Decision No: C29/03-04(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 13 November 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the Tribunal, affirming the decision of the Decision Maker, to the effect that the claimant is not entitled either to the care or mobility component of disability living allowance (DLA) from and including 26 August 2002.  Leave to appeal was granted by a Commissioner on 20 November 2003 on the grounds that it is arguable that the Tribunal’s decision was wrong in law, because, in light of decision C12/03-04(DLA), the Tribunal appears to have had no jurisdiction to hear the appeal.

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

3.	In this appeal the claimant is represented by Miss Lavery of McIvor Farrell, Solicitors, while the Department is represented by Miss Fleming of the Decision Making and Appeals Unit.  

4.	The claimant’s original contention was that the Tribunal had erred in law as it did not attach adequate weight to his medical conditions and that it failed to take into account facts relevant to the appeal.  However, in light of a submission made by Miss Fleming by letter dated 14 September 2003, it is clear that there is a more fundamental defect in the Tribunal’s decision.  

5.	It is appropriate for me to quote the relevant portion of Miss Fleming’s letter, in which she stated as follows: -

“[The claimant] had been awarded the lower rate of the mobility component and the middle rate of the care component of Disability Living Allowance (DLA) for a period up to and including 25 August 2002.  On 21 March 2002 form DLA580 was received in the Department.  This was treated as a renewal claim from 26 August 2002, i.e. the day after the expiry of the existing award.  On 26 May 2002 a decision maker decided that [the claimant] was not entitled to DLA from and including 26 August 2002.

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 26 August 2002.  That claim was disallowed on 26 May 2002, three months before the accepted date of claim.  If the rationale in C12/03-04(DLA) is applied to this case, the decision of 26 May 2002 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid.

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.”

6.	The claimant and his representative were informed of this submission made on behalf of the Department but have made no specific comments in reply.

7.	In my view Miss Fleming is correct in her contentions.  Moreover, the other legal issues that appeared to arise out of the submissions made on behalf of the claimant 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 26 May 2002 has no legal effect.  However, the renewal claim remains to be decided by the Department.  This can now be done as the date on which that renewal claim is treated as having been made has now been reached.  In the circumstances I consider that it is appropriate for me to point out that the claimant, on being informed of the Department’s decision (which should be done as soon as reasonably possible), will still have the usual appeal rights.

(signed):	J A H Martin QC
Chief Commissioner

13 January 2004