Decision No: C2/97(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
	Londonderry Disability Appeal Tribunal
	dated 17 July 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) not to award her attendance allowance.

2.	This appeal relates to whether or not the Tribunal erred in not considering claimant's condition after the date of claim and gave reasons that the Tribunal was not of the view that section 65(6) of the 1992 Contributions and Benefits Act (Northern Ireland) can assist because it found that section 65(6)(a) relates only to claims made within 6 months before the date when the conditions were satisfied and as the claim in the instant case was made on 30 October 1995 and that the Tribunal found the conditions were not satisfied at least up to 30 June 1996 section 65(6) did not apply; nor did section 65(6)(b).  

3.	Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law as follows:-

		"Point 1:  Reasons given for Decision are unintelligible

		In its reasons for disallowing the Appeal the Tribunal state
		'We are making no determination on the period after 01/07/1996'.
		However, the Tribunal were required to consider, and to make a
		determination on, the period 30/10/95 (date of claim) to the
		17/09/1996 (date of hearing of claim).  Why they did not take
		the period after 01/07/1996 into account is not explained.

		Further, the reference in the 'Reasons for the Decision' to
		Section 65(6) of the Contributions and Benefits Act (N. Ireland)
		is equally unclear.  The statement, 'That being so we are not of 
		the view that Section 65(6) ... can assist' suggests that 
		Section 65(6) is being mentioned as incidental to their Decision
		but that it is not the reason for the Decision.  Why, therefore,
		reference is made to Section 65(6), if it cannot 'assist' is
		confusing.

		The failure of the Tribunal to give adequate written reasons for
		its Decision in this case is in conflict with the provisions of
		Commissioner's decision R(A)1/72 and is, therefore, an error in
		law.

		Point 2:  Section 65(6) Allows for an award to be made from a
		future date

		Contrary to the opinion of the Tribunal, Section 65(6) can 'assist'
		in that it allows for an award of D.L.A. to be made to come into 
		effect on a date later than the date of the claim, provided that the
		claimant satisfies one of the relevant conditions (Section 65(6)(b)(i)
		or (ii)) for a period of at least six months.  Any six-month
		period - and not necessarily the six months immediately following
		the date of the claim - would appear to meet the conditions for
		such an award to be made.

		In view of foregoing, the Tribunal's decision is based on an 
		error(s) of law and should, therefore, be set aside."

4.	The Chairperson of the Tribunal refused leave to appeal and an application was made to the Commissioner who granted leave.  Upon receipt of the notice of leave granted the Adjudication Officer made a written submission relating to the grounds of appeal as follows:-

		"The tribunal decided only the period from the date of claim up to
		1 July 1996.  They declined to determine the period from 2 July 
		1996 to the date of their determination.  In the decision the
		chairman recorded the reasons as S65(6) of the Social Security
		Contributions and Benefits (NI) Act 1992, which provides as 
		follows

			(6)  Except in so far as regulations otherwise provide and
			subject to section 66(1) below -

			(a)  a claim for an attendance allowance may be made during
			the period of 6 months immediately preceding the period for
			which the person to whom the claim relates is entitled to the
			allowance; and

			(b)  an award may be made in pursuance of a claim so made,
			subject to the condition that, throughout that period of 6
			months, that person satisfies -

			(i)	both the day and the night attendance conditions, or

			(ii)	if the award is at the lower rate, one of those 
				conditions.

		I submit that this provision does not displace the normal rule that
		a claim must be determined down to the date of the decision by the
		determining authority.  It is permissive, merely enabling a claim 
		to be made and determined during the qualifying period, and providing
		that any award is made subject to a condition.

		There are similar provisions in relation to most benefits.  For
		example, see regulation 13 of the Social Security (Claims and 
		Payments)(NI) Regulations 1987, from which attendance allowance has
		been specifically excluded.  The corresponding provision for 
		disability living allowance is to be found in regulation 13A, and
		for disability working allowance in regulation 13C.  None of these,
		so far as I know, have ever been interpreted in the way the tribunal
		have interpreted S65.

		I therefore submit that the tribunal have erred in point of law by
		failing to determine the claim to attendance allowance fully.  There
		appears to be adequate case law to support my contention - see for
		example R(A)2/81, CDLA/002/93, CM/2153/95 and C53/95(DLA).

		I would add that if the tribunal are correct in their interpretation,
		it would mean that, where the disability conditions are not satisfied,
		a claim would fall to be determined for a period of 6 months only 
		from the date of claim.  In this case that would have meant a
		determination up to 29 April 1996.

		Should the Commissioner decide to grant leave, I consent to his
		treating the application as an appeal and determining any question
		on the application as if it arose on appeal."

5.	At the hearing claimant was not present but was represented by Mr M... and the Adjudication Officer was represented by Mr Shaw.  

6.	Mr M... took up the point made by Mr Shaw in his submission that the award should have been considered up to the date of hearing.

7.	Mr Shaw referred to his written submission.  He said the Tribunal thought there was a bar and did not go past that bar.  He said the Tribunal made no findings of fact past a certain date but he argued that advanced awards may be made provided conditions of entitlement are satisfied and that the Tribunal at the date of hearing should have considered the matter up to the date of hearing and should have taken into account any deterioration.

8.	I am satisfied that the Tribunal erred as Mr Shaw has indicated.  The Tribunal felt constrained by Section 65(6) but that did not prevent the Tribunal from looking at and making an advance award.

9.	As there were no proper findings of fact relating to the claimant's condition after the date of claim I have no option but to allow the appeal, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal.

	(Signed):  C C G McNally
							
	COMMISSIONER

	23 January 1998