Decision No: C18/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

		SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

	DISABILITY LIVING ALLOWANCE

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 30 January 2003

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against a decision of a Tribunal to the effect that the claimant was not entitled to an award of either the care or the mobility component of disability living allowance (DLA) from 3 November 2002.  Leave to appeal was granted by a Commissioner on 29 September 2003.  

2.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.  

3.	In this appeal the claimant is not represented while the Department is represented by Mr Toner of the Decision Making and Appeals Unit.  

4.	Before making the claim that is the subject matter of this appeal, the claimant had been awarded the middle rate care component and higher rate mobility component from 30 June 2001 to 2 November 2002.  On 29 May 2002 a DLA claim form (DLA580) was received which the Department treated as a renewal claim made on 3 November 2002, i.e. the day after the expiry of the existing award.  On 10 July 2002 a decision maker decided that the claimant was not entitled to DLA from and including 3 November 2002.  The claimant disputed this decision.  Therefore it was reconsidered on 8 August 2002 but the decision of 10 July 2002 was not changed.  Thereupon the claimant appealed to a Tribunal.  The Tribunal disallowed the appeal.  

5.	The claimant then sought the leave of a legally qualified member to appeal to a Commissioner.  However, on 25 January 2003 such leave was refused.

6.	The claimant then sought the leave of a Commissioner to appeal.  The grounds set out relied on the fact that, in his submission, various medical professionals had agreed that he had arthritis in his knees and that, on the basis of an Examining Medical Practitioner’s report, he had previously been awarded DLA.  He also submitted that, without financial help, he could not afford to maintain a car and that it would appear that he is being discriminated against because of his age.

7.	A Commissioner granted leave on the following grounds: -

“It is arguable that the decision was wrong in law, because it is arguable that the decision of 10 July 2002 by the decision maker was ultra vires.  Accordingly it is also arguable that there was no valid decision on the renewal claim and therefore the Tribunal erred in law by taking the decision as valid.”

8.	Mr Toner, on behalf of the Department, initially made the submission that the Tribunal did not have jurisdiction in a letter dated 6 August 2003.  Mr Toner made a submission which can be summarised as follows: -

The issue of the refusal of a renewal claim before the date on which it is treated as made was considered by Mrs Commissioner Brown in the recent decision C12/03-04(DLA).  The Commissioner held that once the Department has treated a claim as made on a certain date, the only decision which can be given prior to that date is to award benefit as a claim cannot be disallowed before the date on which it is treated as having been made (paragraphs 35-39).  In the present case the decision under appeal to the Tribunal was on the renewal claim which was treated as having been made on 3 November 2002.  That claim was disallowed on 10 July 2002, more than three months before the accepted date of claim.  If the rationale in C12/03-04(DLA) is applied to this case, the decision of 10 July 2002 is ultra vires, there was no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid.

9.	The claimant has made no comment on the Department’s submissions.  

10.	In my view Mr Toner is correct in his contentions.  In addition, any other legal issues that appear to arise in this case are no longer relevant in light of the fact that the Tribunal did not have jurisdiction to hear the appeal as there was no valid decision by the Department on the renewal claim.

11.	Therefore I conclude that the Tribunal’s decision on appeal must be set aside as the original decision by the decision maker dated 30 January 2003 has no legal effect.  However the renewal claim remains to be decided by the Department.  This can be done as the date on which that renewal claim is treated as having been made has now been reached.  I wish to point out that the claimant, on being informed of the Department’s decision (which should be made as soon as reasonably possible), will have the usual appeal rights in relation to that decision.

	(Signed):  J A H Martin

	CHIEF COMMISSIONER

	6 November 2003