Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C2/97(AA) (23 January 1998)

 


Decision No: C2/97(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

Londonderry Disability Appeal Tribunal

dated 17 July 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) not to award her attendance allowance.
2. This appeal relates to whether or not the Tribunal erred in not considering claimant's condition after the date of claim and gave reasons that the Tribunal was not of the view that section 65(6) of the 1992 Contributions and Benefits Act (Northern Ireland) can assist because it found that section 65(6)(a) relates only to claims made within 6 months before the date when the conditions were satisfied and as the claim in the instant case was made on 30 October 1995 and that the Tribunal found the conditions were not satisfied at least up to 30 June 1996 section 65(6) did not apply; nor did section 65(6)(b).
3. Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law as follows:-

"Point 1: Reasons given for Decision are unintelligible

In its reasons for disallowing the Appeal the Tribunal state

'We are making no determination on the period after 01/07/1996'.

However, the Tribunal were required to consider, and to make a

determination on, the period 30/10/95 (date of claim) to the

17/09/1996 (date of hearing of claim). Why they did not take

the period after 01/07/1996 into account is not explained.

Further, the reference in the 'Reasons for the Decision' to

Section 65(6) of the Contributions and Benefits Act (N. Ireland)

is equally unclear. The statement, 'That being so we are not of

the view that Section 65(6) ... can assist' suggests that

Section 65(6) is being mentioned as incidental to their Decision

but that it is not the reason for the Decision. Why, therefore,

reference is made to Section 65(6), if it cannot 'assist' is

confusing.

The failure of the Tribunal to give adequate written reasons for

its Decision in this case is in conflict with the provisions of

Commissioner's decision R(A)1/72 and is, therefore, an error in

law.

Point 2: Section 65(6) Allows for an award to be made from a

future date

Contrary to the opinion of the Tribunal, Section 65(6) can 'assist'

in that it allows for an award of D.L.A. to be made to come into

effect on a date later than the date of the claim, provided that the

claimant satisfies one of the relevant conditions (Section 65(6)(b)(i)

or (ii)) for a period of at least six months. Any six-month

period - and not necessarily the six months immediately following

the date of the claim - would appear to meet the conditions for

such an award to be made.

In view of foregoing, the Tribunal's decision is based on an

error(s) of law and should, therefore, be set aside."

4. The Chairperson of the Tribunal refused leave to appeal and an application was made to the Commissioner who granted leave. Upon receipt of the notice of leave granted the Adjudication Officer made a written submission relating to the grounds of appeal as follows:-

"The tribunal decided only the period from the date of claim up to

1 July 1996. They declined to determine the period from 2 July

1996 to the date of their determination. In the decision the

chairman recorded the reasons as S65(6) of the Social Security

Contributions and Benefits (NI) Act 1992, which provides as

follows

(6) Except in so far as regulations otherwise provide and

subject to section 66(1) below -

(a) a claim for an attendance allowance may be made during

the period of 6 months immediately preceding the period for

which the person to whom the claim relates is entitled to the

allowance; and

(b) an award may be made in pursuance of a claim so made,

subject to the condition that, throughout that period of 6

months, that person satisfies -

(i) both the day and the night attendance conditions, or

(ii) if the award is at the lower rate, one of those

conditions.

I submit that this provision does not displace the normal rule that

a claim must be determined down to the date of the decision by the

determining authority. It is permissive, merely enabling a claim

to be made and determined during the qualifying period, and providing

that any award is made subject to a condition.

There are similar provisions in relation to most benefits. For

example, see regulation 13 of the Social Security (Claims and

Payments)(NI) Regulations 1987, from which attendance allowance has

been specifically excluded. The corresponding provision for

disability living allowance is to be found in regulation 13A, and

for disability working allowance in regulation 13C. None of these,

so far as I know, have ever been interpreted in the way the tribunal

have interpreted S65.

I therefore submit that the tribunal have erred in point of law by

failing to determine the claim to attendance allowance fully. There

appears to be adequate case law to support my contention - see for

example R(A)2/81, CDLA/002/93, CM/2153/95 and C53/95(DLA).

I would add that if the tribunal are correct in their interpretation,

it would mean that, where the disability conditions are not satisfied,

a claim would fall to be determined for a period of 6 months only

from the date of claim. In this case that would have meant a

determination up to 29 April 1996.

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

treating the application as an appeal and determining any question

on the application as if it arose on appeal."

5. At the hearing claimant was not present but was represented by Mr M... and the Adjudication Officer was represented by Mr Shaw.
6. Mr M... took up the point made by Mr Shaw in his submission that the award should have been considered up to the date of hearing.
7. Mr Shaw referred to his written submission. He said the Tribunal thought there was a bar and did not go past that bar. He said the Tribunal made no findings of fact past a certain date but he argued that advanced awards may be made provided conditions of entitlement are satisfied and that the Tribunal at the date of hearing should have considered the matter up to the date of hearing and should have taken into account any deterioration.
8. I am satisfied that the Tribunal erred as Mr Shaw has indicated. The Tribunal felt constrained by Section 65(6) but that did not prevent the Tribunal from looking at and making an advance award.
9. As there were no proper findings of fact relating to the claimant's condition after the date of claim I have no option but to allow the appeal, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal.

(Signed): C C G McNally

COMMISSIONER

23 January 1998