Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2008] NISSCSC C5_07_08(DLA) (2 May 2008)

Decision No: C5/07-08(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 22 January 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. Leave to appeal was granted by the appeal tribunal chairman on 29 May 2007.
2. I am satisfied that I can deal with the appeal without a hearing. The decision of the tribunal is erroneous in law for the reasons explained below. The appeal is remitted to a differently constituted tribunal to conduct a complete rehearing. The appellant should be aware that all issues in relation to his entitlement to benefit are to be decided afresh. My decision to allow the appeal is based only on the failure of the tribunal to make adequate findings of fact.

Facts of the case

3. The appellant is 40 years old. He was awarded the lowest rate of care component of disability living allowance from 3 March 2005 to 2 March 2006 as he suffered from osteoarthritis, irritable bowel syndrome and depression.
4. He complains of a very painful back. He states that he fell through a roof ten years ago.
5. He has a mental condition which he links to marital problems.
6. Irritable bowel syndrome causes him pain and discomfort.
7. His renewal claim was made on 12 October 2005 and a decision was made on 20 January 2006 disallowing benefit from 3 March 2006. His claim was reconsidered by revision on 7 April 2006 but was not changed.
8. His appeal was disallowed on 22 January 2007.
9. The application for leave to appeal from the appellant's solicitor dated 21 May 2007 raises human rights (HR) arguments as well as arguments that the decision of the tribunal was erroneous in law. Leave to appeal was granted on 29 May 2007 by the legal member of the tribunal based on HR arguments.
10. The Department made a detailed submission on behalf of the decision-maker on 6 September 2007 and supported the appeal on the grounds that the decision of the tribunal was erroneous in law. The HR arguments were opposed. A response was given by the appellant's solicitor on 17 October 2007.

Reasons for the decision

Human Rights Act Arguments

11. The HR arguments are confused in my view. The basic argument put forward by the appellant is that the restriction in the jurisdiction of the tribunal is contrary to the right to a fair trial under Article 6. However, two distinct HR issues arise.
12. The first is the right to peacefully enjoy possessions as provided in Article 1 Protocol 1 of the Convention. There have been a number of cases before the European Court of Human Rights arising from social security claims. It has been decided in Stec and others v United Kingdom ECHR 2006 that Protocol 1 Article 1 is engaged in social security cases regardless of whether the benefit is contributory or non-contributory. However, each country is entitled to impose conditions of entitlement. There are also time limits for claiming. In this case, there is no issue raised about the entitlement rules. The only issue is the structure of decision making and the manner in which decisions can be challenged.
13. The rule that a claim continued or subsisted until a decision was made on appeal was abolished in 1998. Until that time, the decision-making rules were interpreted by the Social Security Commissioners to mean that there was a continuing claim for benefit following an appeal against a disallowance - R(S)1/83 and R(S)2/98. The tribunal therefore had jurisdiction to make an award at any time up to the date of the appeal hearing, if the entitlement rules were satisfied. It could do so on the basis of completely new circumstances of which the adjudication officer in the Department was unaware. As explained in detail below, Parliament changed this rule in the 1998 legislation. I understand that the policy was that if there were new factors in a claim post dating the date of a decision, then a fresh claim should be made when the new facts were known.
14. Such a claim procedure does not give rise to a loss of entitlement rights. Entitlement must simply be decided by a Departmental decision-maker in the first instance if there is a change of circumstances post dating the decision under appeal. There is a fresh right of appeal against the second decision on the new claim.
15. I have therefore concluded that there is no breach of the appellant's rights under Article 1 Protocol 1 as a consequence of the claims procedures on the 1998 Order.
16. The other argument raised by the appellant is his right to a fair hearing under Article 6 of the European Convention of Human Rights and whether that right is infringed by the claims procedure and appeal rights given by the Social Security Order 1998.
17. The rights in Article 6 are engaged in this appeal with respect to the appeal tribunal hearing. It is argued by the appellant that, as the tribunal was obliged under Articles 9(2) and 13(8)(b) of the Social Security Order (Northern Ireland) 1998 to limit its consideration to the circumstances as they were when the decision appealed was made, the hearing was unfair.
18. Article 9(2) of the Social Security Order (Northern Ireland) 1998 provides that, where at any time a claim is decided by the Department, it shall not be regarded as subsisting after that time and accordingly, a claimant shall not be entitled to benefit on the basis of circumstances not obtaining at that time. This rule is reflected in Article 13(8)(b) which provides that in deciding an appeal, an appeal tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed was made.
19. These provisions are part of the decision-making process and apply to all claims for social security benefits. Provided the rules are applied correctly by the tribunal, there is no breach of Article 6. The evidential restriction merely identifies what decisions are appealable and the jurisdiction of the tribunal to make an award.
20. I therefore reject the HR arguments made on behalf of the appellant.
21. The appellant has also submitted arguments that the decision of the tribunal is erroneous in law and these are considered below.

Mobility Component

22. Part of the appellant's case is that he suffered from frequent falls and that this problem taken together with his painful back rendered him virtually unable to walk. The finding of fact by the tribunal on the issue of falls is flawed. The appellant stated in evidence that he fell a couple of times a week. His representative explains in the submission made to me that a copy of a report from the general practitioner (GP) dated 24 June 2005 referring to falls was put in evidence to the tribunal.
23. In the reasons for the decision, the tribunal notes the complaint of falls and states:

"He also indicated that he often loses balance and falls despite the use of a stick recommended by a Physiotherapist. His General Practitioner, in the report of 30.12.05 was not aware of any difficulties in this respect noting "Nil on record" to the relevant question in the report."

24. The question to which the tribunal refers is question 5 which is divided into three parts. Part a and b refer to walking distance before the onset of severe pain and in relation to part a, the GP has recorded 'nil on record'. Part c concerns impairment of gait, balance and aids used for physical support and there is no answer to this part of the question. The report from the GP dated 24 June 2005 makes it clear that he was aware that his patient complained that he did fall from time to time due to his knee giving way. The findings of fact in relation to the evidence of the GP are therefore unsupported by the evidence.
25. It is unnecessary for me to comment on the other issues raised by the appellant. I should add for completeness that in this case, the application was for a renewal of benefit from 3 March 2006 and clearly the tribunal has jurisdiction to consider all the circumstances to that date.

(signed): C MacLynn

Deputy Commissioner

2 May 2008