Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C13/00-01(DLA) (25 June 2001)

 


Decision No: C13/00-01(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 a Belfast Disability. Appeal Tribunal dated 11 October 1999
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant in this case is a child born on 30 March 1987. On his behalf his mother appeals against the decision of the Tribunal to the effect that the claimant is not entitled to the mobility component of Disability Living Allowance from and including 31 March 1998 but is entitled to the lower rate of the care component of Disability Living Allowance from 31 March 1998 to 30 March 2003. Leave to appeal was granted by a Commissioner on 27 November 2000.
2. The claimant has been in receipt of various benefits since 3 April 1989. In relation to the present proceedings it is relevant that an Adjudication Officer on 19 January 1998 awarded middle rate care component of Disability Living Allowance (for day attention) from 31 March 1998 to 30 March 2003 but decided that the claimant was not entitled to mobility component. The claimant's mother completed a further claim form in respect of her son on 2 October 1998 and this was treated as an application for review of the decision of 19 January 1998. On 24 November 1998 an adjudication officer decided that there were no grounds to review the decision of 19 January 1998. On 14 December 1998 the claimant's mother applied for a review of the decision of 24 November 1998. On 2 March 1999 an Adjudication Officer reviewed but did not revise the decision of 24 November 1998. The claimant's mother then appealed to a Tribunal on behalf of her son. After two adjournments the appeal eventually came before the Tribunal on 11 October 1999. This Tribunal decided that the claimant was not entitled to mobility component but awarded lower rate care component from 31 March 1998 to 31 March 2003. On 12 June 2000 a Chairman refused leave to appeal to a Commissioner. However, as stated at paragraph 1 herein, a Commissioner granted leave on 27 November 2000.
3. The substance of the grounds of appeal are that the claimant's mother has contended that her son's case was not fairly assessed by the Tribunal and also the Tribunal was in error by failing to accept her evidence in relation to her son's needs. These issues can be dealt with shortly.
4. In the Tribunal's careful fact finding and reasoning it is clear that the Tribunal has dealt with the claimant's case entirely fairly. Accordingly I conclude that the Tribunal has not erred in the respect alleged.
5. In relation to the contention that the Tribunal erred by failing to accept the claimant's mother's evidence in relation to her son's needs, this also has no substance. The Tribunal assessed all the available evidence and, as it was entitled so to do, preferred the report from the Occupational Therapist and the Examining Medical Practitioner to that of the claimant's mother. The Tribunal was entitled to do this and it is not for a Commissioner, on appeal, to interfere with such a finding in these circumstances.
6. However, Mrs Gunning on behalf of the Decision Making and Appeals Unit of the Department made the following point by letter dated 25 September 2000: -

"However I do consider the tribunal may have erred in deciding that [the claimant] was entitled to low rate of the care component from 31 March 1998. The primary question before the tribunal was whether there were grounds to review the adjudication officer's decision of 19 January 1998 (on that date the adjudication officer decided that [the claimant] was entitled to middle rate of the care component from 31 March 1998 to 30 March 2003). The tribunal decided that on 24 November 1998 there were grounds to review, namely that a relevant change of the circumstances had occurred since 19 January 1998 but the tribunal did not attribute a date to that change. I submit that the date of change was crucial to the tribunal decision. If the change occurred before 31 March 1998 (the commencement date of the award) the tribunal did not err but if the change occurred after 31 March 1998 entitlement cannot be reduced from 31 March 1998 and therefore the tribunal decision does contain an error."

In my view there is substance in this submission which was supplemented by further written submissions dated 10 October 2000 by Mrs Gunning.

7. As Mrs Gunning explained, in this case the Tribunal decided that the adjudication officer's decision of 19 January 1998 could be reviewed on the ground that there had been a relevant change of circumstances since that decision was made – section 28(2)(b) of the Social Security Administration (Northern Ireland) Act 1992. Having decided that there had been a relevant change in the claimant's condition it was necessary for the Tribunal to decide when that change occurred to enable it to determine the date from which the decision should be revised.
8. It is possibly arguable that, as the Tribunal revised the award from 31 March 1998, it must have decided that the change occurred sometime between 19 January 1998 and 31 March 1998. However it is difficult, as Mrs Gunning has pointed out, to reconcile that view with the fact that the Tribunal was alerted to the question of the claimant's entitlement to the care component by the Occupational Therapist's report dated 7 April 1999 – over a year after the date from which entitlement to the care component was reduced.
9. It is unfortunate that this report is not available on the papers before me. It is possible that this report did contain information relating to the claimant's condition at March 1998 but this has not been made clear from the Tribunal decision. Accordingly I do not consider that the Tribunal decision adequately explains why the claimant's entitlement was reduced from the date 13 March 1998.
10. I conclude that the Tribunal ought to have determined the date of change in the claimant's condition. In not so doing I conclude that the Tribunal erred in law.
11. In the circumstances I am satisfied that the Tribunal's decision is erroneous in point of law for the reasons stated and I therefore allow the appeal, set aside the decision of the Tribunal and refer the case back to a differently constituted Tribunal for a rehearing.

(Signed): J A H Martin

CHIEF COMMISSIONER

25 June 2001