Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C27/98(DLA) (14 December 1999)

 


Decision No: C27/98(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 by the claimant to the Social Security Commissioner on a question of law from the decision of Belfast Social Security Appeal Tribunal dated 1 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal to the effect that, while the claimant is entitled to highest rate of the care component of Disability Living Allowance from 31 March 1993, such benefit is only payable from 3 January 1996.
2. The claimant made a claim for Disability Living Allowance from 6 April 1992 on the grounds that he suffered from arthritis and depression. On 30 October 1992 he was examined by an examining medical practitioner. On 30 November 1992 an Adjudication Officer awarded him the higher rate of the mobility component and the lowest rate of the care component from 6 April 1992 until 30 November 1997. A request for review was received on 1 April 1996. On 20 June 1996 an Adjudication Officer reviewed the decision of 30 November 1992 on the grounds that a relevant change of circumstances had occurred in that the claimant's condition had deteriorated on approximately 31 December 1992. The Adjudication Officer accordingly revised the previous decision to award the highest rate of the care component from and including 31 March 1993 on the basis that he satisfied both the day and night attention conditions from 31 December 1992. However, taking account of the 3 month qualifying period, the conditions of entitlement were not satisfied until 31 March 1993. In addition, the Disability Living Allowance at the highest rate of the care component was not payable for the period from 31 March 1993 to 2 January 1996 as that period was more than three months before the application for review. On 19 October 1996 the claimant requested a further review with regard to the payment of benefit from 31 March 1993 until 2 January 1996. On 18 November 1996 a different Adjudication Officer reviewed the decision of 20 June 1996 but did not revise it. Accordingly, although it was decided that the claimant was entitled to the highest rate of the care component for the period 31 March 1993 until 2 January 1996, it was not payable because of the statutory requirement that benefit can only be paid from the date three months prior to the application for review. The decision was issued to the claimant on 19 November 1996. On 25 February 1997 the claimant appealed to an Appeal Tribunal. As the claimant's appeal was received outside the three month time limit for appeals it was referred to a Chairman who, however, decided to admit the appeal for hearing.
3. A Social Security Appeal Tribunal on 21 May 1997 disallowed the claimant's appeal. This decision was set aside on 1 August 1997 on the grounds that there was evidence to suggest that the appellant, who did not appear at the original hearing, had been unwell and had been unable to attend the hearing although she had wished to attend the hearing in person.
4. A differently constituted Social Security Appeal Tribunal heard the claimant's appeal on 1 September 1997.
5. The Chairman of the Tribunal made the following record of the proceedings:-

"No appearance from appellant. Acknowledged receipt of

notification of date of hearing.

A representative, on his behalf, left in copies of letters

from Dr P C( dated 13.8.97 and 18.8.97 (attached) and

a video tape to Tribunal office and tribunal viewed this tape.

It showed a male person, presumably appellant, making his way

from a living room up a flight of stairs and on to a bed, with

a return downstairs and on to settee.

He accomplished this by pushing himself along the floor and

upstairs backwards in a sitting position. He had two elbow

crutches but did not appear to use them, so that it was not

clear why they were involved.

It suggested that he could, and does, get on to his feet and

move with this help but this was not demonstrated.

No other evidence forthcoming and no Presenting Officer in

attendance."

The Tribunal made the following findings of fact material to its decision:-

"Appellant clearly disabled to an extent, but this is not

of relevance to point in issue in appeal."

The Tribunal gave the following reasons for its decision:-

"Tribunal satisfied that Adjudication Officer correct in

reviewing decision of 20.6.96, for the reasons given by him

in his submission.

The question at issue in this appeal is not whether the appellant

is entitled to the highest rate of the care component of Disability

Living Allowance, but from what date it is payable in accordance with

the Regulations.

Regulation 59(5) of the Social Security (Adjudication) Regulations

(Northern Ireland) 1995 provides, inter alia, that "---------- the

decision on review shall not have effect for any period before:-

(a) the date declared by the adjudicating authority making the review to be the date on which that change took place;

(b) not applicable to present case;

(c) the date three months before the date of application for

review, whichever is the later"

Appellant in this case made his application for review on 1.4.96.

The effect of the above quoted regulation is that, although it has

been accepted that appellant's condition had deteriorated

sufficiently to entitle him to the highest rate of the care

component, by 31.12.92, as he did not apply for a review until

1.4.96, this being later that the date on which his condition

changed and deteriorated, the earliest date on which the decision

can take effect and benefit be payable as the result is a date 3

months prior to 1.4.96, in other words 1.1.96.

In accordance with Regulation 16(1) and (2) of the Social Security

(Claims and Payments) Regulations (Northern Ireland) 1987, the first

date on which payment could be made at the highest rate was on 3

January 1996, ie the first payment date in the benefit week following

week commencing."

The Tribunal's unanimous decision was in the following form:-

"Disallow appeal.

Appellant entitled to higher (sic) rate of the mobility (sic)

component of Disability Living Allowance from 31.3.1993 but

this benefit is only payable from 3.1.1996."

The reasons for the Tribunal's decision (see second paragraph of the reasons set out herein) make it entirely clear to me that there have been two unfortunate typing errors in the decision and that the Tribunal intended to state "highest " and "care" rather than "higher" and "mobility". In the circumstances I intend treating this appeal as if the decision was in the form that the Tribunal intended.

6. Another application to set aside the Tribunal's decision was made. However, on 21 October 1997 a differently constituted Tribunal decided not to set aside the decision.
7. The claimant then applied to a Chairman for leave to appeal to a Commissioner. Leave was granted by a Chairman on 4 February 1998.
8. The claimant failed to appeal within the statutory period. However, a Commissioner on 2 September 1998 accepted the late appeal for special reasons.
9. An oral hearing of the appeal was arranged at which the claimant represented himself and Mrs Moffett was the Adjudication Officer in attendance.
10. The claimant's main and only point was that the adjudicating authorities, including the Appeal Tribunal, had failed to award him the highest rate care component from 31 March 1993 until 2 January 1996, even though the authorities had specifically decided that he was entitled to such an award.
11. I have considerable sympathy for the claimant in relation to this point as he was informed in the Adjudication Officer's decision of 24 June 1996 that he was "entitled to the care component of Disability Living Allowance at the highest rate from and including 31 March 1993". Reasonable understanding of these words would suggest to the ordinary citizen that an award of benefit was being made for that particular period. The decision did go on to make clear that the allowance was "not payable at the highest rate of the care component for the period from 31 March 1993 to 2 January 1996... because that period is more than 3 months before the application for review". In my view there is no doubt that the claimant is not entitled to payment of the highest or middle rate care component of Disability Living Allowance because of the provisions of regulation 59(5) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995. This regulation then restricted the payability of an increased rate of benefit to three months before the date of the application for review where the increased rate of benefit is payable as a result of a deterioration in a person's physical or mental condition, as occurred in the present case. (Regulation 59(5) has subsequently been amended with effect from 4 August 1997 to restrict this period even more to a period of only one month, but this amendment is not relevant to the present case.)
12. In the circumstances I conclude that the Appeal Tribunal has not erred in law in the way suggested by the claimant. However, I consider that it might be appropriate for the adjudicating authorities to reconsider the use of the word "entitlement" in a situation where an award of benefit is not being made.
13. Mrs Moffett in her submissions introduced a further point. She submitted that a Social Security Appeal Tribunal had no jurisdiction to hear this case on appeal and that a Disability Appeal Tribunal was the correct forum.
14. In particular she submitted that although the claimant was only concerned with "payability" in his appeal, a Tribunal was required to consider the decision given on 20 June 1996, which was upheld on review on 18 November 1996, and, as such, issues which a Social Security Appeal Tribunal had no jurisdiction to hear, might have arisen on the present appeal to the Social Security Appeal Tribunal.
15. Section 31 (1) of the Social Security Administration (Northern Ireland) Act 1992 provides that, where an Adjudication Officer has given a decision on a review under section 28(1), the claimant may appeal, in prescribed cases to a Disability Appeal Tribunal, and in any other case to a Social Security Appeal Tribunal. The exact terms of the provision are as follows:-

"31.-(1) Where an adjudication officer has given a decision on a

review under section 28(1) above, the claimant or such other person

as may be prescribed may appeal-

(a) in prescribed cases, to a disability appeal tribunal; and

(b) in any other case, to a social security appeal tribunal."

16. Regulation 27 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (where relevant) provides as follows:-

"27.-(1) The claimant may appeal to a disability appeal tribunal

from a decision of an adjudication officer under section 28(1) of

the Administration Act in any case in which there arises-

(a) a disability question; or

(b) both a disability question and any other question relating to

... disability living allowance...

(2) In this regulation "disability question" means a question as

to -

(a) whether the claimant satisfies the conditions for entitlement

to -

(i) the care component of a disability living allowance

specified in section 72(1) and (2) of the Contributions

and Benefits Act,

(ii) the mobility component of a disability living allowance specified in section 73(1), (8) and (9) of that Act,

(iii) ...

(iv) ...

(b) the period throughout which the claimant is likely to satisfy

the conditions for entitlement to... disability living

allowance;

(c) ...

(d) the rate at which the care component or the mobility component of a disability living allowance is payable."

Accordingly this regulation provides that the claimant may appeal to a Disability Appeal Tribunal from a decision of an Adjudication Officer in any case in which there arises a disability question, or both a disability question and any other question relating to that benefit.

17. Mrs Moffett submitted that in the present case there was no other issue actually before the Tribunal other than the one in relation to payability. However, she submitted that an issue could have arisen in relation to entitlement as the whole decision was under appeal and the initial decision of 20 June 1996 did, inter alia, concern entitlement as well as payability.
18. Mr C...'s submissions also, in my view, made it clear that he was concerned about the lack of payment in spite of the specific finding that he was entitled to benefit, and this confirms that the issue before the Tribunal was one of payability.
19. As the issue only related to payability, it seems difficult to argue that a disability question has arisen in this case. It is noteworthy that regulation 27(1) refers to "a decision... in any case in which there arises... a disability question" and does not refer to a decision in any case in which a disability question might arise or potentially could arise. No question in relation to disability actually did arise in the decision of 20 June 1996, which was upheld on review on 18 November 1996. Therefore, in my view, a Social Security Appeal Tribunal was the correct forum to hear an appeal, as no disability question arose or was in issue arising out of that decision. To come to any other conclusion seems to me to render regulation 27 somewhat meaningless. There would seem to be no reason to divide appeals between Social Security Appeal Tribunals and Disability Appeal Tribunals if the Disability Appeal Tribunal system was required to deal with every decision dealing with a disability question even though such a question is not at issue and does not arise.
20. Although the matter was not argued before me it seems to me that there would be a question mark over the jurisdiction of a Disability Appeal Tribunal to hear an appeal where a disability question was not at issue and did not arise.
21. In the circumstances I conclude that the Social Security Appeal Tribunal did have jurisdiction to hear this case and I do not find it to have erred in point of law in coming to its decision. Accordingly I dismiss this appeal.
22. Mrs Moffett introduced in her submission the problem that might arise if a Social Security Appeal Tribunal was hearing a case in which it appeared that no disability question was at issue and did not arise, but at which it became evident during the hearing of the appeal that such a question was at issue or did arise and was also properly within the ambit of those matters dealt with on that appeal. Although Mrs Moffett made helpful submissions on this point I do not consider it appropriate to make a definitive ruling, as I am not necessarily aware of all the factual situations that might arise and I am also not necessarily aware of all possible consequential ramifications. In any event such a problem does not arise out of the circumstances of the present case. However, it seems to me that the appropriate course for the Tribunal to take in such circumstances might

be to declare that it has no jurisdiction (and give its reasons for so doing) and then to invite the Independent Tribunal Service exercising its administrative functions to refer the matter to a Disability Appeal Tribunal.

(Signed): J A H Martin

CHIEF COMMISSIONER

14 December 1999