Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C36/99(DLA) (11 October 2000)

 


Decision No: C36/99(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 23 June 1999

INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by the Chairman, against a decision dated 23rd June 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had dealt with the claimant's appeal against a decision of an Adjudication Officer dated 18th September 1998.
2. The Adjudication Officer on 18th September 1998 had decided that the care component of Disability Living Allowance was not payable to the claimant from 17th December 1997 because she was a person for whom accommodation was provided by the Health and Social Services Board and who did not have a preserved right nor the ability to benefit from the prescribed exceptions. The legislation then in force and cited by the Adjudication Officer was the Social Security Contributions and Benefits (Northern Ireland) Act 1992 section 72(8) and the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 regs 8, 9 and 10. Although a review was not actually carried out in this decision of 18th September 1998 I accept that the decision was intended to deal with an earlier application for review dated 26th January 1998 and made by an officer of the Department to the Adjudication Officer.
3. When the matter came to the Tribunal the Tribunal found that the clerk who had completed the review request had done so in error due to inexperience of appeals and therefore the claimant could not rely on this request as a valid request for a review. The Tribunal then found that as no valid request for a review of the decision of 29th October 1987 (the subject of the application on 26th January 1998) was made and no review decision, as such, was made under section 28(1) of the said Administration Act, the Tribunal had no jurisdiction to hear the appeal.
4. I held a hearing of the appeal before me and I also had the benefit of written submissions by the two representatives, Mr Stockman of the Law Centre (Northern Ireland) representing the claimant and Mr Toner of the Decision Making and Appeals Unit, representing the Adjudication Officer. I am obliged to both gentlemen for their assistance. Both agreed that there was an error in law but differed somewhat in relation to the error made.
5. Mr Toner contended that the Tribunal had erred in taking account of the inexperience of a member of the Department's staff and thereby declaring the request for the review invalid. He nevertheless submitted that the Tribunal did not have jurisdiction as the letter which had accompanied the Departmental clerk's application for review (this accompanying letter was a letter dated 12th January 1998 from a Ms D…) was related to an earlier decision of 17th October 1997 and not to the decision which was actually reviewed ie the decision of 29th October 1997. Mr Toner therefore submitted that the review application of 26th January 1998 was not a valid review application and that the Tribunal had been correct, though for the wrong reasons, in declining jurisdiction.
6. Mr Stockman submitted that the review request was valid. There was no statutory provision as to the information which was to accompany an application for review. He submitted that the Tribunal, which was dealing with an appeal against the decision of 18th September 1998) should have decided that decision was in error of law because it refused to review the earlier decision of 29th October 1997. Mr Stockman contended that the decision of the 29th October 1997 was itself in error of law as it treated a claim form submitted on 13th August 1997 as a renewal claim and treated it as made on the day after the expiry of the original award (17th December 1997).
7. In Mr Stockman's submission this was contrary to section 28(12) of the said Administration Act. In support of this he cited a decision of Commissioner Rowland in Great Britain, decision CDLA/14895/96 (an unreported decision).
8. That decision had stated:-

"Where an adjudication officer, (or, on appeal, a tribunal) is minded to award a component of disability living allowance on the renewal claim at a higher rate than on the earlier award, it is incumbent on him or her (or them) to consider first whether the renewal claim ought to be treated as a claim made on the date it was received ... in which case section 30(12) of the 1992 Act would apply to treat it as an application for review made on that date and the question would be whether there were grounds for review of the existing award."

9. The Commissioner further commented:-

"Section 30(12) of the 1992 Act clearly contemplates a claimant erroneously making a claim when an application for review would be more appropriate. It would be absurd if regulation 13C of the 1987 Regulations were to apply so as to deprive a claimant of the advantage of section 30(12) of the Act. Accordingly it is my view that it is only if there are no grounds for reviewing the existing award that regulation 13C(2) should be applied to treat a renewal claim as having been made only on the renewal date."

10. Mr Toner disputed this and cited to me several decisions of Northern Ireland Commissioners taking a view contrary to that of Commissioner Rowland. The decisions were C21/95(DLA), C42/95(DLA), C56/95(DLA), all decisions of the former Chief Commissioner and C45/95(DLA) a decision of Commissioner McNally. These Northern Ireland Commissioners decisions took a different view than did Commissioner Rowland on the interaction of section 28(12) (Northern Ireland equivalent of section 30(12)) and regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. This is the regulation which empowers an adjudicating authority to treat a renewal claim made within six months of the expiry of an existing award as made on the day after the expiry of the award and award benefit accordingly.
11. Mr Toner confirmed that the practice in Northern Ireland for some years has been to treat regulation 13C as permitting an Adjudication Officer to treat a renewal claim as a new claim and that a Tribunal could also do this. In this particular case Mr Toner said that the claim was made within the said six months and was treated as if it was made on the day after the expiry of the original award.
12. Mr Toner also stated that there was no point in treating the renewal claim as a review request when on the 17th October 1997 the very question of payability, raised in earlier correspondence, had been looked at and it had been decided that the care component was not payable.
13. There were other issues in the case which Mr Stockman wished to raise but it was agreed that I should decide on the above issues before these latter matters need be dealt with as the extent to which they were relevant would depend on my decision on the above issues.
14. As regards the issue of whether or not the review request of 26th January 1998 by the Departmental officer was a valid request for review of the decision of 29th October 1997 I am of the view that it was. True it did have attached to it a letter dated 15th January 1998 from Ms D… regarding the nonpayment of the care component from 17th December 1992 but it was also quite clear from this letter that Ms D… was, in referring to the claimant's situation of receipt of housing benefit, referring to an ongoing situation. Even had she not been so doing the request for review clearly stated that the decision which the Departmental officer wished to have reviewed was the decision of 29th October 1997 (the decision on the renewal claim).
15. At the relevant time the statutory conditions for raising a review question were set out in section 28(7) of the said Act and were as follows:-

"A question may be raised with a view to a review under this section by means of an application made in writing to an adjudication officer stating the grounds of the application and supplying such information and evidence as may be prescribed."

As I understand it no regulations were made under that subsection. All that was required therefore to raise a question with a view to review was that the application be in writing and the grounds be stated. In this case the application for review was in writing and the grounds were stated as being a "letter in file re payability". There seems to be no doubt that the letter referred to is the letter dated 12th January 1998 from Ms D…. The application stated that the decision which the officer sought to have had reviewed was that of 29th October 1997.

16. I consider this to be a valid application for review of the decision of 29th October 1997 and I agree with Mr Toner (Mr Stockman did not dissent) that the decision dated 18th September 1998 was made on foot of this application.
17. I therefore consider that the Adjudication Officer on 18th September 1998 had jurisdiction to consider the review question and that the Tribunal therefore had jurisdiction to deal with the decision of 18th September 1998 and its merits. As Mr Toner has stated the Adjudication Officer on 18th September 1998 did not actually state that he was dealing with a review and he was in error in so doing. The Tribunal could, however, have corrected this error and there appears no doubt that the decision was intended to deal with the application for review of 26th January 1998.
18. As regards the decision of 18th September 1998 and Mr Stockman's second contention that it was in error of law because the decision which it did not review was itself in error of law as treating the forms received on 13th August 1997 as a renewal claim and not as an application for review, I disagree with Mr Stockman's contention. The legislation then in force was the same as when the Commissioners made their decisions. I consider that the Northern Ireland Commissioners in the decisions cited above were correct in their view that where a renewal claim was received, as it was in this case, within six months of the expiry of an existing award an adjudicating authority had a discretion under the legislation then in force to treat the claim as if made on the first day after the expiry of the existing award and to award benefit accordingly. It does not seem to me that regulation 13C was made under section 28(12) rather it appears to me that the regulation was made under section 5 of the said Act which enabled regulations to be made which provided:-

"for treating such a claim made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made as may be prescribed."

19. Section 28(12) stated:-

"Except in prescribed circumstances, where a claim for a disability living allowance in respect of a person already awarded such an allowance by an adjudication officer is made or treated as made during the period for which he has been awarded the allowance, it shall be treated as an application for a review under this section."

20. I think, as it appears, did the Northern Ireland Commissioners, that section 5 and regulation 13C can be applied so as to remove a claim from the ambit of section 28(12) in other words the claim can be treated as made on the day after the expiry of the existing award and not during the period of the existing award. Regulation 13C permitted the adjudicating authority to treat a claim as received on a different date than it was actually made and so doing permitted it to be removed from the ambit of section 28(12). While the provisions of that regulation and section 5 sit somewhat ill with section 28(12) it seems to me that they must be so read. Otherwise each time a claimant put in a renewal claim under that legislation he would have been faced with the rigours of a review outside the three month period and have had to establish grounds under section 28(2). I cannot accept that that was the intention of the legislature and once having accepted the application as for review and made on a particular date, the assistance of Regulation 13C could not then be invoked. It could only assist where a claim was treated as made on the day after the existing award expired.
21. I therefore conclude that the Adjudication Officer on 29th October 1997 was within his rights to treat the claim forms received on 13th August 1997 as a renewal claim and treat the claim as made on 17th December 1997.
22. I am aware that this still leaves outstanding the question of the earlier award. While I consider that the letter from Ms D… dated 12th January 1998 can validly be used as grounds to found the application by the Departmental Officer on 26th January 1998, I also consider that the Adjudication Officer (now the decision maker) should have considered whether or not that letter was also an application for review of the decision of 17th October 1997. It is correct that Ms D… sought an appeal in that letter but she had no locus so to do and it was quite apparent that there was dissatisfaction with the payability aspect of the existing award. Again the application was made in writing and clearly referred to the decision notified to the claimant on 20th October 1997 (this is the decision of 17th October 1997).
23. The Tribunal's decision is set aside as in error of law for declining jurisdiction where the Tribunal had jurisdiction.
24. I give this interim decision in part so that both representatives may have an opportunity to make written submissions to me as to the correctness of the decision of 18th September 1998. This may entail dealing with the merits also of the decision of 29th October 1997. As I have already stated that decision is to be taken as a decision on the renewal claim of 17th December 1997.
25. The substantive issue in this case appears to depend on the findings on the nature of claimant's accommodation from 17th December 1997. I am of the view that I cannot decide on that matter at least at present. To enable me to so decide, I would require information as to the funding of that accommodation, copies of the tenancy agreement, evidence on the nature of the accommodation, of the support given and available and of the supervision given and available as a concomitant of the occupancy of the accommodation. This adjournment has the additional purpose of enabling that information to be supplied or in the alternative to enable the parties to make representations to me that the matter should be remitted to a differently constituted Tribunal. I direct that each party exchanges any such evidence and submissions prior to their submission to me.
26. Though it does not relate to the decision on the said renewal claim I also direct the decision maker to consider, as matter of urgency, whether Ms D…'s letter of 15th January 1998 can be treated as an application for review of the decision of 17th October 1997 and decided upon on that basis.

(Signed): M F Brown

COMMISSIONER

22 June 2000

Decision No: C36/99(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 23 June 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

27. I have already issued an interim decision in this case. The directions which I gave in paragraph 25 of that interim decision having been complied with, I now proceed to issue my final decision in the case. I substitute my own decision for that which the Tribunal should have made. That decision is that payment of the care component of Disability Living Allowance to the claimant should not be withheld under the provisions of regulation 9(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1991 from and including 17 December 1997.
28. I find as a fact on the basis of the evidence submitted by Mr Stockman pursuant to my direction, that the costs of the accommodation of the claimant in the Praxis Scheme at Antrim in which she resides are not born either wholly or partly out of public or local funds and that the accommodation is not provided in pursuance of Article 5, 15 or 36 of the Health and Personal Social Services (Northern Ireland) Order 1972.
29. I further find that the claimant has control of the ingress and egress of persons to the premises were she is licensed to reside, has control of the domestic routine in those premises, does not have domestic care provided as part of the terms of her licence to reside in the premises, does not have meals provided as a concomitant of the residence in the premises and that no other person is engaged to spend time in the premises in which she is licensed to reside.
30. Certain factors make the claimant's tenancy an unusual one i.e. the presence within the scheme in which she resides of staff from the Praxis organisation who will provide support when requested by the licensees and exercise a good neighbourly watching role over the licensees. Nonetheless the very substantial degree of independence which the claimant has and the control which she has both of the domestic routine and of admission of Praxis staff and the control which she has over the support provided leads me to the conclusion that the premises in which she is licensed to reside are a private dwelling. I therefore agree with both the claimant's representative and the Departmental representative in this respect.
31. I also agree with both representatives that none of the costs of the accommodation are borne out of public or local funds.
32. My decision is as set out at paragraph 1 above.

(Signed): M F Brown

COMMISSIONER

11 October 2000