LM-v-Department for Social Development (DLA) [2010] NICom 44

Decision No:  C30/08-09(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 22 August 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 22 August 2008 is in error of law.  The error of law identified will be explained in more detail below.

 

2.    Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

3.    I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

4.    My decision is that (the claimant) satisfies the conditions of entitlement to the lowest rate of the care component and the lower rate of the mobility component of disability living allowance (DLA) from 4 April 2008 to 4 April 2011.

 

5.    I am unaware whether there has been a further application for DLA since the commencement of proceedings before the Social Security Commissioner.  If there has been such an application, and an award of entitlement has been made on the basis of that application, this decision is taken on account of any such award.

 

       Background

 

6.    As will be noted below, one of the principal issues raised in this appeal relates to the validity of the claims and appeals process, and whether a valid appointment had been made.  Accordingly, reference is made to the claimant who is the person for whom entitlement to DLA has been sought and the claimant’s mother.

 

7.    On 4 April 2008 a claim form to DLA, in respect of the claimant was received in the Department.  The claimant was born on 25 January 1992 so that by the time the claim form was received in the Department, he was 16 years of age.  The claim form was signed by the claimant’s mother.

 

8.    Also on 4 April 2008, an application for an appointment to act on behalf of the claimant was received in the Department.  The application was made by the claimant’s mother.

 

9.    On 11 April Form MF17 was forwarded by the Department to the claimant’s mother, requesting further details concerning ability of the claimant to handle his own affairs.

 

10.   On 17 April 2008, the completed Form MF17 was received back in the Department, signed and dated by the claimant’s mother on 17 April 2008.

 

11.   On 23 April 2008 a decision-maker of the Department decided that there could be no entitlement to DLA, on the claim received on 4 April 2008, from and including 4 April 2008.

 

12.   An appeal against the decision dated 23 April 2008 was received in the Department on 6 May 2008.  The appeal letter was signed by the claimant’s mother.

 

13.   The appeal tribunal hearing took place on 22 August 2008.  The claimant’s mother was present.  The appeal tribunal had before it an appeal submission.  At paragraph 3 of Section 4 of the appeal submission, it is recorded that:

 

‘On 04.04.08 the department appointed (the claimant’s mother) to act on behalf of (the claimant)’.

 

14.   It is now accepted that this paragraph is factually incorrect and no appointment of the claimant’s mother to act on behalf of the claimant took place until April 2009.

 

15.   The appeal tribunal allowed the appeal, unanimously, in respect of the care component of DLA, and made an award of an entitlement to the lower rate of the care component of DLA from and including 4 April 2008.  The decision notice in respect of the appeal tribunal’s decision with respect to the care component, records, however, that:

 

‘… Pursuant to section 71 of the 1992 Act and Regulation 17 of the Social Security (Claims & Payments) Regulations (NI) 1987, we make this award from 4 April 2008 to and including 3 April 2010.’

 

16.   The appeal tribunal disallowed the appeal, by a majority, in respect of the mobility component of DLA, and refused entitlement to the mobility component from and including 4 April 2008.

 

17.   On 16 January 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  The application and accompanying documentation was signed by the claimant’s mother.

 

18.   On 26 January 2009, the application for leave to appeal was accepted by the legally qualified panel member (LQPM), even though it was out of time, and leave to appeal was granted.

 

       Proceedings before the Social Security Commissioner

 

19.   On 9 February 2009, the appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

 

20.   On 10 April 2009 correspondence was forwarded to the claimant’s mother asking her to have a form of authority completed by the claimant.

 

21.   On 10 April 2009, observations on the appeal were sought from Decision Making Services (DMS).

 

22.   On 27 April 2009 a completed form of authority, authorising the claimant’s mother to act in relation to the appeal to the Social Security Commissioner, and signed by the claimant on 21 April 2009, was received in OSSC.

 

23.   On 8 May 2009 written observations on the appeal were received in OSSC.  In these initial observations, DMS made detailed submissions on the validity of the initial claim, and subsequent appeals to the appeal tribunal and the Social Security Commissioner.  In addition, on the substantive issue raised by the appeal, DMS supported the appeal.  Observations were shared with the claimant’s mother on 27 May 2009.

 

24.   On 6 July 2009 I directed an oral hearing of the appeal.  Due to a requirement for an adjournment of the first listed oral hearing, the oral hearing did not take place until 16 November 2009.  At the oral hearing, the appellant was represented by Ms Loughrey from the Law Centre (Northern Ireland), and the Department was represented by Mr Kirk of the DMS section, accompanied by Mrs Stewart.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

 

 

 

Errors of law

 

25.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

26.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)      making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)      failing to give reasons or any adequate reasons for findings on material matters;

(iii)      failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)      giving weight to immaterial matters;

(v)      making a material misdirection of law on any material matter;

(vi)      committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

       Was the decision of the appeal tribunal in the instant case in error of law?

 

       The validity of the initial claim and subsequent appeals

 

27.   Regulation 42(1) and (2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, provide that:

 

‘42(1) In any case where a claim for disability living allowance for a child is received by the Department, it shall, in accordance with paragraphs (2) to (9), appoint a person to exercise, on behalf of that child, any right to which he may be entitled under the Act in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of disability living allowance.

 

(2)      Subject to paragraphs (3) to (9), a person appointed by the Department under this regulation to act on behalf of the child shall—

 

(a) be a person with whom the child is living; and

 

(b) be over the age of 18 or, if the person is a parent of the child and living with him, be over the age of 16; and

 

(c) be either the father or mother of the child, or, if the child is not living with either parent, be such other person as the Department may determine; and

 

(d) have given such undertaking as may be required by the Department as to the use, for the child’s benefit, of any disability living allowance paid.’

 

28.   There is nothing in paragraphs 3 to 8 of regulation 42 which is of further relevance to the instant case.  Paragraph 9 defines a child as a person under the age of 16, although it is important to note that this definition was inserted by way of regulation 5(9)(b) of the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations (Northern Ireland) 2005 (SR 2005 No.46) as from 18 March 2005.

 

29.   The ambit of the equivalent of regulation 42 in Great Britain, that is regulation 43 of the Social Security (Claims and Payments) Regulations 1987, as amended, which is in identical terms as regulation 42 in Northern Ireland, was considered by Commissioner Williams in CDLA/4228/2003.  At paragraphs 5 to 8 of that decision he stated:

 

‘Claiming disability living allowance for a child

 

5        I deal with the technical point first.  Where the Secretary of State receives a disability living allowance claim in respect of a child, regulation 43 of the Social Security (Claims and Payments) Regulations 1987 provides that the Secretary of State must appoint someone to exercise the child’s rights and to receive and deal with the payment of any allowance.  I am told by the Secretary of State's representative that the person appointed to act is normally the child benefit recipient.  That is usually the child’s mother, as in this case - obviously the most appropriate appointee for most child claims for disability living allowance.

 

6        The problem is that the regulation does not define “child”.  The facts of the case suggest that JH remained a “child” for child benefit purposes after he was 16 as he remained at school (Social Security Contributions and Benefits Act 1992, section 142).  But disability living allowance differentiates between awards for those who are 16 and over, and for those under 16.  For example, those under 16 are not expected to cook for themselves (Social Security Contributions and Benefits Act 1992, section 72(6)(a).  And in addition to the usual tests it must be shown that someone under 16 has a requirement for care or supervision substantially in excess of the normal requirements of someone of the child’s age (section 72(6)(b)).  In other words, the legislation assumes that parents or others will provide at least some personal care and supervision for anyone under 16.  That test was applied by the Secretary of State to stop JH’s claim.

 

7        There is no consistent approach to, or general definition in the Social Security (Claims and Payments) Regulations 1987 of, “child”.  For the purposes of regulation 9(2) (interchangeable claims for benefit), “child” appears to have the child benefit meaning.  In regulation 29 (payments to persons under age 18) the implication is that a person under 18 is a minor in the legal sense but not a child for the purposes of receiving benefit.  The Secretary of State's representative submits that for the purposes of regulation 43 “child” should be confined to those under age 16.  The educational status of a claimant is irrelevant to disability living allowance, while, as noted, the fact that someone is or is not 16 or under can be very important to a claim.  I agree.

 

8        “Child” in regulation 43 is limited to those under 16.  It follows that any appointment under regulation 43 automatically lapses when the child for whom the appointment is made becomes 16.  If he or she needs an appointee after becoming 16 as a matter of fact, then a new appointment must be made under regulation 33 (persons unable to act).  Otherwise the individual must make his or her own claims and appeals.  In this case JH has indicated that he wants the appeal to proceed.’

 

30.   It is clear that Commissioner Williams was dealing with the version of regulation 43 prior to the insertion of the definition of ‘child’.  Regulation 43(9) now also defines child for the purposes of the regulation as a person under the age of 16, following the insertion of that definition by regulation 7 of the Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 2005 (SI 2005/337) as from 18 March 2005.  Accordingly his analysis in paragraphs 6 and 7 is no longer relevant.

 

31.   Further, I am in agreement with Commissioner Williams’ remarks in paragraph 8.  The insertion of the definition of ‘child’ as a person under the age of 16 must mean that a regulation 42 appointment ceases when that child reaches the age of 16.  That is logical as there are, as Commissioner Williams recognised in paragraph 6, differential tests for entitlement to aspects of DLA for those who are under 16, and those who are 16 and over.  This means that a person who reaches age of 16 and requires an appointee to assist with the making of a claim to DLA requires a new appointment to be made, under the provisions of regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended. Regulation 33(1) provides that:

 

‘33 (1) Where—

 

(a)            a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf;

(b)            that person is unable for the time being to act; and

(c)            no controller has been appointed by the High Court with power to claim or, as the case may be, receive benefit on his behalf,

 

the Department may, upon written application made to it by a person who, if an individual, is over the age of 18, appoint that person to exercise, on behalf of the person who is unable to act, any right to which that latter person may be entitled and to receive and deal on his behalf with any sums payable to him.’

 

32.   How does all of this apply in the instant case?

 

33.   At the date of the claim to DLA, that is 4 April 2008, the claimant was over the age of 16, his date of birth being 16 January 1992.  Accordingly, any regulation 42 appointment in respect to a claim to DLA would have ceased.  A further claim to DLA would either have to be made in the name of the claimant himself, or a regulation 33 appointment would have to be made to appoint someone to exercise rights, including the right to make a claim to a social security benefit, on his behalf.  The problem is that the claimant did not make the relevant claim in his own name, and no person was appointed under regulation 33 to exercise the right to make such a claim, despite what was erroneously stated in paragraph 3 of section 4 of the appeal submission.

 

34.   That is not to say that the claimant’s mother was not endeavouring to have an appointment made.  As was noted above, on 4 April 2008, an application for an appointment to act on behalf of the claimant was received in the Department.  The application was made by the claimant’s mother.  On 11 April Form MF17 was forwarded by the Department to the claimant’s mother, requesting further details concerning ability of the claimant to handle his own affairs.  On 17 April 2008, the completed Form MF17 was received back in the Department, signed and dated by the claimant’s mother on 17 April 2008.

 

35.   It is unclear why the Department did not take appropriate action with respect to the application for the appointment.  At the oral hearing of the appeal, it was suggested that the Department had made a decision, on 23 April 2008, pursuant to the application made by the claimant’s mother that the claimant did not require an appointee and could attend to and manage his own affairs.  If that is the case then:

 

(i)              such a determination should have been communicated to both the claimant’s mother and the claimant;

 

(ii)             the claimant’s mother and the claimant should also have been alerted to the real consequence that the claim to DLA, purportedly made by the claimant’s mother on behalf of the claimant, might not be valid, and a further claim might need to be made; and

 

(iii)            the appeal tribunal should have been informed of the true position with respect to the appointment application and not have been led to believe that a valid appointment had been made when it had not.

 

36.   I find it difficult to understand how a decision-maker of the Department could determine that the claimant did not require an appointee and that, conversely, he was capable of managing his own affairs.  I have been provided with convincing evidence – the claimant unfortunately has a reading age of seven – that that is not the case.

 

37.   If there is a single action point which arises from this case, it is that the Department, in all appeals involving a claimant for whom an appointment has been made or applied for, either under the provisions of regulation 33 or 42 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, there has to be a specific reference to the appointment or application within the appeal submission and a copy of a certificate of appointment needs to be added as a tabbed document.

 

38.   Was the claim made by the claimant on 4 April 2008 valid?  In R(SB) 9/84, a Tribunal of Commissioners in Great Britain was considering the effects of what was then regulation 26(1) of the Supplementary Benefit (Claims and Payments) Regulations 1981.  As it applied in that case, regulation 26(1) provided that:

 

‘26.—(1) In the case of any person by whom or on whose behalf a claim has been made or to whom benefit is payable or who is alleged to be entitled to benefit, if he is for the time being unable to act and either—

 

(a) no receiver has been appointed by the Court of Protection with power to claim or, as the case may be, to receive benefit on his behalf; or

 

(b) in Scotland, his estate is not being administered by any curator, factor or other person acting or appointed in terms of law,

 

the Secretary of State may, upon written application made to him by a person over the age of 18, appoint that person to exercise on behalf of the person who is unable to act, any right to which that person may be entitled under the Act and to receive and deal on his behalf with any sums payable to him.’

 

39.   The Tribunal of Commissioners went on to consider the validity of a claim made on behalf of a person unable to act but in respect of whom no regulation 26 appointment had been made.  At paragraph 8 of the decision, the Commissioners stated:

 

‘We are unable to accept the proposition that a determination made by a benefit officer upon an “unauthorised” claim made on behalf of a person unable to act is invalid in the sense of being a nullity.  A supplementary benefit officer has a statutory duty to adjudicate upon any question raised before him relating to a person’s entitlement to supplementary benefit … Where that question takes the form of a claim which is determined, the Secretary of State must in our view in the absence of any challenge at the time be deemed to have been satisfied that it constituted such a claim … We therefore conclude that any determination issued on such a claim can be treated as validly made under the Act and regulations …’

 

40.   In CIS/638/1991, a Commissioner held that a claim made on behalf of a person unable to act by a person who had not been formally appointed was a nullity.  The principles in R(SB)9/84 were applied, however, by the Court of Appeal in its Consent Order in Walsh v CAO which also set aside the decision in CIS/638/1991.  As was noted in R(IS) 4/06, at paragraph 10, a decision on a consent order is binding only on the parties to it (R(FC) 1/97 at paragraph 28).  Nonetheless, I am satisfied that the principles in R(SB) 9/84 are reinforced.  In any event, I would accept and prefer the reasoning of a Tribunal of Commissioners, in R(SB) 9/84 over the reasoning of a single Commissioner in CIS/638/1991.

 

41.   It seems to me that the principles in R(SB)9/84 are based on sound reasoning and analysis and ought to be applied in the instant case.  The Department has a statutory duty, under Article 9(1) of the Social Security (Northern Ireland) Order 1991 to decide any claim for a relevant benefit.  At the time of making a decision on the claim, received in the Department on 4 April 2008, the Department did not make any challenge as to its validity.  Indeed, it has been suggested that the Department considered the claim to be valid, made by a person over the age of 16, able to act on his own behalf and manage his own affairs.  Accordingly, the Department must be deemed to have been satisfied that it constituted a valid claim.

 

42.   In any event, it would be grossly unfair for the Department, some two years after making a decision on a claim to disown that decision.  DLA is a social security benefit where, for the most part, back-dating of a claim is not possible.  ‘Rectification’ of a claim by the making of a fresh claim might mean a potential loss of benefit.  Rectification by re-signature by the claimant would result in further and unnecessary delay.

 

43.   My overall conclusion, therefore, is that the claim made on 4 April 2008 was validly made.

 

44.   What about the validity of the appeal made to the appeal tribunal against the decision made on the claim?

 

45.   As was noted above, an appeal against the decision dated 23 April 2008 was received in the Department on 6 May 2008.  The appeal letter was signed by the claimant’s mother.

 

46.   Article 13(2) of the Social Security (Northern Ireland) Order 1998 provides that the claimant and ‘any other person as may be prescribed’ shall have the right to appeal against a decision of the Department made on a claim for, or on an award of, a relevant benefit.

 

47.   Regulation 25 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended provides that for the purposes of Article 13(2) of the 1998 Order, amongst the other persons with a right of appeal is ‘… any person appointed by the Department under Regulation 33(1) of the Claims and Payments Regulations to act on behalf of another.’

 

48.   Regulation 33(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that an appeal must be in writing either on a form approved for the purpose by the Department or in such other format as it accepts as sufficient for the purpose, and be signed by the person with a right to appeal to an appeal tribunal, or by a representative, where the person with a right of appeal has provided written authority to a representative to act on his behalf.

 

49.   Accordingly, a claimant and an appointee under regulation 33 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, as amended, have the right to appeal to an appeal tribunal against a decision of the Department.  In turn, an appeal must be signed by a person with a right of appeal (claimant or regulation 33 appointee) or a representative with written authority to act on behalf of the person with a right of appeal.

 

50.   In CIS/460/2003, Commissioner Levenson, in considering equivalent provisions in the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, stated, at paragraphs 5-7:

 

‘5.       Section 12(2) of the Social Security Act 1998 provides the claimant with a right of appeal to an appeal tribunal but says nothing about the method of appealing.  Section 12(7) provides for regulations to be made which “may make provision as to the manner in which” appeals are to be brought.  Among such regulations are the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Regulation 33(1), so far as is relevant, provides that an appeal to an appeal tribunal shall be in writing either on a form issued for the purpose by the Secretary of State or in such other format as the Secretary of State accepts as sufficient for the purpose and shall:

 

33(1)(a) be signed by

 

(i)              the person who, under … section 12(2), has a right of appeal; or

(ii)             where [that person] has provided written authority to a representative to act on his behalf, by that representative;

 

6.       Mrs B signed the appeal form on 26^th March 2002.  The Tribunal Appeals Service issued an enquiry form to the claimant on 20^th May 2002.  This form was not in the bundle of papers prepared for the Commissioner but is in the tribunal’s own file of which I have possession while considering the matter.  The first enquiry is “Do you want to withdraw your appeal?”.  There is a tick in the box to indicate “no” and the answer to the enquiry was signed by the claimant himself on 28^th May 2002.  In the circumstances of this case this seems to me to amount to the claimant providing written authority for his mother to act on his behalf in the appeal.

 

7.       Regulations 2 and 58 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 deals with the procedure for applying to a tribunal chairman (or legally qualified panel member) for leave to appeal to the Commissioner against a decision of the tribunal.  There is no requirement for the application to be signed by the claimant in person and, although that is obviously the best practice, it is not a legal requirement.  When a chairman has granted leave, notice of the appeal must be served on the Commissioners.  This is dealt with in regulations 12 and 13 of the Social Security Commissioners (Procedure) Regulations 1999.  Regulation 12(1) sets out what must be contained in the notice of appeal.  Again, there is no legal requirement that the notice be signed by the claimant.’

 

51.   In the instant case, the letter of appeal was prepared and signed by the claimant’s mother.  Was she, at that stage a regulation 33 appointee?  As was noted above, it appears that the Department made a decision, on 23 April 2008, that the claimant did not require an appointee and could attend to and manage his own affairs.  The Department, did not, of course, convey details of that decision to the claimant’s mother who, for the purposes of the making of the appeal against the Department’s decision, considered herself to be the claimant’s appointee.  She considered that she had taken all of the action, by way of completion of a relevant appointee application form, and provision of further information in connection with that application, to fulfil the requirements to be made an appointee.  I am certain that had the claimant’s mother been informed - as she should have been - that the Department had decided against making her an appointee for the claimant, she would have taken further action to protect his rights.  That further action might have been in the form of seeking authorisation to act as his representative.

 

52.   It seems to me to be grossly unfair to challenge the validity of the appeal to the appeal tribunal.  The claimant’s mother thought that she had been validly appointed.  The Department did not initially challenge the validity of the appeal to the appeal tribunal.  Indeed, an officer of the Department, on 5 June 2008, by completion of Form AT37, which is a form of notification of an appeal by the Department to TAS, has accepted that the appeal was ‘duly made’.  Further the claimant’s mother is noted on the relevant Form AT37 as being the claimant’s ‘appointee’.

 

53.   The claimant’s mother would have taken corrective action had she known of the true position.  In my view, there should be no adherence to the strict requirements of the legislative provisions to deny a right of appeal in these circumstances and the denial of a right of appeal would be unjust in the circumstances.  It could be argued that the claimant’s mother acted as an agent for the claimant until the true appointee position was made known.

 

54.   Moreover, I have no doubt that the claimant has given his mother authority to act on his behalf as his representative.  As was noted above, on 10 April 2009 correspondence was forwarded to the claimant’s mother asking her to have a form of authority completed by the claimant.  On 27 April 2009 a completed form of authority, authorising the claimant’s mother to act in relation to the appeal to the Social Security Commissioner, and signed by the claimant on 21 April 2009, was received in OSSC.  Even if there was no written authority from the claimant in connection with the appeal to the appeal tribunal, it could easily be obtained, and I would hold that such authority was retrospective.

 

55.   Accordingly, I hold that the appeal to the appeal tribunal was validly made.

 

56.   The application for leave to appeal to the Social Security Commissioner, made, initially, to the LQPM, was signed by the claimant’s mother.  I consider that this application was also validly made, on the basis of the comments of Commissioner Levenson at paragraph 7 of CIS/460/2003.

 

57.   Finally, there are no legal or procedural difficulties with the proceedings before the Social Security Commissioner.  As was noted above, in the OSSC file, there is a completed form of authority, authorising the claimant’s mother to act in relation to the appeal to the Social Security Commissioner, and signed by the claimant on 21 April 2009.

 

       Entitlement to the lower rate of the mobility component of DLA

 

58.   The substantive challenge to the decision of the appeal tribunal was based on the tribunal’s conclusions with respect to entitlement to the lower rate of the mobility component of DLA.  As was noted above, the appeal tribunal disallowed the appeal, by a majority, in respect of the mobility component of DLA, and refused entitlement to the mobility component from and including 4 April 2008.

 

59.   The legislative provisions setting out the conditions of entitlement to the lower rate of the mobility component of DLA are to be found in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

’73      (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the age of 5 and throughout which—

…

 

          (d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.’

 

60.   In the record of proceedings for the appeal tribunal hearing, the claimant’s mother is recorded as saying:

 

“Appellant very articulate.  No problems with speech.

 

Appellant goes to school on train from Whitehead into Yorkgate in Belfast.  A shuttle bus collects them and takes them into school.  He travels with his cousins.  A 13 year old cousin travels with Appellant.  He does not do after school activities.  On a number of occasions, he has ended on Derry or Antrim train.  This happened 6/7 times last year.  He then phones me on his mobile and spells out the name of the station to me.  I then go and get him in the car.

 

He could ask for directions.  He cannot take directions.  His reading age is 7 years.  Appellant cannot read the names on streets/road signs.  He is also very embarrassed to say to people that he cannot read.  He therefore frequently gets lost in unfamiliar places.’

 

61.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has stated:

 

‘The oral evidence was that the Appellant can ask for directions, but cannot take them; that he has great difficulty reading street names or road signs, that he has to spell out the names of signs over the mobile telephone, and that that allows his parents to know where he is and thus to go an [sic] collect him.  Accordingly, the oral evidence is that he frequently gets lost.  On balance of probabilities, the Tribunal considered the evidence for any award of the mobility component was very finely balanced.  The majority of the tribunal considered that there was insufficient evidence to satisfy section 72(1)(d) [sic] of the 1992 Act, and felt that the evidence was somewhat confusing insofar as the oral evidence from the Appellant’s mother suggested that the Appellant could not take directions from another person on an unfamiliar route, whilst at the same time asserting that the Appellant could take directions from his parents when he got lost and had to use his mobile telephone.

 

The majority of the Tribunal felt that the Appellant is able (occasionally) to take the train from school to home, and (if he gets lost) to use a mobile number to call home and get directions as to what to do next (including spell out the letters of the train station where he is, and to understand that he should wait there until someone arrives to collect him).  The minority of the Tribunal dissented from this determination, and felt that the fact that the Appellant could not take directions, has a reading ability of 7.10 years, and thus cannot read and understand the correct train to take, means that he satisfies the provisions of section 73(1)(d) inasmuch as he cannot take advantage of the faculty out [sic] mobilisation out of doors without guidance or supervision from another person most of the time.  In particular, the minority of the tribunal felt that there is nothing in section 73 (1) (d) to indicate that such guidance or supervision must be provided by a person actually and continuously present with the person requiring such intervention.  Moreover, the minority member of the panel felt that there is a distinction to be drawn between taking directions from another person on an unfamiliar route, and taking supervision from a parent to spell out the name of a train station and follow the instruction to stay at that place until a family member came to collect the person, who was thus lost.  Accordingly, by requiring his parent’s guidance on a mobile telephone to be able to make his way home, and by not being able to take directions on unfamiliar routes, the minority member of the panel felt the Appellant satisfied the provisions of section 73 (1)(d) of the 1992 Act.’

 

62.   I am of the view that the evidential assessment and reasoning of the majority is flawed.  The evidence from the claimant’s mother was not that the claimant was taking directions from his parents but rather that when he has got on to the wrong train and, accordingly, has got lost, he telephoned his parents, spelt out the letters of the name of the station at which he had inadvertently found himself, and received instructions to ‘stay put’ until his parents came to collect him.  I cannot see how this evidence, which the appeal tribunal found to be highly credible, could be extrapolated to an apparent conclusion that the claimant could take directions from someone other than his parents, a stranger, when lost on an unfamiliar route.

 

63.   The evidential assessment and reasoning of the minority member of the appeal tribunal is to be preferred.  I accept and adopt the conclusion that ‘… there is a distinction to be drawn between taking directions from another person on an unfamiliar route, and taking supervision from a parent to spell out the name of a train station and follow the instruction to stay at that place until a family member came to collect the person, who was thus lost.’.  Further, the reasoning of the minority member that the claimant, by requiring his parent’s guidance on a mobile telephone to be able to make his way home, and not being able to take directions on unfamiliar routes, satisfied the provisions of section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is wholly sustainable and I accept and adopt that reasoning.

 

64.   I would note that I make no comment on the conclusion by the minority member of the appeal tribunal that section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 does not impose a requirement that ‘… guidance or supervision must be provided by a person actually and continuously present with the person requiring such intervention.’.  Although it is not expressly stated, the minority member appears to be concluding that guidance or supervision could be provided, for example, by use of a mobile telephone.  In the written observations on the appeal, DMS took a contrary view, concluding, on the basis of an analysis of the decisions in C71/97(DLA) and CDLA/042/94 that ‘…any guidance or supervision has to be given by someone who is physically present.  Someone on the telephone could not recognise dangers to the person at the other end; nor could they adequately monitor the person’s condition … using a mobile telephone would not be sufficient in itself to satisfy the guidance/supervision needs as suggested by the minority of the tribunal.’

 

65.   I have been able to determine that the decision of the majority of the appeal tribunal in respect of entitlement to the lower rate of the mobility component of DLA is in error of law.  Accordingly, I have no requirement to address this specific question as to whether, for the purposes of section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, guidance or supervision has to be provided in the presence of the person requiring such intervention.

 

66.   In the written observations on the appeal, DMS did submit that the decision of the majority of the appeal tribunal was in error of law in the following additional way:

 

‘With regard to the evidence regarding (the claimant’s) ability to catch the train home I would submit that as he travels this route on a regular basis that it should be considered as a familiar route.  The issue for consideration is what happens when (the claimant) loses his way and ends up somewhere which is unfamiliar to him as his mother states he frequently does.  He rings home and is told to stay there for collection by a family member.  The telephone call does not provide either guidance or supervision, it is the family member who comes and takes (the claimant) home who is providing the physical guidance and supervision.  In view of this I would submit that the tribunal (majority) applied the wrong test in this case because they appear to have equated the fact that (the claimant) understands he has to stay where he is until collected with guidance or supervision.  In view of the above I would submit that the tribunal has erred in law and I would support this application.’

 

67.   I agree with these observations and the conclusion that the majority of the appeal tribunal has misinterpreted the statutory test set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended and, in particular, the meaning of ‘routes which are familiar’.

 

       The period of the award

 

68.   The appeal tribunal’s decision with respect to the care component of DLA, which was unanimous, and as recorded in the decision notice, was that:

 

‘The entire Tribunal determines that the Appellant cannot cook a main meal for himself, and would require help from another person to do this task.  Accordingly, we are entirely satisfied the Appellant satisfies section 72(1)(a) of the Social Security Contributions and Benefits (NI) Act 1992, and is thus entitled to the award of the Care Component of DLA from and including 4 April 2008.

 

Pursuant to section 71 of the 1992 Act and Regulation 17 of the Social Security (Claims and Payments) Regulations (NI) 1987, we make this award from 4 April 2008 to and including 3 April 2010’.

 

69.   It would appear that the appeal tribunal wished to make a fixed period award of entitlement to the lowest rate of the care component for a two year period.  There are a number of difficulties with the appeal tribunal’s conclusions on this aspect of the appeal.  Firstly, the finding that the claimant satisfied the conditions of entitlement to the lowest rate of the care component, from and including 4 April 2008 is inconsistent with the limiting of that award to a fixed period.  Secondly, section 71 of the of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, makes general provision for DLA and it is section 71(3) which permits the making of a fixed period award.  More importantly, regulation 17(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, provides that ‘… a claim for benefit shall be treated as made for an indefinite period and any award of benefit on that claim shall be for an indefinite period’ which is inconsistent with the making of a fixed period award.

 

70.   Finally, where an appeal tribunal makes a decision that an award of entitlement to DLA should be for a fixed period, then the appeal tribunal, in its statement of reasons, should provide an explanation as to why the award is for such a fixed period.  Support for that conclusion is to be found in the decision of the Chief Social Security Commissioner in C6/94 (DLA).  In that decision, the Chief Social Security Commissioner was discussing the making of awards of DLA in the context of a general provision relating to the duration of awards.  Nonetheless, his remarks concerning the requirement for a clarification of the reasons for the limitation of an award remain applicable.

 

71.   The Chief Social Security Commissioner made it clear that the requirement to explain a limitation in award is not onerous.  He described it, in paragraph 7, as the appeal tribunal making it:

 

‘… clear that they have considered the point and explain in brief terms why they have decided that the award should be for the fixed period which they have selected.’

 

72.   In the present case, nowhere in the statement of reasons is there any indication as to why the appeal tribunal decided that a limited award of the lowest rate of the care component was appropriate.  Accordingly, the minimal requirements set out in C6/94 (DLA) are not met and the decision of the appeal tribunal is in error of law for failing to meet those minimal requirements.

 

       Disposal

 

73.   The decision of the appeal tribunal dated 22 August 2008 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

74.   I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

 

75.   The decision of the appeal tribunal that the claimant satisfied the conditions of entitlement to the lowest rate of the care component of DLA was not challenged before the Social Security Commissioner.  There was no submission, and in my view correctly so, that the claimant satisfied the conditions of entitlement to either the middle or highest rates of the care component.

 

76.   On the basis of my reasoning above, I find that the claimant satisfies the conditions of entitlement to the lower rate of the mobility component of DLA.  There was no submission, and in my view correctly so, that the claimant satisfied the conditions of entitlement to the higher rates of the mobility component.

 

77.   All that remains is consideration of and determination of the period of the award.  I am of the view that the award should be for a fixed period.  Circumstances can and do change and it is possible that as he increases in age, there may be an alteration in the claimant’s situation with a resultant adjustment in his ability to function and alteration of his care, supervision or guidance requirements.  The appeal tribunal thought that a two year limitation was appropriate, probably because that took the claimant to his eighteenth birthday.  I would set the limitation at three years, at the end of which period, a further application to DLA, if required may be made.  In the meantime, if there is any other significant change, an application for revision or supersession of the decision might be made.

 

78.   Accordingly, my decision is that the claimant satisfies the conditions of entitlement to the lowest rate of the care component and the lower rate of the mobility component of DLA from 4 April 2008 to 4 April 2011.

 

79.   I am unaware whether there has been a further application for DLA since the commencement of proceedings before the Social Security Commissioner.  If there has been such an application, and an award of entitlement has been made on the basis of that application, this decision is taken on account of any such award.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

14 May 2010