C22/96(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 Disability Appeal Tribunal
	dated 31 January 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by G L Shaw, the Adjudication Officer now concerned with the case, against the decision of the Disability Appeal Tribunal sitting at Belfast; whereby it was held that the claimant was entitled to the higher rate of the mobility component of disability living allowance for the period from 1 September 1995 to 31 August 1998.

2.	The claimant, who had for some time been in receipt of the lowest rate of the care component of disability living allowance, submitted a renewal claim on 14 February 1995.  It would seem that Mr McC...was not then making any claim for the mobility component, and the Adjudication Officer's award, which was made on 20 February 1995, was again an award of the lowest rate of the care component; this time from 1 March 1995 to 28 February 1997.  On 10 May 1995 the claimant requested a review, stating that his condition had deteriorated and that he wished the mobility component to be considered.  Medical reports were obtained and on 23 August 1995 a different Adjudication Officer reviewed the decision of 20 February 1995; but refused to revise it.   The claimant's appeal against the decision on review was concerned solely with the refusal of the mobility component, and in his written submission the Adjudication Officer then dealing with the case pointed out that any award made by the Appeal Tribunal replaced the award which was the subject of the appeal; but that, by reason of the provisions of section 31(4) of the Social Security Administration (Northern Ireland) Act 1992, the Tribunal did not need to consider entitlement to or the rate of the care component.  The Adjudication Officer also requested the Tribunal "to give careful consideration to the duration of claim and period of award."  

3.	As indicated in paragraph 1 above, the Appeal Tribunal's decision was confined to the award of the higher rate of the mobility component of disability living allowance for the period from 1 September 1995 to 31 August 1998.  The choice of the commencement date of 1 September 1995 was explained by a finding of fact that 1 June 1995 was the date on which the claimant's General Practitioner had referred him to Musgrave Park Hospital for investigation of his knee injury.  It was said that this was accepted as the date of the commencement of the 3 month qualifying period, during which the conditions of entitlement to the mobility component were satisfied as required by section 73(9)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  It was further stated that a life award was inappropriate because the claimant was awaiting further knee investigation and possible surgery.  As I understand it, nothing was recorded in respect of the existing award of the lowest rate of the care component, which was due to terminate on 28 February 1997.

4.	The grounds of Mr Shaw's appeal to the Commissioner as set out in his letter of 11 March 1996, are as follows:-

		"The tribunal erred in making an award consisting of both care 
		component and mobility component for different fixed periods.  
		Section 71(3) of the Social Security Contributions and Benefits
		(NI) Act 1992 provides that a person may be awarded either 
		component for a fixed period or for life, but he may not be awarded
		the components for different fixed periods.

		or in the alternative

		The tribunal erred in failing to consider and determine entitlement
		to the care component, or if they did they erred in law in that the
		chairman failed to record findings of fact and reasons relating 
		thereto as he was required to by regulation 23(2) of the Social
		Security (Adjudication) Regulations (Northern Ireland) 1995.

		and in addition

		The tribunal made a decision that no tribunal properly instructed
		as to the law could have made in determining that the 3 months 
		qualifying period in S73(9)(a)(i) commenced on the date the 
		general practitioner referred the claimant to the Musgrave Park
		Hospital.  The tribunal should have determined the commencement
		of the qualifying period on the basis of the first date on which 
		evidence showed the disability conditions in question became 
		satisfied and made appropriate findings.  Findings were especially
		necessary in view of the fact that the award of care component
		by the adjudication officer ran from 1 March 1995 whereas the 
		mobility component was only awarded by the tribunal from 
		1 September 1995."

5.	There has been no response from the claimant or his representative to the standard invitation to submit written observations on the appeal.  

6.	Having considered this matter I agree that the Appeal Tribunal did indeed err in law in awarding the mobility component of disability living allowance for a fixed period which did not coincide with the award of the care component of the allowance.  That component was not specifically mentioned by the Tribunal; but it must be assumed that their intention was that the existing award was to be confirmed.  Technically speaking, disability living allowance is a composite benefit comprising two components which require separate consideration, and notwithstanding the provisions of section 73(4) of the 1992 Administration Act, I take the view that Appeal Tribunals should formally record that they confirm the claimant's entitlement to a component in respect of which there has been no dispute.  It is to be noted that section 73(4) provides that the Tribunal need not consider the undisputed question of a claimant's entitlement to one component or the rate of that component.  There remains, however, the question of the duration of the award, which the Tribunal may vary as they consider appropriate.  If, in the present instance, the Tribunal had recorded on a separate form DAT8 that,  there being no dispute as to entitlement or rate, they confirmed the Adjudication Officer's award of the lowest rate of the care component of disability living allowance and declared the period for which the award was to run, it might well have brought home to them that their new award of the mobility component should not end on a different date.  The effect of their decision on the mobility component was to create an award consisting of both components which, by reason of the provisions of section 71(3) of the 1992 Contributions and Benefits Act could not then be awarded for different fixed periods.  

7.	For the reasons given in paragraph 6 above I allow this appeal, set aside the decision of the Appeal Tribunal, and refer the case to another Tribunal for its determination.  In the circumstances it is unnecessary for me to express any concluded view on Mr Shaw's additional ground of appeal on the question of the propriety of the Tribunal's finding of fact that the 3 month qualifying period in respect of the mobility component commenced on 1 June 1995.  It can be extremely difficult in these cases to determine precisely when a claimant first satisfied the conditions of entitlement; but I feel bound to say that the choice of the date of the claimant's referral to hospital for investigation does seem to me to be hard to justify.

(Signed): R R Chambers 

CHIEF COMMISSIONER

16 August 1996