Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C73/97(DLA) (19 May 1999)

 


Decision No: C73/97(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT

(NORTHERN IRELAND) 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT

(NORTHERN IRELAND) 1992

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision

of Craigavon Disability Appeal Tribunal

dated 18 June 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by Mrs J E Gunning, the Adjudication Officer now concerned with the case, against the decision of the Appeal Tribunal whereby it was held (i) that the claimant was entitled to lowest rate care component of Disability Living Allowance from and including 18 January 1997 and (ii) that no mobility component at any rate was payable from and including 15 September 1995.
2. The claimant originally claimed Disability Living Allowance on 15 September 1992, and on review the Adjudication Officer awarded benefit up to and including 14 September 1995. On 2 May 1995 a renewal claim was received in which the claimant stated that her disabilities were migraine headaches, back pain and cramps in her legs and arms. Following an examination by an examining medical practitioner on 18 May 1995 and reports received from the claimant's general practitioner (dated 20 September 1995) an Adjudication Officer on 9 October 1995 disallowed the claim from and including 15 September 1995 (under the provisions of section 19 of the Social Security Administration (Northern Ireland) Act 1992). Further general practitioner reports were received on 30 October 1995 and on 30 November 1995 the claimant requested a review of the Adjudication Officer's decision disallowing the claim from and including 15 September 1995. As the request was made within the prescribed time it fell for consideration under section 28(1). On 7 February 1996 a different Adjudication Officer reviewed the decision dated 9 October 1995 under section 28(1) but did not revise it. An application for a review of this decision was received on 20 May 1996 and further claim forms were submitted on 12 June 1996. Under the provisions of section 29(1) this application had to be considered under section 28(2) - grounds for review had to be shown. On 13 August 1996 an Adjudication Officer applying section 28(2) refused to review the decision dated 7 February 1996. An application for review was then received on 25 September 1996. Under the provisions of section 29(2) this application fell for consideration under section 28(1) - namely on any ground. Reports were completed by the claimant's general practitioner on 17 October 1996 and she was examined by an examining medical practitioner on 3 December 1996. On 3 February 1997 a different Adjudication Officer reviewed the decision dated 13 August 1996 but did not revise it. On 27 March 1997 the claimant appealed to an Appeal Tribunal.
3. On appeal the Tribunal made the following findings of fact material to its decision in relation to both the care and the mobility components:-

"The claimant in this case has appealed against an Adjudication Officer's decision to refuse to review an earlier decision disallowing both components of Disability Living Allowance from and including 15 September 1995. The circumstances of the refusal to review are outlined at paragraphs one to 11 in the case summary of the scheduled documentation. The Tribunal had the benefit of the General Practitioners notes and records and indeed claimant's own evidence at the hearing. The claimant was also represented by Miss K( of R( N(, Solicitors. The claimant suffers from migraine headaches, back pain and cramps in her legs and arms. Prior to 17 October 1996 she could walk at least 100 yards without stopping or without severe discomfort and at a normal pace. She did not require guidance and supervision while walking out of doors most of the time. She could attend to all her bodily functions unaided, was not at risk if left unsupervised by day and night and could prepare a main cooked meal. From 17 October 1996 there has been a deterioration in her condition. However she can still walk 100 metres without stopping or without severe discomfort albeit at a slower pace. She did not require guidance and supervision while walking out of doors most of the time from that date. She also did not require attention in relation to her bodily functions either by day or night nor was she at risk if left unsupervised. However from that date she could not prepare a main cooked meal. That inability is permanent from that date."

4. The Tribunal gave the following reasons for its decision in relation to both the care and the mobility components:-

"This is a review case involving a number of requests from claimant throughout the period from May 1995 until the date of appeal in March of this year. The Tribunal must decide if any of the conditions of Section 29(1) of the Social Security Administration Act are satisfied. Having looked at the evidence and in particular the reports from the claimant's General Practitioner dated 17 October 1996 we are satisfied that a relevant change of circumstances has occurred. Claimant's condition has deteriorated in that she is no longer able to prepare a main cooked meal. We would rely on the General Practitioner's views expressed in that report in support of that contention. It therefore should have been obvious to the Adjudication Officer on 3 February that Section 29 was satisfied. Allowing for the appropriate test period of 3 months in relation to the care component we feel an award of low rate care is appropriate from 18 January 1997.

If we rely on the General Practitioner's most recent evidence we must disallow all other aspects of care component and the mobility component in its entirety. Indeed the General Practitioners notes and records bear out the fact that claimant was in October 1995 "well and symptom free" according to Mr L(, Consultant Obstetrician at Craigavon Area Hospital."

5. An Adjudication Officer sought leave to appeal to a Commissioner on the following grounds:-

"The tribunal erred in law by deciding that a deterioration on 17 October 1996 could result in grounds for review of the decision to disallow benefit dated 7 February 1996. In R(A)2/81 it was held that a deterioration subsequent to a decision to disallow was only relevant to the question whether a fresh claim should be made;

and

The tribunal made a decision which no reasonable tribunal properly instructed in the law could have made by finding that the date of the deterioration was 17 October 1996 because the evidence on which the tribunal relied was a factual report from the general practitioner dated 17 October 1996 which stated that the claimant deteriorated recently."

6. Leave to appeal was granted by the Chairman on 21 October 1997.
7. Having considered the circumstances of the case I am satisfied that this appeal can properly be determined without a hearing.
8. By letter dated 11 May 1998 Mrs Gunning expanded on her submissions on the first point by quoting paragraph 15 of R(A)2/81 (a Great Britain decision) in which Mr Commissioner Monroe stated:-

"...If a person's condition deteriorates after a decision has been given that at a particular date he did not satisfy the conditions for an award, the validity of that determination is unaffected by the deterioration, which is relevant only to the question whether a fresh claim should be made. It is different of course with lower rate and higher rate certificates...".

R( N( LLB, Solicitor, now appears on behalf of the claimant. By letters dated 1 September 1998, 30 September 1998 and 5 January 1999, the claimant's solicitor accepted that the Adjudication Officer is correct in her submission that the Tribunal erred on point of law by deciding that a change in circumstances on 17 October 1996 could constitute grounds for review of the decision of 7 February 1996 which disallowed benefit. In making this submission the claimant's solicitor relied on the Great Britain decision CDLA/15961/1996, at paragraph 6 and 7 of the Direction given by Mr Commissioner Rowland in that case.

9. In the circumstances I conclude that the Tribunal has erred in point of law by deciding that the decision of 7 February 1996 could be reviewed on the basis of the deterioration in the claimant's condition on 17 October 1996.
10. In relation to the second ground of appeal Mrs Gunning submitted that the Tribunal also erred by finding that the claimant's condition deteriorated on 17 October 1996. In particular she submitted the following in a letter dated 11 May 1998:-

"On that date [17 October 1996] her GP completed a factual report indicating that she had difficulty with kitchen work.

The difficulties must have arisen prior to the completion of

the report and accordingly it is submitted that any deterioration

must also have been from an earlier date [see paragraph 7 of

C22/96(DLA)]. It is further submitted that the tribunal was

obliged to make sufficient enquiries to enable a finding as to

the actual date of deterioration to be made. The exact date of

deterioration is critical to this appeal, for if it is prior to

the AO's decision of 7/2/96 then, given the findings as to the

disability conditions, there will be entitlement. On the other

hand, a finding that the date of the relevant change of circumstances

was subsequent to the AO's decision of 7/2/96 can only result in a

refusal to review on the basis that there are no grounds."

11. The claimant's solicitor has made no contrary submission to this proposition.
12. Undoubtedly it can be very difficult in cases such as the present one to determine precisely when a claimant first satisfies the relevant conditions of entitlement. However, on close examination of the findings of fact and the reasons and also the record of proceedings, I agree with Mrs Gunning that it is impossible to conclude that the claimant's condition deteriorated on 17 October 1996. For the reasons stated by Mrs Gunning I conclude that the deterioration must have occurred at some earlier date and, in the circumstances, the Tribunal was obliged to make at least some enquiries to enable a proper finding as to the actual date of deterioration. I accept that the Tribunal might have great difficulty in ascertaining a particular date but the Tribunal's conclusion in the present case seems to me unjustifiable. As Mrs Gunning has pointed out in her letter dated 16 December 1998, the date of deterioration in this case is important, as if the deterioration occurred before the Adjudication Officers decision of 7 February 1996 there will be entitlement, whilst if the deterioration occurred after 7 February 1996 there were no grounds to review. In all the circumstances I conclude that the Tribunal erred in point of law by finding that the claimant's condition deteriorated on 17 October 1996.
13. The claimant's solicitor was naturally concerned that the claimant's rights should not be prejudiced by any erroneous decision made by the Tribunal.
14. Certainly the way forward is not straightforward but is seems to me that the appropriate approach is for this case to be resolved on a step by step basis.
15. For the reasons stated in paragraphs 9 and 12 I have decided that the Tribunal erred in point of law. However, it is not appropriate for me to decide matters of fact that are obviously still in issue in this case. In the circumstances I allow the appeal and conclude that the Tribunal's decision should be set aside and that the matter should be referred to another Tribunal for its determination. In particular, this Tribunal will have to decide whether or not there are grounds to review the Adjudication Officer's decision of 7 February 1996. If the Tribunal decides that there are grounds to review the decision it can proceed to resolve the matter. However, if it decides that there are no grounds to review the Adjudication Officer's decision of 7 February 1996, the issue arises whether the claimant's letter of 25 September 1996 can be accepted as a fresh claim.
16. In a note attached to the Adjudication Officer's original application for leave to appeal it was stated as follows:-

"If this application is successful it will of necessity result

in the restoration by the Commissioner of the decision to disallow

dated 7 February 1996. In that event the adjudication officer will

invite the Department to facilitate a new claim by treating a

suitable document as being in sufficient manner; claims and payments regulation 4(1)[sic]."

Obviously there are some typing errors in this statement but it seems relatively clear that the Adjudication Officer is submitting that an Adjudication Officer will invite the Department to accept the claimant's letter of 25 September 1996 as sufficient to be treated as a fresh claim - see regulation 4(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

17. If the issue whether the Department accepts the claimant's letter as a fresh claim becomes relevant the further question arises whether that claim can be determined directly by a new Tribunal or by an Adjudication Officer.
18. As the claimant's solicitor has pointed out in her written submissions dated 30 September 1998, section 34(1) of the Social Security Administration (Northern Ireland) Act 1992 permits Tribunals in certain circumstances to proceed to determine questions that first arise in the course of an appeal notwithstanding that the question has not been considered by an Adjudication Officer. If this problem arises it will be a matter for the Tribunal to consider in light of all the circumstances. However, it seems to me that in light of the Great Britain decision of Mr Commissioner Rice in CIS/807/1992, and paragraphs 7 and 8 in particular, that it is important to remember that the purpose of section 34 is not to enable the adjudication process to be taken out of the hands of Adjudication Officers and vested in Tribunals, but to enable matters which had been previously overlooked by the Adjudication Officer to be dealt with by a Tribunal if the Tribunal thought it expedient to do so.
19. In the circumstances I conclude that it is inappropriate for me to give the decision the Tribunal ought to have given as there are certain factual matters outstanding which will have to be resolved by a new Tribunal. I have also brought these relevant factual issues to the attention of the new Tribunal. However, I am not in a position to direct the new Tribunal to deal with the issue of whether a document can be treated as a new claim. This will depend on the Tribunal's findings on the main issue and also will depend on the Department's attitude, if and when it is asked to decide whether it does accept a document as a new claim or not. If, and only if, that matter is resolved in the claimant's favour, it will be for the Tribunal to decide whether it has jurisdiction or not, under section 34(1) of the Social Security Administration (Northern Ireland) Act 1992, to consider this issue or whether an Adjudication Officer should decide the matter in accordance with section 18 and section 19(3).
20. As already stated in paragraph 15 herein I allow this appeal, set aside the decision of the Tribunal, and refer the case to a freshly constituted Tribunal for its determination, which should take into account what I have stated in the course of this decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

19 May 1999