Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2004] NISSCSC C30/03-04(DLA) (10 February 2004)

 


Decision No: C30/03-04(DLA)

IRO: NICHOLAS (A CHILD)
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 25 February 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant in this case is a child born on 13 December 1996. On his behalf his mother appeals against the decision of the Tribunal, affirming the decision of the decision maker, to the effect that the claimant was not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from 13 December 2001. Leave to appeal was granted by a Commissioner on 13 November 2003.
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 is represented by Ms Kelly, Solicitor, of Sheridan and Company, Solicitors, while the Department is represented by Miss Fleming of the Decision Making and Appeals Unit.
4. The original grounds of appeal were based on the submission that the facts as found by the Tribunal were such that had it acted reasonably and interpreted the law correctly, it could have not made the decision it did. However, leave to appeal was granted on the grounds that it was arguable that the decision of the Tribunal was wrong in law because, in light of decision C12/03-04(DLA), the Tribunal appeared to have had no jurisdiction to hear the appeal.
5. Miss Fleming drew my attention to a possible basic defect in the Tribunal's decision, in a letter dated 15 September 2003 to the Office, in which she stated, inter alia: -

"[The claimant] had been awarded the middle rate of the care component of Disability Living Allowance (DLA) for a period up to and including 12 December 2001. On 4 October 2001 form DLA580 was received in the Department. This was treated as a renewal claim from 13 December 2001, i.e. the day after the expiry of the existing award. On 6 November 2001 a decision maker decided that [the claimant] was not entitled to DLA from and including 13 December 2001.

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 13 December 2001. A further claim to DLA in respect of [the claimant] was made on 13 May 2002 and disallowed on 6 November 2002 however there is no indication in the Department's submission that this decision was disputed. Therefore the appeal before the Tribunal sitting on 25 February 2003 related only to the decision on the renewal claim i.e. the decision dated 6 November 2001.

The renewal claim was disallowed on 6 November 2001, 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 6 November 2001 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid."

6. Ms Kelly has neither agreed with this submission nor taken issue with it.
7. In my view Miss Fleming is correct in her contentions. In addition, other legal issues that might have arisen in the 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.
8. Therefore I conclude that the Tribunal's decision on appeal must be set aside, as the original decision by the decision maker dated 6 November 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 was treated as having been made has now been reached. I point out that the claimant's mother, on being informed of the Department's decision (which should be done as soon as reasonably possible), will still have the usual appeal rights on behalf of her son.
   

(signed): - J A H Martin QC
Chief Commissioner


10 February 2004