UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CDLA_1480_2006 (11 August 2006)

CDLA/1480/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal by the claimant, brought by my leave given on 15^th May 2006, succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Swansea tribunal of 14^th February 2006 (reference U/03/204/2005/02852). I substitute my own decision. This is that the claimant is entitled to lowest rate care component (cooking basis) of disability living allowance (DLA) from 10^th June 2005 (the date of claim) to 9^th December 2006. I have made a fixed term award because there is no real evidence that the difficulties are permanent. The end date should allow time for a renewal claim to be made, if appropriate, which might properly be the subject of full up to date reports at that time. I remit to the Secretary of State questions relating to the calculation and payment of any arrears.
2. The parties are agreed that the decision of the tribunal was made in error of law and that the above award should be made. It is not necessary to go into any great detail about the facts of the case, although I wish to comment on the error of law made by the tribunal.
3. On 15^th August 2005 the Secretary of State allowed the claim and awarded lowest rate care component of DLA from 10^th June 2005 on the basis of the "cooking" test. On 31^st October 2005 the claimant appealed to the tribunal against the decision of the Secretary of State, on the basis that she ought also be entitled to mobility component. She opted for a paper hearing, and this took place in the absence of the parties on 14^th February 2006.
4. The tribunal decided that the claimant was not entitled to any level of either component of DLA. There had been no prior indication to the claimant or to anybody else that the tribunal was considering removing the award that had been made by the Secretary of State, and as this was a decision made at a paper hearing in the absence of the parties, neither the claimant nor the Secretary of State was given an opportunity to make representations on this matter.
5. It is well established as part of the rules of natural justice and fair procedure that a party must be given a proper opportunity to present their case. This cannot happen when a claimant has no notice that the tribunal is considering taking away an award that has already been made. Thus, at a paper hearing, or at any hearing not attended by the claimant, it will always be an error of law for the tribunal to remove an award that has already been made unless the claimant has been given specific notice (in the sense of being focussed on their own particular case) that this is under consideration.

H. Levenson

Commissioner

11^th August 2006