Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C72/96(DLA) (18 June 1997)

 


Decision No: C72/96(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 Ballymena Disability Appeal Tribunal dated 27 August 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Adjudication Officer against the decision of a Disability Appeal Tribunal (DAT), which awarded claimant the higher rate mobility component of disability living allowance (DLA) from 8 April 1996 to 7 April 1998, but refused him the care component from 8 April 1996.
2. Briefly the facts are that claimant is a man now of 54 years of age who claimed DLA in April 1993 as he suffered from mental problems which affect his ability to go out. He also claimed he was unable to use his arms properly. His claim was disallowed and a request for a review was made in July 1993 but the Adjudication Officer decided not to revise the decision.
3. A further claim was received in September 1993 and again on 5 October 1993. In October 1993 a Medical Officer from the Department considered the question of a claim under special rules and considered that this was not relevant. A request for review was made in April 1995. A further claim was made on 24 March 1995 and it is recorded that on 25 July 1995 an Adjudication Officer refused to review the decision dated 29 July 1993. A request for review was received in August 1995 and in October 1995 the Adjudication Officer reviewed the decision of July 1995 but did not revise it. On 7 November 1995 a renewal claim was received.
4. The Tribunal to whom claimant appealed made the following findings of fact and reasons for their decision:-

Mobility Component - Findings

"The medical records indicate and we accept that since about

January 1996 due to intermittent claudication his mobility is

restricted to 50 yards. Prior to this it was in excess of

100 yards. There is an occlusion (or narrowing) of the aorta

ie the main blood vessel supply the legs at a point just above

where it divides to go to each leg. This will require surgery

if he is not to lose circulation in the legs completely with

catastrophic results.

He is on the waiting list and hopefully now will stop smoking."

Reasons for decision

"Period restricted as he is on waiting list for surgery which

should cure him by removing the restriction of circulation

of blood to his legs.

Medical evidence from January 1996 confirms his walking is

reduced to 50 yards and 3 months later is April. (November

1995 he could still do 100 yards - see his letter of appeal.)

At 50 yards he experiences the severe discomfort of intermittent

claudication (pain) in the legs and must stop. He is virtually

unable to walk but hopefully will be cured by surgery in due

course."

Care Component - Findings

"We accept as factual the Examining Medical Practitioner report

of 26 June 1995 ie slight impairment of arms, no attention,

cooking or supervision needs, can manage all care needs. We

accept General Practitioner 19 May 1995 - no attention or cooking

needs. We reject his evidence which is not supported by medical

evidence."

Reasons for decision

"The allowance of lowest rate care component expired on 7 April 1996

and the issue is whether it can be extended. Considering he did

not claim it on 8 April 1993 and the only medical evidence related

to a beating some years earlier, we are surprised it was awarded

at all. The medical records show a minimal problem with his elbows

and we do not accept he is unable to prepare a main cooked meal.

Weight of medical evidence is against him."

5. The Adjudication Officer sought and was granted leave to appeal against that decision on the following grounds:-

"The tribunal erred in law by failing to address the issue before

them which was the claimant's application dated 14 April 1995 for

review of the decision of the adjudication officer dated 29 July

1993, by which the adjudication officer had awarded disability

living allowance at the lowest rate of the care component from

8 April 1993 to 7 April 1996. This matter came to the tribunal

by way of appeal following the decisions of the adjudication

officer dated 25 July 1995 and 11 October 1995, and the tribunal

has jurisdiction by virtue of S31(1) of the Social Security

Administration (NI) Act 1992.

and in addition

The Tribunal erred in law by purporting to determine the renewal

claim received on 21 September 1993. That claim had not been

determined by an adjudication officer and as a consequence the

tribunal had no jurisdiction to decide the claim under S31(1).

NOTE: it is intended that the renewal claim will not be referred

to the adjudication officer for a decision until following the

outcome of this application."

6. In response to the granting of leave to appeal Mr Stockman of the Law Centre (NI) responded as follows:-

"The adjudication officer has set out two grounds of appeal. These

are that the tribunal erred in failing to address the claimant's

review application dated 14 April 1995 and that the tribunal erred

in law by purporting to determine the renewal claim received on

21 September 1993.

On the first point it would be helpful to summarise some of the

key dates in the case:-

Date of claim: 8/4/93

AO disallows: 10/5/93

s.28(1) review request: 4/6/93

Review decision awarding low care: 29/7/93

New claim: 21/9/93

s.29(?) AO decision upholding 29/7/93: 29/11/93

s.28(2) review request: 14/4/95

AO decision refusing to review: 25/7/95

S28(1) review request: 1/8/95

AO refusal to review: 11/10/95

Renewal Claim for DLA: 7/11/95

Appeal: 7/11/95

The renewal claim for DLA can be disregarded by virtue of

s.28(12) Administration Act and reg.13C of the Claims and

Payments Regulations. The original award was made for the

period 8 April 1993 to 7 April 1996.

It is submitted that the tribunal had jurisdiction to consider

the appeal of Mr B... and that the issue in the case would

have been Mr B...'s appeal against the 'refusal to review'

decision of 25 July 1995, which in turn would have been

considering the issue of whether there were s.28(2) grounds

to review the award of 8 April 1993.

I do not accept that the tribunal did not address this issue.

Although they made no specific reference to grounds of review,

I would submit that the reference in the reasons for the

decision that "medical evidence from January 1996 confirms

his walking is reduced to 50 yards" implies that the issue

of relevant change of circumstances has been addressed.

The second point implies that the tribunal addressed the

incorrect issue of the renewal claim of 21 September 1993.

I suspect that the adjudication officer intended to refer

to the renewal claim of 7 November 1995 at this part of the

appeal. This renewal would have been from 8 April 1996 and

this date in fact coincides with the tribunal's award of the

mobility component. Accordingly such an inference might be

understandable. However, since the reasons for the tribunal's

decision refer to medical evidence of January 1996 it is

submitted that this date of award of mobility component might

be entirely coincidental. There is nothing to indicate that

the issue considered by the tribunal was the renewal claim.

It is conceded that this would have been erroneous in point

of law had they done so, however.

Accordingly, I would oppose the appeal of the adjudication

officer."

Upon receipt of this response the Adjudication Officer made a further written submission as follows:-

"Mr Stockman takes issue with my first ground of appeal. I

will therefore take this opportunity of explaining this part

of my appeal more fully. The decision under review by the

tribunal was made by the adjudication officer on 29 July 1993

who awarded disability living allowance at the lowest rate of

the care component from 8 April 1993 to 7 April 1996. The

tribunal decided that (i) there was no entitlement to the care

component from and including 8 April 1996 and (ii) awarded the

high rate of the mobility component from 8 April 1996 to

7 April 1998.

The claim of 8 April 1993 was treated by the adjudication

officer as made for the period 8 April 1993 to 7 April 1996:

regulation 17(6) of the Social Security (Claims and Payments)

(NI) Regulations 1987. I submit that the tribunal were only

able to vary the award made by the adjudication officer if

one of the grounds of review in S28(2) was satisfied. The

period from 8 April 1996 was not open to the tribunal at all

unless the review resulted in a revised award which was longer.

My appeal was made because the tribunal did not revise the

existing award, but instead made an additional award for a

period subsequent to the award under review.

Mr Stockman contends that the tribunal did address the review

issue. They found that walking ability had reduced to 50 yards

by January 1996, plainly a relevant change of circumstances.

Even if this review of the tribunal's approach is to be accepted,

I submit that the tribunal must nevertheless have erred.

Presumably they would have decided that there was a relevant

change of circumstances on 8 January 1996, with the 3 months

qualifying period being satisfied from 8 April 1996. But as

the existing award ended on 7 April 1996, it was not open to

the tribunal to make an award of the mobility component from

8 April 1996. To do so infringed on the period which properly

falls to be dealt with by the renewal claim received on

7 November 1995. Following the same approach, it was incorrect

for the tribunal to determine that there was no entitlement

to the care component from and including 8 April 1996.

Had the tribunal decided that the deterioration in mobility

had taken place any earlier, I submit that it would have been

possible to have revised the award made by the adjudication

officer to include an award of the mobility component from an

appropriate date, thereby extending the award past 7 April 1996.

In those circumstances the tribunal would have been obliged

to have considered entitlement to the care component beyond

8 April 1996. The renewal claim of 7 November would have

been redundant in such circumstances.

Mr Stockman correctly points out that my second ground of

appeal should have referred to the renewal claim of

7 November 1995 and not 21 September 1993. I apologise for

this error, and any confusion it may have caused."

7. I arranged an oral hearing at which the Adjudication Officer was represented by Mr Shaw and the claimant, who was not present, was represented by Mr Stockman. Mr Shaw readily accepted that on the evidence claimant was entitled to the higher rate mobility. He said it is clear that the Tribunal thought it was dealing with a renewal claim. Mr Shaw accepted that in light of Dr L...' psychiatric report, there was clear evidence that the claimant was entitled to the low rate mobility from 8 April 1993 to 1 April 1996 as he accepted that regulation 57(2)(a) was satisfied. From January 1996 claimant would have been entitled to the higher rate mobility, but taking into account the qualifying period, the award should run from 1.4.96 and that would be for life. Mr Shaw argued it is quite clear that the claimant is now a recluse which raises the question of reassurance. As far as the care component was concerned Mr Shaw conceded that on the evidence claimant was entitled to the lower rate care component from 8 April 1993 in respect of the meals test. As claimant was in receipt of the lower rate care up to 7 April 1996 Mr Shaw argued that the period from 8 April 1996 was not open to the Tribunal to decide unless the review resulted in a revised award which was longer. He also accepted that because of the reassurance which claimant required and the encouragement and motivation which was required in connection with cooking a meal for himself, that he was entitled to the lower rate care component in respect of the meals test from 7 April 1996 for life.
8. I accept the concessions made by the Adjudication Officer. I have studied all the papers, considered all the submissions and in particular the letter of 28 January 1997 which I have quoted in full. I am satisfied that the Tribunal erred as the Adjudication Officer stated. I therefore allow the appeal and set aside the decision of the Tribunal.
9. I am satisfied that this is a proper case in which I should give the decision which the Tribunal should have given, namely that claimant is entitled to the lower rate mobility component from 8 April 1993 to 7 April 1996 and to the higher rate mobility component from 8 April 1996 for life. He is also entitled to the lower

rate care component from 8 April 1996 for life. He was already in receipt of the lower rate care component from 8 April 1993 to 7 April 1996.

(Signed): C C G McNally

COMMISSIONER

18 June 1997