Northern Ireland - Social Security and Child Support Commissioners' Decisions

JS-v-Department for Communities (DLA) [2017] NICom 71

 

Decision No: C64/17-18(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 19 July 2016

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

 

2.     An oral hearing of the application has been requested.  However, I consider that the proceedings may properly be determined without an oral hearing.

 

3.     For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal.

 

REASONS

 

         Background

 

4.     The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 26 January 2016 on the basis of needs arising from angina, high cholesterol, type 2 diabetes, gout and high blood pressure.  He had undergone surgery to repair an abdominal aortic aneurism on 19 January 2016.  The Department obtained a report from the applicant’s general practitioner (GP) on 3 March 2016. On 15 March 2016 a medical officer of the Department gave an opinion on the likely duration of the applicant’s recovery from surgery.  On 18 March 2016 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 26 January 2016. Following a reconsideration decision, which maintained the original decision, the applicant appealed.

 

5.     The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 19 July 2016 the tribunal disallowed the appeal as regards care component but awarded low rate mobility component from 19 April 2016 to 18 April 2017.  The applicant requested a statement of reasons for the tribunal’s decision and this was issued on 13 October 2016.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 15 December 2016.  On 13 January 2017 the applicant applied to a Social Security Commissioner for leave to appeal.

 

         (The Department was renamed the Department for Communities from 8 May 2016).

 

         Grounds

 

6.     The applicant, represented by Mr Powell, submits that the tribunal has erred in law on the basis that:

 

(i)    it erred because the original Departmental decision was made on the basis that entitlement conditions to care and mobility components were satisfied but that the prospective test was not, whereas the tribunal accepted that the prospective test was satisfied but only awarded low rate mobility component;

 

(ii)  it erred in its application of the prospective test and in particular it did not apply Commissioner’s decision C5/05-06(DLA) correctly.

 

7.     The Department was invited to make observations on the applicant’s grounds.  Mr Donnelly of Decision Making Services (DMS) responded on behalf of the Department.  Mr Donnelly submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

         The tribunal’s decision

 

8.     The LQM has prepared a statement of reasons for the tribunal’s decision.  From this I can see that the tribunal had sight of the Department’s submission, containing the claim form, a factual report from the applicant’s GP and advice from the Department’s medical officer.  It also had sight of the applicant’s medical records.  The applicant attended the hearing, accompanied by Mr Powell, and gave oral evidence.

 

9.     The tribunal heard evidence that the applicant had knee problems and walked with a stick, and was prone to dizziness and anxiety.  He had undergone surgery on 19 January 2016 for an abdominal aortic aneurism and was discharged on 24 January 2016.  He had claimed DLA from 26 January 2016.  He gave evidence of episodes of incontinence a couple of times a week.  His daughters prepared meals for him.  He indicated problems with washing and dressing.

 

10.   The tribunal accepted that the applicant was suffering from type 2 diabetes, hypertension, ischaemic heart disease, gout, and had experienced a transient ischaemic episode in 2001 and was recovering from an abdominal aortic aneurism repair.  The tribunal found that there was no evidence to support the applicant’s stated difficulty in preparing a cooked main meal and found that any attention required did not amount to a significant portion of the day.  It found no evidence of supervision needs.  It found that the applicant would have had significant post-surgery needs, but that these would not have had lasted more than 6 months after surgery, and therefore not have satisfied the prospective test.

 

11.   The tribunal concluded that at a period six months after the surgery the applicant would not have had the physical mobility difficulties stated in his claim form.  However, it accepted that the applicant was experiencing a loss of confidence and that it was appropriate to award low rate mobility component from a period from three months after the surgery for 12 months.

 

         Relevant legislation

 

12.   The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992 (the 1992 Act). This provides:

 

72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care

component of a disability living allowance for any period throughout which—

 

(a) he is so severely disabled physically or mentally that—

 

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

 

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients;

 

(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

 

(i) frequent attention throughout the day in connection with his bodily functions; or

 

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

 

(c) he is so severely disabled physically or mentally that, at night,—

 

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

 

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

 

The prospective test appears in subsection (2) as follows:

 

(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless—

 

(a) throughout—

 

(i) period of 3 months immediately preceding the date on which the award of that component would begin; or

 

(ii) the such other period of 3 months as may be prescribed,

 

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

 

(b) he is likely to continue to satisfy one or other of those conditions throughout—

 

(i) the period of 6 months beginning with that date; or

 

(ii) ...

 

13.   The legislative basis of the mobility component is section 73 of the 1992 Act. This provides:

 

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 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;

 

(ab) he falls within subsection (2) below;

 

(b) he does not fall within that subsection but does fall within subsection (2) below;

 

(c) he falls within subsection (3) below; or

 

(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.

…

 

14.   A similar prospective test applies to the mobility component as to the care component and appears at sub-section 73(9) of the 1992 Act.

 

15.   A relevant provision which was not before the tribunal hearing this case is regulation 13A(1) of the Social (Claims and Payments) Regulations (NI) 1987 (the Claims and Payments Regulations).  This provides:

 

13A.—(1) Where, although a person does not satisfy the requirements for entitlement to disability living allowance on the date on which the claim is made, the Department is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (“the relevant day”) not more than 3 months after the date on which the claim is made, then the Department may award disability living allowance from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day.

 

         Assessment

 

16.   The applicant firstly submits that the tribunal has erred because the original Departmental decision was made on the basis that entitlement conditions to care and mobility components were satisfied but that the prospective test was not, whereas the tribunal accepted that the prospective test was satisfied but only awarded low rate mobility component.  He refers to the original decision of the Department and submits that the tribunal has erred by reaching a different decision to it.

 

17.   I consider that this ground is misconceived.  It is evident from the papers that the Department and the tribunal both considered that the applicant had significant post-operative debility at the time of his claim in late January 2016.  However, for the care needs and mobility needs which were accepted as existing at that time to give rise to entitlement to DLA, the applicant would need to establish two things.  These were that:

 

a)      throughout the period of three months immediately preceding the date on which the award of that component would begin he satisfied the relevant conditions of entitlement, and

 

b)      he was likely to continue to satisfy one or other of those conditions throughout the period of six months beginning with that date.

 

18.   The date of claim was 26 January 2016.  The tribunal accepted that post-operative physical disability needs existed, and also accepted that he experienced psychological needs in the form of a loss of confidence, from the date of operation, being 19 January 2016.  This meant that by 19 April 2016 the applicant would have satisfied the first, three month qualifying period limb.  The tribunal also accepted that the applicant was likely to continue to have a loss of confidence such as to entitle him to low rate mobility component.  It made an award from 19 April 2016 to 18 April 2017.

 

19.   The tribunal – as had the Department - accepted that the applicant had the level of care needs and mobility difficulties set out in his claim form in the period immediately after surgery but that he would be expected to improve significantly within 3 to 6 months of the surgery.  The tribunal stated that it:

 

“was also satisfied that at the relevant date the appellant was well on his way to recovery after his surgery on 19^th of January 2016 and that he would have been fully recovered within 3 months of that date and certainly would not have had any physical after-effects lasting longer than 6 months after that date.  In the opinion of the tribunal, [the applicant] has not satisfied the prospective six-month qualifying period in relation to mobility and care issues arising from physical disablement”.

 

20.   The applicant’s case is that the tribunal erred in law by not adopting the same approach as the Department.  However, the tribunal is an independent decision making body and the decision of the Department was in no way binding upon it.  It was entitled to make the decision that it did on the basis of the evidence before it, distinguishing the applicant’s physical and psychological needs.  It correctly applied regulation 13A(1) of the Claims and Payments Regulations to the facts of the case.

 

21.   The applicant further submits that the tribunal did not correctly apply Commissioner’s decision C5/05-06(DLA) correctly.  The prospective test arises in the present case and it is clear that the tribunal had sections 72(2) and 73(9) in mind when stating its reasons.  As stated by Mrs Commissioner Brown in C5/05-06(DLA) it had to consider what was likely from the standpoint of the date of claim and not examine the question of entitlement from the position of hindsight.  It stated in its reasons that the applicant’s condition “would be expected to improve significantly within 3 to 6 months of the surgery”.

 

22.   The applicant has not specifically referred to the basis for his submission that the tribunal has not applied C5/05-06(DLA) correctly.  However, I suspect that he relies on the fact that the tribunal refers to a report of 11 April 2016 recording that the applicant “had regained a good level of activity”.  This post-dated the decision under appeal which was made on 18 March 2016.  It therefore offends against the rule in Article 13(8)(b) of the Social Security (NI) Order 1998 that the tribunal shall not have regard to circumstances not obtaining at the time the decision under appeal was made.  It also offends against the principle that the tribunal has to address what is likely from the standpoint of the date of decision, and not on the basis of actual circumstances.  I grant leave to appeal on this basis.

 

23.   However, while the tribunal has clearly erred in its reference to the April 2016 report, it has also made the appropriate finding that the applicant would be expected to improve significantly within three to six months of surgery.  In other words the approach it took was based on an assessment of how the applicant was likely to be at a date six months after surgery, not how he actually was.  I consider that this is the correct approach when C5/05-06(DLA) is applied properly.  The reference to the April 2016 report is not material in the sense that it would have altered the tribunal’s decision in any way.  The tribunal had made an adequate finding which was in compliance with C5/05-06(DLA).  For this reason, I disallow the appeal.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

13 December 2017