Decision No: C5/93(DLA) 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Londonderry Disability Appeal Tribunal
dated 23 September 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by an Adjudication Officer against the decision of a Disability Appeal Tribunal, and comes by leave of the Chairman of that Tribunal.

2.	Briefly the facts are that the Tribunal decided that the claimant was entitled to disability living allowance, mobility component at the higher rate from 20 July 1993 to 19 January 1996.  In the reasons for its decision stated:-

"Deterioration appears to have been gradual and we have fixed 
20.7.1993 as the date of commencement of virtual inability to walk
using our best estimate."

3.	The Adjudication Officer now appeals on the grounds that the Tribunal erred in law as follows:-

"The Tribunal erred in law when making this award by failing to take
account of section 73(9)(a)(i) of the Social Security Contributions
and Benefits (Northern Ireland) Act 1992 which makes it a condition
of entitlement to the mobility component of disability living allowance
that a person satisfies the appropriate disability condition of
entitlement for the period of 3 months immediately preceding the date
entitlement would begin."

4.	It is clear the Adjudication Officer decided his inability to walk dated from 20 July 1993.  Consequently his entitlement to benefit did not begin until 3 months after that date as per the regulation.

5.	I therefore accept that the Tribunal erred in law and set aside the decision.  I consider it appropriate that I should give the decision which the Tribunal  should have given, namely that the claimant's entitlement to disability living allowance mobility component at the higher rate would not commence until 20 October 1993.

6.	The Adjudication Officer raised in his written observations on the appeal the point of the hospital notes being considered by the Tribunal when they were not available either to the claimant or to the Adjudication Officer.  However this matter will be dealt with in detail in a separate decision in an unrelated case but the hospital notes in this case did not in any way prejudice the claimant or the Adjudication Officer and I can see no point in pursuing that argument in the instant case.

7.	The second point raised by the Adjudication Officer is the duration of the award, he quite rightly points out that the award of disability living allowance is either for a fixed period or for life and drew attention to the fact that in fixing the period the Tribunal fixed the period of the award at 2½ years and said that it was difficult to identify any particular reasons for the choice of 2½ year award and it would be essential for the claimant and indeed the Adjudication Officer to know what criteria the Tribunal used to arrive at the conclusion that the disability would cease on a specified date.  I accept that argument and as there is no reason given why a period of 2½ years was arrived at I am satisfied that the correct decision would be that the period should be for life.  Consequently I give the decision which the Tribunal should have given, namely that claimant is entitled to disability living allowance, mobility component at the higher rate from 20 October 1993 for life.

	(Signed):  C C G McNally

	COMMISSIONER

	11 July 1994