Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2008] NISSCSC C5_08_09(DLA) (7 November 2008)

Decision No: C5/08-09(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 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
2. As will be noted in further detail below, both parties have expressed the view that the decision of the appeal tribunal, which is the subject of this appeal, is in error of law. I am in agreement with both parties that the decision of the appeal tribunal was in error of law for the reasons identified by the parties.
3. Further, in addition to the grounds upon which the parties have agreed that the relevant decision of the appeal tribunal is in error of law, I have identified an additional basis for so finding.
4. Pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against and I refer the case to a differently constituted appeal tribunal for re-determination.
5. In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the parties to the proceedings, and the appeal tribunal takes into account the guidance set out below.
6. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her son's entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal. In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

Background

7. On 23 November 2007 an appeal tribunal disallowed an appeal against a decision of the Department dated 26 March 2007. The decision of the Department had been in connection with the entitlement of the child to DLA. The decision had been to supersede an earlier decision of the Department and give an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 1 September 2006 to 12 June 2009. The decision dated 26 March 2007 was reconsidered by a decision-maker of the Department on 17 April 2007 but was not changed.
8. The appeal tribunal substituted its own decision that the conditions of entitlement to either component of DLA had not been satisfied from and including 26 March 2007, and that there were 'grounds to supersede the existing award on the basis of a relevant change of circumstances'.
9. On 16 May 2008, an application for leave to appeal to the Social Security Commissioner against the decision of an appeal tribunal was allowed by the legally qualified panel member (LQPM) of that appeal tribunal on 16 May 2008. The application had been made by the mother of a child authorised to act as appointee for that child.
10. In the application for leave to appeal the applicant's representative had submitted three grounds in support of the submission that the decision of the appeal tribunal was in error of law as follows:

(i) the appeal tribunal had erred by finding that the assistance which the child received with his speech therapy and physiotherapy is not attention in connection with a bodily function;

(ii) the appeal tribunal had incorrectly identified the ground for supersession in connection with entitlement to the care component of DLA;

(iii) the appeal tribunal failed to properly apply the legislative test of 'prolonged or repeated attention' in connection with bodily functions.

11. In granting leave to appeal to the Social Security Commissioner the LQPM indicated that the applicant had established an arguable case on each of the three grounds articulated in the application for leave to appeal.
12. Observations on the application were sought from the Decision Making Services (DMS) unit of the Department. The Department supported the first two grounds cited by the applicant's representative, agreed that the decision of the appeal tribunal was in error of law and requested the Social Security Commissioner to remit the appeal to a differently constituted appeal tribunal for re-determination.
13. The Department did not fully support the third ground cited by the applicant's representative but did concede that the appeal tribunal did fail to adequately explain why it had arrived at certain conclusions concerning attention required by the child at night.
14. In a further submission to the Social Security Commissioner the applicant's representative provided further arguments in connection with the third ground cited in the original application for leave to appeal to the Social Security Commissioner.

A further error in law

15. In addition to the grounds upon which the parties have agreed that the relevant decision of the appeal tribunal is in error of law I have identified an additional basis for so finding.
16. The decision of the appeal tribunal was to the effect that the child did not satisfy the conditions of entitlement to the care or mobility components of DLA from and including 26 March 2007.
17. The decision under appeal had been a decision to supersede an earlier decision of the Department and give an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 1 September 2006 to 12 June 2009.
18. In making a decision that the child did not satisfy the conditions of entitlement to either component of DLA the appeal tribunal failed to specify why the disallowance should take effect from 26 March 2007. More specifically, the appeal tribunal has failed to identify how it has applied the effective date of supersession rules, set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.
19. It is noted that the date of refusal of entitlement, that is 26 March 2007, coincides with the date of the decision under appeal. There is no explanation, however, of why that particular date was adopted as the effective date of supersession.

Guidance to the parties to the proceedings and the appeal tribunal

Grounds to supersede

20. The appeal tribunal is reminded that the decision under appeal is a decision dated 26 March 2007, to supersede an earlier decision of the Department and give an entitlement to the lower rate of the mobility component and the lowest rate of the care component of DLA from 1 September 2006 to 12 June 2009.
21. Accordingly, the first task of the appeal tribunal is to determine whether the decision-maker, on 26 March 2007, had grounds to supersede the earlier decision of the Department. The grounds upon which a decision can be superseded are to be found in regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.
22. In making its determination, on the issue of whether the Department had grounds to supersede, the appeal tribunal should note the remarks of Mrs Commissioner Brown at paragraph 7 of the decision in C14/04-05(DLA):

'… DLA is a composite benefit and … once grounds for supersession have been established both components can be looked at. R2/95(DLA) and CIB/4751/2002 so indicate.'

23. As was noted by the Tribunal of Commissioners in R(IB)2/04, at paragraph 10, in considering the Great Britain equivalent regulation to regulation 6, there can be no supersession under unless one of the grounds for supersession specified in regulation 6 was actually found to exist and the ground which was found to exist must have formed the basis of the supersession in the sense that the original decision could only be altered in a way which followed from that ground.
24. In the original submission, prepared by the Department for the appeal tribunal hearing, it was submitted that the relevant ground on which the supersession was founded was a relevant change of circumstances. The change was that the child had attained the age of five and could, accordingly, have a potential entitlement to both rates of the mobility component of DLA.
25. It will be for the Department to submit whether that remains the ground upon which the decision to supersede was made. Equally the appellant, and her representative, may make representations on this key issue as to whether the Departmental decision- maker had grounds to supersede.
26. It will be for the appeal tribunal to determine whether the Department's decision to supersede on the ground of a relevant change of circumstances was correct and whether the original decision was altered in a manner which follows from that ground.
27. As was noted by the Tribunal of Commissioners in Great Britain, at paragraph 73, of R(IB)2/04, in discussing the appeal tribunal's powers with respect to supersession decisions:

'… it follows from our reasoning … that the appeal tribunal has jurisdiction, on appeal, to decide whether the outcome arrived at by that decision (i.e. either to change or not to change the original decision) was correct. This will or may involve deciding (a) whether one of the statutory supersession grounds (whether the one relied upon by the decision-maker or not) applied and (b) if so whether the original decision ought to be changed.'

28. This means that the appeal tribunal, subject to the other guidance given by the Tribunal of Commissioners on the exercise and limits of the authority, has the power to remedy any defect in the decision under appeal and make any decision which the decision-maker should have made.
29. If the appeal tribunal determines that the decision-maker, on 26 March 2007, did not have grounds to supersede the decision, dated 15 March 2006, then that latter decision continues to have effect.
30. If the appeal tribunal determines that the decision-maker, on 26 March 2007, did have grounds to supersede the decision, dated 15 March 2006, then the appeal tribunal should go on to consider entitlement to benefit, in light of the substantive rules for entitlement to DLA.

Effective date of supersession

31. In all appeals involving a supersession decision the appeal tribunal is under a duty to consider the date from which any supersession should take effect ('the effective date of supersession'). This is not a straightforward issue and much will depend on the ground for supersession and the benefit at issue in the appeal.
32. The effective date of supersession rules are set out in Articles 11(5) and (6) of the Social Security (Northern Ireland) Order 1998 and regulation 7 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, all as amended.
33. Where an appeal tribunal fails to consider the effective date of supersession rules, or misapplies these, it may find that its decision is in error of law.
34. The parties to the proceedings in the present case may wish to make submissions to the appeal tribunal on the application of the effective date of supersession rules to the issues arising in the appeal.

Attention in connection with bodily functions

35. In the application for leave to appeal to the Social Security Commissioner the appellant's representative submitted that the decision of the appeal tribunal was in error of law by finding that the assistance which the child received with his speech therapy and physiotherapy is not attention in connection with a bodily function. The Department, in its observations, supported this ground.
36. There have been significant developments in the case-law of the Social Security Commissioners, and the appellate courts, in Great Britain on what is encompassed by the phrase 'bodily functions' in the legislative provisions relating to the care component of DLA, and what might be argued to amount to attention in connection with bodily functions. Those developments are discussed in detail at pages 136-145 of Volume 1 of Social Security Legislation 2008/2009, a publication which is readily available to the parties to the proceedings and to the appeal tribunal.
37. It will be for the parties to the proceedings to make submissions to the appeal tribunal on whether the conditions of entitlement to the care component of DLA are satisfied. In making those submissions the parties may wish to comment on whether the attention which the appellant's child is asserted to receive in connection with activities such as homework, speech therapy and physiotherapy amounts to attention in connection with bodily functions, for the purposes of the relevant legislative provisions.
38. It will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination in light of all current judicial authority on the issue.

(signed) K Mullan

Commissioner

7 November 2008