Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C49/96(DLA) (11 July 1996)

 


Decision No: C49/96(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 and appeal to the Social Security Commissioner on a question of law from the decision of the Dungannon Disability Appeal Tribunaldated 17 October 1995 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) leave having been refused by the Chairman.
2. The decision appealed against was the award of the lower rate mobility component from 23 December 1992 for life and the award of the higher rate care component from the same date. The Tribunal backdated the award for 3 months before the receipt of the request for review which was 23 March 1993 consequently awarded arrears from 23 December 1992.
3. The leave to appeal is against the non-allowance of the higher rate mobility component. I arranged an oral hearing at which claimant was represented by her husband and the Adjudication Officer was represented by Mr Shaw.
4. At that hearing Mr D... argued that the guidance and supervision which his wife required was sufficient to enable the Tribunal to come to the conclusion that she was entitled to the higher rate because of her severe mental impairment and her behavioural problems. He said that the Psychiatrist quite clearly stated she required constant attention and cannot be left alone and required frequent attention from another person.
5. Mr Shaw who represented the Adjudication Officer made a written comment on the claimant's application for leave to appeal in which he submitted that the Tribunal gave clear consideration to the proper tests in respect of the mobility and had indicated in the reasons for its decision why it held that they did not apply. He said that there was no error of law in their decision in that regard. However he then went on in his written comments to record:-

"I note however that the issue before the tribunal was the question

whether there were grounds for review of the Adjudication Officer's

decision of 21 September 1992. The chairman has not recorded what

grounds the tribunal decided were satisfied. If, as seems likely,

the grounds were other than relevant change of circumstances due to

deterioration, then the original decision would fall to be reviewed

ab initio, with any payment being limited to 3 months from the date

of application for review. There is provision for extending the

3 months limitation in cases where there was continuous good cause

for the delay in applying for review, up to a maximum of one year.

I submit that while the burden of proof is on the claimant to show

that the test of continuous good cause is satisfied, it is for the

adjudicating authority to investigate the question of good cause

if it is in issue (R(I)8/67). The restrictions on payment may also

be removed in certain cases. These provisions are all set out in

regulations 57 and 59 of the 1995 Adjudication Regulations.

I therefore submit that while the tribunal did not err in the manner

set out in the application for leave, the tribunal did err in

failing to deal properly with the review issue and the associated

question of payment limitation. The absence of a written submission

from the Adjudication Officer together with the lack of a presenting

officer to assist the tribunal at the hearing, must have contributed

to the tribunal's error, and I regret these shortcomings.

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

Commissioner treating the application as an appeal and determining

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

6. At the hearing Mr D... who spoke on behalf of Mrs D... argued that his wife should get the higher rate mobility and referred to Dr N…'s report in which he said "She is unable to remain alone at home and cannot go out alone", and considered that section 73(d) was applicable to Mrs D....
7. Mr Shaw argued that Mr D... misunderstood section 73(d) because it was not an issue as she was already getting the lower rate care component, but that in any event on the evidence he did not quarrel with the argument relating to the award of the higher rate care component nor did he quarrel with the low rate mobility component. His only quarrel was with the date from which the benefit would run. He said that the Tribunal should have considered whether or not there were grounds for the Adjudication Officer to review the original decision of the 21 September 1992 which made an award of the lower rate mobility and the lower rate care component from 22 May 1992 to 21 May 1997. He said that there was sufficient evidence before the Adjudication Officer for him to find that there was an entitlement to the higher rate care on the grounds that claimant suffered from severe mental impairment. He said there was sufficient evidence to support such an award and the Adjudication Officer erred in law in not considering that evidence. He also accepted that the Adjudication Officer erred in law in his original decision and consequently the Tribunal was not limited in awarding backpayment because the Adjudication Officer erred in not taking the evidence into account which was available to him at the time.
8. I have considered this matter at length and I have read all the documents in the case. The Tribunal found as a fact that since before 23 September 1992 Mrs D... suffered from schizophrenia and was unable to go out alone due to altered perception and anxiety and that she required supervision in the form of overseeing, reassurance and calming. They also found an entitlement to the higher rate care component from 23 December 1992 for life and limited the backdating of the mobility component to 3 months before the date of receipt of the request for review of 23 March 1993 so it would appear that that is where the 23 December 1992 date was arrived at, although the Tribunal found that her complaints were before 23 September 1992.
9. It is quite clear, although the Tribunal did not spell it out that it considered whether or not there were sufficient grounds to review the original decision because of her mental condition even though that evidence was before the Adjudication Officer. Also the fact that the Adjudication Officer had that evidence and failed to take it into account means that he erred in law and consequently the backdating is not restricted and can go back to the date of claim, namely 22 May 1992 and I accept Mr Shaw's concession in this.
10. I am satisfied the Tribunal erred in restricting the backdating, it also erred in not specifically saying that it considered the review and making a finding in relation thereto although one can read into their findings that it did so.
11. I therefore allow the appeal and I set aside the decision. This is a proper case in which I should exercise the power vested in me to give the decision which the Tribunal should have given. I accept and adopt the findings of the Tribunal relating to claimant's entitlement to both benefits but extend the period of entitlement. My decision is that the claimant is entitled to the higher rate care component and the lower rate mobility component from 22 May 1992 for life and that any disability living allowance benefit paid to her since that date should be offset against this award.
12. I am very much obliged to Mr Shaw for his helpful assistance in this matter.

(Signed): C C G McNally

COMMISSIONER

11 July 1996