SR-v-Department for Social Development (DLA) [2011] NICom 195

Decision No:  C44/09-10(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 17 July 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 17 July 2009 is in error of law.  The error of law identified will be explained in more detail below.  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.

 

2.    For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access, and there may be further findings of fact which require to be made.  Further I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.  In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

3.    It is imperative that the claimant’s appointee notes that while the decision of the appeal tribunal has been set aside, the issue of whether disability living allowance (DLA) is payable to the claimant 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

 

4.    In this decision reference is made to the claimant who is the person for whom entitlement to DLA has been sought and the appointee who is the claimant’s mother.

 

5.    On 25 January 2006 a decision-maker of the Department decided that the claimant satisfied the conditions of entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from and including 6 February 2006.  The decision-maker also decided that DLA was not payable to the claimant during the relevant period.  There was, apparently, no appeal against the decision dated 25 January 2006.

 

6.    On 19 April 2007 the Department appointed the claimant’s mother to act as appointee for the claimant.

 

7.    On 17 September 2008 a self-assessment form in connection with the claimant was received in the Department.  It would appear that receipt of this form was treated as an application for a supersession of the decision dated 25 January 2006.  On 30 September 2008 a completed ‘Form BF9’ was received in the Department from Muckamore Abbey Hospital.  On 1 October 2008 a decision-maker decided that there were no grounds to supersede the decision dated 25 January 2006.

 

8.    On 13 October 2008 a letter of ‘appeal’ against the decision dated 1 October 2008 was received in the Department.  This letter was signed by a social worker, Ms R…..  On 17 October 2008 correspondence from the claimant’s appointee, which sought a reconsideration of the decision dated 1 October 2008 was received in the Department.

 

9.    On 3 November 2008 the decision dated 1 October 2008 was reconsidered but was not changed.  On 17 November 2008 further correspondence from Ms R….., in connection with the decision dated 1 October 2008, was received in the Department.  On 1 December 2008 confirmation of the appeal request was received from the claimant’s appointee.

 

10.   The appeal was first listed for oral hearing on 28 April 2009.  The appeal was adjourned to enable the presenting officer to consider issues which were raised by the claimant’s representative.  Subsequent to that adjournment the Departmental presenting officer prepared an additional submission.  The substantive oral hearing of the appeal took place on 17 July 2009.  The appeal tribunal disallowed the appeal and confirmed the decision dated 1 October 2008.

 

11.   On 6 October 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 13 October 2009 the application for leave to appeal was granted by the Legally Qualified Panel Member (LQPM).  In granting leave to appeal, the LQPM identified the following point of law:

 

‘While I feel that the decision was correct the claimant has raised a point of law which should be resolved by a Commissioner.’

 

       Proceedings before the Social Security Commissioner

 

12.   On 5 November 2009 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  On 13 January 2010 observations were sought from Decision Making Services (DMS) and these were received on 8 February 2010.  DMS opposed the appeal on the grounds submitted by the claimant’s representative.  Observations were shared with the claimant’s appointee and representative on 1 March 2010.

 

13.   On 4 May 2010 I directed an oral hearing of the appeal.  The oral hearing took place on 27 October 2010.  At the oral hearing, the claimant was represented by Ms R….. accompanied by the claimant’s appointee, and the Department was represented by Mr Hinton of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       Errors of law

 

14.   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.

 

15.   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?

 

       Background

 

16.   There is no doubt that the appellant satisfies the conditions of entitlement to the higher rate of the mobility component and the highest rate of the care component of DLA from and including 6 February 2006.  Accordingly, the appeal tribunal did not have to decide an ‘entitlement’ issue.  Accordingly, the only live issue before the appeal tribunal was whether the Department was correct to suspend payment of the benefit.

 

17.   Section 113(2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Regulations may provide for suspending payment of such benefit to a person during any period in which he is undergoing medical or other treatment as an in-patient in a hospital or similar institution.’

 

18.   Regulation 8 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland 1992, as amended, provides that:

 

‘Hospitalisation

 

8 (1) Subject to regulation 10, it shall be a condition for the receipt of disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient—

 

(a) in a hospital or similar institution under the Order or the 1991 Order; or

(b) in a hospital or similar institution maintained or administered by the Defence Council.

 

(2) For the purposes of paragraph (1)(a). a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under Article 31 of the Order(a) or paragraph 14 of Schedule 3 to the 1991 Order.

 

(2A) For the purposes of paragraph (1), a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or similar institution referred to in that paragraph and to end on the day before the day on which he leaves such a hospital or similar institution.’

 

19.   Regulation 10 provides for certain exceptions to regulation 8, none of which are applicable in the instant case.  The ‘Order’ is the Health and Personal Social Services (Northern Ireland) Order 1972, as amended.

 

20.   Regulation 12A of the Social Security (Disability Living Allowance) Regulations (Northern Ireland 1992, as amended, provides that:

 

‘Hospitalisation in mobility component cases

 

12A (1) Subject to regulation 12B, it shall be a condition for the receipt of disability living allowance which is attributable to entitlement to the mobility component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient—

 

(a) in a hospital or similar institution under the Order or the 1991 Order; or

(b) in a hospital or similar institution maintained or administered by the Defence Council.

 

(2) For the purposes of paragraph (1)(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under Article 31 of the Order(a) or paragraph 14 of Schedule 3 to the 1991 Order.

 

(3) For the purposes of paragraph (1), a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or similar institution referred to in that paragraph and to end on the day 14 before the day on which he leaves such a hospital or similar institution.’

 

21.   Regulation 12B provides for certain exceptions to regulation 12A, none of which are applicable in the instant case.

 

22.   The reason why there is not a general provision for suspension of payment of DLA during any period in which the claimant is undergoing medical or other treatment as an in-patient in a hospital or similar institution, and why there is separate provision for suspension for the care and mobility components, are that until amendments introduced in 1996 (The Social Security (Disability Living Allowance, Attendance Allowance and Claims and Payments) (Amendment) Regulations (Northern Ireland) 1996 S.R. 1996 No. 225) the mobility component of DLA was payable when a claimant to that benefit was in hospital.

 

23.   As the claimant was entitled to both the care and mobility components of DLA, both regulations 8 and 12A had potential relevance in the appeal before the appeal tribunal.

 

       Undergoing medical or other treatment

 

24.   There is no doubt that the claimant was, at the date of claim, and subsequently, in a hospital under the Health and Personal Social Services (Northern Ireland) Order 1972, as amended, subject to the days on which he stayed in his mother’s home.  In Article 2 of the 1972 Order, ‘hospital’ is defined as ‘… any institution for the reception and treatment of persons suffering from illness, any maternity home, any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, any institution for providing dental treatment and maintained in connection with a dental school, and clinics, dispensaries and out-patient departments maintained in connection with any such institution or home.’.  I have no doubt that Muckamore Abbey Hospital falls within that definition, and the hospital, in the completed Form BF9, at Tab No 6 of the original appeal submission, confirmed the admission and subsequent continued stay of the claimant within the hospital.

 

25.   That is not the end of the matter, however.  Suspension, under the provisions of regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, is not triggered simply by a claimant being in a hospital or similar institution.  Suspension is for any period when the claimant is being ‘… maintained free of charge while undergoing medical or other treatment as an in-patient’ in a hospital or similar institution.  Accordingly, there is a requirement for evidence concerning, and findings in relation to the requirement that the claimant is undergoing medical or other treatment as an in-patient.  It is in connection with this issue that the conclusions of the appeal tribunal are problematic.

 

26.   Detailed guidance on the factors to be taken into account in deciding whether a claimant is undergoing medical or other treatment as an in-patient was given by Commissioner Jacobs in CDLA/3578/1998.  Three preliminary matters need to be addressed before considering the detail of the guidance give.  Firstly, the Commissioner was considering the wording of the phrase as it appeared in regulation 12A of the Social Security (Disability Living Allowance) Regulations 1992, as amended, which apply in Great Britain.  The wording of regulation 12A in Great Britain is identical, however, to the wording of regulation 12a in Northern Ireland.  Secondly, the relevant wording in regulations 8 and 12A were identical, and both regulations were subject to exemptions.  Accordingly, there was no basis for interpreting the two regulations differently.  Thirdly, the Commissioner concluded, on the basis of two decisions of the Court of Appeal in England and Wales (White v Chief Adjudication Officer reported as R(IS) 18/94 and Botchett v Chief Adjudication Officer reported as R(IS) 10/96) that regulations 8 and 12A in Great Britain had to be interpreted in light of the definitions of ‘hospital’ and ‘illness’ in section 128(1) of the National Health Service Act 1977.  The latter legislation does not, for the most part, apply in Northern Ireland.  The definitions of ‘hospital’ and ‘illness’ in Article 1 of the Health and Personal Social Services (Northern Ireland) Order 1972, as amended, are fairly identical to those contained within Section 128(1) of the National Health Service Act 1977.

 

27.   Commissioner Jacobs concluded, at paragraphs 11 to 12 of his decision, that the burden of proof to show that the conditions for suspension of benefit were satisfied lay on the Department:

 

‘… The adjudication officer had to prove that each element of regulation 12A was satisfied.  If that burden was not discharged on any one of those elements, payment could not be suspended.’

 

28.   I accept this reasoning of Commissioner Jacobs and apply it to the instant case.  Accordingly, the burden of proof to show that the conditions for suspension of benefit in regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, were satisfied lay on the Department.

 

29.   At paragraph 35 of his decision, Commissioner Jacobs sets out the nature of the test to be applied in deciding whether, for the purposes of regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, a claimant is undergoing medical or other treatment as an in-patient, as follows:

 

‘Whether a claimant is undergoing medical or other treatment must be determined by reference to the service that the claimant actually receives.  It is not relevant that other services, including treatment, would be available to her if she needed them.  The nature of the services that are available is relevant to the issue whether the claimant’s lives in a ‘hospital or similar institution’, but she cannot be undergoing a treatment unless it is actually provided to her.’

 

30.   The Commissioner then reviewed a number of authorities to determine the factors to be taken into account in assessing whether the relevant test is satisfied.  The Commissioner found that the decision of the Court of Appeal in England and Wales in Minister of Health v. Royal Midland Counties Home for Incurables, Leamington Spa, General Committee ([1954] 1 All England Law Reports 1013) was authority for the propositions that:

 

(i)     ‘Nursing’ is professional and involves the attainment of specialist skill through training; and

 

(ii)    There may be an overlap between nursing and care.  Nurses may provide both care and nursing.  Although care can be provided by someone who is not professionally trained, nursing cannot.  There was nothing to suggest that care amounts to nursing if it is given by someone other than a nurse. (paragraph 43).

 

31.   The Commissioner found that the decisions of the Court of Appeal in England and Wales in White v Chief Adjudication Officer (reported as R(IS) 18/94) was authority for the proposition that nursing is equated with professionalism and training and that it may be permissible to disregard minimal nursing provision when determining whether a claimant is undergoing treatment.

 

32.   Commissioner Jacobs quoted, with approval the following part of the judgment of Lord Justice Evans in Botchett v Chief Adjudication Officer (reported as R(IS) 10/96), finding it to reinforce the view that a distinction had to be drawn between care that is provided by nursing staff and care that is provided by domestic staff:

 

‘If the social security regulations stood alone, I would be inclined to accept Mr Havers’ submission that a distinction should be made between mental illness for which professional treatment is made available in a hospital or other institution, on the one hand, and various forms of mental handicap for which skilled but domestic care, but not medical treatment, is required and which is made available in a residential home, on the other hand.  But the Regulations have to be construed with reference to the statutory definitions of “hospital”, “illness” and “mental disorder” already quoted, and these lead inexorably, in my judgment, to the conclusions that persons suffering from the degree of mental handicap to which unfortunately the appellant is subject are within the definition of mental disorder; that the care and assistance which they derive from nursing as opposed to domestic staff must be regarded as “medical or other treatment” within the statutory definition; and that the home where they reside so that this can be made available to them is a “similar institution” to a hospital ....’

 

33.   Commissioner Jacobs also found that the decision of the Commissioner in CP/3/1989 was authority for the propositions that the phrase ‘undergoing medical or other treatment’ must be interpreted broadly and that it is possible for a claimant not to be undergoing medical or other treatment despite the presence of nursing staff.

 

34.   In the case which was before him, at paragraphs 60 to 66, Commissioner Jacobs found the following facts:

 

‘60.     The claimant receives no regular attention from a doctor.  A GP is available on call, but there is no evidence that he is needed more than occasionally by the claimant.  The only medical treatment that she has is sporadic, as particular illnesses require.

 

61.     There is usually a nurse present during the day, covering all three wings.  One is available on call at night.  The nurse has qualifications in mental illness, which is a specialism for which the claimant has no need, as she has learning disabilities.  However, no doubt the nurse also has a general expertise in basic nursing skills.

 

62.     The claimant takes some medication.  She has a spoonful of Gaviscon before each meal for her hiatus hernia.  She also has vitamin drops.  She takes a ghastly concoction as a natural laxative, which has eliminated the need for enemas.  Finally, during her periods she takes Paracetamol for pains.  All of those are available without prescription, although no doubt a doctor or nurse originally suggested that they be taken.  I doubt whether any of them is administered by a qualified nurse.  Certainly they do not have to be.  Even if they are, the time involved would be a minute or two each day.

 

63.     The claimant also receives 20 minutes of physiotherapy a week.  That may be provided by an outside specialist who visits to administer it.  However, it may be possible that it could be given by the nurse at the unit.

 

64.     I will assume for argument’s sake that a qualified nurse gives all the claimant’s medication each day and administers the physiotherapy every week.  I will also assume that the claimant needs occasional treatment and dressings for bed sores and the like, as well as attention for conditions such as ’flu.  Even taking all those into account, the amount of nursing is properly described as minimal and insufficient to qualify as treatment.

 

65.     Apart from her family, the bulk of attention provided for the claimant is given by the care assistants.  The claimant’s mother commented on their training.  It may well be true that only minimal training is required in order to work as a care assistant.  However, there are many training courses available for aspects of care.  So, it is possible for care assistants to undergo training and gain qualifications.  They also inevitably build up considerable practical experience.  No doubt, they have basic first aid skills.  So, it is wrong to characterise all care assistants as well-meaning untrained amateurs.  They provide a skilled and valuable service which the claimant has to have in order to survive.  However, they are not trained as nurses, regulated as nurses or called nurses.  What they provide is care rather than nursing.

 

66.     Miss Main-Thompson referred to the extent of the claimant’s disabilities and emphasised the amount of care that the claimant receives.  She argued that all the attention given to the claimant was essential to maintain her health and to nurture her mental faculties.  She described the environment as therapeutic.  I agree.  But that does not make what the claimant receives nursing.  ‘Treatment’ must be interpreted widely to take account of all forms of treatment encompassed by the definitions in the National Health Service Act.  It certainly includes ‘nursing’ and ‘nursing’ includes care given by a nurse.  However, the Court of Appeal and the Commissioners have drawn a distinction between nurses and other providers of care.  Care provided by someone who is not a nurse is not nursing and is not, therefore, treatment.’

 

35.   On the basis of those findings, the Commissioner concluded that the claimant was not undergoing medical or other treatment as an in-patient.

 

36.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal has noted that the presenting officer stated:

 

‘… the basis of the Decision was that the legislation provided that if someone was in hospital for more than 28 days then benefit is not payable.’

 

37.   That submission is not entirely accurate.  Firstly, the 28 day period is extended in cases where the claimant is under 16 years of age.  Secondly, and more importantly, the simple fact that a claimant is in a hospital does not trigger suspension.  As was noted above, there is the requirement that the claimant is undergoing medical or other treatment as an in-patient.

 

38.   After reciting the relevant legislation, and reminding itself that both regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, were relevant, the appeal tribunal concluded that:

 

‘On the basis of the evidence and of the legislation, it was clear to the Tribunal that Claimant was being maintained free of charge in a hospital and was undergoing medical or other treatment.  The staff continued to look after him and to administer his mediation [sic] even though he was awaiting discharge.’

 

       What about individuals who are not in a hospital for the whole of a day?

 

39.   In the instant case, there was evidence that, for certain periods, the claimant was not in hospital for the whole of a day.  There was evidence that the claimant left the hospital to attend school, usually during relevant school terms and from 9.30 am to 3.30 pm.

 

40.   In RS 4/84, a decision of a Commissioner in Great Britain, the claimant, a woman suffered from spina bifida and had been in receipt of non-contributory invalidity pension since 21 July 1978.  She attended a training college from 24 September 1981 where she led the life of a normal student.  However from 20 October 1981 she slept at night in a nearby hospital as she required daily medical treatment.  She left the hospital at 8 am returning at 10 pm on the same day.  When the claimant had received free in-patient treatment for more than eight weeks on this basis the weekly rate of her pension was reduced under regulation 4 of the Social Security (Hospital In-Patients) Regulations 1975, as it was then in force.

 

41.   Regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975 provided that:

 

‘For the purpose of these regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient –

 

(a)            in a hospital….maintained or administered under the National Service Acts….; or

(b)            ……………………………………….;

 

and a person shall not be regarded as being maintained free of charge in a hospital….for any period if he is paying or has paid, in respect of his maintenance, charges which are designed to cover the whole cost of the accommodation or services (other than services by way of treatment) provided for him in the hospital….for that period.’

 

42.   At paragraph 8 of his decision, Commissioner Hallett concluded that:

 

‘8.  In order to be regarded as receiving or having received free in-patient treatment for the shortest period contemplated by regulation 2(2) (i.e. one day of 24 hours) that day must, as regards the claimant, be one “for which [she] is or has been maintained free of charge while undergoing medical or other treatment as an in-patient”.  Two conditions require to be satisfied to fill this prescription (1) for that day the claimant must have been maintained free of charge by the hospital and (2) she must have been undergoing medical or other treatment as an in-patient during the day.  The claimant clearly satisfies the second condition.  But, in my judgment, she does not satisfy the first.  During the hours 10 pm to 8 am the claimant was maintained by the hospital free of charge.  But during the day (of 24 hours) she was not.  For from 8 am to 10 pm the claimant had to maintain herself elsewhere.  The hospital made her no charge.  But they did not maintain her at all for the major part of the day.  The claimant in fact during the daytime part of the 24-hour day had to meet the expenses of meals (provided by the college), taxis etc while attending college.  She was in a quite different position from the ordinary in-patient in a hospital, who has no expenses to meet and is maintained free of charge in the hospital.  Such an in-patient has virtually no expenses, everything being found for her and it is in respect of that type of patient that the regulations provide for a reduction in the amount of various personal benefits which would otherwise be payable.’

 

43.   I requested Mr Hinton to make further submissions on the applicability of the decision in R(S) 4/84 to the instant case.  That submission was received on 14 March 2011 and shared with the appointee on 22 March 2011.  In a most helpful and comprehensive reply, Mr Hinton submitted that:

 

‘… regulation 2(2)(b) of the [Social Security (Hospital In-Patients) Regulations 1975] were amended by the Social Security (Hospital In-Patients) Amendment (No.2) Regulations 1987.  The amended regulation at 2(2)(b) of the GB legislation provided:

 

“(b) ……

 

“and such a person shall be regarded as being maintained free of charge in such a hospital or similar institution for any period unless his accommodation and services are provided under section 65 of the National Health Service Act 1977 or section 58 of the National Health Service (Scotland) Act 1978.”

 

In GB Commissioner’s decision, CIS/371/1990 (since reported as R(IS)7/92), Commissioner Skinner considered the amending legislation and stated at paragraph 11:

 

“…I have given anxious consideration to the construction of the “full-out” words and in particular as to whether it would be possible to restrict them to cases arising under regulation 2(2)(a) but it seems to me that they are clear and unambiguous and I cannot do so.  They embrace both sub-paragraphs (a) and (b).  The language, construed in its context, produces a harsh result but it seems to me that it necessarily requires that result.  I have considered both the object of the regulations and the history of the amending regulation.  The object of the regulations was that the person should not receive a double advantage out of public funds, namely free hospital treatment and the cost of maintaining himself outside hospital.  …R(S)4/84 decided that a claimant was not to be regarded as “receiving or having received free in-patient treatment” within the meaning of the regulations when she took her meals outside a hospital and only slept there at night.  That was the state of the law prior to the making of the amending regulation in 1987.  I have considered whether the amended definition was intended to cure such a lacunae and applied to National Health hospitals only.  But if that was the intention, it would be a simple matter for the draftsman to draft accordingly.”

 

As can be seen Commissioner Skinner has highlighted the difference in the amendments to the legislation and has accepted Commissioner Hallet’s view’s in relation to the circumstances surrounding R(S)4/84, he does however stress that the legislation has since changed therefore regardless of whether or not a person incurs some costs for maintaining themselves whilst not in hospital they would still be regarded as receiving free in-patient treatment

 

Whilst the Hospital In Patients do not apply to DLA, Social Security Commissioners have referred to it in numerous decisions when seeking assistance in interpreting similar worded provisions contained within the DLA legislation.

 

Regulation 8 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 is the relevant legislation and provides:

 

“8 – (1) Subject to regulation 10, it shall be a condition for the receipt of disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient –

 

(a)            in a hospital or similar institution under the Order or the 1991 Order; or

 

(b)            in a hospital or similar maintained or administered by the Defence Council

 

(2)  For the purposes of paragraph 1(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under Article 31 of the Order (a) or paragraph 14 of Schedule 3 to the 1991 Order.

 

(2A)  For the purposes of paragraph (1) a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or similar institution referred to in that paragraph and to end on the day before the day on which he leaves such a hospital or similar institution.”

 

The equivalent GB legislation was considered by Commissioner Mesher in GB decision CDLA/11099/1995.  Commissioner Mesher also referred to R(S) 4/84 and highlights the fact that the legislation has changed subsequent to R(S) 4/84.  In paragraph 12 Commissioner Mesher held that the reason for the claimant’s success in R(S)4/84 was that she was not being maintained free of charge for the whole of the day.

 

The circumstances of CDLA/11099/1995 concerned a claimant who because of his medical condition had been in hospital all his life.  This hospital is administered by a National Health Service Trust and treatment is given free of charge.  He does however come home for between 5 and 10 hours per day but returns to the hospital by 7.30pm where he remains all night.

 

In considering how regulation 8 would be satisfied Commissioner Mesher referred to reported decision R(S) 1/66 in support of his conclusion.  This decision involved a person departing from and returning to Great Britain and what their status was on the days of departure and return.  Commissioner Mesher stated at paragraph 16:

 

“For the condition to be satisfied for a period, so that the care component of DLA can be paid, it must be shown that during the period the claimant is not maintained free of charge while undergoing treatment as an in-patient.  As was said in paragraph 11 of Commissioner’s decision R(S) 1/66 which is quoted in CIS/571/1994), “if one is describing a thing which occupies the whole of a period such as presence in a given place, ‘during is an admirable word for it.”  For that reason the Commissioner there held that a provision disqualifying a person for receiving any benefit for any period during which the person is absent from Great Britain caught claimants only for complete calendar days throughout (ie during) which they were absent from Great Britain.  Thus the claimant was not disqualified on days of leaving or returning to Great Britain.  I consider similar reasoning has to apply to regulation 8.  That means that the condition for the receipt of the care component of DLA, because it is put in a negative form, is satisfied only for a period made up of complete calendar (ie midnight to midnight) days throughout which the claimant is not undergoing medical or other treatment as an in-patient.  Therefore, the rule which effectively has to be applied in the present case is that T… cannot receive the care component of DLA for any day on which some part of it (beyond a merely trivial length of time) he receives medical or other treatment as an in-patient in hospital.”

 

The Commissioner concluded that even though the claimant spent some hours at home, entitlement could not be considered because he was still receiving medical treatment as an in-patient for some part of each day.

 

Applying the above case law to the present case I would contend that despite attendance at school for a number of hours each day [the claimant] was still maintained free of charge whilst undergoing treatment as an in-patient at Muckamore Abbey hospital.  Consequently the principles established in the case law subsequent to R(S)4/84 apply in the present case.’

 

44.   I agree with Mr Hinton’s analysis.  To the clear disadvantage to the claimant in this appeal matters have moved on since the decision of the Commissioner in Great Britain in R(S) 4/84.  Accordingly, if a claimant is receiving medical in-patient treatment for part of a day then the suspension provisions may operate.  In this regard it should be noted that it was accepted that, on occasions, the claimant was away from the relevant hospital for the whole of a day or days.  A schedule to Tab No 6 of the original appeal submission sets out a number of days during a particular period when the claimant was away for at least a day if not days.  It has been accepted that during those periods the suspension provisions would be lifted and DLA would be payable.

 

45.   That is not the end of the matter, however.  As Mr Hinton states, the suspension provisions will only apply where the claimant is being maintained free of charge while undergoing medical or other treatment as an in-patient’ in a hospital.  The emphasis in this quotation is mine as it brings me back to the issue of the appeal tribunal’s treatment of that crucial issue.

 

46.   Applying the principles in CDLA/3578/1998, to the instant case, I am of the view that the appeal tribunal was not sufficiently rigorous in its fact-finding concerning the appellant’s routine and practice during his time in Muckamore Abbey Hospital.  What was required was the type of fact-finding exercise undertaken by Commissioner Jacobs in CDLA/3578/1998.  The appeal tribunal ought to have assessed the relevant evidence and, having done so, found facts as to what was provided to the claimant by the staff in the hospital and, more significantly, found facts as to who was providing what to the claimant.  Commissioner Jacobs concluded that treatment includes nursing by professional nursing staff and, in turn, that nursing can include care given by a nurse.  He also concluded, somewhat definitively, that care provided by someone who is not a nurse is not nursing, and cannot, therefore, amount to treatment.  In addition, he also concluded that it may be permissible to disregard minimal nursing provision when determining whether a claimant is undergoing treatment.  The failure of the appeal tribunal to make adequate findings on this relevant issue renders its decision as being in error of law.  A similar error had occurred in the case in Great Britain in CDLA/1338/02.

Other issues arising

 

47.   In general submissions on the appeal to the Social Security Commissioner the appointee and representative had made reference to the claimant’s human rights.  In a careful analysis, the Commissioner in Great Britain in CDLA/1338/02 rejected similar arguments in connection with the equivalent legislative provisions in Great Britain.  At paragraphs 22 to 25 of his decision the Commissioner stated:

 

‘22.  Further and in any event, I am not for my part satisfied that any arguable infringement of a Convention right arises from the suspension of mobility component for an in-patient under regulation 12A of the Disability Allowance Regulations.  As has been explained by another Commissioner in case CDLA 3908/2001, the disability living allowance is a non-contributory benefit, provided by the State for general social reasons.  It can thus be distinguished from the kind of “paid-for” benefits where an entitlement to benefits already built up on an accrual basis by contributions paid has been held in the European Human Rights jurisprudence to be a “possession” for the purposes of the Convention, Art. 1 First Protocol.  I agree with the Commissioner’s conclusion in that case that even a continuing award of this allowance, expressed to be for an indefinite period or for life, cannot be said to invest a claimant with a possessory right to have the same level, or any level, or such non-contributory  income maintained indefinitely into the future.  Such awards are always subject, as regards the future, to the conditions as to entitlement and payment in the legislation in force from time to time.  It must in my judgment follow that future changes in those conditions can be made without amounting to any “deprivation of a possession” for this purpose.

 

23.  No other claimed infringement of a Convention right is relied on apart from the suggestion of discrimination contrary to Article 14, in relation to either the claimant’s enjoyment of his possessions within Art. 1 First Protocol or his family life within Article 8.  Assuming in favour of the claimant that either of those primary rights is in point, the suggestion is in my judgment answered in the negative by the admissibility decision given by the Commission in application 27537/95 Carlin v United Kingdom, 3 December 1997 (pages 69-74 of the appeal file).  Rejecting a similar argument under Article 14 in relation to the provisions in section 113(1) Social Security Contributions and Benefits Act 1992 excluding the right to payment of disablement benefit for an industrial injury while a claimant is in prison, they commented that

 

“it is not every difference in treatment that constitutes discrimination within the meaning of Article 14 of the Convention”

 

And held that the position of a disabled benefit claimant in prison was for this purpose not comparable with that of one outside so that no question of discrimination on a like-for-like comparison arose.

 

24.  The regulation at issue in the present case was, as noted above, made under subsection (2) of the same section; and by the same token there are in my judgment plainly relevant factual differences between those disabled persons who are in-patients and those managing for themselves on their own in the community, which take the differences in treatment between them for both care and mobility components of disability living allowance outside the field of discrimination for the purposes of Art. 14.  the reasons are in substance the same as those referred to by the Court of Appeal in ex parte Perry and McGillivray, supra, in rejecting the argument that the Secretary of State had acted irrationally by introducing regulation 12A of the regulations to make different provision between the two groups.

 

25.  Consequently, in my judgment, no arguable infringement of a Convention right is involved in this case in any event.’

 

       Disposal

 

48.   The decision of the appeal tribunal dated 17 July 2009 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.

 

49.   The Department is to prepare a fresh submission for the appeal tribunal hearing before the differently constituted appeal tribunal.  The new submission is to address the issues set out in this decision and, in that regard, assistance in the preparation of the new submission should be sought from DMS.

 

50.   In deciding whether the claimant was being maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution the appeal tribunal is to consider and assess the relevant evidence and, having done so, and in line with the principles set out in CDLA/3578/1998, is to find facts as to what the situation was in the hospital during the relevant period, as to what was provided to the claimant by the staff in the hospital and the context of that provision.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

11 August 2011