C18/93(AA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	ATTENDANCE ALLOWANCE

	Appeal to the Social Security Commissioner
	on a question of law from the decision of
	the Disability Appeal Tribunal
	dated 27 April 1993

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant appeals against the decision of the Disability Appeal Tribunal sitting at Londonderry, whereby it was held that the Tribunal had no jurisdiction to entertain an appeal against a decision of the Adjudication Officer of 16 July 1992, which was declared to have been null and void.

2.	Briefly the background to the Tribunal's somewhat unusual decision was that, by letter received on 17 February 1992 the claimant requested a review of the Attendance Allowance Board's decision of 18 December 1991 that she did not satisfy any of the conditions of entitlement to attendance allowance set out in section 35(1) of the Social Security (Northern Ireland) Act 1975.  So far as the claimant was concerned the next development was that she was sent a copy of the medical report upon which the decision of the Attendance Allowance Board had been based and was invited to comment upon it and to send in any other evidence which she wished the Adjudication Officer to see.  The claimant responded to that invitation and, after a GP's factual report had been obtained, the Adjudication Officer duly reached his decision of 16 July 1992; which was that the claimant was not entitled to attendance allowance.  It is perhaps worth noting at this stage that the opening paragraph of the Adjudication Officer's decision was in the following terms:-
		"An application for review of a decision by the Attendance Allowance
		Board made within 3 months of that decision being given, and which is
		not determined by the Board by 5 April 1992, falls for determination as
		a second tier adjudication.  Because the application was made on 
		13 February 1992 I can review the decision of the Board dated 
		18 December 1991 which certified that Mrs P... C... was not
		entitled to Attendance Allowance."

	The letter conveying the Adjudication Officer's decision to the claimant also informed her that she had a right of appeal to an independent Tribunal if she thought that the decision was wrong, and it was in exercise of that right that the claimant appealed to the Disability Appeal Tribunal which duly sat to hear and determine the appeal on 27 April 1993.  In accordance with normal procedure the Adjudication Officer had prepared a written submission for the hearing of the Disability Appeal Tribunal, and it was in this submission that it was first stated that the Attendance Allowance Board had in fact, on 4 April 1992, reviewed the decision of 18 December 1991 but had not revised it.  This so-called decision on review by the Board dated 4 April 1992 had not been promulgated and the claimant had known nothing about it; but it was submitted that it nevertheless meant that the Adjudication Officer had exceeded his jurisdiction in purporting to determine the disability question under regulation 22(3) and (4) of the Social Security (Introduction of Disability Living Allowance) Regulations (Northern Ireland) 1992, which provided as follows:-

		"22(3)	Any question referred for determination by the Board,
		under section 105(3) or 106(1) which has not been determined by
		5 April 1992, shall be determined as soon as is reasonably 
		practicable thereafter in accordance with paragraph (4).

		   (4)  For the purposes of paragraph (3), the question shall 
		be determined -

		(a)	except in a case to which sub-paragraph (b) applies, by
			an Adjudication Officer; or 

		(b)	where the application for a review of a decision of the
			Board is made within 3 months of that decision being
			given, as a second tier adjudication."

3.	When the claimant's appeal came on for hearing on 27 April 1993 it was accepted by the Disability Appeal Tribunal that the decision of the Adjudication Officer of 16 July 1992 was null and void and that the Tribunal did not have jurisdiction to entertain the appeal.  The Tribunal's reasons for decision were recorded as follows:-

		"Regulation 39(2) and (3) of the Adjudication Regulations provide
		that Attendance Allowance Board decisions on review should be
		notified unless the claimant or Department foregoes the right to
		notification.  We consider however, that a decision has still been
		made even if it has not been notified.  That being so we consider
		the Medical Board review decision was validly made.  The 
		Adjudication Officer had therefore no power to adjudicate on this
		case - application for review having been made pre 16.3.992 and 
		the review application having been determined on 4.4.1992 -
		Regulation 22(3) of the Disability Living Allowance (Introduction)
		Regulations  does not apply."

4.	The grounds now relied upon by the claimant in her appeal to the Commissioner are as follows:-

		"The Tribunal erred in law by:

		(i)	Misdirecting itself as to the law in holding that the
			Attendance Allowance Board had validly made a determination
			on 4 April 1992 when this decision was not sent to the 
			claimant.

			Regulation 39(2) requires the Board to notify the claimant
			and Department of the determination on review unless the
			claimant or Department consents to forego this.

			No valid determination had been made, therefore the AO
			could have continued the adjudication process under
			Regulation 22(3) and (4) of the Introduction of DLA
			Regulations.

			To hold as the Tribunal did creates the absurd situation
			where a Board decision not communicated to the claimant
			cannot be subsequently challenged forego this. [sic]

			The Tribunal's decision leads to the absurd result that 
			the AO has no jurisdiction to complete the appeals process."

5.	The Department's written observations on the appeal were:-

		"It is submitted that the Tribunal acted in accordance with the
		law.  It is further submitted that communication of the Tribunals
		decision is not part of the determination which is in accordance
		with Regulation 39(2) of the Social Security (Adjudication) 
		Regulations (Northern Ireland) 1987.  It is not a condition 
		precedent of a determination that there must be communication of
		same.

		Finally, the Department would rely on the legal maxim "onmia
		praesumuntur rite et solemniter esse acta"."

6.	The claimant's representative, Mr Les Allamby of Belfast Law Centre, responded with some vigour to the Department's observations; pointing out that there could be no presumption that proper procedure had been followed where it was clear beyond doubt that it had not.  He further commented upon the absurd results which would flow from an acceptance of the validity of the undisclosed determination by the Attendance Allowance Board.  
7.	I held an oral hearing at which the claimant, who was present, was represented by Mr Allamby.  The Department was represented by Mrs Fitzpatrick, Solicitor.  

	Although the claimant was the appellant, I asked Mrs Fitzpatrick to open the proceedings by addressing me on the subject of the validity of the Attendance Allowance Board's purported determination of 4 April 1992, which had been held by the Disability Appeal Tribunal to render the Adjudication Officer's later decision of 16 July 1992 null and void.  Mrs Fitzpatrick adhered to the view that, although the Board's "determination" of 4 April 1992 had not been communicated to the claimant, it was nevertheless a valid decision.  In support of this argument she relied upon regulation 39(2) and (3) of the Social Security (Adjudication) Regulations (Northern Ireland) 1987, which she seemed to regard as authority for the proposition that a decision on review of the Attendance Allowance Board did not in all circumstances have to be communicated to the parties concerned.  Reliance was also placed on decisions of the GB Commissioners in R(P) 1/85, R(U) 7/81 and R(SB) 4/83, in all of which the opinion had been expressed that the validity of a decision did not depend upon its being communicated to the claimant.  At my request Mrs Fitzpatrick discussed the question of the steps now open to the claimant to challenge the decision that she was not entitled to attendance allowance; bearing in mind that there was no right of appeal to the Commissioner against the Board's original decision of 18 December 1991, and that the claimant had never received notification of any decision on review.  Mrs Fitzpatrick was unable to say how, why, or in what circumstances, the determination of 4 April 1992 had come to be made.  She accepted that the normal procedures had not been followed in relation to that decision and she did not consider herself able to express any view as to whether its author had intended it to be a valid determination. 

8.	Mr Allamby was content to rely upon the formal grounds of appeal and his comments on the Department's observations as set out in paragraph 6 above.

9.	At the close of the oral hearing I was handed two original documents which were said to have been omitted from the case file.  The first contained advice to the Adjudication Officer from a Medical Officer on one aspect of the evidence.  The other document, dated 16 July 1992 was the Adjudication Officer's formal decision against which the claimant had appealed to the Disability Appeal Tribunal.

10.	The circumstances giving rise to this appeal are unusual in that the Attendance Allowance Board which first considered Mrs C...'s claim went out of existence on 6 April 1992.  Before that date the claimant had requested a review of the Board's adverse decision of 18 December 1991 and as far as she was concerned that application was dealt with in accordance with the procedures laid down in regulation 22 of the Social Security (Introduction of Disability Living Allowance) Regulations (Northern Ireland) 1992.  Having received the Adjudication Officer's further negative decision of 16 July 1992, she exercised her right of appeal, only to be informed that the Disability Appeal Tribunal had no jurisdiction in the matter.  The Tribunal took this view because they were informed that the Attendance Allowance Board had determined a review application by the claimant on 4 April 1992.  Although the claimant had never been notified of this "determination" and little was known of the circumstances in which it had been made, other than that a form or forms had been completed and signed, the Tribunal accepted that it rendered the Adjudication Officer's decision null and void.  The Tribunal appear to have been under the impression that regulation 39(2) and (3) of the Adjudication Regulations permitted the Attendance Allowance Board to dispense with notification of a decision if the parties consented to forego it.  That is not strictly the effect of the regulation, which only makes provision for the omission, with consent of the reasons for a decision, and indeed I cannot imagine any circumstances in which anyone would agree to forego notification of a decision itself.  However, there was never any suggestion that the claimant in this case had consented to forego notification of any decision.  The Tribunal accordingly acknowledged that there had been a breach of regulation 39; but held that the failure to notify did not invalidate the Attendance Allowance Board's "determination".  Mrs Fitzpatrick supports that conclusion and has referred to a number of reported cases of the GB Commissioners in which it has been held that the validity of a decision does not depend on its being communicated to the claimant.  I have considered those cases and accept that in many circumstances failure to notify the claimant of a decision would not invalidate it.  I am, however, unable to accept that the "determination" in this case was a valid or effective decision.  Much more is involved than a mere failure to notify the claimant of a purported "determination", although that in itself is an important circumstance in view of the fact that the Attendance Allowance Board went out of existence on 6 April 1992.  As a result, the claimant can never be given formal notification of the "determination" and has therefore lost her right to appeal against the decision that she was not entitled to attendance allowance.  As I pointed out at the hearing, there is no right of appeal to the Commissioner against the Board's original decision of 18 December 1991 and, as the claimant cannot now receive notification of a determination, reasoned or otherwise, of her application for a review, there is nothing upon which to base an appeal to the Commissioner.  The dissolution of the Attendance Allowance Board also renders it impossible for the omission to be repaired, as was said by the Tribunal of Commissioners in GB to be required: see R(U) 7/81 paragraph 21.  

	Apart, however, from the fact that the claimant was not, and can now never be, notified of the "determination" of 4 April 1992, there are, in my opinion, other indications that it was not intended to be an effective decision.  In the normal course of events a claimant who seeks a review of the refusal of his claim to attendance allowance is sent a copy of all medical reports upon which the Board's decision was based, and is invited to comment on the reports and to submit any other evidence which he wishes the Board to take into account.  Failure to afford the claimant an opportunity to comment on the medical reports would constitute a breach of the rules of natural justice sufficient to render any subsequent determination by the Board erroneous in point of law.  I therefore cannot imagine that in this instance the Board would have considered it proper to proceed to determine the application for a review without following this normal procedure.  

	One further, although not perhaps very significant, factor which would suggest that the purported "determination" was not intended to be a proper decision was that it was not accompanied by any reasons such as would normally be found in a decision on review.  For all of these reasons the conclusion which I have reached is that this is not a case concerning the failure to promulgate an otherwise effective decision; but rather that the "determination" of 4 April 1992 can never have been intended to be a valid or effective decision.  It is of course impossible to be certain what was in the mind of the person who signed the "determination"; but, like the Tribunal of GB Commissioners in the unreported case CI/141/1987, (at para 37), I consider that it can, at best, only have been a provisional draft, and I agree that the question whether a decision has become effective depends upon intention.  I therefore take the view that the present case differs from those cited by Mrs Fitzpatrick.

11.	If, as I have held, the purported "determination" of 4 April 1992 was not an effective decision, it follows that the Disability Appeal Tribunal erred in law in finding; (i) that it had been validly made; (ii) that the Adjudication Officer had no power to adjudicate on the case, and; (iii) that they did not have jurisdiction to entertain the appeal.  I accordingly allow this appeal, set aside the decision of the Appeal Tribunal, and refer the case to another Tribunal for determination of the disability question which arises out of the Adjudication Officer's decision of 16 July 1992.

12.	I was informed at the oral hearing that there were a number of other cases involving purported "determinations on review" by the Attendance Allowance Board, dated shortly before the dissolution of the Board, which had not been notified to the parties.  Unless there are circumstances which distinguish those cases from this one, and which would indicate that those "determinations" were intended to be proper and effective decisions, it is my view that they also should be regarded as invalid and of no effect.  In other words, if the only evidence of a "determination" by the Board is a signed form on the case file, and no other action has been taken, the form should be ignored and it should be accepted that the application for review had not been determined by the Board by 5 April 1992.

	(Signed):  R. R. Chambers
					
	CHIEF COMMISSIONER

			
	27 May 1994