Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C27/96(DLA) (12 September 1996)

 


C27/96(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 8 February 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer against the decision of the Disability Appeal Tribunal sitting at Craigavon; whereby it was held that the claimant was entitled to the lower rate of attendance allowance from and including December 1995 to 30 November 1997.
2. It is unnecessary to set out the full history of this claim. Briefly, the relevant background facts are that the claimant was entitled to the higher rate of attendance allowance from 28 May 1993 to 28 May 1994. On 29 September 1994 an Adjudication Officer disallowed the renewal claim from and including 29 May 1994, and the disallowance was confirmed by a decision on review dated 20 December 1994. It was this decision on review which was the subject of the appeal to the Disability Appeal Tribunal. As stated in paragraph 1 above, the Tribunal held that the claimant was entitled to the lower rate of attendance allowance for 2 years from 1 December 1995. The reasons for the Tribunal's decision, as recorded by the Chairman, incorporate their findings of fact, and were as follows:-

"On the weight of all the evidence including the appellant's

direct evidence to the Tribunal today she does require frequent

attention throughout the day in connection with her bodily

functions because of her shortness of breath and tightness in

the chest related to her heart trouble. Operative treatment

is proposed.

The symptoms have deteriorated over the past 12 months and while

initially they did not cause considerable disability she has been

quite disabled since in or about June 1995. We establish that

the qualifying period has been satisfied as at 1 December 1995 and

we make the award from that date. In view of the contemplated

operative treatment and the possibility of some improvement in

her condition we make the award for 2 years.

The appellant has occasional night time symptoms but she does

not require repeated or prolonged attention in connection with

her bodily functions on most nights and therefore does not

satisfy the criteria for the higher rate Attendance Allowance."

3. Although the Adjudication Officer is the appellant in this case the appeal has been brought in the interests of the claimant. The grounds of the appeal are as follows:-

"The tribunal erred in making the award from 1 December 1995 when

it had determined that the disability conditions were satisfied

in or about June 1995. As there had previously been entitlement

to attendance allowance at the higher rate from 28 May 1993 to

28 May 1994, there was satisfaction of the qualifying period by

virtue of regulation 3 of the attendance allowance regulations

(6 months satisfaction of one or both of the conditions in

S64(1) of the Social Security Contributions and Benefits

(NI) Act 1992). Entitlement should therefore have commenced

on the appropriate date in June 1995 when the disability

conditions became satisfied.

and

In making an award of attendance allowance for a fixed period

the Tribunal erred in law by failing to have regard to the

provisions of regulation 27(7) of the Social Security (Claims

and Payments) Regulations (Northern Ireland) 1977. 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.

If the tribunal did have regard to regulation 17(7) then they

erred in law because the chairman failed to record why an

indefinite award was inappropriate in the circumstances of the

case, which were that there was a possibility of operative

treatment with possible consequent improvement. The tribunal

further erred because the chairman failed to record why the

tribunal determined that an award period of 2 years was

appropriate in the circumstances of the case."

4. In her written observations on the appeal, the claimant by letter dated 19 June 1996, stated that she did not wish to oppose it. She further submitted that her disabilities were such that she should have been entitled to attendance allowance at the higher rate; but that is not a point of law and accordingly does not represent a further ground of appeal.
5. Having considered this matter, I agree that the Tribunal erred in law in applying the normal 6 month qualifying period, and thereby delaying the commencement of their award until 1 December 1995. As the Adjudication Officer has pointed out, regulation 3 of the Social Security (Attendance Allowance) Regulations (NI) 1992 provides that the prescribed period for the purposes of S.35(2)(b) of the Social Security (Northern Ireland) Act 1975, (now S.65(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) shall be two years. Section 65(1) of the 1992 Contributions and Benefits Act is in the following terms:-

"Subject to the following provisions of this Act, the period for

which a person is entitled to an attendance allowance shall be -

(a) a period throughout which he has satisfied or is likely

to satisfy the day or the night attendance condition or

both; and

(b) a period preceded immediately, or within such period as may

be prescribed, by one of not less than 6 months throughout

which he satisfied, or is likely to satisfy, one or both

of those conditions."

6. The claimant having satisfied the conditions of entitlement for the 6 month qualifying period within the previous 2 years by virtue of her award of attendance allowance for the year from 28 May 1993 to 28 May 1994, the Tribunal's award should have commenced immediately following the date on which she was held to have satisfied the relevant conditions of entitlement. The Tribunal decided that the claimant's increased disability commenced in or about June 1995 and expressed the opinion that the 6 month qualifying period had been satisfied as at 1 December 1995. I therefore conclude that the Tribunal were of the opinion that the claimant satisfied the day attendance condition of entitlement from 1 June 1995. On this basis the award should also have commenced on that date and the Tribunal erred in law in postponing it as they did.
7. The Adjudication Officer's second ground of appeal is that the Tribunal erred in law in failing to have regard to the provisions of regulation 17(7) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1977. From a study of the Tribunal's reasons for decision it seems to me to be clear that they considered whether an award for life would be inappropriate and have sufficiently explained why, in their view an award of 2 years duration was thought to be appropriate. I am further of the opinion that there was evidence to support their decisions on these matters and I accordingly do not accept that the Tribunal erred in law in relation to them.
8. As the Tribunal erred in point of law as explained in paragraph 5 above, I allow this appeal and set their decision aside. I consider that this is a case in which it is appropriate that I should give the decision which the Tribunal should have given. I adopt the Tribunal's findings of fact that from 1 June 1995 the claimant has required frequent attention throughout the day in connection with her bodily functions, and that she does not require repeated or prolonged attention in connection with her bodily functions on most nights. I further find that in view of contemplated operative treatment and the possibility of improvement in the claimant's condition it would be inappropriate to make an award for an indefinite period, and that, in the circumstances of the case, an award for a period of two years would be appropriate. My decision therefore is that the claimant is entitled to attendance allowance at the lower rate (for day needs) from and including 1 June 1995 to 30 May 1997.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 September 1996