Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C54/97(DLA) (16 January 1998)

 


Decision No: C54/97(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 Strabane Disability Appeal Tribunal dated 15 April 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, with leave of the Chairman of the Tribunal, by the Adjudication Officer of a decision of the Tribunal which allowed an appeal from a decision of an Adjudication Officer which was to the effect that the claimant was not entitled to an award of the mobility component of disability living allowance.
2. The Adjudication Officer, on review, held on 10 December 1996 that the claimant continued to fulfil the criteria for an award of the middle rate of the care component of disability living allowance (which is not in issue in these proceedings), but was not entitled to an additional award of the mobility component of disability living allowance at any rate.
3. On appeal, in relation to the refusal to award any mobility component, the Tribunal held that the claimant was entitled to low rate mobility component of disability living allowance, and specifically stated as follows:-

"Appeal allowed.

The claimant is entitled to low rate mobility component of Disability

Living Allowance for the period 9 December 1996-8 December 2001.

Given the ever changing advances in medication/treatment for the

claimant's disabling condition that is epilepsy, we are hopeful that

there may be some improvement in her condition."

4. The findings of fact made by the Tribunal and which were material to the decision were as follows:-

"Claimant's date of birth is 13 June 1970.

High rate mobility not in issue.

The claimant suffers from grant mal epileptic seizures without

warning.

The fits are unpredictable - she suffers from at least one major

fit per week and as many as three. In between grand mal fits the

claimant suffers from frequent minor dispersonalised feelings.

The claimant has no awareness of where she is after a fit/turn and

becomes totally confused and disorientated. It is the opinion of

claimant's General Practitioner which we accept that the claimant

needs to be accompanied by another person at all times.

Claimant has suffered from this condition since birth."

5. The reasons for the Tribunal's decision were as follows:-

"We are satisfied having regard to all the evidence in this case

that the claimant is entitled to the low rate mobility component

of Disability Living Allowance in that she requires guidance and

supervision when walking outdoors on unfamiliar routes most of

the time.

The 3 month qualifying period is satisfied."

6. No note of the evidence recorded by the Tribunal Chairman was made available to me. This is a most unsatisfactory situation. However, in the circumstances of this case it has not affected my decision.
7. The Adjudication Officer, in ease of the claimant, sought the leave of the Tribunal to appeal its decision on the following grounds:-

"The tribunal erred in law as follows

The tribunal made a determination that no reasonable tribunal

properly instructed as to the law could have made in making an award

for a fixed period. To do so was a breach of the claims and

payments regulations 17(1) & (6) which together provide that unless

it is inappropriate to do so, a claim shall be treated as made for

an indefinite period and an award on that claim shall be for an

indefinite period. The tribunal chairperson recorded as the reason

for making a fixed period award the possibility of future changes

in medication and treatment. This was perverse in the light of the

tribunal finding that the condition of the claimant, who is now

27 years old, has been unchanged since birth and there was no

evidence before the tribunal that any reduction in her requirements

is probable in the foreseeable future. Any such change would fall

to be taken account of by way of reviewing the award. See

CDLA/5253/1995 where the tribunal made an award for 5 years

indicating that the condition may improve. Held: no evidence to

suggest improvement likely; life award.

Regulation 17(1) of the claims and payments regulations provides

17.-(1) Subject to the provisions of this regulation and of section

71(3) of the Act (disability living allowance), .... a claim for

benefit shall be treated as made for an indefinite period and any

award of benefit on that claim shall be for an indefinite period.

(6) If, it would be inappropriate to treat a claim as made, and to

make an award, for an indefinite period (for example where a

relevant change of circumstances is reasonably to be expected in

the near future) the claim shall be treated as made and the award

shall be for a definite period which is appropriate in the

circumstances."

The regulation 17 referred to is regulation 17 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended.

8. The Chairman of the Tribunal granted leave to appeal on 18 August 1997.
9. The claimant did not make any written observations commenting on the Adjudication Officer's grounds of appeal.
10. Having considered all the circumstances, I am satisfied that the case can be decided without an oral hearing, although it is correct to say that neither party requested such a hearing.
11. I consider that the Adjudication Officer's submission to be well founded. In my view, for the reasons stated in those submissions, the Tribunal erred in law. Accordingly I set the decision aside. As it is convenient that I give the decision the Tribunal should have given, I further decide that the claimant is entitled to mobility component, at the low rate, of disability living allowance from 9 December 1996 for an indefinite period.

(Signed): J A H Martin

CHIEF COMMISSIONER

16 January 1998