Decision No: C37/03-04(DLA)(T)

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 June 2003

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.	This is an appeal by the claimant, with the leave of Mrs Commissioner Brown, against the decision of the appeal tribunal sitting at Downpatrick on 30 June 2003 (“the appeal tribunal”). For the reasons which we give, that decision is not erroneous in point of law. Accordingly, the appeal fails.

2.	The appeal was the subject of a hearing which took place before us in Belfast on 8 June 2004. The claimant was not present but he was represented by Miss Jacqui Loughrey of the Law Centre NI. The Department was represented by Mr David Morrison of the Decision Making Services. We are grateful to both Miss Loughrey and Mr Morrison both for the assistance which they gave us during the hearing and for their carefully researched written submissions.

Overview

3.	This appeal is concerned with the renewal of an award of disability living allowance. It highlights a problem that arises in relation to the renewal of such awards. The regulations permit a renewal application to be made up to six months before the renewal date. It is not in doubt that an award can be made before the renewal date. The issue before us is whether the claim can be refused before that date? The issue is one on which there is currently a divergence of views between the Northern Irish Commissioners and those in Great Britain. We propose examining that divergence. The matter is one of general importance. Apart from matters of comity and a requirement to interpret identical legislation consistently throughout the United Kingdom, decisions of Commissioners in Great Britain are not binding in this jurisdiction. They are persuasive only. However, the views of the Commissioners in Great Britain are contained in a decision of a Tribunal of Commissioners, a composite decision in CDLA/2751/2003, CDLA/3567/2003 and CDLA/3725/2003. Such a decision is authoritative in Great Britain and deserves respect here. Tribunals in Northern Ireland are, in the circumstances, entitled to guidance of equal authority. The point is not an easy one and, in exercise of the powers conferred upon him by Article 16(7) of the Social Security (Northern Ireland) Order 1998, the Chief Commissioner directed that this appeal should be dealt with by a Tribunal of Commissioners. 

4.	For avoidance of doubt we add this. As will become clear, an associated point is whether, when a decision is given in advance of the renewal date and that decision is appealed, the tribunal which hears the appeal can take account of circumstances not obtaining at the time when the decision appealed against was made but occurring before the renewal date, for example, a heart attack, an unsuccessful operation or some other deterioration in an appellant’s health. Here there is no divergence between the two sets of Commissioners who are at one in their view that, in deciding an appeal, circumstances not obtaining at the date of the decision under appeal cannot be taken into consideration even if they come into existence before the renewal date. That, however, is not an issue which is before us and we have heard no argument on the point. That being so, nothing we say in this decision extends to the particular point.

5.	It is appropriate to say a few words about the benefit known as disability living allowance. The statutory basis for disability living allowance is, now, contained in sections 71 to 76 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  The benefit consists of two components, namely, a care component and a mobility component.  It is important to note that section 71(3) provides that a person may be awarded either component for a fixed period or for an indefinite period. If, however, his award of disability living allowance consists of both components, he may not be awarded those components for different fixed periods.  If a person’s disability caused care or mobility needs are static or likely to deteriorate then, if he or she is entitled to either component, that component should be awarded for an indefinite period (see the guidance given by the then Chief Commissioner in R 1/95 (DLA) at paragraph 5).  An indefinite award will, of course, come to an end when the person receiving it dies.  There are powers enabling the Department to supersede such an award so as to vary the amount of the award or to terminate it altogether, if this should prove appropriate.  However, in many cases it will not be appropriate to make an indefinite award but rather an award for a fixed period.  

6.	It is important to appreciate that disability living allowance is not awarded on the grounds of disability alone.  Disability is a pre-condition but an applicant for benefit must go further and show that, as a result of disability, he or she has care or mobility needs falling within one or more of the categories prescribed by statute.  Thus, in the immediate aftermath of a serious accident, a person may have a great many care needs.  However, these may be expected to diminish as the victim’s recovery progresses and he or she learns to cope with residual disabilities.  There will be many other cases where changes may be expected.  In R 1/95 (DLA) the then Chief Commissioner mentioned the problems which arise in relation to children.  As a child grows and develops the effect of his or her disability may change.  The disabling condition may worsen or it may ameliorate or even disappear altogether.  Again, the child may become able to take responsibility for his or her own care.  That is highly desirable since it means that such a child is then able to live an independent life.  However, it may then become appropriate either to reduce the level of benefit or to stop it altogether. There are cases where the way ahead is wholly unclear at the time when a decision has to be made.  A person may, in time, make a fairly full recovery from a serious illness or accident or may not and instead be left with a significant disability or serious care needs.  We mention these matters because they demonstrate the wide range of circumstances where a fixed award may be appropriate.

7.	Payment of benefit will cease at the end of the fixed term period unless the person receiving benefit has made a successful application for the award to be renewed.  We assume that there must be cases where, as the expiration of the period approaches, a conscious decision is made not to reapply for benefit because of an improvement in health or a decrease in care needs.  However, such cases are, by their nature, not recorded and form no part of the statistics.  What is known is that very great numbers of those given fixed period awards do apply to renew those awards.  In many cases, no great problem arises.  The need to renew will be obvious as will be the level at which benefit is to be re-awarded.  However, in other cases, and these are some of the most difficult for decision makers and tribunals to determine, there will be acute issues both as to whether renewal is appropriate and, if it is, at what level.  It will, therefore, come as no surprise that the legislation makes provision for an application to renew to be made well in advance of the date when the existing award will expire.  Regulation 13C of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (SR 1987/465) provides as follows:

“(1)	A person entitled to an award of disability living allowance may make a further claim for disability living allowance during the period of 6 months immediately before the existing award expires.

(2)	Where a person makes a claim in accordance with paragraph (1) the Department may –

(a)	treat the claim as if made on the first day after the expiry of the existing award (“the renewal date”); and

(b)	award benefit accordingly, subject to the condition that the person satisfies the requirements for entitlement on the renewal date.

(3)	A decision pursuant to paragraph 2(b) to award benefit may be revised under Article 10 of the Social Security (Northern Ireland) Order 1998 if the requirements for entitlement are found not to have been satisfied on the renewal date.”

(The corresponding provision in Great Britain is regulation 13C of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968.)

8.	The power to make that provision is conferred by section 5(1) of the Social Security Administration (Northern Ireland) Act 1992 (which corresponds to section 5(1) of the Social Security Administration Act 1992 in Great Britain).  The section is as follows.

“(1)	Regulations may provide –

(a)	for requiring a claim for benefit to which this section applies to be made by such a person, in such manner and within such time as may be prescribed;

(b)	for treating such a claim as made in such circumstances as may be prescribed as having been made at such date earlier or later than that at which it is made as may be prescribed;

(c)	for permitting such a claim to be made, or treated as made, for a period wholly or partly after the date on which it is made;

(d)	for permitting an award on such a claim to be made for such a period subject to the condition that the claimant satisfies the requirements for entitlement when benefit becomes payable under the award;

(e)	for any such award to be revised under Article 10 of the Social Security (Northern Ireland) Order 1998, or superseded under Article 11 of that Order, if any of those requirements are found not to have been satisfied;

(f)	for the disallowance on any ground of a person’s claim for a benefit to which this section applies to be treated as a disallowance of any further claim by that person for that benefit until the grounds for the disallowance have ceased to exist;
…”
(In Great Britain the provisions corresponding to Articles 10 and 11 Social Security (Northern Ireland) Order 1998 are sections 9 and 10 respectively of the Social Security Act 1998).

9.	It is clearly advantageous that there should be a power to decide these renewal claims in advance.  An obvious reason is that such a power ensures continuity of benefit in those cases where entitlement continues.  However, renewal claims can often present peculiar difficulties, for example, and this is a common occurrence, where there is a conflict of evidence as to whether an applicant needs the same level of help as hitherto.  It is, therefore, both sensible and humane to try and deal with all these matters by or within a short time of the expiration of the existing award so that an applicant knows where he or she stands and can organise his or her life accordingly. Clearly a power to decide claims in advance is an extremely important power. Hence the period of six months within which renewal claims may be made.  If a renewal claim is made well within that period it should normally be possible to dispose of the claim in advance of the renewal date.

10.	However, there is a problem.  Prior to the Social Security (Northern Ireland) Order 1998 (and the Social Security Act 1998) there existed a concept, largely devised by Commissioners, known as the “down to the date of hearing rule”.   The concept was that if the refusal decision was appealed the claim continued in existence until it was finally disposed of.  The rule was confirmed by a Tribunal of Great Britain Commissioners in R(S) 2/98; see especially paragraphs 10 to 13.  It had a number of consequences.  If the claim persisted down to the date of the decision, then it fell to be decided on the facts as they were at the date of the hearing before the tribunal.  Thus, to take a rather obvious example, a person with a deteriorating condition might make a claim for a disability living allowance.  The matter would come before an adjudication officer - the predecessor of the modern decision maker - who might decide that matters were not sufficiently serious to merit an award.  The applicant then appealed and by the time the appeal came before a tribunal there had been a further deterioration in his condition. The tribunal was entitled to take that deterioration into account because of the down to the date of hearing rule.  Consequently it could determine the claim on the basis of the appellant’s condition down to and including the date of hearing.  It would, of course, be required, if it thought that the adjudication officer’s decision was correct, to identify the point between that decision and the tribunal’s own ruling when the applicant’s condition reached the point where it merited an award.  

11.	The reaffirmation of the rule by the Tribunal of Commissioners in R(S) 2/98 did not meet with government approval and steps were taken to change the law.  These are contained in the Social Security (Northern Ireland) Order 1998 (and the Social Security Act 1998). The relevant provisions give rise to the problem we have mentioned and lie at the heart of what we have to decide.  The Tribunal of Commissioners decided that a claim continued in existence notwithstanding the fact that an adjudication officer had rejected it.  The legislation reversed that rule by two, complementary, Articles in the 1998 Order.  These were Article 9(2) and Article 13(8)(b).  Article 9(1) of the 1998 Order (section 8(1) of the 1998 Act) is a fundamental provision because it provides that subject to the provisions of Chapter II of the Order, it is for the Department to decide any claim for a relevant benefit.  Article 9(2) (section 8(2)) then goes on to provide as follows:  

“(2)	Where at any time a claim for a relevant benefit is decided by the Department -

(a)	the claim shall not be regarded as subsisting after that time; and

(b)	accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.”  

12.	Article 13 (and section 12 in Great Britain) deals with appeals from decision makers to tribunals.  Article 13(8) (section 12(8)) is as follows:

“(8)	In deciding an appeal under this Article, an appeal tribunal – 

(a)	need not consider any issue that is not raised by the appeal; and

(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

The words “circumstances not obtaining at that time” and “any circumstances not obtaining at the time when the decision appealed against was made” should be noted.  

13.	For completeness, and because this is an appropriate point at which to do so, we set out the wording of Article 10(1) of the 1998 Order. It will be recalled that Article 10(1) is referred to in regulation 13C(3) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.

“10	(1)	… any decision of the Department under Article 9 or Article 11 may be revised by the Department –

(a)	either within the prescribed period or in prescribed cases or circumstances; and

(b)	either on an application made for that purpose or on the Department’s own initiative;

and regulations may prescribe the procedure by which a decision of the Department may be so revised.”

14.	We hope that the difficulties are beginning to emerge. Amongst other considerations the legislation contains a logical difficulty. Regulation 13C of the Claims and Payments Regulations says that “a further claim for disability living allowance [may be made] during the period of 6 months immediately before the existing award expires” and goes on to say that the Department may “treat the claim as if made on the first day after the expiry of the existing award” and may “award benefit accordingly”, although this is subject to “the condition that the person satisfies the requirements for entitlement on the renewal date”. Against that, Article 13(8) and the corresponding Article 9(2) of the 1998 Order preclude the taking into account of “any circumstances not obtaining at the time when the decision appealed against was made”. We accept, of course, that regulation 13C(3) of the Claims and Payments Regulations empowers the revision of an award “if the requirements for entitlement are found not to have been satisfied on the renewal date”.

The facts of the present appeal

15.	We shall return to the divergence of view between Commissioners but, before we do so it is appropriate to set out the facts of the present appeal. The claimant is a man aged 52 years. He has suffered from chronic alcoholism for many years. In 1998, he underwent a period of treatment as an in-patient in hospital. Unfortunately the treatment was not successful. At about that time he applied for, and received, an award of disability living allowance. The award consisted of the lower rate of the mobility component and the middle rate of the care component. The period of the award ran from 28 August 1998 until 27 August 2002. In accordance with the normal scheme set out above unless the claimant applied to renew the award, and was successful, the last day for which he would receive disability living allowance was 27 August 2002.

16.	He made his renewal claim in good time. It was received by the Department on 24 April 2002. That is, about four months before his existing award was due to expire. The claimant described his problems as alcoholism, depression and anxiety. The claim was investigated and, on 16 May 2002, a report was obtained from his general practitioner. In our view, that report was not supportive of the claim. To be more precise, it confirmed that the claimant was suffering from alcoholism and depression. However, as mentioned above, disability living allowance is not awarded on the grounds of disability alone. An applicant for benefit must go further and show that, as a consequence of his disability, he satisfies the statutory criteria set out in sections 72(1) and 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The general practitioner's report did not demonstrate that those criteria had been satisfied.

17.	On 25 May 2002, a decision maker gave the decision now under appeal. This was to the effect that the claimant was not entitled to either component from and including 28 August 2002. As no supersession decision was made, that left in being his existing award which continued until 27 August 2002.

18.	The claimant expressed dissatisfaction with that decision and asked for the matter to be reconsidered. He also asked that a report be obtained from the hospital psychiatrist who was treating him on a regular basis. On 8 October 2002, a report was obtained from the psychiatrist's senior house officer. That report does not, we think, take matters very far. On 22 October 2002, the decision of 25 May 2002, was reconsidered but was not revised. The claimant appealed on 19 November 2002. His grounds of appeal were that he continued to suffer from alcoholism and depression and that, rather than improving between 1998 and 2002, his condition had worsened.

19.	After an abortive hearing on 7 April 2003, the claimant's appeal was heard by the appeal tribunal on 30 June 2003. The claimant attended together with his representative and his former wife. The claimant and his former wife gave evidence. In addition, the claimant's general practitioner's notes and records were before the appeal tribunal. That body accepted that the claimant suffered from alcohol dependence with associated depression and anxiety but found that he had no physical disabilities. It did so in the following terms:

“We accept that [the claimant] suffers from chronic alcohol dependence with associated depression and anxiety. He has no physical disabilities….”

(these words being similar to those used by the claimant himself when answering the question “What are your illnesses or disabilities?” in the claim form which he completed.) The appeal tribunal considered that there was a conflict of evidence between the claimant's own evidence and the medical evidence. In giving its reasons it resolved that conflict in the following way:

"… We are satisfied that the evidence in the [general practitioner's] notes is more reliable and we reject [the claimant's] evidence. Taking all this evidence into account we reject [the claimant's] contention that he needs a high level of motivation and encouragement in relation to his bodily functions. His ability to perform these activities may be compromised during his drinking binges however these are only occasionally and would not be the case most of the time. He certainly appears focused in terms of his taxi business. We agree with his General Practitioner that he could manage fairly well outdoors on his own in unfamiliar surroundings most of the time. All of the evidence points to someone who could be left unsupervised both day and night with no risk to others or of self harm. The appeal must therefore be dismissed."

20.	The claimant then applied for leave to appeal on the grounds that the decision of 25 May 2002, had been given some months before the renewal date. Consequently, the refusal to award benefit from that date was contrary to decision C12/03-04 (DLA). Particular reliance was placed on paragraphs 35 to 39 of the decision. We shall refer to this as the claimant’s original ground of appeal. Leave to appeal was granted by a legally qualified panel member. Shortly thereafter the claimant sought to rely on further grounds of appeal. These were that the appeal tribunal had failed to apply the correct legal test for an award of the care component because it was unclear from its reasons whether it accepted, firstly, that the claimant had a severe mental disability and, secondly, why it decided that he did not have a physical disability. Reliance is placed on C64/96(DLA) (a decision of Mr Commissioner McNally), in particular at paragraph 9 and on CDLA/778/2000 (A Great Britain decision of Miss Commissioner Fellner) in particular at paragraph 12 onwards. It is also asserted that the tribunal failed to make adequate findings of fact and failed to give adequate reasons for its decision.

21.	We propose to proceed by looking at the claimant’s original ground of appeal and then, towards the end of this decision, to deal with his other grounds. Consideration of his original ground involves consideration of the divergence of views between Mrs Commissioner Brown in C12/03-04(DLA) and the Tribunal of Commissioners in Great Britain in CDLA/2751/2003 et al. If the former view is right then the claimant’s appeal must succeed. If the latter view is right his original ground of appeal must fail.

The three decisions giving rise to the divergence of views

22.	The first of the three decisions to which we wish to refer is CDLA/3848/2001. This is a decision of Mr Commissioner Turnbull in Great Britain. It involves the associated point which does not arise in the present appeal and which has not been argued before us, namely, whether circumstances “not obtaining at the time when the decision appealed against was made”, but which occurred before the renewal date, can be taken into account. We nevertheless mention it because it is the starting point of the debate. The appellant in the appeal was in receipt of a periodic award of disability living allowance. The period in question expired on 5 July 2001. She submitted a renewal claim in good time but the claim was unsuccessful. On 28 February 2001, a decision maker decided that she was not entitled to either component from 6 July 2001. She appealed the decision. 

23.	For present purposes the point in the appeal was that there was evidence before the tribunal which heard the appeal of deterioration in the appellant’s condition by the beginning of May 2001, and that her general practitioner had referred her back to a specialist for investigation. Mr Commissioner Turnbull addressed the question whether evidence as to changes in the appellant’s condition after the date of the decision (28 February 2001) was admissible. He reached the conclusion that it was, notwithstanding section 12(8) of the Social Security Act 1998 (Article 13(8) of the 1998 Order). His reasoning is set out in paragraphs 13 to 15 of his decision. We do not set it out, or attempt to summarise it, for two reasons. First, the particular point is not in issue before us. Secondly, Mrs Commissioner Brown in C12/03-04(DLA) and the Tribunal of Commissioners in Great Britain in CDLA/2751 et al were in agreement that Mr Commissioner Turnbull’s reasoning was flawed. They were further in agreement that effect must be given to section 12(8) (Article 13(8)) and consequently circumstances not obtaining at the date of the decision under appeal cannot be taken into account by a tribunal. Mr Commissioner Turnbull was not, it should be appreciated, embarking on some frolic of his own. The appeal before him required him to face up to what is perceived to be a contradiction in the legislation, namely, the conflict between regulation 13C of the Claims and Payments Regulations and sections 8(2) and 12(8) of the 1998 Act (Articles 9(2) and 13(8) of the 1998 Order). He was attempting to reconcile these provisions in a way that was both fair and workable.

24.	In C12/03-04 (DLA) Mrs Commissioner Brown was concerned with an unsuccessful renewal claim. The appellant in that appeal had an award of disability living allowance which expired on 30 June 2001. He applied to renew that award with effect from 1 July 2001, in good time but he was unsuccessful. On 9 March 2001, the Department decided that he was not entitled to either component from and including 1 July 2001. The period between that decision and the date of renewal was in excess of three months. The appeal to a tribunal was unsuccessful and the appellant appealed to a Commissioner. His own grounds went to the sufficiency of the evidence and the way in which the tribunal had dealt with that evidence. Mrs Commissioner Brown had little hesitation in rejecting such grounds - see paragraph 34 of her decision.

25.	The Commissioner was, however, concerned at the fact that the renewal claim had been rejected in advance of the renewal date. After directing, and then considering, submissions on the point she allowed the appeal on the basis that the Department had no power to refuse renewal claims in advance of the renewal date although it did have power both to make an award in advance and also to supersede the existing award, so as to terminate it, and having done so to reject the renewal claim. Fundamental to the Commissioner's decision was her conclusion that power to make regulation 13C(2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, arose under section 5(1) of the Social Security Administration (Northern Ireland) Act 1992, but that section 5(1), when properly analysed, did not confer power to reject claims in advance. 

26.	The core of Mrs Commissioner Brown's reasoning is set out in paragraphs 35 to 37 of her decision. Since we are unanimous in differing from those views it is appropriate that we set those paragraphs out in full. The italics are, however, ours:

“35.	To come to the legislation concerning renewal claims, Section 5(1)(b) and regulation 13C(2)(a) does permit a renewal claim to be treated as if made on the first day after the expiry of the existing award. Regulation 13C(2)(a) stands alone (as the semicolon at the end of it indicates). It is not conditional on an award being made under regulation 13C(2)(b). However the more fundamental matter is whether there was any authority (once the date of claim was deemed to be the renewal date) for deciding the claim in advance.  There is certainly authority for making an award (section 5(1)(d) and regulation 13C(2)(b)). In neither section 5 nor regulation 13C could I find authority for a refusal of a claim before the date it was treated as made. Section 5 and regulation 13C(2)(b) and (3) enable the Department to make conditional awards and revise them if the requirements for entitlement are found not to have been satisfied on the renewal date. Clearly therefore the awards can be made to come into effect after the date the award is actually made. Section 5 contains no enabling power to refuse claims. That is in Article 9(1) which puts the duty on the Department to decide a claim for a relevant benefit. Section 5(1)(a) requires claims for benefits to be made, as prescribed, for those benefits which it covers (this includes DLA). Section 5(1)(b) allows the Department to treat a claim for benefit as having been made on a date earlier or later than it was actually made. (In this case the Department treated the claim as made on the renewal date as it was entitled to do). Section 5(1)(c) permits claims for benefit (I agree with Mrs Gunning here) [Mrs Gunning appeared for the Department] to be made, or treated as if made, for a period wholly or partly after the date on which it is made. Section 5(1)(d) permits advance conditional awards on claims made or treated as made for periods after the date of claim. Finally, section 5(1)(e) permits the revision of such awards.

As there is no power to make advance refusals under section 5, I must consider Article 9(1) to ascertain if it permits such refusals. Mrs Gunning is correct that Article 9 does not prohibit such refusals. Indeed it does not refer at all to dates or periods of claims. It simply obliges the Department to decide claims. It gives no power for the Department to decide a claim in advance of the date that claim is made - that would be an impossibility. Equally it gives no power for the Department to decide a claim in advance of the date it is treated as made. The only power to do that is in Section 5.

Once the Department has treated a claim as made on a certain date, it cannot, in my view, decide the claim in advance of that date except as permitted by section 5. Section 5 contains no express power to make advance refusals. I consider that to be significant as it contains an express power to make advance awards. It is easy to understand why advance awards would be permitted. It enables there to be some certainty and continuity for those suffering long-term disability. It is less easy to see why advance refusals would be permitted. If a claimant makes a renewal claim and it is treated as made on the renewal date (as here) and it is considered in advance that the claimant will not satisfy the conditions at the renewal date, there is a risk of injustice to a claimant. He could worsen between the date of decision and the renewal date (which is claimed to have happened here). However, by reason of Article 9(2)(a) and (b) his claim could not be regarded as subsisting after the date of decision and he could not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at the date of decision.

It is perfectly proper that a claimant who does not continue to satisfy the conditions of entitlement up to the renewal date should have his DLA award superseded and terminated prior to the renewal date. That is not, however, as I understand it, the Department's practice. What it does is to treat the claim as made on the renewal date and allow the existing award to run to that date but make an advance refusal to make a new award. So essentially either on the basis of evidence as to the situation during the currency of the existing award (which appears to be the case with most refusals) or as to what the situation is likely to be once that existing award comes to an end, the Department makes its refusal decision on the renewal claim. Once that decision is made, even though the claimant's situation should worsen before the date the claim is treated as made (which is the same date as the advance refusal takes effect) it cannot alter its decision without a new claim being made. So a claimant who does not satisfy the conditions for the award at the date of the decision on the renewal claim continues to receive the existing award up till its expiry date, even though he no longer satisfies the conditions. That situation is a cause of some concern but it is not part of what I have to decide here. I am concerned only with the power to make advance refusals.

36.	 I do not consider that Article 9(1) permits a claim to be refused before the date it is made or treated as made. Neither do I consider that section 5 permits this to be done. Once, therefore, a claim is treated as made on a particular date as was done here where the claim was treated as made on 1 July 2001 (the renewal date) the only decision on that claim which could be given prior to that renewal date was to make an award. If it was the intention not to make an award the Department had the option of superseding or not superseding the existing award. If it did not supersede, it had to hold off making a decision on the renewal claim until the date the claim was treated as made (i.e. until the renewal date.) There was no power to make an advance refusal.

37.	It appears to me that the Department in this case was entitled to treat the renewal claim as if it was made on the first day after the expiry of the existing award (the renewal date). To that extent I agree with Mrs Gunning. It was not, however, entitled to make an advance refusal. The refusal decision was therefore ultra vires. That being so it does not appear to me that there has been any valid decision made on the renewal claim. The Tribunal was in error in treating the decision as valid. I set its decision aside for that reason. No decision maker’s decision having been made on the renewal claim, I am not in a position to deal with that matter. I direct the Department to make a decision on the renewal claim as quickly as possible.”

27.	Mrs Commissioner Brown then turned, in paragraph 38 of her decision, to consider Mr Commissioner Turnbull’s decision CDLA/3848/2001, which had been drawn to her attention. She expressed the firm view that the Commissioner’s reasoning could not stand and explained her reasons with care and in detail.

28.	Following Mrs Commissioner Brown’s decision, the Chief Commissioner in Great Britain set up a Tribunal of Commissioners to which he referred three appeals – namely, CDLA/2751/2003, CDLA/3567/2003 and CDLA/3725/2003. The Tribunal of Commissioners gave a single decision dealing with all three appeals. The decision proceeded on the basis that there was in substance no difference between the relevant Great Britain primary and subordinate legislation and that applicable in Northern Ireland. We accept this and so proceed. In paragraph 2 of the decision the Tribunal of Commissioners set out the questions which it was required to address.

“2.	These three appeals all arise out of renewal claims for disability living allowance made in advance under regulation 13C of the Social Security (Claims and Payments) Regulations 1987.  Between them, they raise two questions of general importance.  Firstly, on an appeal against a decision made prospectively by the Secretary of State, is the tribunal precluded by section 12(8)(b) of the Social Security Act 1998 from taking account of changes of circumstances occurring between the date of the Secretary of State’s decision and the renewal date?  This question arises in the third appeal before us, where the tribunal declined to take account of the actual consequences of the claimant having had part of his leg amputated between the date on which the Secretary of State awarded benefit and the renewal date from which the award was effective, although they did take account of those consequences that they considered could reasonably have been anticipated at the time of the Secretary of State’s decision.  Secondly, does the Secretary of State have power to disallow a claim prospectively, as he did in each of the first two appeals before us?  At the hearing before us, the appellants were represented by Mr Stewart Wright of the Child Poverty Action Group and the Secretary of State was represented by Mr David Forsdick of Counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.”

In the present appeal we are only concerned with the second of these questions.

29.	The Tribunal of Commissioners, having set out the relevant legislation, then turned to the first of the questions. It considered both Mr Commissioner Turnbull’s CDLA/3848/2001 and C12/03-04(DLA) and disapproved of his reasoning. Having done so, the Tribunal then concluded its analysis of the first question in the following terms:

“18.	 Finally, we do not accept Mr Forsdick’s additional submission that section 12(8)(b) of the 1998 Act must be read as being subject to section 5 of the 1992 Act, because we reject his premise that the provisions are in conflict.  There is only a conflict if he and Mr Wright are correct in assuming that determining a claim in advance necessarily, as a matter of practicalities, requires the Secretary of State to take account of anticipated changes of circumstances in order to make a prediction as to what the claimant’s circumstances will be at the renewal date.  We do not accept that that is so.  The suggestion in CIB/4751/02 et al., at paragraphs 106 and 107, that a renewal claim requires prediction was made without full argument and consideration of the implications of section 8(2)(b), and we consider it to be wrong.

19.	In our judgment, applying sections 8(2) and 12(8)(b) to decision-making on those prospective claims permitted by regulations under section 5(1)(b) to (e) is perfectly consistent with sensible decision-making.  There is nothing inherently unreasonable in requiring prospective claims to be determined on the basis of circumstances obtaining at the time of the decision and requiring further action, in the form of revision, supersession or a new claim, if circumstances change.  On the contrary, there is much to be said for prohibiting speculation, which is what section 8(2)(b) does.

20.	However, there is no element of speculation or prediction in the Secretary of State having regard to the effect on entitlement to benefit of the mere passage of time between the date of his decision and the renewal date.  In our judgment, section 8(2)(b) does not preclude him from, for example, taking account of the fact that, by the renewal date, the three-month qualifying period for a particular rate of benefit will have elapsed or the claimant will have attained a certain age.  Those are the inevitable consequences of there being no change in the circumstances obtaining at the time of the decision.  That the effluxion of time is not a change of circumstances for this purpose is supported by the language of regulation 13A of the 1987 Regulations which permits a prospective award on an initial claim for disability living allowance where the Secretary of State is of the opinion that “unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day … not more than 3 months after the date on which the claim is made” (our emphasis).  Also, nothing we have said should be taken to amount to disagreement with R(DLA) 3/01 in which Mr Commissioner Jacobs explored the way section 12(8)(b) of the 1998 Act operates on an appeal from the Secretary of State where he was not satisfied that it was “likely” at the date of his decision that the claimant would continue to satisfy the conditions of entitlement to disability living allowance for six months from the date of an initial award (see sections 72(2)(b) and 73(9)(b) of the Social Security Contributions and Benefits Act 1992).”

30.	The Tribunal of Commissioners then turned its attention to the second issue which it had identified:

“21.	In reality, the opportunity for speculation would not arise very often even if the 1998 Act had not come into force.  By their nature, most renewal claims for disability living allowance are made in respect of long-standing conditions, many of which are chronic and not likely to be subject to substantial variations in the six months before the renewal date.  However, the possibility that there might be variations seems to have been one consideration that led Mrs Commissioner Brown to hold in C12/03-04(DLA) that the Secretary of State was not entitled to disallow a renewal claim before the renewal date.  Mr Wright argued that we should follow Mrs Commissioner Brown’s decision on this issue, whereas Mr Forsdick submitted that we should not.

22.	Mrs Commissioner Brown’s principal ground for deciding that the Secretary of State had no power to disallow a renewal claim until the renewal date was the lack of any power in section 5(1) of the 1992 Act or in regulation 13C to disallow a claim prospectively, whereas there are references to awards. We have already explained … that regulation 13C(2)(b) does not contain a power to make an award because the power to make an award is implicit in the duty to decide a claim, imposed by the 1998 Act.  Equally, the power to disallow a claim is implicit in the duty to decide it.  It follows that we disagree with Mrs Commissioner Brown’s approach.  We agree with Mr Forsdick that the duty to determine a claim imposed by sections 1 and 8(1) of the 1998 Act involves a duty to do so without undue delay and, where the Secretary of State has no particular reason to anticipate that there will be a change of circumstances, we also agree with Mr Forsdick that it is to the advantage of a claimant as well as the Secretary of State that a decision to disallow a renewal claim should be made at the earliest possible date.  That is because the claimant is then enabled to challenge the decision, just as he or she can where an award is made that he or she regards as inadequate.  If authority is required, it can be found in R(S) 5/80, to which Mr Forsdick referred us, where a Tribunal of Commissioners held that similar regulations making provision for conditional awards to be made in advance did not preclude the making of disallowances in advance.

23.	Mrs Commissioner Brown’s second ground for deciding as she did was a view that there would be injustice unless a new claim were to be made.  There would, indeed, be injustice if no new claim could be made, but as there is no injustice in requiring a new claim in a case where the Secretary of State had no reason at the time of his decision to suppose there would be a change of circumstances, we do not regard this as a reason for holding that the Secretary of State should never disallow a renewal claim until the renewal date.

24.	We accept, however, that different considerations may apply in those few cases where the Secretary of State does have grounds for anticipating that there is likely to be a significant change of circumstances that will have an impact on the claimant’s entitlement to disability living allowance at the renewal date.  In some such cases, it may well be good practice to defer making a decision until it is known whether the change has materialised.  Whether this is so in any particular case does not depend on whether the claimant’s current circumstances would, in the Secretary of State’s opinion, merit an award or a disallowance or whether the anticipated change is likely to increase or decrease the amount of benefit to which the claimant is entitled.  More important may be the question whether the claimant has specifically relied on the anticipated change, which may perhaps be what Mrs Commissioner Brown had in mind in referring specifically to disallowances.  On the other hand, it will always remain open to the Secretary of State to decide a claim immediately and either mark the file for consideration of revision or supersession later or to leave the claimant to apply for supersession or make a new claim (perhaps, in some cases, specifically drawing attention to that possibility), depending on the circumstances.  We do not consider that the fact that the Secretary of State has not deferred the making of a decision is ever likely by itself to invalidate the decision because the claimant would always be entitled to apply for supersession or make a new claim.  Furthermore, where the anticipated change of circumstances is an increase in the extent of the claimant’s physical or mental disablement so that he or she may become entitled to benefit at a higher rate than the current award, it will not be necessary to defer making a decision much beyond a date three months before the renewal date, because the effect of sections 72(2)(a) and 73(9)(a) of the Social Security Contributions and Benefits Act 1992 is that such a change of circumstances does not have any impact on entitlement to benefit until three months has elapsed.  

25.	We also accept Mrs Commissioner Brown’s suggestion that disallowing prospectively a renewal claim on the basis of the circumstances obtaining at the date of the decision will always raise the question whether the existing award should be superseded.  However, that is equally the case where an award is made prospectively at a different rate from the existing award and so it does not justify taking different approaches to disallowances and awards.  Further, as a view of a decision-maker that a different award is appropriate from the renewal date does not necessarily imply a ground for supersession of the existing award, supersession will not always be appropriate, particularly where the new award is less favourable to the claimant than the old award.  

26.	Accordingly, while we see some force in Mrs Commissioner Brown’s comments, we do not agree that they lead to the conclusion that the Secretary of State has no power to disallow a renewal claim prospectively and we therefore consider that C12/03-04(DLA) should not be followed.”

31.	It is now conceded by the Department that decision R(S)5/80, a closely reasoned decision of a Tribunal of Commissioners in Great Britain, was not drawn to Mrs Commissioner Brown’s attention. The Department goes on to submit that had its reasoning been made known to her it would have led her to the conclusion reached by the Tribunal of Commissioners in CDLA/2751/2003.  The submission is rightly made and there is force in it.

Our view

32.	Having had the benefit of the views of the Commissioners who decided CDLA/2751/2003 et al and heard argument on the correctness of their reasoning we are of the unanimous view that, on the question of whether a disability renewal claim can be legitimately refused before the renewal date, the views of those Commissioners are to be preferred to those of Mrs Commissioner Brown in C12/03-04(DLA). The Department does not have to wait until the renewal date before refusing such a claim. Tribunals in Northern Ireland should so proceed. It will, we hope, be obvious that in reaching this conclusion we have had the advantage of considerably greater citation of authority and more advanced arguments than were available when C12/03-04(DLA) was decided. The immediate consequence of the view we take is that, in the present appeal, the claimant’s original ground of appeal fails.

33.	We are convinced by the reasoning of the Commissioners who decided CDLA/2751/2003 et al, and which we have set out above. We have also become convinced that if the Department could not determine renewal claims either way serious problems would, eventually, emerge. The legislation expressly provides for renewal claims to be made up to six months before the renewal date. That it does so is clear, deliberate and for obvious purposes. From the Department’s viewpoint it enables renewal claims to be disposed of in an orderly manner and without undue haste. On the other side, those in receipt of disability living allowance include many who are seriously ill or disabled, old or otherwise disadvantaged. They are entitled to know where they stand as soon as reasonably possible. All the more so where the renewal claim has been made in good time. It would be highly anomalous if the Department could only determine claims in advance by making awards. Those whose applications are rejected are just as entitled to know their position as those who are successful. Indeed more so since they are going to lose what is often a major source of income. Consequently they may need to make considerable adjustments to their lives. Further, once an applicant knows that a claim has been rejected and, which is of great importance, the reasons why, he or she can take appropriate steps. In many cases applicants can respond to the reasons by clarifying what they originally said or by supplying further evidence. This may or may not lead to the original decision being revised in their favour. If not, an appeal can be made. The sooner these processes can begin the better. If a decision refusing benefit is not to be made until the renewal date then no further steps can be taken until the decision is made and communicated. In such event, if a claim ultimately succeeds there will usually have been a period of some months while the person concerned is without benefit. That would be particularly hard on someone who has taken the trouble to make an application well in advance of the renewal date.

34.	A further difficulty involves the manner in which the Department would have to process applications. Article 9(1) requires the Department to decide any claim for relevant benefit. No time limit is imposed but on general principles the Department must do so within a reasonable time. What is a reasonable time will depend on the circumstances. Some claims require more detailed consideration than others. There may be all sorts of reasons for delaying or deferring a decision, an obvious one being the need to complete medical tests or investigations which a person may be undergoing. However, in the absence of reasons for delay, claims should normally be determined with all reasonable speed. All the more so if made well in advance as permitted by the regulations. If the Department can only decide claims one way before the renewal date, and cannot refuse them, how is it to proceed? We think that it would not be right for it to defer the consideration of all renewal claims until just before the relevant renewal dates. If it did it would make a mockery of the six months period in regulation 13C. However, it would be anomalous if it were to give a decision only in those cases where it was clear that an award could be made and deferred giving a decision in all cases where it became apparent either that an award could not be made or that this was a possible outcome. It would, we think, be distasteful if it “made” a decision in all cases but did not communicate refusals until the relevant renewal dates. In any event, the failure to determine a renewal claim within a reasonable time would alert representatives and those with knowledge of the practice to the possibility that the claim be refused. They would, very properly, seek to discover from the Department the reasons why the claim was likely to be refused. Alternatively, they would make a guess and submit further material in pursuance of that guess. Such a position would not, in our view, be either satisfactory or fair.

35.	A further thought occurs. Reference has been made to the possibility, when a renewal claim is made, of the Department looking again at the existing award in the light of the new evidence submitted in support of the renewal claim or obtained by the Department when considering such a claim. The process may involve a decision to supersede the existing award so that the level of benefit is increased, reduced or terminated altogether. We are concerned with the last of these possibilities. The Tribunal of Commissioners in Great Britain and Mrs Commissioner Brown were at one in considering that a renewal claim could be refused before the renewal date if the existing award was brought to an end by a supersession decision.  Whether or not to make such a decision will be a matter for the Department.

The other grounds of appeal

36.	It is submitted that the appeal tribunal failed to follow the correct legislative test for an award of the care component. Attention is drawn to the fact that the appeal tribunal said that it accepted that the claimant suffered from chronic alcohol dependency with associated depression and anxiety but it also said that the claimant had no physical disabilities. It is submitted that it is unclear whether or not the appeal tribunal accepted, first, that the claimant had a severe mental disability and, secondly, why it decided that he did not have a physical disablement. Reference is made to decisions C64/96 (DLA) and CDLA/778/2000, a Great Britain decision. Particular reference is made to paragraph 19 of the latter where Miss Commissioner Fellner, referring to the evidence of a specialist in the treatment of alcoholism and a medical text book, said:
	
“19.	I do not think I have any choice, on the evidence before me, but to accept that alcohol dependency is capable in itself of being a physical or a mental disability, or both, and that to dismiss it as merely the result of weak will or a defective character is too summary. …”

The emphasis is that of the Commissioner herself.

37.	We are satisfied, first, that the appeal tribunal accepted that the claimant suffered from alcohol dependency and, secondly, that it considered that in his particular case his dependency was a mental disability and not a physical one. The appeal tribunal had regard to the medical evidence, to parts of which we have referred, and it also saw and heard the claimant give his evidence. We consider that the conclusions which it reached were ones which it was entitled to reach on the basis of the material available to it. In paragraph 20 of CDLA/778/2000, Miss Commissioner Fellner also said the following:

	“20.	But I also endorse Mr Commissioner Walker’s (and Miss Powick’s) view that misuse of alcohol is a condition where medical evidence is of crucial importance.  Each case must be looked at individually, and in the absence of convincing medical evidence adjudicating authorities should be slow to accept a claimant’s unsupported assertion (or an assertion supported only by members of his immediate circle) that there is alcohol dependency requiring some level or another of DLA. It is not impossible, and the evidence does not require me to accept, that everyone who drinks to excess, so as to cause embarrassment and inconvenience to themselves and those around them, should be unable to stop.  I appreciate that there will be some instances where a person has fallen through the net of support services; but if he has managed to claim DLA, he is to be expected, like every other claimant, to acquire the evidence to make out his case.”

(Miss Powick appeared for the Secretary of State before Miss Commissioner Fellner).

The claimant also refers to C64/96(DLA). However, that appeal was a case where, despite evidence of care needs, the tribunal below was sceptical as to whether the appellant’s alcoholism was a sufficient disability. Mr Commissioner McNally decided that the tribunal had taken too restrictive view of the matter and that the necessary disability had been shown. On the evidence before him he awarded benefit. The present appeal is the reverse. The appeal tribunal accepted the diagnosis but decided that the claimant’s care needs were not sufficient to merit an award. We are satisfied that sufficient consideration was given as to whether the claimant suffered from a physical or a mental disablement.

38.	Next, it is submitted that inadequate reasons have been given. We do not accept that this is the case. The issue before the appeal tribunal was not one of diagnosis. The appeal tribunal accepted that the claimant had serious problems with alcohol. The issue which it had to determine was whether, as a result of those problems, the claimant had care or mobility needs of sufficient magnitude so as to bring him within the provisions of the statute. The appeal tribunal decided that he did not and explained why. Although the reasons given are expressed shortly we find them adequate and convincing in relation to both the care and the mobility components. Criticism is made of the appeal tribunal for enquiring about activities other than those relating to the claimant’s care and mobility needs. It is perfectly proper for a tribunal to seek to build up a picture of an appellant’s lifestyle and general level of ability. A Tribunal is entitled to make findings and draw inferences as to care and mobility needs from the answers obtained. For example, someone who says that they are unable to cook a main meal may accept that they have hobbies involving many actions similar to those used in cooking. The ability to perform those actions may be directly relevant to the ability to cook. Again, it is not uncommon for appellants to claim that they need guidance and supervision when walking outside due to confusion but to admit that they are able to drive. In the present appeal we consider that the appeal tribunal made perfectly proper use of the information which it obtained and reached conclusions which it was entitled to reach.

39.	We accordingly dismiss the appeal for the reasons which we have given.

(signed):
J A H Martin QC
Chief Commissioner

(signed):		
M F Brown
Commissioner

(signed):
		J P Powell
Deputy Commissioner

25 February 2005