Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C31/99(DLA) (24 January 2000)

 


Decision No: C31/99(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 the decision of

Craigavon Disability Appeal Tribunal

dated 19 January 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer (now the Department) against the decision of the Tribunal to the effect that the claimant was entitled to payment of Disability Living Allowance at the highest rate of the care component from 16 April 1997 until 15 April 2000 and at the lower rate of the mobility component from 16 April 1997 until 15 April 2000. Leave to appeal was granted by the Chairman on 17 June 1999.
2. On 16 April 1997 the claimant made a claim for Disability Living Allowance stating that she suffered from depression and hypertension. On 21 May 1997 an Adjudication Officer awarded the lower rate of the mobility component from and including 16 April 1997. This was not a fixed period award. The claimant then made a request for review which was received on 18 March 1998. This was a specific request to review the care component. A letter was received from the claimant's General Practitioner and the usual review self-assessment forms were received from the claimant. On 19 June 1998 an Adjudication Officer refused to review the decision of 21 May 1997. A further request for review was then received on 6 July 1998. On 21 September 1998 a different Adjudication Officer reviewed the decision of 19 June 1998 but did not revise it. The claimant then appealed to a Tribunal.
3. The Tribunal made the following findings of fact material to its decision in relation to the care component:-

"Grounds exist to review the decision of 21 May 1997. The

appellant's mental condition has deteriorated in respect of

her care needs.

The appellant has depression, incontinence, agoraphobia, and

unexplained blackouts. She also has high blood pressure.

The appellant requires help 2-3 times at night to toilet

herself. She suffers from lack of drive and volition and

some degree of retardation. She requires continual

supervision due to the blackouts, she has burnt things in

the kitchen and broke her arm in November 1998 due to a

blackout. She has a very confused mental state.

There is confirmation of her agoraphobic symptoms in her

General Practitioner letters and also post traumatic stress

disorder.

She also has phobic avoidance symptoms. For all of these

conditions combined continual supervision both by day and at

night are required."

4. The Tribunal gave the following reasons for its decision in relation to the care component:-

"The appeal is allowed in respect of the care component

because of the appellant's mental condition and blackouts

which give rise to a need for continual supervision by day

and for someone to be awake at frequent intervals at night

for the purpose of watching over her."

5. The unanimous decision of the Tribunal in relation to the care component was as follows:-

"Appeal allowed. The highest rate care component of Disability

Living Allowance for the period 16 April 1997 - 15 April 2002."

6. The Tribunal made the followings findings of fact material to its decision in relation to the mobility component:-

"The appellant has depression, incontinence, agoraphobia, and

unexplained blackouts. She also has high blood pressure.

The appellant is on high levels of psychiatric medication.

We find that the award of low rate mobility component should

not be reviewed because the appellant's condition has

deteriorated. Her medical conditions of agoraphobia, post

traumatic stress disorder, confusion and phobic avoidance

symptoms would all prevent her walking out of doors in

unfamiliar routes. She would be forgetful and would be

inclined to wander off."

We did not accept that medical evidence existed that the

appellant was virtually unable to walk. As confirmed by

the General Practitioner factual report of 13 May 1997

and there is no subsequent medical evidence of a deterioration

in her walking ability which would render her virtually unable

to walk."

7. The Tribunal gave the following reasons for its decision in relation to the mobility component:-

"The appellant is not unable or virtually unable to walk. She

could walk for a reasonable distance in a reasonable manner in

a reasonable length of time at a reasonable speed without

severe discomfort.

Her walking is affected by her mental state which gives rise

to an award of the lower rate mobility component. No award can

be made of the higher rate in respect of the mental condition.

She is unable to walk on unfamiliar routes without supervision

due to the mental condition."

8. The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

"Appeal allowed. The low rate mobility component of Disability

Living Allowance is payable for the period 16 April 1997 -

15 April 2002."

9. Mrs Gunning, the Adjudication Officer (now the relevant Departmental Official), sought leave to appeal against this decision. As stated at paragraph 1, leave to appeal was granted by the Chairman on 17 June 1999.
10. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
11. The Adjudication Officer's submissions are set out in the original grounds of application for leave to appeal contained in a letter dated 3 June 1999. In the circumstances it is appropriate, in my view, to set out these grounds in full, as follows:-

"1. The tribunal erred by awarding the highest rate of the

care component from 16 April 1997

The question before the tribunal was whether there were

grounds to review the adjudication officer's (AO)

decision of 21 May 1997 which decided [the claimant] was

entitled to lower rate mobility component but not entitled

to the care component. The tribunal decided that [the

claimant's] mental condition had deteriorated in respect

of her care needs and that grounds existed to review the

decision of 21 May 1997. Although it is not specifically

recorded it would seem that the tribunal decided the

decision of 21 May 1997 should be reviewed on the basis

there had been a relevant change of circumstances since

that decision was made. This implies that the tribunal

was satisfied that the AO's decision in relation to the

care component was correct at the time but that [the

claimant] satisfied the entitlement conditions at some

later date. [If the tribunal had decided that the

entitlement conditions for the care component were

satisfied at the date of claim I submit it would not

have found that her condition had deteriorated.] Having

decided that the tribunal was then required to attribute

a date to the deterioration for the purpose of establishing

entitlement to the care component. Section 72(2) of the

Social Security Contributions and Benefits (Northern

Ireland) Act 1992 (the Contributions and Benefits Act)

provides that a person shall not be entitled to the care

component unless he has satisfied the entitlement

conditions throughout the 3 months immediately preceeding

the commencing date of the award and will continue to

satisfy them for the following 6 months. For this reason

it was essential for the tribunal to attribute a date to

the deterioration.

2. The tribunal erred by failing to restrict payability of

arrears

In a letter received on 18 March 1998 Mr Jim Doran of

Shankill Help Service applied for review of the decision

on [claimant's] entitlement to the care component i.e.

the AO's decision of 21 May 1997. The tribunal decided

there were grounds for review of that decision - relevant

change of circumstances since the decision was given.

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

Regulations (Northern Ireland) 1995 provides

In any case relating to attendance allowance or disability

living allowance in which the review to which paragraphs

(1) to (4) relate was based on a relevant change of

circumstances to which this paragraph applies subsequent

to the date from which the original decision took effect,

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) where more than one change has taken place between

the date from which the original decision took effect

and the date of the application for review, the date

declared by the adjudicating authority making the review

to be the date on which the most recent change took

place; or

(c) the date one month before the date of the application

for review,

whichever is the later.

As stated in my first point I consider the tribunal erred

by not attributing a date to the deterioration in [the

claimant's] condition to establish the date from which she

was entitled to highest rate of the care component. However,

even if the tribunal had decided on a date there would have

been a restriction on the payment of benefit resulting from

the tribunal decision. By deciding the care component was

payable from 16 April 1997 it would seem that the tribunal

had no regard to the above provision.

3. The tribunal erred by altering the period of the award

of the mobility component

The AO on 21 May 1997 decided that [the claimant] was

entitled to the lower rate of the mobility component

from and including 16 April 1997 i.e. a 'life' award.

Under the provisions of sec 31(6) of the Social Security

Administration (Northern Ireland) Act 1992 the tribunal

was not permitted to consider [the claimant's] existing

award unless

she specifically requested it

or

the tribunal had information giving it reasonable grounds

for believing that the current entitlement to the

component, entitlement at that rate or for that period

ought not to continue.

[The claimant] appealed to try to establish entitlement

to the care component; she did not raise the question of

her entitlement to the mobility component. The AO's

submission to the tribunal did put forward the view that

the entitlement conditions for the lower rate of the

mobility component were not satisfied but it did not

advise the tribunal of the provisions of sec 31(6). In

any event the tribunal accepted that [the claimant] was

entitled to the lower rate mobility component and it

would appear that the tribunal only altered the period

of the mobility component award as it had decided to

award the care component until 15 April 2002. There

was no need to do this. While the two components cannot

be awarded for different fixed periods, either component

may be awarded for a fixed period or for life - sec 71(3)

of the Contributions and Benefits Act."

12. The claimant's son, on behalf of his mother, by letter received on 29 July 1999 stated that he did not wish to oppose the appeal and in particular stated that he and his mother did not have any control over the decision made by the Tribunal. Also, by letter dated 15 November 1999, the claimant's son made it clear that he was most unhappy that the Tribunal had back-dated his mother's benefit to a date much earlier than the date of the deterioration of his mother's condition. In the circumstances I understand the claimant's upset at the turn of events which has resulted in a further appeal coming before a Commissioner.
13. I consider that Mrs Gunning's submissions set out in the application for leave to appeal are correct in every respect. For the reasons stated by her, the Tribunal has clearly erred in point of law by awarding the highest rate of the care component from 16 April 1997. In addition the Tribunal has erred in point of law by failing to restrict the payability of arrears in light of the provisions of regulation 59(5) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (the then relevant legislation). I also find that the Tribunal has erred in point of law by altering the period of the award of the mobility component without considering the provisions of section 31(6) of the Social Security Administration (Northern Ireland) Act 1992 and the provisions of section 71(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
14. The claimant's son, on behalf of the claimant, has eloquently and effectively set out reasons why he considers that a Commissioner should substitute his own decision for the Tribunal's decision in this case rather than referring the case back to a fresh Tribunal for redetermination.
15. Regrettably, I do not consider that it is properly within my powers to take the course of action put forward by the claimant's son. In my view, this case requires the decision of a fact finding body, namely the Tribunal, to decide the various matters in issue and in particular whether the claimant's condition has deteriorated and, if so, the date of such deterioration, and also to decide whether it has jurisdiction to consider the claimant's existing entitlement to the mobility component in light of the provisions of section 31(6)(ii) of the Social Security Administration (Northern Ireland) Act 1992.
16. I therefore conclude, for the reasons stated, that the decision of the Tribunal is erroneous in point of law and therefore set it aside. I refer the case back to a differently constituted Tribunal to redetermine the case. The Tribunal should not consider the claimant's existing entitlement to the mobility component unless it establishes jurisdiction so to do under the provisions of section 31(6)(ii) of the Social Security Administration (Northern Ireland) Act 1992. As Mrs Gunning pointed out in her letter dated 1 November 1999 this Tribunal's attention should be drawn to the relevant Commissioners' decisions C70/97(DLA), C12/98(DLA) and C53/98(DLA). In addition, if this Tribunal decides that there has been a deterioration in the claimant's condition since the Adjudication Officer's decision dated 21 May 1997, the Tribunal will be required to attribute a date to that deterioration to enable the first date of entitlement to be determined. (I note that the claimant's son has stated in his letter dated 15 November 1999 that his mother's condition did not deteriorate until October 1997). Also, if this Tribunal decides that an award of the care component is appropriate, it ought to consider whether there should be any restriction on the payment of arrears.

(Signed): J A H Martin

CHIEF COMMISSIONER

24 January 2000