Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C4/96(AA) (12 February 1997)

 


Decision No: C4/96(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 15 August 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 decided that the claimant was entitled to the higher rate of attendance allowance from and including 25 March 1994.
2. On 6 May 1994 the claimant was first awarded attendance allowance at the lower rate for day needs from and including 25 March 1994. On 19 December 1995 a review was requested; it being stated that there had been a marked deterioration in the claimant's mental state. After completion of a further self-assessment form the Adjudication Officer on 20 February 1996 revised the original decision and increased the award to the higher rate of attendance allowance from and including 1 June 1996. This decision was based upon a finding that there had been a relevant change of circumstances since the first decision was given - the relevant change being that since 1 December 1995 the claimant had required attention and supervision by night as well as by day. Satisfaction of the 6 month qualifying condition was said to be the reason for the choice of 1 June 1996 as the starting date of the increased award. A request for review was received on 28 February 1996 and on 25 April 1996 a different Adjudication Officer reviewed the decision of 20 February 1996 but did not revise it. It was the appeal from this refusal to revise which was considered by the Appeal Tribunal on 15 August 1996.
3. As stated in paragraph 1 above, the decision of the Appeal Tribunal was that the claimant was entitled to the higher rate of attendance allowance and that the award was to take effect from and including 25 March 1994: the first date of the claim. In reaching this decision the following findings of fact were recorded:-

"The appellant is aged 88. The disablement is senile dementia.

She has suffered this progressively over many years from in or

about 1992.

In the initial self assessment form it was stated that no nursing

care is required at night. However Attendance Allowance is not

concerned with nursing care but with care and or supervision.

The self assessment form did indicate that 24 hour supervision

was required.

Tribunal find that 24 hour supervision has been required from

before the date of the initial claim."

The reasons for decision were:-

"On the weight of all the evidence before the tribunal this is a

case where the appellant has been in need of day and night

supervision, continual by day and prolonged and repeated at

night from some years prior to the date of claim and the qualifying

period is therefore satisfied as the date of claim.

We consider that the Adjudication Officer who made the initial

award on 6 May 1994 erred in law in that undue emphasis seems

to have been given to the, that no nursing care was required at

night or as the self assessment form and claim did indicate that

24 hour supervision was required.

While the Adjudication Officer on 20 February 1996 reviewed the

award on the grounds of relevant change of circumstances we

consider that it should have been reviewed on grounds of error

of law in relation to the initial adjudication.

Although the letter requesting review file on 18 December 1995

indicates a deterioration as a relevant change of circumstances.

We accept what has been said by the appellant's daughter that she

was advised to write the letter in these terms with a view to

having the case looked at again and that while there has been

a marked deterioration nonetheless as of the date of claim she

had already reached the stage where 24 hour supervision was

required. As stated above the condition is progressive over

two years prior to the date of claim and we consider that the

qualifying period of 6 months in respect of the high rate of

Attendance Allowance is satisfied as at the date of claim and

the award should be made from that date."

4. The grounds of Mr Shaw's appeal to the Commissioner are:-

"The tribunal erred in law by failing to consider 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.

Alternatively, if the tribunal did consider regulations 57 and

59 the tribunal erred because the chairman failed to record the

relevant findings made by the tribunal.

(Decision number CSDLA/128/94 gives guidance for tribunals when

deciding review questions.)"

5. In written observations on the appeal received on 4 November 1996, the claimant's daughter states that she had requested the review in February 1996 because in her opinion the criteria for the award of the higher rate of the allowance had been met since before the date of the first application in April 1994. In these circumstances there is in her submission no reason why the claimant should have been required to wait until 1 June 1996 before receiving the higher rate. As in previous correspondence, emphasis is placed upon the fact that, for some considerable time, the claimant had required 24 hour supervision.
6. Having considered this matter I accept that the decision of the Appeal Tribunal was erroneous in law in the respects identified by Mr Shaw. The restrictions imposed by regulations 57 and 59 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995, (the Adjudication Regulations) on the date from which a revised decision should have effect, appear to have been completely overlooked. Alternatively, if they were taken into account, the necessary findings of fact and reasons for decision have been omitted, and again there has been an error in point of law. These grounds are in themselves sufficient to require me to allow this appeal; but it occurs to me that the Tribunal's decision is erroneous in law in a further a perhaps more fundamental respect. It has always been the contention of the claimant's daughter that, for some years, her mother has required 24 hour supervision, and she has been unable to understand why it has not therefore been accepted that the criteria or conditions for the award of the higher rate of attendance allowance have been satisfied. The Tribunal appear to have accepted, and indeed have expressly recorded, that a requirement for 24 hour supervision is sufficient to entitle a claimant to the higher rate of attendance allowance. As I understand it, that is not so. Following the decision of the Court of Appeal in England in the M( case, (see the Appendix to R(A)1/88), to the effect that a person might exercise supervision while asleep, the former night supervision condition was replaced by the present "watching over" condition. The Tribunal's only finding of fact in relation to the claimant's night time needs was that 24 hour supervision was required, and that was not in my opinion sufficient to justify an award of the higher rate of attendance allowance for any period; whether from 25 March 1994 or from 1 June 1996. For this reason also I find that the Appeal Tribunal's decision was erroneous in point of law. I wish however to make it clear that my comments on this legal point should not be taken as any indication that I am of the opinion that the claimant did not at any stage satisfy the night attention conditions of entitlement. On the evidence at his disposal the Adjudication Officer was apparently satisfied that those conditions were satisfied from 1 December 1995, and it was for the Tribunal to make their own findings of fact on that issue. Depending upon their conclusion on that subject, it might then have been necessary to proceed to consider the possible effect of regulations 57 and 59 of the Adjudication Regulations.
7. For the reasons given in paragraph 6 above I allow this appeal and set aside the decision of the Appeal Tribunal. I refer the case for determination by another Tribunal who should have regard to the views expressed in this decision.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 February 1997