Northern Ireland - Social Security and Child Support Commissioners' Decisions

This is an application by the claimant for leave to appeal against a decision dated 26th March 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Cookstown. I held a hearing of the application which was attended by the claimant who was represented by Mr C...-S... of Counsel instructed by Ms K... solicitor and by Mr Toner of Central Adjudication Services representing the Adjudication Officer. I am obliged to both representatives for their submissions.

I grant leave to appeal and with the consent of both parties treat the application as an appeal and proceed to determine all questions arising thereon as though they arose on appeal. I set the decision of the Tribunal aside as in error of law for one reason only. This is because I think that the Tribunal's reasoning was inadequate. It had been a substantial part of the claimant's appeal that the medical report on which the Adjudication Officer based his review decision of 23rd April had been successfully challenged before a Social Security Appeal Tribunal dealing with the claimant's Incapacity Benefit appeal. The medical report in question was prepared in relation to Incapacity Benefit and was dated 11th December 1996. The instant Tribunal was dealing with Disability Living Allowance.

The Tribunal may well have considered the said challenge irrelevant in deciding whether or not the Adjudication Officer on 23rd April 1997 had information available to it to enable it to begin consideration under Section 30(4)(b) of the Social Security Administration Act (Northern Ireland) 1992. In my view if that had been its conclusion it would have been correct. However, the Tribunal did not address the matter in its reasoning and its failure to do so was an error of law. Without the Tribunal dealing with one of his main submissions the claimant could not understand the decision.

I do not, in light of the above, need to comment in detail on the claimant's other grounds of appeal. Some were withdrawn by counsel at hearing. I do not consider there was any merit in the others.

I would, however, wish to comment further on the claimant's argument in relation to his Incapacity Benefit Appeal and I set out some background facts to make these comments comprehensible. The claimant had an award of highest rate mobility and middle rate care component of Disability Living Allowance from and including 20th July 1994 by virtue of a decision dated 1st February 1995. In January 1997 the Disability Living Allowance Branch received the medical report dated 11th December 1996 from Incapacity Benefits Branch. On 23rd February 1997 the Department requested a review of the decision dated 1st February 1995 based on that medical report. On 23rd April 1997 an Adjudication Officer reviewed the decision of 1st February 1995 and removed entitlement from 20th March 1997. On 18th August 1997 the claimant requested a review of the decision of 23rd April 1997 [This appears to have been a request made more than 3 months from issue of that decision and I have proceeded on that assumption]. On 27th October 1997 a different Adjudication Officer refused to review the decision dated 23rd April 1997. On 20th November 1997 the claimant requested a review of the decision of 27th October 1997. On 1st March 1998 a different Adjudication Officer reviewed but did not revise the decision dated 27th October 1997. On 11th May 1998 the claimant appealed the decision of 1st March 1998.

I consider there was no merit in the argument that the Tribunal should have held the Adjudication Officer on 23rd April 1997 to have given his decision in ignorance of a material fact vis the successful Incapacity Benefit Appeal. A successful challenge (and I do not know the basis on which the challenge was successful) before one adjudicating body does not mean that a different adjudicating body, with a different jurisdiction, is obliged to view the challenged evidence in the same way. Put shortly the Adjudication Officer of 23rd April 1997 was entitled to assess the said medical report differently than did the Social Security Appeal Tribunal and the Social Security Appeal Tribunal's view of the said medical report was not a material fact for purposes of the decision of 23rd April 1997. Nor of course was the success of the Incapacity Benefit appeal.

As Mr Toner has stated, the conditions for receipt of Incapacity Benefit are distinct from those for receipt of Disability Living Allowance.

Section 30(4)(b) as it stood at the date of review of 23rd April 1997 enabled an Adjudication Officer to consider entitlement to a component or the rate of the component or the period for which it had been awarded only where information was available to the Adjudication Officer which gave him reasonable grounds for believing that entitlement to the component or entitlement to it at the rate awarded or for that period ought not to continue.

In an earlier decision C53/98(DLA) I dealt with section 30(4) in some detail and stated at paragraph 9:-

"... the Adjudication Officer is not even to begin to consider

the component or elements not the subject of a review request

[the request in that case was under section 30(4)(a) and was

by the claimant] unless such consideration is permitted under

section 30(4)(b) and this limitation applies from the moment he

starts to deal with the review request. If at that time there

is no information available giving reasonable grounds under

section 30(4)(b) the mind of the Adjudication Officer is not

even to be turned to the component or element which the claimant

has not sought to have reviewed."

In this case the claimant of course did not seek to have any component reviewed. The Adjudication Officer based his consideration on the information supplied by the Department. The Department, not the claimant, had requested the review. If that information (however it may have been subsequently viewed by a different adjudication authority) gave the Adjudication Officer reasonable grounds for believing that entitlement to a component or entitlement to it at the rate awarded or for the period awarded ought not to continue then the Adjudication Officer was entitled to consider that component. He did consider both components and removed entitlement to both.

What the Adjudication Officer on 23rd April 1997 initially required under section 30(4)(b) was "reasonable grounds" to enable him to commence consideration of the relevant components of the award. If the said medical report gave him that any challenge to it before the Social Security Appeal Tribunal was irrelevant for purposes of section 30(4)(b).

For the reasons stated above I do not consider the decision of the Social Security Appeal Tribunal was a matter relevant to whether or not the Adjudication Officer had "reasonable grounds" under Section 30(4)(b). Neither, however, do I think it was relevant to whether or not the awarding decision should have been revised and the award reviewed. In other wards I do not consider the Social Security Appeal Tribunal's decision relevant to the second stage of the decision of 23rd April 1997. The former's decision was not a material fact for purposes of entitlement to Disability Living Allowance, the Adjudication Officer in Disability Living Allowance branch not being bound by the decision or by any view taken by the Social Security Appeal Tribunal and that Tribunal's views having no effect in relation to Disability Living Allowance. The claimant was of course free to put forward to the Adjudication Officer any evidence he wished to contradict the said medical report. Such evidence might establish a material fact. It would all depend on the circumstances. The mere success of the challenge before a body with no jurisdiction over Disability Living Allowance was not a material fact for purposes of Disability Living Allowance entitlement.

I did consider giving the decision which the Tribunal should have given. However, as I do not have the claimant's General Practitioner's records and as I consider it advisable to afford an opportunity to the claimant to produce any further evidence which he may wish to produce, I remit the matter to a differently constituted Tribunal for re-hearing. My so doing is not to be taken as an indication of any view as to the substantive outcome of this case.

The new Tribunal should consider the matter bearing in mind the views expressed above. It should decide whether the Adjudication Officer on 1st March 1998 had any grounds to review the decision of 27th October 1997 and if so whether or not that decision should have been revised. The latter may involve it in deciding whether the Adjudication Officer on 27th October 1997 had grounds under section 28(2) of the said Act to review and revise the decision of 23rd April 1997. The onus of establishing such grounds would rest on the claimant.

(Signed): M F Brown

COMMISSIONER

5 May 2000