Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C22/98(DLA) (17 February 1999)

 


Decision No: C22/98(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 Belfast Disability Appeal Tribunal dated 20 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer, leave having been granted by the Chairman, against a decision dated 20 November 1997 of a Disability Appeal Tribunal (herein after called "the Tribunal") sitting at Belfast. That Tribunal had allowed a claimant's appeal against an Adjudication Officer's decision dated 16 June 1997. The Tribunal had allowed the highest rate of care component of Disability Living Allowance from 19 October 1995 to 14 July 1997 and disallowed the mobility component of that allowance from 19 October 1995 to 14 July 1997.
2. Mr Shaw, the Adjudication Officer, appealed on the grounds set out in letters dated 20 February 1998 and 7 October 1998 and Mrs McN... (on behalf of S...), made observations on the Adjudication Officer's grounds by an undated letter received on 20 April 1998.
3. In essence the grounds of appeal were twofold:-

(1) That the Tribunal erred in law in that it reviewed and revised an Adjudication Officer's decision of 23 May 1995 on the grounds that it had not included S...'s night time needs. In fact the decision of 23 May 1995 had already made an award for night attention.

(2) The Tribunal failed to take into account the limitations imposed on back payment by regulations 57 and 59 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995. (hereinafter referred to as the "Adjudication Regulations").

4. Mr Shaw is correct on both grounds. Firstly, in order to understand whether or not the decision of 16 June 1997 was incorrect the Tribunal would have had to go back to an earlier decision of 4 March 1997. That decision was known as a Section 28(2) decision being made under that section of the Social Security Administration (Northern Ireland) Act 1992. There are only certain grounds on which decisions can be reviewed under Section 28(2) and they all entail looking at the decision which is under review. In this case that decision was the one of 23 May 1995, the original decision awarding middle rate care component for night needs. In this case the Tribunal does not appear to have correctly appreciated that the original decision was to award the middle rate care component for night needs.
5. Secondly the Tribunal did not take any account of the limitations imposed on the ability to back date awards by the said regulations 57 and 59 of the Adjudication Regulations.
6. I do not consider that this is a case where I can give a decision which the Tribunal should have given. It will be necessary for any new Tribunal dealing with the matter to:-

1. Consider whether the decision of 16.6.97 was correct and specifically whether there were grounds to review and if so to revise the decision of 4 March 1997. This will of necessity involve deciding whether any of the Section 28(2) grounds were established in relation to the decision of 23 May 1995 and if so whether or not that latter decision should be revised.

2. If the decision of the Tribunal is that the appeal against the decision of 16 June 1997 is allowed and that benefit is to be increased, the Tribunal should decide what the limitations on its backdating powers are and in particular should have reference to the provisions of regulations 57 and 59 of the Adjudication Regulations.

7. It also occurs to me that the new Tribunal may have to deal with the issue of whether or not S...'s encopresis and/or enuresis comes from a physical or mental disablement. Encopresis can mean simply soiling and enuresis can mean simply bedwetting. They are not therefore necessarily disablements per se though can of course be manifestations of disablement. As only care needs resulting from a physical or mental disablement are relevant, this may be an issue on which the new Tribunal will need to make findings. The medical evidence may be of considerable assistance in deciding the issue though I have been unable to ascertain any causative diagnosis in the papers before me. (There may of course be other medical evidence available). Diagnosis and disablement are not necessarily the same thing but where no causative diagnosis is made, the issue of whether or not a physical or mental disablement produces the relevant needs will usually arise.

This will, however, be a matter for the new Tribunal which, if the question needs to be determined, will hopefully have full medical evidence and evidence from Mrs McN...

(Signed): M F Brown

COMMISSIONER

17 February 1999