Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C6/03-04(DLA) (7 November 2003)

 


Decision No: C6/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 21 October 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of a Commissioner, against the decision of the Tribunal to the effect that the claimant is not entitled to either the care or the mobility component of disability living allowance (DLA) from and including 6 March 2002.
2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing as it is not necessary.
3. The claimant had been awarded the lower rate of the mobility component and the middle rate of the care component of DLA for a period up to and including 5 March 2002. On 8 November 2001 a DLA claim form (DLA580) was received in the Department. This was treated as a renewal claim from 6 March 2002, namely, from the day after the expiry of the existing award. On 11 December 2001 a decision maker decided that the claimant was not entitled to DLA from and including 6 March 2002. This decision was disputed by the claimant so the decision of 11 December 2001 was reconsidered on 5 February 2002 but it was not changed. Thereupon the claimant appealed. The Tribunal heard the merits of the appeal and disallowed it. Leave to appeal to a Commissioner was refused by the Legally Qualified Member of the Tribunal on 6 January 2003 but a Commissioner granted leave to appeal on 10 June 2003. The reasons for granting leave to appeal were as follows: -

"It is arguable that the decision was wrong in law, because there is an issue, in relation to the care component of Disability Living Allowance, as to whether the Tribunal erred in law in dealing with attention requirements of the claimant, in light of the evidence before it."

4. Mrs Campbell of Bangor CAB represents the claimant while Miss Fleming of the Decision Making and Appeals Unit represents the Department.
5. Both representatives agree that the Tribunal in this case erred in law. Accordingly, at first sight it seems appropriate to deal with this case under the provisions of article 15(7) of the Social Security (Northern Ireland) Order 1998 which states as follows: -

"In each of the principal parties to the appeal expresses the view that the decision appealed against was erroneous in point of law, the Commissioner may set aside the decision and refer the case to a tribunal with directions for its determination."

However, as it is not appropriate for me to refer the case to a Tribunal in all the circumstances even though I find that the Tribunal's decision was erroneous, the case cannot be dealt with under the article 15(7) expedited procedure. Nevertheless the matter can be dealt with fairly shortly.

6. 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). In that case 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 – see paragraphs 35-39.
7. Miss Fleming by letter dated 6 August 2003 to the Office pointed out the relevance of Mrs Commissioner Brown's decision to the present appeal.
8. In the present case the decision under appeal to the Tribunal was on the renewal claim which was treated as having been made on 6 March 2002. That claim was disallowed on 11 December 2001, almost 3 months before the accepted date of claim. Applying the rationale of decision C12/03-04(DLA) the decision of 11 December 2001 is ultra vires as there was no valid decision on the renewal claim. Accordingly the Tribunal has erred by treating the decision as valid.
9. Mrs Campbell by letter dated 9 September 2003 agrees that Miss Fleming is correct in her submissions on this point.
10. In my view both Miss Fleming and Mrs Campbell are correct in their contentions. The other legal issues that appeared to arise in earlier submissions on behalf of both parties 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.
11. Therefore I conclude that the Tribunal's decision on appeal must be set aside as the original decision of the decision maker dated 11 December 2001 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. I also point out that the claimant, on being informed of the Department's decision (which should be made as soon as reasonably possible), will have the usual appeal rights arising out of that decision.

(signed): J A H Martin QC

Chief Commissioner

7 November 2003