Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C31_06_07(DLA) (04 July 2007)

Decision No: C31/06-07(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 4 July 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision dated 4 July 2006 of an appeal tribunal sitting at Ballymena. The tribunal disallowed the claimant's appeal and decided that she was not entitled to disability living allowance (DLA) from and including 21 July 2004.
   
2. The claimant sought to appeal. A Commissioner granted leave on one of the grounds relied upon by the claimant. That was that there was an arguable issue as to whether or not the tribunal had erred in considering the claimant's health only at the date of claim (28 July 2004) and not as at the date of the decision under appeal to it (1 August 2005). She also submitted that, in so doing, the tribunal demonstrated a bias against her.
3. Mr Mervyn Storey MLA was stated by the claimant to be her representative but he has taken no active part in this appeal.
4. Mr Sloan of Decision Making Services, in observations dated 5 April 2007 made on behalf of the Department, has drawn my attention to the fact that Mrs Commissioner Brown, in decision C24/03-04(DLA), has specifically approved the remarks of Mr Commissioner Jacobs in Great Britain decision CDLA/4734/99 at paragraph 58, where he stated:

"Section 12(8)(b) [the Great Britain equivalent to Article 13(8)(b)] limits an Appeal Tribunal's jurisdiction by preventing it taking into account a fresh circumstance. It is only concerned with evidence in this respect: evidence is not admissible unless it relates to circumstances obtaining at the date of the decision under appeal. I stand by the statement of the law that I set out in CDLA/2934/1999, paragraph 9:-

"In the case of a claim for a Disability Living Allowance, the jurisdiction [of an Appeal Tribunal] is limited to the inclusive period from the date of claim to the date of the decision under appeal. The effect is also to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.""

5. Mrs Commissioner Brown, in decision C24/03-04(DLA), commenting on the paragraph quoted above, stated as follows:-

"8. I can put the matter no better than Mr Commissioner Jacob did in the above extract with the caveat as regards the final sentence in relation to which I would add only this, that the evidence may relate to the period over which the Tribunal has jurisdiction even though it also relates to a later time so long as it sheds light on the circumstances obtaining at the date of the decision under appeal. …"

6. Accordingly it is clear that the tribunal was entitled to consider the totality of the evidence from the date of claim up to the date of the decision and, furthermore, any evidence which sheds light on the circumstances obtaining at the date of the decision.
7. Mr Sloan observed that the claimant's needs, as stated in her claim form and at hearing, were considered by the tribunal. The claimant had given evidence that her right hand problem had existed since July 2005. As her condition of osteoarthritis was a progressive condition it was reasonable to assume that her ability in 2005 would not be any greater than at 2004. Similarly with regard to her walking ability as she could walk for ten minutes on a treadmill test in 2006, she could have managed at least that in 2004 as there was no indication of improvement. He submitted that the tribunal had considered the entire period within its jurisdiction – i.e. right up to the date of decision under appeal.
8. I am in agreement with Mr Sloan and, applying CDLA/2934/1999 and C24/03-04(DLA), consider that the tribunal did not err as contended by the claimant. The tribunal in my view considered the matter from the claim to the date of decision under appeal to it. Also I do not find any substance in the related allegation that the tribunal was biased against the claimant.
9. Accordingly I dismiss the appeal.

J A H Martin QC

Chief Commissioner

4 July 2007