Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C37/99(DLA) (12 May 2000)

 


Decision No: C37/99(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 10 June 1999 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision dated 10th June 1999 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The Tribunal had disallowed the claimant's appeal against a decision of an Adjudication Officer. The Adjudication Officer had refused to revise an earlier Adjudication Officer's decision to the effect that the care component of Disability Living Allowance was not payable to the claimant because the claimant was a person for whom accommodation was provided and the cost of that accommodation could be borne wholly or partly out of public or local funds under certain enactments. The care component was not to be payable from and including 14th January 1998.
2. The Tribunal was not dealing with the disability conditions for entitlement to the allowance but only whether or not it was payable to the claimant. No issue on those conditions was raised with me and, on the evidence before me, none is clearly apparent. I am therefore dealing only with issues relating to the payability of the care component.
3. The claimant appealed by an OSSC1 (NI) form dated 18th August 1999 and was represented by Mr Stockman of the Law Centre (NI). Comments on the grounds of appeal were made by Mrs Gunning of the Decision Making and Appeals Unit by letter of 17th January 2000 and further comment on Mrs Gunning's letter was made by the Law Centre by letter dated 20th January 2000. At my request further information was supplied by Mr Stockman by letter of 21st February 2000.
4. A hearing was requested but, having considered the papers, I am satisfied that I can decide the matter without such hearing. My decision is given in the final paragraph.
5. In essence the Law Centre had put forward three grounds for appeal, only one of which was supported by Mrs Gunning. It is on that supported ground only that I base my decision. The ground related to whether or not the claimant's accommodation was in a private dwelling. If it was, regulation 9(6)(d) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 applied. By virtue of that sub paragraph and if the claimant's circumstances would otherwise fall within regulation 9(1)(c) of those Regulations the claimant could continue to be paid Disability Living Allowance care component. Regulation 9(1)(c) relates to circumstances where costs of accommodation may be borne out of public or local funds in pursuance of certain enactments.
6. Though the Tribunal's decision could perhaps be rather clearer in relation to the application of regulation 9(1)(c), I am nonetheless satisfied that the Tribunal had reached the conclusion that the claimant did not live in accommodation, the costs of which actually were borne wholly or partly out of public or local funds, but had reached the conclusion that the claimant fell within the circumstances outlined in regulation 9(1)(c). Had it not done so it would not have proceeded to consider whether or not the accommodation which the claimant lived in was a private dwelling.
7. The Tribunal considered that the accommodation in which the claimant lived was not in a private dwelling. It is only in relation to its conclusion on that matter that I consider that the Tribunal erred in law. The Tribunal has obviously considered the matter very carefully and has set out its findings and reasoning clearly but it appears to me that it has based its decision almost completely on the terms of the tenancy and has not given consideration to all of the factors involved in deciding whether or not a claimant's accommodation is in a private dwelling.
8. I have considerable sympathy for the Tribunal in this case. As the Chairman said it was faced with an unenviable task and there is no definition of what constitutes a private dwelling in the relevant regulations. In addition the nature of this accommodation is less clearly in a private dwelling than was in the case in C15/98(DLA) [a decision of my own]. Nonetheless, bearing in mind that decision and the Northern Ireland Court of Appeal decision upholding it (Chief Adjudication Officer v James Uprichard (delivered 20th October 1999) (which latter was not available to the Tribunal at the time it made its decision) I do consider that the Tribunal has erred in law.
9. As the Court of Appeal stated:-

"... We are dealing here with housing accommodation paid for

out of or subsidised by public funds, and we are seeking a

construction for the phrase "living in a private dwelling"

which will give a sensible meaning to it in this context.

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 the

occupation. ..."

10. The Court of Appeal quotes paragraphs 35 to 37 of the said Commissioner's decision but it appears to me that paragraph 35 is most relevant in relation to the approach to be adopted. In that paragraph I stated:

"In this case, however, I am of the view that the tribunal's

conclusion was correct. There are various factors which have

to be considered in deciding whether or not a property is

occupied as a private dwelling and no one can be conclusive.

The following list is by no means conclusive but I do think that

these are factors which usually fall for consideration. The

factors 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."

11. It should be noted that the Court of Appeal stated that the question of whether or not a person lived in a private dwelling was not to be answered solely by examining the terms of the resident's tenure of the accommodation. That does not mean that the terms of tenure are irrelevant, far from it. The terms are amongst the factors which have to be considered. Other matters also have to be considered as indicated by the Court.
12. In this particular case and bearing in mind the Court of Appeal's statement that "We are seeking a construction for the phrase "living in a private dwelling" which will give a sensible meaning to it in this context." And the Court's further statement "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 ...", I consider that the Tribunal's conclusion that this was other than a private dwelling is not sustainable.
13. My reasons are that the terms of the tenancy make no provision for care or supervision as of right as part of the terms of occupancy, the claimant in fact was completely independent in terms of her domestic routine, she was responsible for all of her own meals, she simply had the option of paying for an additional meal at the cafeteria provided, she was under no obligation to obtain any care which she might need via the adjacent Taylor house.
14. There is no doubt that the accommodation and the link with Taylor House was not such as would be provided for someone who was able bodied. However it appears to me that it is the manner of occupancy and the degree of independence that are of prime importance and there appears to be little doubt that the claimant was occupying the premises as an independent individual.
15. Bearing in mind all of these factors it appears to me that the ordinary person being asked if the claimant had her own place would say that she did have her own private accommodation albeit it was within a building which provided facilities for purchase of meals for which she had to pay extra money.
16. I do agree with the Tribunal that the service charge appears to include some charge for the call-system whereby assistance can be obtained from the adjacent Taylor House. I accept, however, that this system is available for emergencies and that Taylor House does not provide day to day care or supervision as part of the terms of residence.
17. I therefore agree with Mrs Gunning that the Tribunal erred in law by considering that the claimant's accommodation was not in a private dwelling. I should add that had I considered that day to day care or supervision was provided as either an express or implied term of residence my decision might well have been different.
18. I consider that this is a case where I can give the decision which the Tribunal should have given. I therefore set the Tribunal decision aside as in error of law and substitute my own decision for the decision which the Tribunal should have made.
19. My decision is that the Adjudication Officer on 21st October 1998 had grounds to review and revise the decision of 2nd July 1998. The revised decision is that from and including 14th January 1998 the care component of Disability Living Allowance is payable to the claimant at the middle rate.

(Signed): M F Brown

COMMISSIONER

12 May 2000