Decision No: C5/05-06(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 28 October 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	This is an appeal, leave having been granted by me, by the claimant against a decision dated 28 October 2004 of an appeal tribunal sitting at Belfast.  That tribunal disallowed the claimant’s appeal and decided that he was not entitled to disability living allowance (DLA) from and including 20 June 2003 (date of claim).  It does not appear that the claimant had had any earlier award of DLA and I proceed on that basis.  That being so the award could not have begun earlier than the date of claim.  The claimant developed a back condition, claimed DLA on 20 June 2003 and underwent surgery for the condition in October 2003.

2	The tribunal disallowed the appeal. It gave as part of its reasons that even if it had accepted that the claimant satisfied the three month qualifying period at the date of claim (and I can find no indication that it actually did so accept) the six month prospective period condition was not satisfied.  It determined whether or not this prospective period condition was satisfied by looking at the situation at 3 December 2003 the date of a post-operative medical review.

3	The prospective period condition is set out in section 72(2)(b)(i) (for the care component) and section 73(9)(b)(i) (for the mobility component) of the Social Security (Contributions and Benefits) Act (Northern Ireland) 1992.  Both the claimant and Mr Sloan of Decision Making Services expressed the view that the tribunal erred in its application of that condition.  The error was that in considering whether the prospective period condition was satisfied the tribunal did not consider the matter by reference to the circumstances at the date an award would begin as was required by the said provisions.	

4	I agree that the tribunal erred as contended by the parties and set the tribunal’s decision aside as in error of law for that reason.  The tribunal considered what had happened as opposed to what was likely at the date of claim.  The prospective period condition requires that a person be likely to satisfy one of the disability conditions for a period of 6 months beginning with the date an award would begin.  That must be considered by reference to what was likely at the date of claim.  I do not consider that this is a case where it is expedient that I give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for re-hearing and re-determination.

5	I direct the new tribunal to consider whether any of the disability conditions were satisfied at the date of claim.  If those conditions were not satisfied it need go no further.  If, however, the said conditions were satisfied the tribunal should then apply the qualifying period condition set out in section 72(2)(a) and section 73(9)(a).   If that qualifying period condition is not satisfied, the tribunal need go no further.  If, however, it is satisfied the tribunal should find and record the date when an award would begin and then apply the prospective period condition set out in section 72(2)(b) and section 73(9)(b).  These qualifying and prospective conditions apply to each component.  The tribunal should note that the said conditions are framed by reference to the date an award would begin.   This may of course be the date of claim.  It cannot be earlier (unless section 76 applies).

6	The tribunal should have before it decision CDLA/2878/2000 (a decision of Mr Commissioner Angus, in Great Britain).

7	The claimant put forward other grounds of appeal but in light of my decision above it is not necessary that I comment on same.  The claimant wins his appeal.

M F Brown

Commissioner

19 September 2005