Northern Ireland - Social Security and Child Support Commissioners' Decisions

This is an appeal, leave having been granted by me, by the claimant, the mother of the relevant child against a decision dated 19 May 2003 of an appeal tribunal sitting at Belfast. That Tribunal had disallowed the claimant's appeal against a decision dated 6 September 2002 whereby the Department superseded the award of disability living allowance (DLA) made in respect of the relevant child so as to award the higher rate mobility component and high rate care component of that allowance from 21 March 2002 to 31 March 2005. A supersession claim form had been completed and returned on 21 March 2002. The issue in the case related to the refusal by the Department to back date the award of the higher rate of the mobility component for any period prior to 21 March 2002. The award of the higher rate of the care component had been in place since 3 July 1998 and there was no issue in relation to it.

It was common case that the basis on which supersession from an earlier date and therefore backdating was sought was dependent on whether the claimant had lodged a form seeking supersession in February or March 2001. The relevant child could only have become entitled to the higher rate of the mobility component as and from 9 April 2001 because of age restrictions in the legislation. The Tribunal had concluded that there had been no supersession claim form lodged prior to 21 March 2002.

In the appeal to me the claimant has been represented by Messrs B…. & M……, Solicitors and the Department by Mr Flynn of the Decision Making Services (DMS). I am grateful to both representatives for their assistance in this matter. My decision is that the appeal is allowed, the Tribunal's decision being in error of law. I consider that this is a case where I can give a decision which the Tribunal should have given and I so do. My decision is that the claimant is entitled to disability living allowance (DLA) in respect of the relevant child at the high rate of the care component and the high rate of the mobility component as and from 9 April 2001 to 31 March 2005 (both dates inclusive).

The grounds of appeal were contained in an OSSC1 document and essentially were as follows:

i. The Tribunal had misconstrued the facts.

ii. The burden of proof had been wrongly applied in favour of the Department.

The Department opposed the appeal by letter dated 27 May 2004 and (following my grant of leave) by letter dated 15 September 2004. The Department submitted that the burden of proof had been properly placed on the claimant, that the Tribunal was entitled to its conclusions on the evidence, that it had adequately explained its decision and that there had been no failure of the inquisitorial role on the part of the Tribunal.

It may be of some assistance at this stage to summarise my given reasons for granting leave to appeal as my reasons for allowing the appeal relate to them. These were that an arguable issue appeared to arise as to whether the Tribunal had failed in its inquisitorial role in relation to certain matters and as to whether the Tribunal had assessed the claimant's evidence and adequately indicated that assessment in its reasons. Having had the benefit of the parties' submissions, I consider that the Tribunal did, in the circumstances, fail to adequately investigate the issues raised. It therefore failed in its inquisitorial role. More importantly, however, I do consider that there was a failure to adequately take into consideration and therefore assess evidence given on behalf of the claimant. This is in particular in relation to the documents which form part of the schedule of evidence before the Tribunal and which are tabbed 9 and 11 in those documents. The document tabbed 9 is a letter dated 29 March 2002 which was received in Disability Living Allowance Branch in Castle Court on the 3 April 2002. It is a letter from a Mrs S….. who appears to be a Social Worker with HFCT having the claimant and the relevant child as her clients. Particularly important is the final paragraph of that letter which reads as follows:

"Over the past year [the claimant] has made numerous phone calls and was originally told her application was in for consideration. More recently [the claimant] has been advised there was no trace of her original application except that the forms were sent out in January 2001, she has now made a new application. In light of the fact that it would appear that your department has lost the original application I would strongly request you consider back paying any allowance to January 2001."

The document tabbed 11 is a record from DLA Branch of a telephone call made by the claimant on 24 June 2002. A part of the record of that telephone conversation is that the claimant had stated: -

"She was not happy with the way her son's case was being handled. She said that Age 3 forms were handed into the Benefit Shop Feb/March 2001 and were not received. I told her that I would check this out for her." [The signature is indecipherable.]

The Tribunal made no mention of these documents in its reasoning but included in the reasoning is the following passage:

"On balance I do not accept that forms were submitted prior to 21.3.02. Although it is conceded by the Department that forms do occasionally go astray it seems inconceivable to the Tribunal that there would be absolutely no record of any forms or indeed of the numerous telephone calls which [the claimant] alleges that she sent to the Department subsequently. There is also no reference to any previous forms completed in her supersession form of 27.3.02 which one might expect."

The Tribunal was certainly entitled to rely on an absence in the Department of any record of forms or telephone calls where such was the case. However, a part of its reasoning for rejecting the claimant's assertion that forms were submitted prior to 21 March 2002 was that she had made no mention in the supersession form of 27 March 2002 of these earlier forms being submitted. In that the Tribunal is correct. However, the letter tabbed 9 was received within one week of the supersession form being received. It was in fact dated the same day as that form and it certainly raised the issue of the earlier forms having been submitted. I consider that the Tribunal should have made some mention of that letter in its reasoning and that the presence of that letter rendered it necessary for the Tribunal to make some further enquiry as to why the claimant had not, in her supersession form of 27 March 2002 made any mention of the earlier forms. The fact that the earlier forms were mentioned in correspondence sent on behalf of the claimant well before the Department had made any decision on backdating is obviously very relevant. The Tribunal has relied on the absence of any such reference in the actual claim forms but it has not mentioned the fact that this was referred to in correspondence sent very close to the date of those forms on behalf of the claimant. That is, in my view, a serious omission, as indicating that certain evidence may not have been considered and if it was considered, in relation to the adequacy of the reasoning.

I have decided that this is a case where I can give the decision which the Department should have given. I allow the appeal as indicated above and find that the claimant did submit forms in February or March 2001, that her son was entitled to the higher rate of the mobility component from the date of the change in legislation from 9 April 2001 and entitled also to the higher rate of the care component as indicated above.

For completion, I should mention that I did not find any merit in the assertion that the wrong burden of proof was applied.

The claimant wins her appeal.

(Signed): Moya F Brown

Commissioner

25 November 2004