Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2005] NISSCSC C20/04-05(DLA) (24 May 2005)

Decision No: C20/04-05(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 23 January 2004
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by a legally qualified panel member (LQPM) against a decision dated 23 January 2004 of an appeal tribunal sitting at Lurgan.

2. The Tribunal allowed the appeal and awarded the higher rate of the mobility component and the lower rate of the care component of DLA for an indefinite period from 7 September 2000.

3. The claimant's appeal to the Tribunal was received on 20 March 2001 and was made against a decision dated 17 February 2001 which awarded the lower rate of the mobility component from 7 September 2000 to 6 September 2001. The proceedings before the Tribunal were protracted and as well as the hearing on 23 January 2004 there was an earlier hearing on 10 June 2003. In the meantime the claimant corresponded with the Department and the Department took various actions. On 8 August 2002 (following a request by the claimant) the Department reconsidered the decision of 17 February 2001 but did not change it. On 24 June 2003 the Department reconsidered the decision of 8 August 2002 and superseded the decision of 17 February 2001 to award the lower rate of the mobility component and the middle rate of the care component of DLA from 15 May 2002 to 14 May 2004.

4. The Department submitted (based on C14/98(DLA) and R(DLA)1/96) that the Tribunal's jurisdiction in the matter ended on the day before the start date of the new award ie it could consider the matter only from 7 September 2000 to 14 May 2002. The Tribunal made the decision set out above.

5. The Department's appeal to a Commissioner was based on the submission that the Tribunal erred in law in extending its jurisdiction beyond 14 May 2002. The Department submitted citing decisions C46/02-03(DLA), C14/98(DLA), R(DLA)1/96, R(DLA)11/02 (decisions of Commissioners in Northern Ireland) and CSSB/297/89, CDLA/5141/2002, CDLA/3224/01, CS12476/96 and CDLA/5141/2002 (decisions of Commissioners in Great Britain) that the doctrine of res judicata applied to Departmental decisions made (as were those in the present case) under the Social Security (Northern Ireland) Order 1998. Article 17(1) of that Order applied to this decision and provided that it was final. Therefore the decision made by the Department was final and could only be altered by way of revision, supervision and appeal. The Department submitted further that decision C46/02-03(DLA) could not be distinguished from the present case (as the Tribunal had purported to do) and was therefore binding on the Tribunal. That decision had been supported by R2/04(IB)(T), a decision of a Tribunal of Commissioners in Great Britain which, at paragraph 174, concurred with the conclusion of C46/02-03(DLA) in relation to restricting an award up to the date a subsequent decision came into effect.

6. The claimant has made no observations on the substance of the case nor did he attend the hearing which I held. Mr Flynn attended to represent the Department. Prior to the hearing I became aware of two decisions of Commissioners in Great Britain – CDLA/114/04 and CSDLA/237/03 which appeared to me to have relevance to the case. Mr Flynn had no additional observations to make in relation to same. Copies were sent to the claimant who was given time to comment on same but who did not do so.

7. The two decisions were to the effect that the Tribunal's jurisdiction was limited to expire when a new decision came into effect. The Tribunal in the present case based its reasoning that its jurisdiction was unfettered by the subsequent Departmental decision on the conclusion that the doctrine of res judicata could not apply to limit the Tribunal's jurisdiction to the day before the subsequent award came into effect. The Department submits that the doctrine of res judicata does apply to its decisions.

8. I should first mention that I do not think Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 applies to prevent the Tribunal from taking into account the fact that a subsequent decision has been made. That provision is as follows:-

   "In deciding an appeal under this section an appeal tribunal:-

   (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made".

9. I am in agreement with the analysis of Mrs Commissioner Parker in CSDLA/237/03 which is set out at paragraphs 10-12 thereof:-

   "10. The effect of s.17(1) is that decisions are final, subject to appeals, revisions or supersession, or judicial review. Therefore, the basic premise must be that the decision of the second DM [Decision Maker] on 24 September 2002 was final with respect to the question of entitlement from and including 18 July 2002, except insofar as it was subject to any of the judicial mechanisms above set out.

   11. The second DM decision was not under appeal to the tribunal. Section 12(8)(b) has to be applied in conformity with s.17(1) and with the basic rule that there cannot be overlapping decisions in respect of the same benefit. If this were not the case, the current benefit position could be chaotic and the results would certainly not always benefit the claimant. In this case, the appellant might have been awarded higher rate mobility component and highest rate care component by the second DM for the period from 18 July 2002. It would be invidious if section 12(8)(b) permitted a tribunal to interfere with that decision and to extend its own award, of lowest rate care component only, into the period covered by the second award.

   12. I agree with Mr Brown that "circumstances" is not apt to cover "decisions". There are two distinct stages. Firstly, a tribunal must decide the period over which it has jurisdiction to make an award. Usually, this is open ended if the adjudicating body considers that the facts justify entitlement on this basis. However, this is not so where a decision has already been made on a later period. Section 17(1) of the Social Security Act 1998, combined with fundamental legal principle, then curtails the period over which a body adjudicating as from an earlier date can extend its own award."

10. The Tribunal in the instant case did not, despite its exhaustive analysis of the issue of jurisdiction, give consideration to the Northern Ireland equivalent of section 17(1) of the Social Security, Act 1998. The Northern Ireland equivalent provision is Article 17(1) of the Social Security (Northern Ireland) Order 1998.

    Article 17 provides:

    "17.- (1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under Article 12, any decision made in accordance with those regulations shall be final.

    (2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of –

    (3) further such decisions;

    (4) decisions made under the Child Support Order; and

    (5) decisions made under the Vaccine Damage Payments Act."

11. That provision was not cited to the Tribunal which may well explain the failure to deal with it.

12. What is the effect of the provision on the Tribunal's jurisdiction? Firstly, as a creature of statute, the Tribunal cannot oust statutory provisions – it is bound by them. Secondly the Department's decision of 24 June 2003 was made under the Part II of the Order(the equivalent to Chapter II of the Great Britain provision). Therefore, unless any of the exceptions at Article 17(1) applied that decision was final. Thirdly, it does not appear that any of those exceptions applied to the Department's decision of 24 June 2003. That decision is therefore, as the Department submits, final unless revised, superseded or overturned an appeal. The decision was not revised, superseded nor overturned. Nor of course was it appealed to the instant Tribunal, which, as it has rightly stated, was dealing with an appeal against the decision dated 17 February 2001. The decision of 24 June 2003 was therefore final. That decision being final, it therefore bound the Tribunal which had no jurisdiction over it. The Tribunal's jurisdiction therefore stopped on the day before the award made by the decision of 24 June 2003 came into effect. The effect of the Departmental decision of 24 June 2003 is dealt with by statute and it is therefore unnecessary to deal with whether or not the doctrine of res judicata applied to it.

13. I set the Tribunal's decision aside as in error of law. I was informed by Mr Flynn that the Department had no issue to raise on the Tribunal's decision on the components and rates awarded.

14. I consider that this is a case where it is expedient that I give the decision which the Tribunal should have given. My decision is that the decision of 17 February 2001 is superseded. The claimant is entitled to the higher rate of the mobility component and the lower rate of the care component of DLA from 7 September 2000 to 14 May 2002 (both dates inclusive). Any subsequent awards are not matters within my jurisdiction on this appeal.

15. The Department wins its appeal.

    (signed): M F Brown

    Commissioner

    24 May 2005