[1996] NISSCSC C72/96(DLA) (18 June 1997)
Decision No: C72/96(DLA)
Mobility Component - Findings
"The medical records indicate and we accept that since aboutJanuary 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 whichshould 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 reportof 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 1996and 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."
"The tribunal erred in law by failing to address the issue beforethem 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."
"The adjudication officer has set out two grounds of appeal. Theseare 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. Iwill 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."
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