Decision No: C8/03-04(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 September 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case is a child born on 4 March 1997.  On his behalf his mother appeals against the decision of the Tribunal to the effect that the claimant was not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from 4 March 2002.  Leave to appeal was granted by a Commissioner on 9 July 2003.

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 Loughrey 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 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 set out the facts and the legal issues that arise from the facts in a letter dated 6 August 2003 where she stated, inter alia: -

“[The claimant] had been awarded the middle rate of the care component of Disability Living Allowance (DLA) for a period up to and including 3 March 2002.  On 10 October 2001 form DLA580 was received in the Department.  This was treated as a renewal claim from 4 March 2002, i.e. the day after the expiry of the existing award.  On 3 February 2002 a decision maker decided that [the claimant] was not entitled to DLA from and including 4 March 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 4 March 2002.  That claim was disallowed on 3 February 2002, one month before the accepted date of claim.  If the rationale in C12/03-04(DLA) is applied to this case, the decision of 3 February 2002 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid.

I would therefore resile from my earlier submission of 15 April 2003 opposing the application and for the reason stated above I would now support the appeal.

If the Commissioner accepts my 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.	As stated in her letter, Miss Fleming had originally opposed the appeal but, in light of decision C12/03-04(DLA), she took an entirely different approach to the case.

7.	By letter dated 11 September 2003 Miss Loughrey stated, in reply to Miss Fleming’s contentions, as follows: -

“Having considered those observations together with Commissioners decision C12/03-04(DLA) we concur with both the view expressed and the course of action suggested.”

8.	In my view both Miss Fleming and Miss Loughrey 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.

9.	Therefore I conclude that the Tribunal’s decision on appeal must be set aside as the original decision by the decision maker dated 3 February 2002 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 point out that the claimant’s mother, on being informed of the Department’s decision (which should be done as soon as reasonably possible), will still have the usual appeal rights on behalf of her son.

(signed):	J A H Martin QC
			Chief Commissioner

27 October 2003