Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C7/03-04(DLA) (2 July 2003)

 


Decision No: C7/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
Application for leave to appeal and Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 15 November 2002 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against a decision dated 15 November 2002 of an Appeal Tribunal sitting at Belfast. That Tribunal had disallowed the claimant's appeal against a Departmental decision dated 28 May 2002 when the Department awarded the claimant the lowest rate of the care component of Disability Living Allowance from and including 11 February 2003. I grant leave. My decision is given in the final paragraph.
2. The background facts to the case are that the claimant had previously had an award of Disability Living Allowance for the period from 11 February 1999 to 10 February 2003. On 3 May 2002 a document was received in the Department which was treated as a renewal claim. The Department treated the claim as made on 11 February 2003 (the day after the expiry of the existing award) and made the award of lowest rate care component from 11 February 2003. The claimant appealed to the Tribunal and the Tribunal disallowed the appeal, confirming the Department's decision. The claimant appealed, the grounds of his appeal were that he considered that his case had not been fully examined as his doctor's report was very brief and since then his condition had worsened.
3. The Department was asked for observations on the application and it supported the application on different grounds. The Department expressed the view, in its letter of 23 April 2003 from Miss Fleming of the Decision Making and Appeals Unit, that the Department had erroneously treated the document received on 3 May 2002 as a renewal claim. It was not empowered to treat that document as a renewal claim because the document was received in the Department more than 6 months before the expiry of the existing award. Miss Fleming referred to regulation 13 C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 which provides:

"(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 Department 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."

4. In Miss Fleming's submission, as the relevant document was received in the Department more than 6 months prior to the expiry date of the existing award the document should not have been treated as a renewal claim. It should have been treated as an application for a supersession.
5. Miss Fleming submitted that the Tribunal had erred in law in confirming the Department's erroneous decision. She asked me to set aside the Tribunal's decision in view of that error and to refer the case back to the Department to determine the supersession issues relating to the claim forms received on 3 May 2002 and the claimant's letter received on 10 September 2002, on which she understood no action had been taken.
6. I am in agreement with Miss Fleming that the Department had no power to treat the claim form received on 3 May 2002 as a renewal claim. This can only be done where such forms are received within a defined period and in this case they had been received well before that period. The decision of the Department treating the documents as a renewal claim is therefore null and void as is the Tribunal's decision based thereon. It is now a matter for the Department to deal with the claim forms and any subsequent correspondence in accordance with its powers under regulations 3 and 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. As it appears that the claimant was alleging in the relevant claim forms that his condition merited a higher rate of the award it would seem that the claim forms should indeed be treated as an application for supersession. However, that is a matter for the Department. Once the Department has made its decision the claimant will of course have appeal rights against that decision.
7. The appeal is allowed. The Tribunal's decision is null and void as is the decision dated 28 May 2002 which it upheld. The Department is directed to consider the documents received on 3 May 2002 and decide whether to treat those documents as an application for supersession or an application for review. It should then make its decision. The claimant will have appeal rights against that decision.

(Signed): M F Brown

Commissioner

2 July 2003