C27/96(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 8 February 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Adjudication Officer against the decision of the Disability Appeal Tribunal sitting at Craigavon; whereby it was held that the claimant was entitled to the lower rate of attendance allowance from and including December 1995 to 30 November 1997.

2.	It is unnecessary to set out the full history of this claim.  Briefly, the relevant background facts are that the claimant was entitled to the higher rate of attendance allowance from 28 May 1993 to 28 May 1994.  On 29 September 1994 an Adjudication Officer disallowed the renewal claim from and including 29 May 1994, and the disallowance was confirmed by a decision on review dated 20 December 1994.  It was this decision on review which was the subject of the appeal to the Disability Appeal Tribunal.  As stated in paragraph 1 above, the Tribunal held that the claimant was entitled to the lower rate of attendance allowance for 2 years from 1 December 1995.  The reasons for the Tribunal's decision, as recorded by the Chairman, incorporate their findings of fact, and were as follows:-

		"On the weight of all the evidence including the appellant's
		direct evidence to the Tribunal today she does require frequent
		attention throughout the day in connection with her bodily
		functions because of her shortness of breath and tightness in
		the chest related to her heart trouble.  Operative treatment
		is proposed.

		The symptoms have deteriorated over the past 12 months and while
		initially they did not cause considerable disability she has been
		quite disabled since in or about June 1995.  We establish that
		the qualifying period has been satisfied as at 1 December 1995 and
		we make the award from that date.  In view of the contemplated
		operative treatment and the possibility of some improvement in
		her condition we make the award for 2 years.

		The appellant has occasional night time symptoms but she does
		not require repeated or prolonged attention in connection with
		her bodily functions on most nights and therefore does not 
		satisfy the criteria for the higher rate Attendance Allowance."

3.	Although the Adjudication Officer is the appellant in this case the appeal has been brought in the interests of the claimant.  The grounds of the appeal are as follows:-

		"The tribunal erred in making the award from 1 December 1995 when
		it had determined that the disability conditions were satisfied
		in or about June 1995.  As there had previously been entitlement
		to attendance allowance at the higher rate from 28 May 1993 to
		28 May 1994, there was satisfaction of the qualifying period by
		virtue of regulation 3 of the attendance allowance regulations
		(6 months satisfaction of one or both of the conditions in
		S64(1) of the Social Security Contributions and Benefits 
		(NI) Act 1992).  Entitlement should therefore have commenced
		on the appropriate date in June 1995 when the disability 
		conditions became satisfied.

		and

		In making an award of attendance allowance for a fixed period
		the Tribunal erred in law by failing to have regard to the
		provisions of regulation 27(7) of the Social Security (Claims
		and Payments) Regulations (Northern Ireland) 1977.  This states -

			If, in any case outside paragraph (4), it would be
			inappropriate to treat a claim as made, and to make an
			award, for an indefinite period (for example where a 
			relevant change of circumstances is reasonably to be
			expected in the near future) the claim shall be treated
			as made and the award shall be for a definite period 
			which is appropriate in the circumstances.

		If the tribunal did have regard to regulation 17(7) then they
		erred in law because the chairman failed to record why an
		indefinite award was inappropriate in the circumstances of the
		case, which were that there was a possibility of operative
		treatment with possible consequent improvement.  The tribunal
		further erred because the chairman failed to record why the
		tribunal determined that an award period of 2 years was 
		appropriate in the circumstances of the case."

4.	In her written observations on the appeal, the claimant by letter dated 19 June 1996, stated that she did not wish to oppose it.  She further submitted that her disabilities were such that she should have been entitled to attendance allowance at the higher rate; but that is not a point of law and accordingly does not represent a further ground of appeal.

5.	Having considered this matter, I agree that the Tribunal erred in law in applying the normal 6 month qualifying period, and thereby delaying the commencement of their award until 1 December 1995.  As the Adjudication Officer has pointed out, regulation 3 of the Social Security (Attendance Allowance) Regulations (NI) 1992 provides that the prescribed period for the purposes of S.35(2)(b) of the Social Security (Northern Ireland) Act 1975, (now S.65(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) shall be two years.  Section 65(1) of the 1992 Contributions and Benefits Act is in the following terms:-

		"Subject to the following provisions of this Act, the period for
		which a person is entitled to an attendance allowance shall be -

		(a)	a period throughout which he has satisfied or is likely
			to satisfy the day or the night attendance condition or
			both; and

		(b)	a period preceded immediately, or within such period as may
			be prescribed, by one of not less than 6 months throughout
			which he satisfied, or is likely to satisfy, one or both
			of those conditions."

6.	The claimant having satisfied the conditions of entitlement for the 6 month qualifying period within the previous 2 years by virtue of her award of attendance allowance for the year from 28 May 1993 to 28 May 1994, the Tribunal's award should have commenced immediately following the date on which she was held to have satisfied the relevant conditions of entitlement.  The Tribunal decided that the claimant's increased disability commenced in or about June 1995 and expressed the opinion that the 6 month qualifying period had been satisfied as at 1 December 1995.  I therefore conclude that the Tribunal were of the opinion that the claimant satisfied the day attendance condition of entitlement from 1 June 1995.  On this basis the award should also have commenced on that date and the Tribunal erred in law in postponing it as they did.  

7.	The Adjudication Officer's second ground of appeal is that the Tribunal erred in law in failing to have regard to the provisions of regulation 17(7) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1977.  From a study of the Tribunal's reasons for decision it seems to me to be clear that they considered whether an award for life would be inappropriate and have sufficiently explained why, in their view an award of 2 years duration was thought to be appropriate.  I am further of the opinion that there was evidence to support their decisions on these matters and I accordingly do not accept that the Tribunal erred in law in relation to them.  

8.	As the Tribunal erred in point of law as explained in paragraph 5 above, I allow this appeal and set their decision aside.  I consider that this is a case in which it is appropriate that I should give the decision which the Tribunal should have given.  I adopt the Tribunal's findings of fact that from 1 June 1995 the claimant has required frequent attention throughout the day in connection with her bodily functions, and that she does not require repeated or prolonged attention in connection with her bodily functions on most nights.  I further find that in view of contemplated operative treatment and the possibility of improvement in the claimant's condition it would be inappropriate to make an award for an indefinite period, and that, in the circumstances of the case, an award for a period of two years would be appropriate.  My decision therefore is that the claimant is entitled to attendance allowance at the lower rate (for day needs) from and including 1 June 1995 to 30 May 1997.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 September 1996