Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C20/99(DLA) (24 May 2000)

 


Decision No: C20/99(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 3 September 1998 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself by an Adjudication Officer, against a decision dated 3rd September 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had allowed the claimant's appeal in relation to Disability Living Allowance and in particular had determined that the care component of that allowance was payable from and including 5th July 1996. The appeal to me was by the Adjudication Officer and did not raise the question of entitlement only that of payability of the said component. I have decided that it is not necessary that I deal with the question of entitlement to either the care or mobility component in this appeal.
2. My decision is given in the final paragraph.
3. I held a hearing of the appeal and this was attended by Ms Loughrey of the Law Centre (NI) representing the claimant and by Mrs Gunning of the Decision Making and Appeals Unit (DMAU) representing the Adjudication Officer. I am obliged to both for their considerable assistance in this matter. Following that hearing I requested additional information on various matters which I had set out in a letter. Following receipt of the replies containing that information Mrs Gunning conceded that the claimant's accommodation at all relevant times could be regarded as in a private dwelling. The significance of this was, in Mrs Gunning's submission, that although the claimant was living in accommodation the cost of which could be borne out of public funds and the provisions of regulation 9(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 applied, nonetheless the claimant could benefit from the exception to that paragraph contained in regulation 9(6)(d). The latter provision excepted persons living in a private dwelling from the provisions of regulation 9(1)(c).
4. Mrs Gunning therefore conceded that although there was an error in the Tribunal's decision the care component of Disability Living Allowance was payable to the claimant from and including 5th July 1996. In substance therefore Mrs Gunning was conceding that although the Tribunal's reasoning was unclear the eventual decision reached was correct.
5. I consider that Mrs Gunning is correct in her concession and that the claimant at all relevant times was living in accommodation in a private dwelling.
6. The facts of the case are that the claimant is a person who suffers from mental health problems and who lived at all relevant times in accommodation owned by Oaklee Housing Association and managed by the Northern Ireland Association for Mental Health. That association had a contract with the South and East Belfast Health and Social Services Trust to provide supported housing in the community for people with mental health needs. The costs of his accommodation were not met out of public funds either wholly or partly. However, there was power for them to be so met.
7. In those circumstances the claimant could only be paid the care component of Disability Living Allowance, provided that he was otherwise entitled to it, if his accommodation was in a private dwelling. Applying the principles set out by the Northern Ireland Court of Appeal in the case of Chief Adjudication Officer v Uprichard I consider that the Tribunal was justified in its implicit conclusion that the claimant's accommodation was in a private dwelling. His accommodation in my view was the bedroom which he occupied and the communal rooms at the address in which he lived.
8. The Northern Ireland Court of Appeal in Uprichard set out the construction to be given to the phrase "living in a private dwelling" in this context and stated:-

"... We agree with the contention that the term in the present

context is intended to distinguish the accommodation from that

in which the domestic care of the residents is provided as part

of their terms of residence - for example, in a nursing home

where the claimant is not himself paying the charges - in which

event to pay disability living allowance to him would involve

double benefit. One must therefore look for characteristics of

the accommodation which distinguish it from that in which care

is included. We agree with the approach of the Commissioner in

the paragraphs which we have quoted from her decision. It is

not a question to be answered solely by examining the terms of

the resident's tenure of his accommodation. One has to have

regard to factors of the type set out by the Commissioner, with

the object of determining whether the accommodation should be

regarded as institutional accommodation in which care is provided

or a private dwelling in which care is not provided as part of

the terms of occupation. No doubt there may be cases in which

the line will be difficult to draw and it may not be easy to

determine on which side particular accommodation falls."

9. The factors referred to by the Court of Appeal were set out in the Commissioner's decision C15/98(DLA) on that case and are:-

"... the claimant's control over his own access and egress

from the premises, the extent of control over the admission

of other persons to the premises, whether and to what extent

persons are engaged whether for payment or voluntarily to spend

time at the premises, the degree of independence which the

occupants of the premises have in relation to the activities

and routines carried on there."

10. In this particular case the Tribunal had found, with regard to the claimant's accommodation:-

"It is not a residential home. The available staff provide no

physical care whatsoever. Nor do they provide any medical or

quasi-medical care. This man for example, is responsible for

his own medication. There may be support and a monitoring of

the building and the accommodation but there is not supervision

in the accepted sense. This man has his own bedroom and shares

communal areas with other residents. He is responsible for his

own preparation of food. Use of bathroom and living

accommodation is shared."

11. The Tribunal reached no conclusion as to whether or not the claimant lived in a Private dwelling but it appears to me that that conclusion, though it should have been set out was implicit in the Tribunal's decision.
12. I agree with the Tribunal's conclusion that the claimant's accommodation was a private dwelling and it does accord with the judgment of the Northern Ireland Court of Appeal in the Uprichard case. As the claimant did at all material times live in a private dwelling, the said exception to regulation 9(1)(c) did apply to him and he could be paid the care component of Disability Living Allowance.
13. I should add that in my view "domestic care" as mentioned by the Court of Appeal may include supervision where that is provided as part of the terms of residence and is of a close nature, as opposed to mere neighbourly "keeping an eye out" for someone. I think this because the context of the legislation as the Court of Appeal indicated, is to avoid the payment of double benefit. In this particular case while the staff in the home, who were small in number and were not by any means there constantly, did keep an eye out for the claimant they could not be said within the context of Disability Living Allowance to be exercising supervision. They were acting rather more as a good neighbour would. I do not therefore consider that such element of monitoring as there was amounted to supervision so as to take the claimant's accommodation out of the private dwelling category.
14. For the reasons set out above I dismiss the appeal and confirm the decision of the Tribunal.

(Signed): M F Brown

COMMISSIONER

24 May 2000