Decision No: C72/96(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
Ballymena Disability Appeal Tribunal
dated 27 August 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Adjudication Officer against the decision of a Disability Appeal Tribunal (DAT), which awarded claimant the higher rate mobility component of disability living allowance (DLA) from 8 April 1996 to 7 April 1998, but refused him the care component from 8 April 1996.

2.	Briefly the facts are that claimant is a man now of 54 years of age who claimed DLA in April 1993 as he suffered from mental problems which affect his ability to go out.  He also claimed he was unable to use his arms properly.  His claim was disallowed and a request for a review was made in July 1993 but the Adjudication Officer decided not to revise the decision.  

3.	A further claim was received in September 1993 and again on 5 October 1993.  In October 1993 a Medical Officer from the Department considered the question of a claim under special rules and considered that this was not relevant.  A request for review was made in April 1995.  A further claim was made on 24 March 1995 and it is recorded that on 25 July 1995 an Adjudication Officer refused to review the decision dated 29 July 1993.  A request for review was received in August 1995 and in October 1995 the Adjudication Officer reviewed the decision of July 1995 but did not revise it.  On 7 November 1995 a renewal claim was received.

4.	The Tribunal to whom claimant appealed made the following findings of fact and reasons for their decision:-

		Mobility Component - Findings

		"The medical records indicate and we accept that since about 
		January 1996 due to intermittent claudication his mobility is
		restricted to 50 yards.  Prior to this it was in excess of 
		100 yards.  There is an occlusion (or narrowing) of the aorta
		ie the main blood vessel supply the legs at a point just above
		where it divides to go to each leg.  This will require surgery
		if he is not to lose circulation in the legs completely with
		catastrophic results.

		He is on the waiting list and hopefully now will stop smoking."

		Reasons for decision

		"Period restricted as he is on waiting list for surgery which 
		should cure him by removing the restriction of circulation 
		of blood to his legs.

		Medical evidence from January 1996 confirms his walking is
		reduced to 50 yards and 3 months later is April.  (November
		1995 he could still do 100 yards - see his letter of appeal.)

		At 50 yards he experiences the severe discomfort of intermittent
		claudication (pain) in the legs and must stop.  He is virtually
		unable to walk but hopefully will be cured by surgery in due
		course."

		Care Component - Findings

		"We accept as factual the Examining Medical Practitioner report
		of 26 June 1995 ie slight impairment of arms, no attention,
		cooking or supervision needs, can manage all care needs.  We
		accept General Practitioner 19 May 1995 - no attention or cooking
		needs.  We reject his evidence which is not supported by medical
		evidence."

		Reasons for decision

		"The allowance of lowest rate care component expired on 7 April 1996
		and the issue is whether it can be extended.  Considering he did 
		not claim it on 8 April 1993 and the only medical evidence related
		to a beating some years earlier, we are surprised it was awarded
		at all.  The medical records show a minimal problem with his elbows
		and we do not accept he is unable to prepare a main cooked meal.
		Weight of medical evidence is against him."

5.	The Adjudication Officer sought and was granted leave to appeal against that decision on the following grounds:-

		"The tribunal erred in law by failing to address the issue before
		them which was the claimant's application dated 14 April 1995 for
		review of the decision of the adjudication officer dated 29 July 
		1993, by which the adjudication officer had awarded disability
		living allowance at the lowest rate of the care component from
		8 April 1993 to 7 April 1996.  This matter came to the tribunal
		by way of appeal following the decisions of the adjudication
		officer dated 25 July 1995 and 11 October 1995, and the tribunal
		has jurisdiction by virtue of S31(1) of the Social Security
		Administration (NI) Act 1992.

		and in addition

		The Tribunal erred in law by purporting to determine the renewal
		claim received on 21 September 1993.  That claim had not been
		determined by an adjudication officer and as a consequence the
		tribunal had no jurisdiction to decide the claim under S31(1).

		NOTE: it is intended that the renewal claim will not be referred
		to the adjudication officer for a decision until following the
		outcome of this application."

6.	In response to the granting of leave to appeal Mr Stockman of the Law Centre (NI) responded as follows:-

		"The adjudication officer has set out two grounds of appeal.  These
		are that the tribunal erred in failing to address the claimant's 
		review application dated 14 April 1995 and that the tribunal erred
		in law by purporting to determine the renewal claim received on
		21 September 1993.

		On the first point it would be helpful to summarise some of the
		key dates in the case:-

			Date of claim:						8/4/93
			AO disallows:						10/5/93
			s.28(1) review request:				4/6/93
			Review decision awarding low care:		29/7/93
			New claim:						21/9/93
			s.29(?) AO decision upholding 29/7/93:		29/11/93
			s.28(2) review request:				14/4/95
			AO decision refusing to review:			25/7/95
			S28(1) review request:				1/8/95
			AO refusal to review:				11/10/95
			Renewal Claim for DLA:				7/11/95
			Appeal:						7/11/95

		The renewal claim for DLA can be disregarded by virtue of
		s.28(12) Administration Act and reg.13C of the Claims and
		Payments Regulations.  The original award was made for the
		period 8 April 1993 to 7 April 1996.

		It is submitted that the tribunal had jurisdiction to consider
		the appeal of Mr B... and that the issue in the case would 
		have been Mr B...'s appeal against the 'refusal to review'
		decision of 25 July 1995, which in turn would have been 
		considering the issue of whether there were s.28(2) grounds
		to review the award of 8 April 1993.

		I do not accept that the tribunal did not address this issue.
		Although they made no specific reference to grounds of review,
		I would submit that the reference in the reasons for the 
		decision that "medical evidence from January 1996 confirms
		his walking is reduced to 50 yards" implies that the issue
		of relevant change of circumstances has been addressed.

		The second point implies that the tribunal addressed the
		incorrect issue of the renewal claim of 21 September 1993.
		I suspect that the adjudication officer intended to refer
		to the renewal claim of 7 November 1995 at this part of the 
		appeal.  This renewal would have been from 8 April 1996 and
		this date in fact coincides with the tribunal's award of the
		mobility component.  Accordingly such an inference might be
		understandable.  However, since the reasons for the tribunal's
		decision refer to medical evidence of January 1996 it is 
		submitted that this date of award of mobility component might
		be entirely coincidental.  There is nothing to indicate that
		the issue considered by the tribunal was the renewal claim.
		It is conceded that this would have been erroneous in point
		of law had they done so, however.

		Accordingly, I would oppose the appeal of the adjudication
		officer."

	Upon receipt of this response the Adjudication Officer made a further written submission as follows:-

		"Mr Stockman takes issue with my first ground of appeal.  I
		will therefore take this opportunity of explaining this part
		of my appeal more fully.  The decision under review by the 
		tribunal was made by the adjudication officer on 29 July 1993
		who awarded disability living allowance at the lowest rate of
		the care component from 8 April 1993 to 7 April 1996.  The  
		tribunal decided that (i) there was no entitlement to the care
		component from and including 8 April 1996 and (ii) awarded the
		high rate of the mobility component from 8 April 1996 to 
		7 April 1998.

		The claim of 8 April 1993 was treated by the adjudication
		officer as made for the period 8 April 1993 to 7 April 1996:
		regulation 17(6) of the Social Security (Claims and Payments)
		(NI) Regulations 1987.  I submit that the tribunal were only
		able to vary the award made by the adjudication officer if
		one of the grounds of review in S28(2) was satisfied.  The
		period from 8 April 1996 was not open to the tribunal at all
		unless the review resulted in a revised award which was longer.
		My appeal was made because the tribunal did not revise the
		existing award, but instead made an additional award for a 
		period subsequent to the award under review.

		Mr Stockman contends that the tribunal did address the review
		issue.  They found that walking ability had reduced to 50 yards
		by January 1996, plainly a relevant change of circumstances.
		Even if this review of the tribunal's approach is to be accepted,
		I submit that the tribunal must nevertheless have erred.  
		Presumably they would have decided that there was a relevant
		change of circumstances on 8 January 1996, with the 3 months
		qualifying period being satisfied from 8 April 1996.  But as
		the existing award ended on 7 April 1996, it was not open to
		the tribunal to make an award of the mobility component from
		8 April 1996.  To do so infringed on the period which properly
		falls to be dealt with by the renewal claim received on
		7 November 1995.  Following the same approach, it was incorrect
		for the tribunal to determine that there was no entitlement
		to the care component from and including 8 April 1996.
		
		Had the tribunal decided that the deterioration in mobility
		had taken place any earlier, I submit that it would have been
		possible to have revised the award made by the adjudication
		officer to include an award of the mobility component from an
		appropriate date, thereby extending the award past 7 April 1996.
		In those circumstances the tribunal would have been obliged
		to have considered entitlement to the care component beyond
		8 April 1996.  The renewal claim of 7 November would have 
		been redundant in such circumstances.
		Mr Stockman correctly points out that my second ground of 
		appeal should have referred to the renewal claim of 
		7 November 1995 and not 21 September 1993.  I apologise for
		this error, and any confusion it may have caused."

7.	I arranged an oral hearing at which the Adjudication Officer was represented by Mr Shaw and the claimant, who was not present, was represented by Mr Stockman.  Mr Shaw readily accepted that on the evidence claimant was entitled to the higher rate mobility.  He said it is clear that the Tribunal thought it was dealing with a renewal claim.  Mr Shaw accepted that in light of Dr L...' psychiatric report, there was clear evidence that the claimant was entitled to the low rate mobility from 8 April 1993 to 1 April 1996 as he accepted that regulation 57(2)(a) was satisfied.  From January 1996 claimant would have been entitled to the higher rate mobility, but taking into account the qualifying period, the award should run from 1.4.96 and that would be for life.   Mr Shaw argued it is quite clear that the claimant is now a recluse which raises the question of reassurance.  As far as the care component was concerned Mr Shaw conceded that on the evidence claimant was entitled to the lower rate care component from 8 April 1993 in respect of the meals test.  As claimant was in receipt of the lower rate care up to 7 April 1996 Mr Shaw argued that the period from 8 April 1996 was not open to the Tribunal to decide unless the review resulted in a revised award which was longer.  He also accepted that because of the reassurance which claimant required and the encouragement and motivation which was required in connection with cooking a meal for himself, that he was entitled to the lower rate care component in respect of the meals test from 7 April 1996 for life.

8.	I accept the concessions made by the Adjudication Officer.  I have studied all the papers, considered all the submissions and in particular the letter of 28 January 1997 which I have quoted in full.  I am satisfied that the Tribunal erred as the Adjudication Officer stated.  I therefore allow the appeal and set aside the decision of the Tribunal.

9.	I am satisfied that this is a proper case in which I should give the decision which the Tribunal should have given, namely that claimant is entitled to the lower rate mobility component from 8 April 1993 to 7 April 1996 and to the higher rate mobility component from 8 April 1996 for life.  He is also entitled to the lower 

	rate care component from 8 April 1996 for life.  He was already in receipt of the lower rate care component from 8 April 1993 to 7 April 1996.

(Signed):  C C G McNally

COMMISSIONER

18 June 1997