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Cite as: [2005] NISSCSC C12_3_4(DLA), [2005] NISSCSC C12_03_04(DLA)

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[2005] NISSCSC C_012_03_04(DLA) (28 July 2005)

Decision No: C12/03-04(D8LA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal and

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 27 March 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an application, by the claimant, for leave to appeal against a decision dated 27 March 2002 of an Appeal Tribunal sitting at Belfast. I grant leave and with the consent of both parties treat the application as an appeal and proceed to determine any questions arising thereon as though they arose an appeal. The Tribunal conducted what was known as a "paper hearing", the claimant not having requested a hearing of his appeal. The Tribunal's decision was to disallow the claimant's appeal against a Departmental decision dated 9 March 2001 and to disallow Disability Living Allowance (DLA) from 1 July 2001. For ease of reference I attach, as an appendix, copies of the relevant legislation. My decision is given in the final paragraph

The claimant had previously been in receipt of DLA on foot of an award which expired on 30 June 2001. As permitted by regulation 13C(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, he had made a further claim on 19 January 2001, within 6 months of the date the existing award was due to expire. The Department, as it was entitled to do under regulation 13C(2), treated that claim as made on 1 July 2001 and by a decision dated 9 March 2001 disallowed the renewal claim.

The claimant's grounds of appeal, as contained in correspondence and reiterated at hearing, were as follows:

(i) that the Tribunal had given insufficient regard to a letter dated 21 January 2002 from Dr H…, the claimant's General Practitioner;

(ii) that the Tribunal's reasoning was inadequate to explain the decision;

(iii) that the chairman of the Tribunal had specifically asked for past papers relating to a previous claim but on being informed that these were not available had decided that it had sufficient information to proceed and had so done;

(iv) that the decision on the mobility component had been based on evidence from Dr K… who worked in the same practice as Dr H… but who was not the claimant's General Practitioner.

I held a hearing of the appeal which the claimant attended and at which he was represented by Mr C… BL instructed by Messrs A…, A… and Company, Solicitors and at which the Department was represented by Mrs Gunning. I am grateful to both representatives and particularly to Mrs Gunning for their considerable assistance in this case.

As regards the letter from Dr H… dated 21 January 2002, this letter summarised the claimant's medical condition since 1998. It related the claimant's history of blood pressure, the effect of an assault on 27 September 1998, dyspepsia and various other matters. It related various matters which were contained in the General Practitioner records. The letter concluded by stating:

"Therefore in summary this man appears to have suffered considerable physical and psychological sequelae from the traumatic incident on 27 September 1998. His previously stable, well controlled Blood Pressure has become extremely difficult to control in spite of aggressive treatment and he has persistent anxiety, depression and insomnia as well as severe headaches and persistent dizziness. These symptoms tend to dominate his life and I feel have been considerably exacerbated by his assault in September 1998.

I feel that he is unfit for any regular periods of employment either now or at any point in the future."

The letter was signed by Dr H…. There is a section in the Tribunal's record of proceedings for documents considered by the Tribunal to be recorded. This letter is not recorded there nor is it expressly mentioned in the reasons for the decision.

The letter did not contain any statement that the claimant was unable to self care nor that he required any guidance or supervision when walking out of doors nor that his walking was in any way impaired.

The claimant unfortunately did not seek a hearing before the Tribunal and the matter was determined on the papers. The Tribunal's record of proceedings states that it had before it the scheduled papers and the General Practitioner's notes and records. It records that these were considered. The Tribunal recorded that it had carefully checked whether or not there was any indication in the medical notes and records of a problem with walking or balance out of doors and that there was no indication of any problems with this and similarly that there was no indication of any problems with the claimant's ability to look after himself.

The Tribunal is recorded as having noted the report from Dr K… dated 2 February 2001 and the report of the Examining Medical Practitioner of 26 February 2001. Dr K… is a fellow practitioner with Dr H… in the claimant's general practice. Dr K…'s report is dated 2 February 2001 and indicates that the claimant could safely get in and out of bed, dress and undress, rise from sitting to standing, use stairs and walk indoors. It indicates that the claimant's mental state was not such that he needed prompting, motivation, or encouragement in order to prevent the risk of self-neglect or self-harm. It indicates that there was no known history of falls and no known difficulties with relation to walking on level ground and no need for attention or supervision to enable the claimant to get around in unfamiliar surroundings. Dr K… was of the view that the claimant was not able to safely and unaided peel and chop vegetables, use a cooker, use taps and use pots and pans.

The report of the Examining Medical Practitioner (EMP) was dated 26 February 2001. It included a statement signed by the claimant stating that he had no physical walking restriction, that since his assault he was nervous walking outside on his own especially in the dark, that he could rise from bed and get dressed but had to be careful with dizziness, that he could get out of his chair and get about indoors slowly but had to be careful with dizziness, that he had one fall which occurred in the bath when he took a dizzy turn some three weeks previously but had no injuries and had no other falls but he could stagger if he was walking outside, could wash, shave, bath and manage at the toilet, could self-medicate, could cut up his own food and feed himself and did cook for himself and could undress and get into bed, that he was very anxious but never dangerous and never suicidal and did not take blackouts, fits or comas and that he could self-care at night. The above was recorded as having been read back to the claimant and he signed that this had been done. The Examining Medical Practitioner expressed the view that the claimant had full function in all limbs. He recorded that the claimant was seen to walk freely indoors to get up and down, to stoop without dizziness and that the rhombergs test was negative. The EMP expressed the view that the claimant had no physical walking restriction, that he walked at normal speed and had a normal gait. The EMP accepted that the claimant could stagger at times especially when carrying shopping although this was not observed. He expressed the view that the claimant was completely independent in all the self-care activities and recorded that the claimant had had only one fall which had been in the bath three weeks previously and which had not caused an injury. The EMP expressed the view that the claimant was capable of safely preparing and cooking a main meal for himself.

After having been informed of the disallowance of the renewal claim the claimant wrote a letter dated 19 March 2001 to DLA branch asking it to look again at the decision and stating that he wished to reiterate the dangerous nature of his illness and the harm it caused to his daily life. He stated that his condition had deteriorated again since completing the previous form and referred to an incident the week previously (this appeared to be the week of 12 March 2001) which had occurred whilst trying to make himself a cup of tea and sandwiches. The claimant stated that he had become extremely dizzy and had fallen in the kitchen. He stated that he had gone into his living room to sit down until the dizziness passed but, due to being forgetful because of his medication, a pan in the kitchen had caught fire and the smoke alarm had gone off and the cooker and cupboards had been burnt. He stated "I have since attended Dr K… my GP."

It was common ground that the claimant had not raised any issue to the Tribunal as to the accuracy of Dr K…'s report. Nor had he raised any issue that the Tribunal should seek a report from Dr H….

In a letter dated 5 January 2002 which formed part of the Tribunal's papers the claimant stated amongst other things: -

"I also note the EMP doctor has stated in his report that I was able to cook full meal. This is untrue I explained that my daughter on the advice [sic] my GP. She called on a daily basis. To cook and keep an eye on me while I was making my way up and down the stairs to have a bath and shower. I had also explained that I had fallen on numerous occasions. Regarding my application claims form about cooking this was a minor error on my part taking into account the way I was feeling and thinking I should have got someone to have completed the form."

This last appears to refer to the renewal claim for DLA on the DLA580 form dated 17 January 2001 where the claimant stated that he would have no difficulties preparing a cooked main meal for himself.

The claimant's grounds of appeal to the Tribunal were set out in a document dated 22 August 2001 to which he had appended the afore-mentioned letter of 19 March 2001 as being the reasons why he disagreed with the decision. In addition to the extract above the claimant stated as his reasons:

"I wish to reiterate the dangerous nature of my illness and the harm it causes to my daily life. You will be aware from my previous application that I suffer from anxiety/depression state high blood pressure and extreme dizziness causing me to lose my balance and fall over."

The claimant then went on to indicate that his condition had deteriorated since he had completed the previous form and mentioned the incident of allegedly setting fire to the kitchen. He then stated that he had since attended his GP and Dr K… and told her of his concerns and that certain medication had been stopped and he had been referred to an ENT Consultant in A… Hospital. He also referred to increased care needs since the incident of the fire in the kitchen.

The Tribunal recorded its reasons with regard to the care component: -

"The Tribunal have rejected the complaints made by [the claimant]. They prefer the evidence of his own General Practitioner who says that he is totally independent with all his care needs with the exception of being able to cook a main meal. The Tribunal reject the evidence of the General Practitioner in this particular regard and prefer the evidence of the Examining Medical Practitioner who examined [the claimant] for the purposes of this benefit. They accept the evidence of the Examining Medical Practitioner that [the claimant] is totally independent with all his care needs and does not need prompting or encouragement. There is nothing wrong with his hands. He is mentally alert. There is absolutely no reason why he could not make a main meal for himself. If he had the ingredients. The Tribunal accept that at times he may have some degree of vertigo but not to the extent that would lead him into any danger and prevent him from cooking. He is not a danger to himself or others whilst cooking.

Accordingly he is not entitled to high, middle or low rate care component Disability Living Allowance."

As regards the mobility component the Tribunal recorded: -

"The evidence of the Appellant in this matter is contradicted by his General Practitioner and the Examining Medical Practitioner. His General Practitioner cannot accurately say how far he could walk before the onset of severe discomfort. The clear and compelling evidence of the Examining Medical Practitioner is that he has a normal walking distance, he has a perfectly normal gait, he walks at a normal speed and is perfectly safe to walk out of doors without being accompanied. The Examining Medical Practitioner's evidence is accepted by the Tribunal. It is clear he is not at any risk of falling or injuring himself. There is no reason why he would be accompanied.

Accordingly he is not entitled to high or low rate mobility component disability living allowance."

Before me Mr C… submitted that it was possible that the past papers may have been relevant to this present case and that the claimant had no means of knowing whether or not they were. He conceded that the papers had not been any part of his client's case and also that his client had said that he was worse than he had been previously and had filled out a renewal claim form stating how he was at the time of filling in that form.

Mr C… submitted further that the decision on the mobility component had been based on the evidence of Dr K… who worked in the same practice as the claimant's General Practitioner, Dr H…. He stated that the two doctors helped each other out but Dr H… was the one named as the claimant's General Practitioner in the claimant's application form. However, Dr K… had completed the form. He agreed that Dr K… would have been using the General Practitioner records in so doing but stated that Dr H… had a greater understanding of his client's ongoing complaints and problems and of factors such as the claimant attending a chiropractor. Mr C… submitted that if the Tribunal was relying on Dr K… it should have ensured that she was the competent person. He conceded that the claimant had not raised this as an issue to the Tribunal and in response to my question as to why the Tribunal would be aware that Dr K… was not the competent person or might not be the competent person he stated that he had no answer. He stated that Dr K… could not accurately state how far the claimant could walk while Dr H… would have had a better appreciation but again agreed that this has not been raised to the Tribunal. In this connection I referred Mr C… to the claimant's letter of 19 March 2001 wherein in he named Dr K… as his General Practitioner.

Mr C… stated that the claimant would say that he was unaware that Dr K… had completed the factual report form and only became aware after the Department had made its decision when he went to his General Practitioner (G.P.) and Dr K… said that she had completed the form. The claimant did eventually get the papers and it was not disputed that he received the papers before the hearing nor that these would have indicated who compiled the G.P.'s factual report.

As regards the Tribunal's reliance on the EMP report in relation to the assessment carried out at that time, Mr C… submitted that this assessment was of very short duration and did not go into the claimant's walking ability to any significant extent. However he agreed that none of this was raised to the Tribunal and that the Tribunal was not in error in relying on that report.

Mrs Gunning submitted in relation to the past papers that this was a renewal claim for the period from the 1 July 2001 and there was no need for the Tribunal to see the papers relating to the previous claim. There was no error in that respect so long as the Tribunal explained its reasoning on this present claim.

With regard to Dr H…'s letter of 21 January 2002 Mrs Gunning submitted that this was not mentioned by the Tribunal either as being considered or rejected or why it was not considered or rejected. As regards the letter dated 5 January 2002 Mrs Gunning submitted that in that letter the claimant appeared to query the EMP report and stated that there did seem to be a difference in what the EMP recorded and what the claimant claimed he had told the EMP. There was nothing in the EMP's report to indicate whether the claimant had informed the EMP that he could prepare a full meal or a snack, etc. The Tribunal did not address these matters.

Mrs Gunning stated that the claimant had contended that his condition had worsened since he completed the renewal claim form in January 2001 and in his letter of 19 March 2001 had stated that his condition had deteriorated since he completed the form. In his appeal form dated 10 July 2001 the claimant had made reference to the letter of 19 March 2001 saying that it contained the reasons why he disagreed. The Tribunal, in Mrs Gunning's view, did not deal with this and had erred in law in not so doing.

In response to my questions Mrs Gunning submitted that the Tribunal had stated clearly that it did not accept the claimant's evidence and she accepted that the Tribunal was entitled to reject his evidence. She accepted also that the claimant's claim form did not give much detail and that the Tribunal had clearly indicated why it preferred the EMP's report and relied on it. Mrs Gunning considered that the Tribunal had not dealt fully with the claimant's contentions that his condition had worsened since he completed the renewal form. She submitted that the Tribunal may have felt that it could not deal with this deterioration and so there might not be an error of consequence. Mrs Gunning submitted that the Tribunal had clearly stated that it preferred the EMP's report and she accepted that it did not have to give reasons for its reasons.

Mr C… expressed concern as to the reliance on the EMP's report which, he submitted, had dealt with the mobility component in about 10 minutes. The claimant had been asked to walk from his fireplace to his sofa, a distance of a couple of yards. As regards the low rate of the component the Tribunal had accepted that the claimant had a degree of vertigo but did not consider that he was entitled to the component. The Tribunal, in Mr C…'s submission, should have considered R(M)1/91 which indicated that the ability to walk out of doors had to be considered and that this involved considering the surfaces over which the claimant had to walk. He queried whether the EMP's evidence was enough to disallow the claim. Upon my stating that the burden of proof of satisfaction of the conditions was on the claimant, this being a renewal claim, Mr C… did agree that the question was whether there was enough evidence to allow. He stated that the difficulty was that the claimant had not attended the Tribunal. He stated that the reasoning gave no regard to the difficulty with the claimant's mental health although these problems had been recited by the EMP and stated that it might have been incumbent on the Tribunal to seek further evidence before making its decision.

The parties were agreeable, should I grant leave, to my treating the application as an appeal and determining any questions which arose thereon as though they arose an appeal. Mr C… was anxious that the matter be dealt with by me. I explained to the parties that I would take evidence from the claimant but take it into consideration only if I considered firstly that there was an arguable error of law on the Tribunal's part and secondly that the Tribunal actually had erred. Mr C… proceeded to question his client on this basis.

The claimant stated in response to Mr C…'s questions that he had sent in the letter of 21 January 2002 from Dr H… because he decided that his health was not getting any better and asked Dr H… for an overall assessment of whether his condition was going to improve. He asked her to make up the report for the appeal. He did not attend the Tribunal because he was depressed and anxious and his doctor felt it would not help him to go to the Tribunal.

As regards the EMP's assessment the claimant stated that his recall was that it lasted 10-15 minutes. He stated that parts of it were accurate and that he had informed the EMP that he struggled to cook but when in the kitchen was anxious lest dizziness came on him and had told the doctor that on a couple of occasions he had fallen with a kettle of boiling water and his daughter then suggested that she come in. He stated that he had told the EMP that he had problems going upstairs, having to go up on his hands and knees and had to kneel in the shower. He stated that he had also told the EMP that he had difficulties with sudden movements causing dizziness. He was aware of the difficulties with this but sometimes involuntarily made a sudden movement. The claimant further stated that as regards his mental difficulties when he went to bed he had flashbacks and had difficulty sleeping and had been tried on anti-depressants in order to give him a good night's sleep. Flashbacks were to an assault he had suffered in Dublin. He stated that he had no self-confidence since and had not been allowed to return to his job in a factory at which he had worked for 29½ years. He had been paid-off from his job as a forklift truck driver and the firm would not give him an alternative job as they considered it too risky.

He stated that he was now on incapacity benefit and had been examined for that benefit in February of this year when his blood pressure was found to be exceedingly high and he was sent back to his own GP.

Mrs Gunning had no questions to put to the claimant.

In response to my questions the claimant stated that around the time of the renewal claim he was so depressed that he could hardly get out of bed and was afraid of dizziness. He stated that he did not use a stick and that the ENT Department which he had attended could not explain the dizziness. He stated that he still attends hospital having last been there in October 2000 and awaiting a further appointment which had not yet been received.

Mrs Gunning had, in her written submissions, mentioned a Great Britain Commissioner's decision, reference CDLA/3848/001 (a decision of Mr Commissioner Turnbull). Mrs Gunning had stated in the written submissions that she agreed with this decision and on that basis considered that the Tribunal had erred in law in not taking into consideration deterioration between the date of a decision on the renewal claim (9 March 2001) and the effective date of that decision (1 July 2001). I informed her that I had certain misgivings on that decision as it did not make any reference to the Great Britain equivalent of the enabling powers in section 5 of the Social Security Administration (Northern Ireland) Act 1992 and this may have affected the reasoning. I agreed to afford to both parties a period of time, should they wish to do so to make submissions in relation to that decision with regard in particular to the said Section 5. I emphasised that it was not obligatory that they make such submissions but said that I would indicate the aspects on which I considered it helpful to have submissions. I emphasised that the submissions were not necessarily to be confined to those matters.

By letter of 28 March 2003 the parties were notified that I would defer making a decision for 30 days to enable the parties to make observations on regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and whether this regulation provided any exception (express or implied) to Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 so as to enable circumstances not obtaining at the time of the decision under appeal to be taken into account on the appeal. I also indicated matters which I would wish to have covered.

At Mrs Gunning's request this time was extended and on 6 May 2003 Mrs Gunning made her further submission. I have found this extremely helpful and am grateful to Mrs Gunning for it. On 12 May 2003 the claimant's solicitors informed me they had no further comments to make. On 16 May 2003 the claimant's solicitors were sent a copy of Mrs Gunning's further submission and given time to make any further comments. None were received. Further issues occurred to me and on 21 May 2003 I sought comment on two further matters. These matters were as follows: -

1) whether the Department's decision of 9 March 2001 was ultra vires the powers to make decisions in advance claims in regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 and Section 5 of the Social Security Administration (Northern Ireland) Act 1992; and

2) whether, the claim having been treated as made on the renewal date (1 July 2001) there was any power under Article 9 of the Social Security (Northern Ireland) Order 1998 for that claim to be decided on an earlier date other than as afforded by the said Section 5 and regulation 13C.

No observations were received from the claimant's representative but the Department replied on 5 June 2003.

As regards the first matter raised the Department submitted that the power in section 5(1)(c) which allowed advance claims to be made covered all claims mentioned in section 5(1)(a) and 5(1)(b) (i.e. all claims for benefit) and was not constrained by sections 5(1)(d) and (e) to claims which led to awards. As regards regulation 13C(2)(a) and (b), regulation (a) existed independently and was not limited to claims which led to awards. As regards question 2 Mrs Gunning submitted that Article 9(1)(a) did not prevent the claim from being decided on an earlier date under its broad general authority.

I begin with the claimant's grounds. I would emphasize that the weight to be given to any piece of evidence is for the Tribunal. The Tribunal in this case relied on the EMP's report. This addressed the conditions for entitlement to DLA and the Tribunal was entitled to rely on it. As regards Mr C…'s contention that the EMP's report should not be relied on as it was based on a brief assessment, I can see no legal merit in that argument. The Tribunal is entitled to give such weight as it sees fit to the evidence. In any event the overall assessment took ½ hour, a history was taken and signed, an examination was carried out and observations made. Mere briefness is not of itself a ground for rejecting a report but the report and assessment time overall does not in any way appear brief. Doctors will observe throughout the time spent with a patient and a test can be relevant to more than one bodily function so that it is often not possible to separate an assessment into what is relevant to mobility and what to care. I can find no error of law in the reliance on the EMP's report and Dr K…'s report.

As regards Dr H…'s letter while I would have preferred specific comment on it, this letter does not expressly address the conditions for entitlement to DLA so I do not consider that this lack of specific comment is an error of law.

To come to the legislation concerning renewal claims, Section 5(1)(b) and regulation 13C(2)(a) does permit a renewal claim to be treated as if made on the first day after the expiry of the existing award. Regulation 13C(2)(a) stands alone (as the semicolon at the end of it indicates). It is not conditional on an award being made under regulation 13C(2)(b). However the more fundamental matter is whether there was any authority (once the date of claim was deemed to be the renewal date) for deciding the claim in advance. There is certainly authority for making an award (section 5(1)(d) and regulation 13C(2)(b)). In neither section 5 nor regulation 13C could I find authority for a refusal of a claim before the date it was treated as made. Section 5 and regulation 13C(2)(b) and (3) enable the Department to make conditional awards and revise them if the requirements for entitlement are found not to have been satisfied on the renewal date. Clearly therefore the awards can be made to come into effect after the date the award is actually made. Section 5 contains no enabling power to refuse claims. That is in Article 9(1) which puts the duty on the Department to decide a claim for a relevant benefit. Section 5(1)(a) requires claims for benefits to be made, as prescribed, for those benefits which it covers (this includes DLA). Section 5(1)(b) allows the Department to treat a claim for benefit as having been made on a date earlier or later than it was actually made. (In this case the Department treated the claim as made on the renewal date as it was entitled to do). Section 5(1)(c) permits claims for benefit (I agree with Mrs Gunning here) to be made, or treated as if made, for a period wholly or partly after the date on which it is made. Section 5(1)(d) permits advance conditional awards on claims made or treated as made for periods after the date of claim. Finally, section 5(1)(e) permits the revision of such awards.

As there is no power to make advance refusals under section 5, I must consider Article 9(1) to ascertain if it permits such refusals. Mrs Gunning is correct that Article 9 does not prohibit such refusals. Indeed it does not refer at all to dates or periods of claims. It simply obliges the Department to decide claims. It gives no power for the Department to decide a claim in advance of the date that claim is made – that would be an impossibility. Equally it gives no power for the Department to decide a claim in advance of the date it is treated as made. The only power to do that is in Section 5.

Once the Department has treated a claim as made on a certain date, it cannot, in my view, decide the claim in advance of that date except as permitted by section 5. Section 5 contains no express power to make advance refusals. I consider that to be significant as it contains an express power to make advance awards. It is easy to understand why advance awards would be permitted. It enables there to be some certainty and continuity for those suffering long-term disability. It is less easy to see why advance refusals would be permitted. If a claimant makes a renewal claim and it is treated as made on the renewal date (as here) and it is considered in advance that the claimant will not satisfy the conditions at the renewal date, there is a risk of injustice to a claimant. He could worsen between the date of decision and the renewal date (which is claimed to have happened here). However, by reason of Article 9(2)(a) and (b) his claim could not be regarded as subsisting after the date of decision and he could not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at the date of decision.

It is perfectly proper that a claimant who does not continue to satisfy the conditions of entitlement up to the renewal date should have his DLA award superseded and terminated prior to the renewal date. That is not, however, as I understand it, the Department's practice. What it does is to treat the claim as made on the renewal date and allow the existing award to run to that date but make an advance refusal to make a new award. So essentially either on the basis of evidence as to the situation during the currency of the existing award (which appears to be the case with most refusals) or as to what the situation is likely to be once that existing award comes to an end, the Department makes its refusal decision on the renewal claim. Once that decision is made, even though the claimant's situation should worsen before the date the claim is treated as made (which is the same date as the advance refusal takes effect) it cannot alter its decision without a new claim being made. So a claimant who does not satisfy the conditions for the award at the date of the decision on the renewal claim continues to receive the existing award up till its expiry date, even though he no longer satisfies the conditions. That situation is a cause of some concern but it is not part of what I have to decide here. I am concerned only with the power to make advance refusals.

I do not consider that Article 9(1) permits a claim to be refused before the date it is made or treated as made. Neither do I consider that section 5 permits this to be done. Once, therefore, a claim is treated as made on a particular date as was done here where the claim was treated as made on 1 July 2001 (the renewal date) the only decision on that claim which could be given prior to that renewal date was to make an award. If it was the intention not to make an award the Department had the option of superseding or not superseding the existing award. If it did not supersede, it had to hold off making a decision on the renewal claim until the date the claim was treated as made (i.e. until the renewal date). There was no power to make an advance refusal.

It appears to me that the Department in this case was entitled to treat the renewal claim as if it was made on the first day after the expiry of the existing award (the renewal date). To that extent I agree with Mrs Gunning. It was not, however, entitled to make an advance refusal. The refusal decision was therefore ultra vires. That being so it does not appear to me that there has been any valid decision made on the renewal claim. The Tribunal was in error in treating the decision as valid. I set its decision aside for that reason. No decision maker's decision having been made on the renewal claim, I am not in a position to deal with that matter. I direct the Department to make a decision on the renewal claim as quickly as possible.

For completeness sake I should mention that I differ from Mrs Gunning in that I do not agree with Commissioner Turnbull's decision. My comments thereon are, in light of the above, not essential to my decision but it does not appear to me that the very specific prohibition in Article 13(8)(b) of the 1998 Order, on the Tribunal taking into consideration circumstances not obtaining at the time of the decision under appeal, can be removed other than by primary legislation. I fully appreciate that Commissioner Turnbull was sensibly endeavouring to enable cases to be finally decided. However, I do not think that the legislation permits the solution suggested by him. At paragraph 14(3) of the decision the reasoning appears to ignore the provisions of section 5(1)(e) and regulation 13C(3) to the effect that a conditional award can be superseded or revised on the basis that the conditions are not met at the date of the coming into effect of that award, i.e. the renewal date. There was no need for any "implicit" provision to that effect in regulation 13C(2)(b). There was an express power to revise in regulation 13C(3). If it was not envisaged that such supersession or revision would take place and that there be an existing decision to be superseded or revised, these provisions appear pointless. I do not think they are. That being so it does not appear to me that the implication which the Commissioner reads into regulation 13C(2)(b) is necessary. The Secretary of State is permitted to revise or supersede the award if the conditions of entitlement are not met at the renewal date. That being so I fail to see why there is any implication in regulation 13C(2)(b) of an exception to Article 9(2) or Article 13(8)(b). However, as indicated above and more fundamentally, I consider that the powers in regulation 13C(2)(b) are limited only to making awards. I consider that there is no power to make an advance refusal and that that being so many of the difficulties alluded to by the Commissioner, as created by the G.B. equivalent of Article 13(8)(b), will not arise. There is an express power to make advance conditional awards and there is an express power to revise or supersede that advance award in the event of the conditions not being met at the renewal date. If advance refusals cannot be made the situation at the date of the decision can be taken into account for claims treated as made on the renewal date.

It also appears to me that had the legislature desired to create an exception to Article 13(8)(b) it would have expressly done so rather than leaving it to be implied from a regulation. There is simply no power in the primary legislation enabling the Tribunal to take into consideration circumstances not obtaining at the date of decision save for the very limited exception permitted by section 5(1).

This decision is set aside for the reasons indicated above and the renewal claim remains to be decided by the Department. This it can now do, the date on which that claim is treated as made having been reached. The claimant, on being informed of the Department's decision (which should be done as quickly as possible) will have the usual appeal rights. Circumstances up to the date of the decision under appeal can be taken into account.

(Signed): M F BROWN

COMMISSIONER

(Dated): 28 JULY 2003