Decision No: C1/03-04(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 5 June 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 12 July 1996.  On her behalf her mother appeals against the decision of the Tribunal to the effect that claimant was not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from 12 July 2001.  Leave to appeal was granted by a Legally Qualified Panel Member of the Tribunal on 2 September 2002.

2.	Having considered the circumstances of the case and any reasons put forward in the request for hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	In this appeal the claimant is represented by Mr Hatton of the Law Centre (NI) while the Department is represented by Miss Fleming of the Decision Making and Appeals Unit.

4.	Both representatives agree that the Tribunal in this case erred in law.  Accordingly, at first sight this case seems appropriate to be dealt with under the provisions of Article 15(7) of the Social Security (Northern Ireland) Order 1998 which states as follows: -

“If each of the principal parties to the appeal expresses the view that the decision appealed against was erroneous in point of law, the Commissioner may set aside the decision and refer the case to a tribunal with directions for its determination.”

However, as it is not appropriate for me to refer the case to a tribunal in all the circumstances even though I find that the Tribunal’s decision was erroneous, the case cannot be dealt with under the Article 15(7) expedited procedure.  Nevertheless the matter can be dealt with fairly shortly.

5.	Miss Fleming has encapsulated the facts and the legal issues that arise from the facts in a letter dated 6 August 2003 which stated, inter alia: -

“[The claimant] had been awarded the lowest rate of the care component of Disability Living Allowance (DLA) for a period up to and including 11 July 2001.  On 23 January 2001 form DLA580 was received in the Department.  This was treated as a renewal claim from 12 July 2001, i.e. the day after the expiry of the existing award.  On 29 March 2001 a decision maker decided that [the claimant] was not entitled to DLA from and including 12 July 2001.

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 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; a claim cannot be disallowed before the date on which it is treated as having been made (paragraphs 35 –39).

In this case the decision under appeal to the Tribunal was on the renewal claim which was treated as having been made on 12 July 2001.  That claim was disallowed on 29 March 2001, over three months before the accepted date of claim.  If the rationale in C12/03-04(DLA) is applied to this case, the decision of 29 March 2001 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid.

I have already supported the appeal to the Commissioner on the basis that the Tribunal’s decision of 5 June 2002 is erroneous in law.  I would submit, for the reason set out above, that a further error has now been identified in the Tribunal’s decision.

If the Commissioner accepts this submission I would respectfully suggest that the case be remitted back to the Department to decide the renewal claim as the date on which that claim was treated as made has been reached.”

The decision C12/03-04(DLA) of Mrs Commissioner Brown was issued only on 28 July 2003 so Miss Fleming must be specifically thanked for bringing this important precedent to my attention so promptly.  Moreover I am in agreement with Mrs Commissioner Brown’s conclusions in C12/03-04(DLA).

6.	Mr Hatton specifically agreed with Miss Fleming’s submission in his letter dated 15 August 2003, in which he stated: -

“I have reviewed the Department’s further comments and also the attached decision C12/03-04(DLA).  In light of that decision, I would agree with the Department’s assertion that the decision made on [the claimant’s] claim on 29th March 2001 was ultra vires.  Further I am in agreement that the tribunal erred by treating the decision as a valid one, and that this constitutes a further error of law.

I would have nothing further to add except to say that I join the Department in respectfully suggesting that the Commissioner should consider remitting this case back to the Department to decide the renewal claim.”

7.	In my view both Miss Fleming and Mr Hatton are correct in their contentions.  In addition other legal issues that appeared to arise in earlier submissions on behalf of both parties 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.

8.	Therefore I conclude that the Tribunal’s decision on appeal must be set aside as the original decision by the decision maker dated 29 March 2001 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 also affirm Mrs Commissioner Brown’s pragmatic approach set out in paragraph 40 of C12/03-04(DLA) and point out that the claimant’s mother, on being informed of the Department’s decision (which should be made as soon as reasonably possible), will have the usual appeal rights on behalf of her daughter.

(signed):		J A H Martin QC
                                   Chief Commissioner

18 September 2003