Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C22_08_09(DLA) (02 March 2009)

Decision No: C22/08-09(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 10 December 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the unanimous decision of the tribunal. The tribunal allowed the claimant's appeal in relation to the care component of disability living allowance (DLA) by awarding the lowest rate from and including 1 October 2006 until 3 May 2007. The tribunal also disallowed the claimant's appeal in relation to the mobility component of DLA and affirmed the decision that the appellant is not entitled to either mobility component from and including 1 October 2006.
2. Leave to appeal was granted by a Commissioner on 9 December 2008 for the following reasons:

"It is arguable that the decision was wrong in law, because there is a contradiction between the reasons, set out by the legally qualified member, for the tribunal's decision (which states that the claimant was not entitled to the care component of disability living allowance (DLA)) and the notice of decision (which states that the claimant was entitled to the lowest rate of the care component of DLA from 10 October 2006 to 3 May 2007)."

3. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing. The claimant has represented herself while Mr S Toner, of Decision Making Services, represents the Department.
4. The claimant has identified some issues in relation to the past history of her awards of DLA. However, these do not amount to errors of law and, even if they can be established, the fact that I am remitting this case to another tribunal for other reasons, any confusion in the mind of the claimant and/or the Department can be clarified before that tribunal.
5. Mr Toner has, by letter dated 11 July 2008 drawn my attention to a fundamental error in the tribunal's decision. The claimant's claim from 1 October 2006 was received on 20 July 2006 and, on 18 October 2006, was disallowed by the decision-maker. On 10 December 2007 the tribunal decided that the claimant was not entitled to the mobility component from and including 1 October 2006. The finding, however, in respect of the care component is confusing in that it is recorded in the reasons for decision that "the tribunal is satisfied that she is not entitled to any care component of Disability Living Allowance" whereas on the notice of decision it is recorded that the claimant "is entitled to the lowest rate of the care component of DLA from and including 1.10.06 to 3.5.07". In addition, the reasoning set out in the statement of reasons supports a conclusion that the tribunal intended to decide that the claimant was not entitled to the care component of DLA.
6. However, there is a clear contradiction between the statement of reasons and the record of proceedings which cannot be treated as if it were merely the result of a typing error. Accordingly I hold that it is an error in law.
7. Mr Toner has submitted, by letter dated 21 November 2008, that the appropriate course for a Commissioner to take is to make a decision, in accordance with the provisions of Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998, disallowing both components of DLA from and including 1 October 2006, as he submits that that is the decision the tribunal ought to have made. However, I consider that it is not appropriate for me to exercise such a power in this case as, having recognised the inherent contradiction, it seems to me that it would be unfair not to permit the claimant to bring the case before a fresh tribunal to enable that tribunal to come to an unambiguous and clear decision on the issues in this case. Such a course would also have the advantage of enabling the Department and the claimant to clarify the claimant's claim history, as Mr Toner has demonstrated in his submissions of 11 July 2008 that the claimant and the Department have totally different views about that history.
8. In the circumstances, for the reasons set out herein, I conclude that the tribunal's decision was erroneous in point of law. Accordingly I allow the appeal and set the tribunal's decision aside. In the circumstances I refer the case to a differently constituted tribunal for a rehearing on the merits. I also direct that the Department in its written submission to the tribunal includes a record of the claimant's relevant claim history from January 2004 onwards, in so far as the information is relevant to the issues in this case.

(Signed): J A H Martin QC

CHIEF COMMISSIONER

2 March 2009