UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Leeds appeal tribunal dated 4 September 2002 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute a decision on the claimant's appeal against the decision dated 16 May 2002 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). That deciosin is that the decision dated 14 January 1997 awarding the claimant disability living allowance at the higher rate of the mobility component and the highest rate of the care component for life falls to be superseded with effect from 2 March 2002 on the ground of relevant change of circumstances, but the superseding decision is that the claimant remains entitled to disability living allowance at the same rates with effect from and including 2 March 2002 for life.
2. In the light of the written submission on behalf of the Secretary of State, dated 19 March 2003 ("February" on page 98 must be a mistake), I can deal with this interesting case relatively shortly. The circumstances as put to the appeal tribunal by the Secretary of State were that the claimant had been awarded disability living allowance (DLA) in 1995 and that on 14 January 1997, following an application by him for review, the highest rate of the care component of DLA was awarded from and including 19 May 1997, ie for life from that date. The decision stated that the entitlement to and rate of the other component already awarded had not been considered. The claimant left Great Britain for the Republic of Ireland, at first on a provisional basis. He stated that he had lived there permanently from 2 March 2002. On 16 May 2002 a supersession decision was given that the claimant was not entitled to DLA from and including 2 March 2002 as the conditions relating to residence and presence in Great Britain were not satisfied.
3. The claimant appealed. In his appeal he stated, as he had done in previous correspondence, that he had been awarded mobility allowance (MobA) in 1987 for a period extending to 2011. He enclosed a copy of the letter notifying him of the award. The appeal tribunal dismissed the appeal, saying that as the claimant became entitled to DLA after 1 June 1992, the DLA could not be exported to the Republic of Ireland.
4. The claimant now appeals against that decision with my leave. The appeal tribunal plainly went wrong in law, as is agreed in the Secretary of State's submission of 19 March 2003. There was clear evidence from the claimant, with which the terms of the decision of 14 January 1997 were consistent, that he had been awarded MobA prior to 1 June 1992. If that award still been in existence in April 1992 it would have been converted (under regulations 7 and 8 of the Social Security (Introduction of Disability Living Allowance) Regulations 1991) into an award of the mobility component of DLA with effect from 6 April 1992 for life. Yet the appeal tribunal failed to investigate the history of awards of benefit to the claimant before concluding that he became entitled to DLA after 1 June 1992.
5. For that reason, the appeal tribunal's decision must be set aside. The Secretary of State's submission of 19 March 2003, as I had directed, gave a history of the claimant's awards of mobility allowance and DLA. On that basis, it is equally plain that I should substitute a decision on the claimant's appeal against the decision of 16 May 2002.
6. The chain of awards is as follows. The claimant was first awarded MobA for the period from 15 October 1985 to 14 October 1987. On a renewal claim he was awarded MobA for the period from 15 October 1987 to 8 April 2011 (ie the day before his 75th birthday). The submission of 19 March 2003 says that it was on 8 October 1992 that the award of MobA was converted into a life award of the mobility component of DLA. But it is my understanding of the effect of regulations 7 and 8 of the Introduction of DLA Regulations that the conversion took effect automatically, by operation of law. By regulation 7 an award of MobA extending after 5 April 1992 was terminated immediately before 6 April 1992. By regulation 8 a claimant in the circumstances of the present case was to be treated as having been awarded the mobility component of DLA from 6 April 1992 for life. Since DLA is a single benefit, although it can be constituted by one or two components, there was by operation of law an award of DLA in operation from 6 April 1992. On 17 July 1995 the claimant applied for review to take account of care needs and on 12 September 1995 a review decision was given awarding the highest rate of the care component for the period from 19 August 1995 to 18 May 1997. On a further application for review, the highest rate of the care component was awarded from 19 May 1997 for life on 14 January 1997. Section 32(1) of the Social Security Administration Act 1992 provided that any award of DLA on review replaced the award which was the subject of the review. As DLA is one benefit, the whole DLA award, including the mobility component, was replaced with effect from 19 August 1995 and from 19 May 1997. However, entitlement to DLA was unbroken from 6 April 1992 onwards.
7. I need briefly to explain the importance of the date of 1 June 1992, which was not explained in the Secretary of State's submission of 19 March 2003. This was the date on which an amendment to Council Regulation (EEC) No 1408/71 came into effect. The amendment created a new category of "special non-contributory benefit" which member states were not required to pay to anyone who was not habitually resident in the state concerned. Under what is now point O of Annex IIa to Regulation 1408/71, on the United Kingdom, DLA was designated as a special non-contributory benefit. From 1 June 1992, therefore, the United Kingdom ceased to be under any obligation under Regulation 1408/71 to pay DLA to claimants who were not habitually resident in the United Kingdom. That general effect has been confirmed by the European Court of Justice in Snares v Adjudication Officer (Case C-20/96) [1997] ECR I-6057, also reported as R(DLA) 5/99. The result is that there is in general nothing in European Community law to prevent the application of the rules in regulation 2(1) of the Social Security (Disability Living Allowance) Regulations 1991. Those rules impose conditions of entitlement to DLA that a claimant is and has been for a past period present in Great Britain (subject to exceptions for temporary absences) and is ordinarily resident in Great Britain. It was those rules which were applied by the appeal tribunal in deciding that the claimant ceased to be entitled to DLA with effect from 2 March 2002.
8. However, the amendment to Regulation 1408/71 from 1 June 1992 was subject to transitional provisions. These are now in Article 95b of Regulation 1408/71. The crucial provision in the present case is paragraph 8 of Article 95b, which provides that the amendment is not to result in the withdrawal of benefits awarded before 1 June 1992 which would then have fallen within Article 10.
9. In the present case, the claimant was awarded DLA before 1 June 1992, whether one regards the MobA decision of 14 June 1986 or the operation of the Introduction of DLA Regulations on 6 April 1992 as supplying the date of the award. DLA was recognised as falling within Article 10 as an invalidity benefit prior to 1 June 1992 (see Harris v Secretary of State for Social Security, reported as R(DLA) 2/99, and paragraph 40 of the ECJ's judgment in Snares). Article 10 requires the "exporting" of benefits including invalidity benefits, by prohibiting the withdrawal of such benefits by reason of the fact that a claimant habitually resides in another member state of the European Community. Since here the claimant's entitlement to DLA had been continuous since 6 April 1992, the decision removing entitlement with effect from 2 March 2002 was a withdrawal of a benefit falling within Article 10 which was awarded before 1 June 1992. Accordingly, the amendment to Regulation 1408/71 did not permit that withdrawal and the claimant was entitled to have the rule in Article 10 applied, so that he could not be deprived of his entitlement to DLA by reason of his residence in the Republic of Ireland. Since, as I have already stressed, DLA is a single benefit, the prohibition on withdrawal applies as much to the claimant's entitlement to care component as to his entitlement to mobility component.
10. The result is as follows. There was a relevant change of circumstances, giving a ground of supersession, on 2 March 2002, as the taking up of permanent residence in the Republic of Ireland was a change which could have had an effect on the claimant's entitlement to DLA. However, on the proper application of the law that change did not have any effect on the entitlement to DLA. Thus the superseding decision is that the claimant continues to be entitled to DLA from and including 2 March 2002 for life.
11. It is now for the Secretary of State to make payment of the benefit to which the claimant is entitled which has not already been paid. The issue of the period for which payments may already have been made is not within my jurisdiction on this appeal.

(Signed) J Mesher

Commissioner

Date: 10 April 2003