Decision No: C1/99-00(SDA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SEVERE DISABLEMENT ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 26 January 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by claimant for leave to appeal against a decision dated 26 January 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  The Tribunal's decision was to disallow the claimant's appeal against an Adjudication Officer's decision dated 15 September 1997.  That decision is somewhat confused and unfortunately the confusion seems to have carried into the Tribunal's decision.  The Adjudication Officer's decision reads as follows:-

"I have reviewed the decision of the Adjudication Officer 
awarding Severe Disablement Allowance from and including 
11/11/96 (both dates included).

This is because the decision awarded benefit for days after the 
date of claim and the requirements of entitlement are not satisfied.  
This is because there has been a relevant change of circumstances 
since the decision was given.  This was that [the claimant] is 
capable of work.

My revised decision only for the period from and including 15/9/97 
is that [the claimant] is not entitled to Incapacity Benefit 
from and including 15/9/97."

	It will be seen from this decision that the Adjudication Officer was reviewing a decision awarding Severe Disablement Allowance and reviewing it to disallow Incapacity Benefit.  The Tribunal dealt with the matter as an Incapacity Benefit case.

2.	The claimant sought leave to appeal by means of an OSSC1 (NI) form dated 8 June 1998.  The ground of appeal was related to the descriptor of continence in the All Work Test.  It was submitted that the error of law was that the Tribunal had ignored Commissioners' decisions C39/97(IB), C18/97(IB) and CIB/14332/96 in rejecting the claimant's argument that she was incontinent of the bowel.

3.	Central Adjudication Services made observations on the application by letter of 18 June 1999 and I am obliged to Mr Toner of Central Adjudication Services for his very considerable and thorough work in this matter.  Mr Toner, with regards to the ground of appeal alleged by the claimant submitted that the Tribunal was entitled to distinguish claimant's condition from the condition of the claimants in the decisions cited and was entitled to come the decision it did.  He submitted that claimant had not identified a point of law in which the Tribunal had erred in that respect.

4.	To dispose of that ground I should state at the outset that I agree with Mr Toner in this respect.  The Tribunal did not accept the claimant's evidence on incontinence or urgency.  The three cases mentioned were not, therefore, relevant.

5.	Mr Toner in his submission drew to my attention that Severe Disablement Allowance was the proper subject of the decision in this case.  He also informed me that claimant had an award of the high rate mobility component of Disability Living Allowance and the middle rate of the care component of that allowance from 8 December 1996 to 7 December 1998.  An Adjudication Officer by a decision dated 7 January 1988 reviewed that award and disallowed Disability Living Allowance from 8 December 1996.  Claimant appealed the subsequent refusal to review that decision to the Disability Appeal Tribunal and that Tribunal disallowed her appeal in respect of both the mobility and care component from and including 26 November 1997.

6.	I held a hearing of the application which was attended by Mr Gibson of the Citizens Advice Bureau, representing the claimant and by Mr Toner.  I am obliged to both gentlemen for their assistance at hearing.  I grant leave to appeal and with the consent of both parties treat the application as an appeal and proceed to so determine it.

7.	Prior to the hearing I had asked that I be addressed on certain matters and at hearing both gentlemen so addressed me.  Both agreed that claimant could be accepted as 80% disabled and incapable of work from 15 September 1997 to 24 November 1997 (both dates inclusive) on the basis of the previous award of Disability Living Allowance dated 10 October 1996.  Both were also agreed that after that date there was no evidence to show that claimant either was or was not 80% disabled.  Both gentlemen were also agreed that what the Tribunal should have been dealing with was an award of Severe Disablement Allowance and that it had erred in affirming an Adjudication Officer's decision in relation to Incapacity Benefit.

8.	Both gentlemen were also agreed that the Adjudication Officer's decision of 7 January 1998 in relation to Disability Living Allowance and the Disability Appeal Tribunal's decision of 5 January 1999 could be taken into account by any future Tribunal deciding on entitlement to Severe Disablement Allowance and dealing with the question of "passporting".

9.	My decision is that the Tribunal did err in law as set out at paragraph 7.  Its decision is therefore set aside and the case should be remitted to a differently constituted Appeal Tribunal which should find the claimant incapable of work and 80% disabled from 15 September 1997 to 24 November 1997 (both dates inclusive) on the basis of the award of Disability Living Allowance.  The Tribunal should then record that grounds for review (relevant change of circumstances) have been established, the earlier award of Severe Disablement Allowance having been made on the basis of passporting from Disability Living Allowance and that allowance having ceased.  Grounds for review having been established, the Tribunal would then have to decide whether or not the decision awarding Severe Disablement Allowance should be revised with effect from 25 November 1997.  This will require it to decide whether or not the Adjudication Officer has shown that claimant has ceased to satisfy the conditions for Severe Disablement Allowance.

10.	Those conditions are contained in section 68 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  It is apparent that from the cessation of the award of Disability Living Allowance with effect from 25 November 1997 the claimant can no longer be treated as 80% disabled and incapable of work as passported from her Disability Living Allowance award.  The Tribunal will therefore have to decide whether or not she has ceased to satisfy the conditions for Severe Disablement Allowance from that date.  This will involve consideration of the claimant's level of disablement and/or her capacity for work.

11.	A full submission from the Adjudication Officer or his successor in relation to the matter and putting it on its proper footing would no doubt be of considerable assistance to the Tribunal and the claimant.

(Signed): M F Brown

COMMISSIONER

6 January 2000