Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C5/99(DLA) (5 May 1999)

 


Decision No: C5/99(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 to the Social Security Commissioner

on a question of law from the decision of the

Londonderry Disability Appeal Tribunal

dated 15 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by myself, by Miss D... against a decision dated 15 September 1997 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Londonderry. That Tribunal had decided that Miss D... was not entitled to either the care or the mobility component of Disability Living Allowance from and including 30 March 1994. I held an oral hearing of the appeal. Miss D... did not attend. Mr Shaw of Central Adjudication Services attended to represent the Adjudication Officer. I am obliged to Mr Shaw for his assistance.
2. My decision is that the decision of the Tribunal is set aside as in error of law. I consider it appropriate to give the decision which the Tribunal should have given and that decision is set out in the final paragraph below.
3. The history of the adjudication of this case is somewhat complicated and is relevant to my decision on the appeal. I therefore set it out.
4. On 9 October 1992 Miss D... made a claim for Disability Living Allowance. On 4 June 1993 an Adjudication Officer decided to award her that allowance and awarded the lower rate of the mobility component and middle rate of the care component from 9 October 1992 to 8 October 1994. On 18 June 1993 Miss D... requested a review of the decision of 4 June 1993. On 7 January 1994 a different Adjudication Officer reviewed the decision dated 4 June 1993 but did not revise it.
5. On 12 May 1994 a letter dated 7 May 1994 from Miss D... was received by the Department of Health and Social Services. That letter informed the Department that Miss D... had for 6 weeks been living in Cuan Mhuire (this it appears is a charitable rehabilitation centre for persons with addiction problems). The letter stated that if the Disability Living Allowance Branch of the Department had sent her a Claim Pack to her home address she would not have received it and asked for a claim pack to be sent to the address of Cuan Mhuire. A Claim Pack was sent out to Miss D... and the completed Claim Pack was received in Disability Living Allowance Branch on 8 June 1994.
6. Following on receipt of this Claim Pack and after certain further reports had been obtained an Adjudication Officer on 5 December 1994 made a decision awarding Miss D... the care component of Disability Living Allowance at the middle rate for day needs and the mobility component of Disability Living Allowance at the lower rate in both cases from and including 30 March 1994. The Adjudication Officer in the decision of 5 December 1994 stated:-

"Following the application made on 12 May 1994 I have reviewed the decision of the Adjudication Officer dated 7 January 1994. This is because there has been a relevant change of circumstances since the decision was given. This was that A… M… D... temporarily changed address for treatment to Cuan Mhuire from 30 March 1994 to 20 June 1994.

Social Security Administration (Northern Ireland) Act 1992 section 28(2)"

The decision then set out the revised decision of the Adjudication Officer as set out above and the legal provisions under which that decision purported to be made.

7. A request for review was received on 29 April 1996 and on 28 October 1996 a different Adjudication Officer reviewed the decision dated 5 December 1994 but did not revise it. On 10 March 1997 self assessment forms were received in the Department of Health and Social Services and were treated as an application for review. On 15 April 1997 an Adjudication Officer refused to review the decision dated 28 October 1996. Further claim forms were received on 9 May 1997 and were treated as an application for a review. On 10 July 1997 a different Adjudication Officer reviewed the decision dated 15 April 1997 but did not revise it. On 22 July 1997 Miss D... appealed to the Tribunal against the decision of 10 July 1997.
8. The legislation relating to a claim for Disability Living Allowance received during the currency of an award is set out in Section 28(12) of the Social Security Administration Act (Northern Ireland) 1992 and states:-

"Except in prescribed circumstances, where a claim for 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."

9. Section 167 of the said Act provides that unless the context otherwise requires "prescribed" means "prescribed by regulations".
10. Article 52 of the Social Security (Northern Ireland) Order 1986 which is headed "Regulations about claims for and payments of benefit" provides:

"52.-(1) Regulations may provide -

(a) ...

(b) 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;

(c) for permitting such a claim to be made, or treated as made, for a period wholly or partly after the date on which it is made;

(d) for permitting an award on such a claim to be made for such a period subject to the condition that the claimant satisfies the requirements for entitlement when benefit becomes payable under the award;

(e) for a review of any such award if those requirements are found not to have been satisfied."

11. Regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 provides as follows:-

(1) A person entitled to an award of disability living allowance may make a further claim for disability living allowance during the period of 6 months immediately before the existing award expires.

(2) Where a person makes a claim in accordance with paragraph (1) the adjudicating authority may-

(a) treat the claim as if made on the first day after the expiry of the existing award ("the renewal date"); and

(b) award benefit accordingly, subject to the condition that the person satisfies the requirements for entitlement on the renewal date."

12. It appears to me that Regulation 13C is made under the powers given in the said Article 52.
13. It would appear that the Adjudication Officer did not treat either the letter received on 12 May 1994 nor the claim forms received on 8 June 1994 as a renewal claim though he had power to do so under Regulation 13C. Instead the Adjudication Officer treated the claim as a review and reviewed the decision of 7 January 1994 stating that he had done so following the application made on 12 May 1994. The grounds for review were that Miss D... had temporarily changed address for treatment to Cuan Mhuire from 30 March 1994 to 20 June 1994. This was described as a relevant change of circumstances. The revised decision made following this review was to be operational from and including 30 March 1994.
14. It does not appear to me that the applicant's letter received on 12 May 1994 was itself an application for review. The applicant was simply writing to the Adjudication Officer to inform the officer of a change of address and asking that a claim pack be sent to that address. It must then be asked whether the claim forms received on 8 June 1994 could be treated as an application for review. The Adjudication Officer has however stated that the application for review was made on 12 May 1994.
15. Regulation 6(8) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 provides as follows:-

"Subject to paragraph (8A) where -

(a) A request is received in an appropriate office for a claim form for disability living allowance or attendance allowance; and

(b) in response to that request a claim form for attendance allowance or disability living allowance is issued from an appropriate office; and

(c) within the time specified the claim form properly completed is received in an appropriate office,

the date on which the claim is treated as made shall be the date on which the request is received in the appropriate office".

16. It is therefore possible by virtue of Regulation 6(8) for the Adjudication Officer to treat the claim as made on the date the request for same was received ie. 12 May 1994 and this it appears was what was done. Section 28 (12) then comes into play. Under it the claim must be treated as an application for a review under Section 28 except in prescribed circumstances. The prescribed circumstances appear to me to be set out in Regulation 13C above. Thus Regulation 13C permits but does not oblige an Adjudication Officer upon receipt of a claim within 6 months of the expiry of an existing award to treat it as it if made on the first day after expiry of the existing award. This would of course remove it from the ambit section of S28(12). However, the Adjudication Officer did not treat the claim as made on the first day after expiry of the first award, he treated it as made on 12 May 1994 which, I think, he was entitled to do by virtue of Regulation 6(8). He then treated that claim as a review as he was enabled to do by section 28(12).

Mr Shaw supplied me with copies of various decisions indicating some possible disparity of views between the Northern Ireland Commissioners and the Great Britain Commissioners in relation to the combined effects of S28(12) and Regulation 13C above. I do not for purposes of this decision find it necessary to comment further on the matter and would prefer to hear further argument before expressing a concluded view.

17. If, as appears to be the case, the Adjudication Officer had the power to treat the claim form as an application for review and to treat it as made on 12 May 1994 was the Adjudication Officer correct to review and revise the decision? He has given as his ground for review that there had been a relevant change of circumstances ie. that Miss D... had temporarily changed her address for treatment to Cuan Mhuire from 30 March 1994 to 20 June 1994. This was described by the Adjudication Officer conducting the review as a "relevant change of circumstances". It therefore has to be asked whether in fact the grounds given did constitute a relevant change of circumstances. It is not any change of circumstance which is relevant to an award of Disability Living Allowance. The change of circumstances must be relevant. Great Britain Commissioner Sanders in R(A)2/90 gave consideration to what is meant by a relevant change of circumstances. Commissioner Sanders cited with approval the following passage from the judgement of Lord Justice Nicolls in the case of Saker v The Secretary of State for Social Services, unreported 15 January 1988. Lord Justice Nicolls was dealing with what constituted a material fact and stated at page 16 of the transcript:-

"In this context, in my view, a material fact is a fact which would have been material to the determination of the medical board which is sought to be reviewed. In general a fact will satisfy this test if it is one which, had it been known to the medical board, would have called for serious consideration by the board and might well have affected its decision".

The Commissioner stated:-

"Now I would see no reason for taking the view that the approach to the meaning of "relevant change of circumstances" should be different from that taken from the Court of Appeal in Saker to the meaning of "material fact".... It seems to me that the test of whether a change of circumstances is a relevant change of circumstances has no reason to be different in principle from the test of whether, for the purpose of a review, a fact is a material fact. Accordingly I would apply what Lord Justice Nicolls said in the passage to which I have referred ... and say that in general, to be relevant, ... a change of circumstances must be such that the board giving the decision on review would need to give those circumstances serious consideration to the extent that they might well affect the board's decision. In my view the new circumstances must not only be in their substance in the area of what is relevant but there must also be sufficiency with regard to quantity. It is thus not enough that the new circumstances relate to night attention. They must also be such as to raise a serious question as to whether the requirement for night attention can be said to be a requirement for prolonged or repeated attention."

18. I endorse Commissioner Saunders' approach. Could it then be said that the information that Miss D... had had a temporary change of address to Cuan Mhuire was a relevant change of circumstances? Mr Shaw submitted that it could not. In his view this change was relevant only to the payability of benefit not to the entitlement to same. I think that Mr Shaw is correct. In my view the temporary change of address was not such as to call in to serious consideration the Adjudication Officers decision of 7 January 1994. This new information did not import in any way on Miss D...'s existing award and did not in any way call that award into question.
19. It then must be considered how, if at all, the fact that the Adjudication Officer had no grounds to review the decision of 7 January 1994 impacted on the eventual Tribunal decision. The Tribunal was dealing with an appeal against a decision dated 10 July 1997 reviewing an earlier decision of 15 April 1997 but refusing to revise it. That decision of 15 April 1997 was a refusal to review a decision dated 28 October 1996. The decision of 28 October 1996 reviewed but did not revise the decision of 5 December 1994. The Tribunal had immediately before it the question of whether or not the decision of the 15 April 1997 was correct. That decision in relating back to the earlier decision of 28 October 1996 also related to the decision of 5 December 1994. The decision of 5 December 1994 is the one which I think was incorrect. It was wrong as there were no grounds for review. In light of the chain of events set out above it appears that it was within the ambit of consideration of the Tribunal.
20. That being so and a relevant change of circumstances to enable the Adjudication Officer to review the decision of 7 January 1994 not having been established, the decision of 5 December 1994 should have been to refuse to review. The decision of 7 January 1994 should therefore have been reinstated and the claim form papers (which had been received on 8 June 1994 but which could have been treated as received on 12 May 1994) should have been referred to the Adjudication Officer to consider treating same as a renewal claim.

The decision of the Tribunal is therefore set aside as in error of law. I consider that it is appropriate that I give the decision which the Tribunal should have given. That decision is that Adjudication Officer's decisions dated 15 April 1997, 28 October 1996 and 5 December 1994 were in error of law. No grounds to review the decision of 7 January 1994 were established and the Adjudication Officer at that time should have refused to review same. The claim dated 8 June 1994 is referred to an Adjudication Officer to consider treating same as a renewal claim under Regulation 13C of the above mentioned Claims and Payments Regulations.

(Signed): M F Brown

COMMISSIONER

5 May 1999