Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C11/03-04(DLA) (17 December 2003)

 


Decision No: C11/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILTY LIVING ALLOWANCE

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 24 February 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant appeals, with leave from the Legally Qualified Member of the Tribunal, to a Commissioner against the decision of the Tribunal which affirmed the decision of the Decision Maker to the effect that the claimant is not entitled to either the care component or the mobility component of disability living allowance (DLA) from and including 11 April 2002.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. In this appeal the claimant has represented herself while the Department was represented by Mr Toner of the Decision Making and Appeals Unit. The claimant's grounds of appeal relate to alleged errors in the Tribunal's assessment of the evidence from a community psychiatric nurse in relation to the lower rate of the mobility component of DLA and also the Tribunal's reasons for its decision.
4. However, a more fundamental point has arisen and this is appropriately encapsulated by Mr Toner in his letter dated 24 October 2003 to the Office of the Social Security Commissioners which stated, inter alia: -

"[The claimant] had been awarded disability living allowance comprising of the middle rate care component and the higher rate mobility component from 11 April 2000 10 April 2002. On 21 January 2002 form DLA580 was received in the Department. This was treated as a renewal claim from 11 April 2002, i.e. the day after the expiry of the existing award. On 3 March 2002 a decision maker decided that [the claimant] was not entitled to disability living allowance from and including 11 April 2002.

The issue of the refusal of a renewal claim before the date on which it is treated as made was considered by Mrs Commissioner Brown in decision C12/03-04(DLA). The Commissioner held that once the Department has treated a claim as made on a certain date, the only decision which can be given prior to that date is to award benefit; a claim cannot be disallowed before the date on which it is treated as having been made (paragraphs 35 – 39).

In this case the decision under appeal to the Tribunal was on the renewal claim which was treated as having been made on 11 April 2002. That claim was disallowed on 3 March 2002, over one month before the accepted date of claim. If the rationale in C12/03-04(DLA) is applied to this case, the decision of 3 March 2002 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid."

5. The claimant, by letter dated 4 November 2003, stated that she did not wish to make any comments on the Department's observations.
6. In my view Mr Toner is correct in his contentions. Moreover, other legal issues that perhaps might have arisen in light of the original grounds of appeal are no longer relevant in light of the fact that the Tribunal did not have jurisdiction to hear the appeal, as there was no valid decision by the Department on the renewal claim.
7. Therefore I conclude that the Tribunal's decision on appeal must be set aside, as the original decision by the Decision Maker dated 3 March 2002 has no legal effect. However, the renewal claim remains to be decided by the Department. This can be done as the date on which that renewal claim is treated as having been made has now been reached. It is appropriate for me to point out that when the claimant is informed of the Department's decision (which should be done as soon as reasonably possible), she will still have the usual appeal rights in relation to that decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

17 December 2003