KH-v-Department for Social Development (DLA) [2011] NICom 200

Decision No:  C18/11-12(DLA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 4 March 2010

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.  The decision of the appeal tribunal dated 4 March 2010 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.    I am able to exercise the power conferred on me by Article 15(8)(a)(ii) 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 having made fresh or further findings of fact.  My revised decision is that grounds existed on 19 June 2009 to supersede the decision dated 29 February 2008 as revised on 14 June 2008.  The ground is a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  The change of circumstances was that the appellant’s child had increasing and changing problems with his mobility.  The effective date of supersession is 5 May 2009 which is the date, for the purposes of regulation 7(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, when the relevant change of circumstances was first reported to the Department.  Based on my further findings in fact, set out below, and based on an application of the principles in CSDLA/202/2007, I find that the appellant’s child satisfies the conditions of entitlement to the higher rate of the mobility component of disability living allowance (DLA) as set out in section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  The period of the award should be from 5 May 2009 (the effective date of supersession) to 13 September 2010.  The end date is the day before the child’s fifth birthday which is regarded as a milestone date in the child’s development.

 

       Background

 

3.    In this decision the appellant is the mother of a child seeking entitlement to DLA on behalf of that child.  On 14 June 2008 a decision-maker of the Department of Work and Pensions (DWP) in Great Britain revised an earlier decision of the DWP dated 29 February 2008 and decided that the appellant’s child should have an entitlement to the highest rate of the care component of DLA from 14 January 2008 to 13 September 2010.  The earlier decision dated 29 February 2008 had awarded an entitlement to the middle rate of the care component of DLA from 14 January 2008 to 14 September 2012.

 

4.    In February 2009 the appellant and her child moved to Northern Ireland.  On 5 May 2009 a telephone call was received in the Department for Social Development in Northern Ireland with a request to review the entitlement to DLA based on the child’s mobility needs.  Following receipt of further information from the appellant and a report from the child’s general practitioner, a decision-maker, on 19 June 2009, decided that there were no grounds to supersede the decision dated 29 February 2008 as revised on 14 June 2008.  Following receipt of further information and advice from the Department’s medical officer, the decision dated 19 June 2009 was reconsidered on 15 October 2009 but was not changed.

 

5.    A letter of appeal was received on 22 October 2009.  The appeal tribunal hearing took place on 4 March 2010.  The appellant was present.  There was no Departmental presenting officer present.  The decision of the appeal tribunal on the issues which were before it will be discussed in more detail below.

 

6.    On 30 July 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 4 October 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

       Proceedings before the Social Security Commissioner

 

7.    On 19 October 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners.  The appellant was by now represented by Mr Hatton from the Law Centre (Northern Ireland) who advised that the appellant and her child had moved to England.  On 13 January 2011 written observations on the application for leave to appeal were sought from Decision Making Services (DMS) and these were received on 1 February 2011.  Mr Hinton, for DMS supported the application for leave to appeal on the ground cited by Mr Hatton.  On 23 February 2011 the written observations were shared with the appellant and Mr Hatton.  On 23 March 2011 further observations in reply were received from Mr Hatton which were shared with DMS on 29 March 2011.  In these further written observations in reply, Mr Hatton indicated that a decision-maker of the Department for Work and Pensions in Great Britain had made an award of entitlement to the highest rate of the care component and the higher rate of the mobility component of DLA from 14 September 2010 to 13 September 2015.

 

8.    On 20 April 2011 I directed an oral hearing of the application which took place on 26 May 2011.  At the oral hearing, the appellant was represented by Mr Hatton and the Department was represented by Mr Hinton of DMS.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       Errors of law

 

9.    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.

 

10.   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 jurisdiction issue

 

11.   As a preliminary issue I requested that Mr Hatton and Mr Hinton address the issue as to whether a decision-maker of the Department for Social Development in Northern Ireland had the power to consider an application for a supersession of a decision of a decision-maker of the Department for Work and pensions in Great Britain, and, accordingly, whether an appeal against such a decision was validly before the appeal tribunal.  I am satisfied, on the basis of the detailed submissions made by Mr Hatton and Mr Hinton that the decision-maker in Northern Ireland did have such jurisdiction and that an appeal against that decision was properly before the appeal tribunal.

 

       Majority decisions

 

12.   In C14/08-09(DLA), I said the following, at paragraphs 38 to 46:

 

‘The recording of reasons in ‘majority’ decisions

 

38.     Regulation 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provides that:

 

‘(4) Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal’s decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman or, in the case of a tribunal which has only one member, that member, shall record a statement of the reasons and a copy of that statement shall be sent or given to every party to the proceedings as soon as may be practicable.

 

39.     Regulation 53(5) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal’s decision must include the reasons given by the dissenting member for dissenting.

 

40.     As I understand it, the procedure for the recording of a SORs for an appeal tribunal’s decision is as follows:

 

(i)       The time at which a SORs for an appeal tribunal’s decision is prepared varies from case to case.

 

(ii)      In the majority of cases, following the making of the decision and preparation of the formal decision notice, the LQPM, in consultation with the other members of the appeal tribunal, in appeals where the constitution of the appeal tribunal extends beyond the LQPM, will prepare and record relevant findings of fact and draft reasons, and retain these in a judicial notebook, or other form.  On receipt of an application for a SORs, under regulation 53(4), the LQPM will prepare the SORs, on the basis of the notes and drafts already available.  The practice of preparation of findings of fact and draft reasons, immediately following the making of the decision has the dual advantages - the completion of that task when the issue(s) in the appeal are fresh in the minds of the members of the appeal tribunal; and the facilitation of the preparation of the ‘full’ SORs by the LQPM, when that is subsequently requested by a party to the proceedings.

 

(iii)      In a minority of cases, and usually dependent on the custom of individual LQPMs, the findings of fact and ‘full’ SORs are both prepared and finalised on the day of the appeal tribunal hearing.  These are then retained on file, ready to be issued to the party to the proceedings requesting them.

 

41.     As was noted above, where a decision of an appeal tribunal is not unanimous, the SORs for the appeal tribunal’s decision must include the reasons given by the dissenting member for dissenting.  A number of aspects of that rule require further consideration.

 

42.     Firstly, where the LQPM was part of the majority decision, the task of preparing and recording the reasons for the dissenting member’s decision is not an easy one.  The LQPM, as part of the deliberations leading to the appeal tribunal’s decision, will have endeavoured to ensure a unanimous decision and, as part of that, will have sought to persuade the dissenting member as to the correctness of the majority view.  Having failed so to do, the role of the LQPM is now to record reasoning and analysis with which he or she will not agree.  There is a clear duty, in my view, on the LQPM to set aside any partiality which might be felt towards the dissenting member’s view, and to place his or her self in the position of the dissenting member when it comes to the task of the recording of reasons.  The LQPM must articulate the reasons of the dissenting member as if they were his or her own.  A failure to fulfil this duty is a failure of the judicial role.

 

43.     Secondly, it is clear that as the SORs will be prepared by the LQPM, the LQPM will also have the task of preparing and including the reasons of the dissenting member.  It must never be the case that where the dissenting member is not the LQPM, that the dissenting member is asked to prepare the reasons for disagreement.  That role is for the LQPM.

 

44.     Thirdly, in preparing the reasons of the dissenting member, the LQPM must be diligent in ensuring that the reasons are reflective of the basis upon which the dissenting member disagreed with the majority.  The reasons must

 

(i)       be comprehensive in dealing with the issues raised by the appeal;

 

(ii)      must include relevant findings in fact, where these differ from those of the majority,

 

(iii)      provide an outline of the evidential assessment process which gave rise to those findings;

 

(iv)      detail which evidence is accepted and preferred, and give reasons why;

 

(v)      state, where necessary, why the dissenting member has adopted a particular interpretation of the law relevant to the issues in dispute; and

 

(vi)      give reasons relevant to the dissenting member’s view.

 

The reasons for the dissenting member’s decision must never be drafted as a brief, sketchy add-on to more complete reasons for the majority.

 

45.     Fourthly, the SORs must not identify the dissenting member by name, or by judicial category, where relevant.

 

46.     Fifthly, it will be safest and best practice, where the eventual decision of the appeal tribunal is by a majority, for the full findings of fact and reasons for both the majority and dissenting member’s decisions, to be prepared and finalised on the day of the appeal tribunal hearing.  Such a practice will avoid any difficulties with recall for the LQPM and obviate the requirement for the subsequent issue of reasons to the dissenting member in draft form.’

 

       The application of the principles in C14/08-09(DLA) in the instant case

 

13.   The decision notice for the appeal tribunal’s decision with respect to the mobility component makes it clear that the overall decision of the appeal tribunal was a majority decision.  Accordingly, the statement of reasons for the appeal tribunal’s decision should accord with the principles set out in C14/08-09(DLA).

 

14.   The appeal tribunal considered whether the appellant’s child could have an entitlement to the higher rate of the mobility component of DLA through two different legislative routes.  The first route was through section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which provides that:

 

‘(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 relevant age and throughout which—

 

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;’

 

15.   The second legislative route was through section 73(1) and (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12(6) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) as amended, which provide that:

 

‘(3) A person falls within this subsection if—

 

(a) he is severely mentally impaired; and

(b) he displays severe behavioural problems; and

(c) he satisfies both the conditions mentioned in section 72(1)(b) and (c).’

 

and

‘12(6) A person falls within section 73(3)(b) (severe behavioural problems) if he exhibits disruptive behaviour which—

(a) is extreme;

(b) regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property; and

(c) is so unpredictable that he requires another person to be present and watching over him whenever he is awake.’

 

16.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal stated the following, with respect to section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended:

 

‘The tribunal was satisfied on the evidence that H is not suffering from physical disablement such that he is either unable to walk or virtually unable to do so and is thus not within Section 73(1)(e) of the Social Security Contributions and Benefits (NI) Act 1992, although he may frequently refuse to walk when told to.’

 

17.   It is clear that the reference to ‘Section 73(1)(e)’ is an error and should read ‘Section 73(1)(a)’.  More importantly, what is problematic about this aspect of the statement of reasons is that it is not at all clear whether the appeal tribunal’s conclusions with respect to whether section 73(1)(a) of the of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, are satisfied, were the unanimous conclusions of all three members of the appeal tribunal or were arrived at by a majority, keeping in mind that the overall decision of the appeal tribunal, as evidenced by the contents of the decision notice, was a majority decision.  If the appeal tribunal’s conclusions with respect to this aspect of the appeal were unanimous then this should have been set out more clearly.  If the appeal tribunal’s conclusions were arrived at by a majority then the evidential assessment, fact-finding and reasons for both the majority and minority conclusions should have been set out, in line with the requirements set out in C14/08-09(DLA).  On balance, I am not satisfied that the statement of reasons for the appeal tribunal’s decision with respect to section 73(1)(a) and (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, is adequate to explain whether the decision was unanimous or was by majority, and, if the latter, adequately sets out the majority and minority conclusions with respect to this issue.

 

18.   The statement of reasons for the appeal tribunal’s decision, with respect to section 73(1) and (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12(6) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) as amended, is set out in more detail.  In this section of the statement of reasons, it is clear that there was disagreement within the appeal tribunal as to whether certain of the relevant legislative tests were satisfied.  More particularly, there appeared to be a lack of agreement as to whether the conditions of entitlement set out in regulation 12(6) applied.  On balance, I am satisfied that the statement of reasons for the appeal tribunal’s decision with respect to section 73(1) and (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12(6) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) as amended, is adequate to explain both the majority and minority conclusions with respect to this issue.

 

       CSDLA/202/2007

 

19.   In CSDLA/202/2007, Commissioner Parker, in dealing with equivalent Great Britain legislative provisions relating to entitlement to the Higher Rate of the Mobility Component of DLA, stated the following, at paragraphs three to seven:

 

‘3.       The appellant is a child, aged three at the date of claim, who is autistic.  A claimant with behavioural problems may qualify for higher mobility under S.73(1)(a) of the Social Security Contributions and Benefits Act 1992 (the Act) and regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (the regulations) (route 1) or through s.73(1)(c) and (3) of the Act and regulation 12(5) and (6) of the regulations (route 2).  The appellant’s submission to the tribunal suggests entitlement through either of these routes and therefore both required to be addressed if the first alternative considered does not so satisfy.

 

Route 1: virtual inability to walk

 

4.       Behavioural problems can qualify a claimant under route 1, provided they stem from his “physical disablement” and his “physical condition as a whole”.  If behavioural problems stemming from physical disability limit a claimant’s walking out of doors to an extent, such that he can be described as virtually unable to walk, then route 1 is satisfied without recourse to route 2.

 

5.       Commissioners have accepted in individual cases that the evidence showed that autism has a physical cause.  Such findings of fact are not binding on tribunals, although a tribunal is entitled to adopt the same approach if it wishes to do so.  Thus, for example in CDLA/1678/1997, the Commissioner accepted medical evidence that the predominant expert view is that autism has a physical cause because it is a disorder of brain development.

 

6.       The correct approach, under route 1, to behavioural problems affecting a claimant’s walking which stem from physical disability, was set out by a Tribunal of Commissioners in R(M)3/86, particular at paragraphs 8 and 9:

 

          “…. First, one should ask whether his ability to walk out-of-doors was so restricted ‘as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort’ that he had to be treated as virtually unable to walk.  All the various elements …. had to be considered separately … However if the claimant was unable to walk or virtually unable to walk in accordance with the above criteria, then the next question was whether this condition was attributable to some physical impairment such as damage to the brain.  The criterion was whether the claimant could not walk, as distinct from would not walk.  We agree with the importance of that distinction.  Manifestly, if a child, who has been walking perfectly satisfactorily decides to stop, but his refusal to continue further can be overcome by the promise of a reward or the threat of punishment there can be no question of his stopping having arisen out of a physical condition over which he has no control.  In the case postulated, he was making a conscious choice, and on no footing could his refusal to walk be identified with a physical disablement.  It is, of course, for the tribunal as a medical matter to determine whether a child’s propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement.

 

          9.  We are conscious that tribunals may often have very difficult cases.  For example, there may be instances where the person concerned, who can otherwise walk perfectly well, is sometimes prevented from so doing by a physical disability, but only on rare occasions.  It will in those circumstances be a matter of degree as to whether or not that person can be regarded as virtually unable to walk, and it is for the tribunal to make the relevant assessment.  Accordingly, they will frequently need to know the relevant history of the walking capacity of the person concerned and they will have to make a judgement as to what evidence they will accept.  These issues may prove difficult, but they will have to be resolved by the medical tribunal.  In any event, we do not consider that hyperactivism in itself qualifies the sufferer for mobility allowance.  If a person can run, as hyperactive children normally can, manifestly they can walk.  What is relevant is whether or not they suffer from temporary paralysis (as far as walking is concerned) and, if so, to what extent.”  (Emphasis is the Tribunal’s own.)

 

7.       Some autistic children do manifest the above problems.  If a tribunal is satisfied that the claimant suffers on occasions from “temporary paralysis”, then it will have to make appropriate findings about time, speed, distance and manner of walking out of doors.  Moreover, it is to be expected that his condition varies.  Therefore, a tribunal, if it accepts that, must look at both good and bad days and, taking a common sense approach, determine whether or not he satisfies the statutory criteria under route 1 for the relevant period, having regard to the proportion of good and bad days, and his usual behaviour on each type of day.  These are matters for the good sense of a tribunal which must explore this thoroughly.  The tribunal erred in failing to give adequate consideration to whether there were in fact sufficient refusals to walk, and whether these refusals arose from physical disablement, to a degree such that the claimant is virtually unable to walk.’

 

20.   I accept the principles set out in CSDLA/202/2007 and find that they represent the proper approach to behavioural problems affecting a claimant’s walking which stem from physical disability.

 

       The application of the CSDLA/202/2007 to the instant case

 

21.   In the case summary prepared for the oral hearing of the application, Mr Hatton submitted that:

 

‘2.8     In the present appeal, it was accepted that (the child) suffers from autism.  The general understanding would appear to be that autism has a physical cause and constitutes a physical disablement for the purposes of DLA.  There was also evidence before the tribunal that (the child) would frequently refuse to walk and the tribunal appear to accept as much in the section quoted above.  (The claimant) also gave evidence that (the child) would refuse to walk and would sit down and refuse to move.  There was also written evidence before the tribunal of this problem, particularly in the letter dated 2 February 2010 from KM, social worker with the Children’s Disability Team. (the claimant) states;

 

          “... (the child) will often have “refusal episodes” where he will refuse to both leave the house and go where his mother wants him to or will, whilst out, refuse to go any further.  These refusals are not down to naughtiness or wilfulness and cannot be overcome by any threat of punishment or promise of reward.  They occur because of the extreme rigidity of thinking associated with autism and the inability of autistic children to deal with unpredictable events.  Any attempts to force (the child) to make further progress will result in screaming, kicking, hitting and biting.  These refusals episodes are a “temporary paralysis of will”.  As a result of his autism, (the child) will have frequent and unpredictable refusal episodes.”

 

2.9     In light of the case law referred to above, this evidence is directly applicable to the issues that need to be considered and in our view, there is a prima facie case to be made that (the child) could qualify for the higher rate of the mobility component on the basis of being virtually unable to walk.

 

2.10    It is submitted that the tribunal did not provide an adequate explanation of why this evidence did not entitle (the child) to the higher rate of the mobility component.  As a result, it is our submission that the tribunal has erred in law.

 

2.11    It is our understanding that the Department do not dispute that the tribunal has erred in law as set out above.’

 

22.   I agree with this submission made by Mr Hatton.  In my view, the appeal tribunal in concentrating on whether there was an entitlement to the higher rate of the mobility component of DLA through the second legislative route, namely section 73(1) and (3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 12(6) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) as amended, did not deal, in an adequate fashion with whether there could be an entitlement through the first legislative route, namely section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  More particularly, the appeal tribunal did not deal with all of the evidence which was before it, including the evidence from the social worker from the Children’s Disability team, which, in line with the principles in CSDLA/202/2007, could have provided an entitlement through section 73(1)(a).  The failure to properly assess entitlement under section 73(1)(a) renders the decision of the appeal tribunal as being in error of law.

 

       My further findings in fact

 

23.   At the oral hearing of the application, I was able to hear oral evidence from the appellant.  I found the appellant to be an honest and credible witness and I accept all of her evidence in its entirety.  I was also able to assess the evidence of Ms KM, Social Worker with the Children’s Disability Team, as set out in correspondence dated 2 February 2010.  I also accept this evidence in its entirety as it accords with the oral evidence of the appellant.

 

24.   I find that in and around the start of May 2009 there was a change in the circumstances of the claimant’s child.  At that time, and coming up to his fourth birthday, the claimant’s child had increasing and changing problems with his mobility.  The child was becoming too big to be transported in a child buggy or pram.  When out of his pram the child would run off or attack his mother or his brother.  He would hurt himself.  A walk which would ordinarily take 10 minutes would take an hour.  The child would indulge in ritualistic behaviour.  As was noted above, in the correspondence dated 2 February 2010, Ms KM, Social Worker with the Children’s Disability Team, states that:

 

‘(The child) is mobile but his mobility could endanger his life as (the child) has no concept of danger whatsoever.  He does not understand rules and cause and effect.  (The child) will often have “refusal episodes” where he will refuse to both leave the house and go where his mother wants him to or will, whilst out, refuse to go any further.  These refusals are not down to naughtiness or wilfulness and cannot be overcome by any threat of punishment or promise of reward.  They occur because of the extreme rigidity of thinking associated with autism and the inability of autistic children to deal with unpredictable events.  Any attempts to force (the child) to make further progress will result in screaming, kicking, hitting and biting.  These refusals episodes are a “temporary paralysis of will”.  As a result of his autism, (the child) will have frequent and unpredictable refusal episodes.’

 

25.   I accept all of this evidence in its entirety which accords with the oral evidence of the claimant and adopt this evidence as factual.  I also accept that while his condition might vary, it could not be said that there is anything akin to a ‘normal’ day with respect to his mobility.

 

       My decision

 

26.   The decision of the appeal tribunal dated 4 March 2010 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.

 

27.   I am able to exercise the power conferred on me by Article 15(8)(a)(ii) 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 having made fresh or further findings of fact.  My revised decision is that grounds existed on 19 June 2009 to supersede the decision dated 29 February 2008 as revised on 14 June 2008.  The ground is a relevant change of circumstances, under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended.  The change of circumstances was that the appellant’s child had increasing and changing problems with his mobility.  The effective date of supersession is 5 May 2009 which is the date, for the purposes of regulation 7(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, when the relevant change of circumstances was first reported to the Department.  Based on my further findings in fact, set out above, and based on an application of the principles in CSDLA/202/2007, I find that the appellant’s child satisfies the conditions of entitlement to the higher rate of the mobility component of DLA as set out in section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  The period of the award should be from 5 May 2009 (the effective date of supersession) to 13 September 2010.  The end date is the day before the child’s fifth birthday which is regarded as a milestone date in the child’s development.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

11 August 2011