therefore have considered whether, on the evidence at their disposal, there were any valid grounds, as set out in section 28(2) of the Administration Act, upon which the Adjudication Officer on 24 April 1995 should have reviewed and revised the claimant's earlier award. As it happens, there was in my opinion evidence upon which the Tribunal could readily have reached the conclusion that the decision of 24 April 1995 was incorrect, and that there were indeed grounds for the review of the earlier decision. For example, the Tribunal might well have found that the decision dated 7 July 1993 was given in ignorance of the material fact that the claimant is subject to inflicting self-injury or attempting suicide, and that in consequence she requires continual supervision during the day and watching over for a prolonged period at night in order to prevent substantial danger to herself. In effect, this was what the Tribunal did decide; but as Mr Shaw has pointed out, their approach to the appeal was incorrect and they failed to identify any grounds which would have entitled the Adjudication Officer to alter the existing award of the allowance.
5. For the reasons given in paragraph 4 above I allow this appeal, set aside the decision of the Appeal Tribunal, and refer the case for determination by a new Tribunal.
6. The Appeal procedure in disability living allowance cases is complicated and it is not surprising, that in the absence of a representative from the Social Security Agency, the Appeal Tribunal should have fallen into error. The new Tribunal should have regard to the views expressed in this decision. In addition, I draw their attention to the decision of the GB Commissioner in CSDLA/128/94. This decision provides useful guidance on the effect of the GB equivalent of section 28 of the Administration Act, and should be of considerable assistance to the new Tribunal when they come to consider the main issue in this case which, as Mr Shaw has pointed out, comes down to the question of whether grounds existed to review the decision of 2 February 1994. The new Tribunal will also need to have regard to the restrictions imposed by regulations 57 and 59 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995, on the date from which benefit under a revised award should become payable. Again the decision in CSDLA/128/94 provides detailed guidance on this subject.
7. Mr Shaw has also questioned whether the Appeal Tribunal were justified in restricting their award to a period of 5 years from the date of claim. In view of my decision on the principal issue in this appeal, it is unnecessary for me to express a concluded view on this subject. However, my initial reaction is that, on the evidence at their disposal, the Tribunal did not err in law in deciding that, in the circumstances of this case, the award should be for a fixed period. It was for the Tribunal to decide, on the evidence at their disposal and in the light of their knowledge and experience of life in general, whether it would be inappropriate to treat the claim as made and to make an award for an indefinite period. In my view the Tribunal considered this issue and if their decision had otherwise been correct in point of law I do not feel that I would have been justified in setting it aside.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 September 1996