[2006] NISSCSC C7_04_05(DLA) (18 April 2005)

Decision No:  C7/04-05(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 18 August 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal (leave having been granted by the legally qualified panel member) by the Department against a decision dated 18 August 2003 of an appeal tribunal. That Tribunal decided (based on decision C12/03-04(DLA)) that the Department’s decision dated 20 January 2003 (the decision under appeal to the Tribunal) was void as being ultra vires.  By the decision of 20 January 2003, the Department awarded the low rate of the mobility component of disability living allowance (DLA) from 26 February 2003 to 25 February 2005 and refused the low rate of the care component DLA from 26 February 2003.  This was on foot of a renewal claim for DLA.  The claimant had a previous award which was due to expire on 25 February 2003.

2.	The Department appealed.  Its initial grounds of appeal were that the Tribunal had misinterpreted and misapplied decision C12/03-04(DLA).  The appeal was stayed pending a decision of a Tribunal of Commissioners in C37/03-04(DLA).   Following the issue of that decision the Department made further observations to the effect that C37/03-04(DLA) was authority for the proposition that the Department could decide on renewal claims for DLA in advance of the expiry of the original award.  It submitted that the Tribunal had therefore erred in law in deciding that the said decision of 20 January 2003 was ultra vires.

3.	The claimant was represented in the appeal to me by Messrs Sheridan and Co, Solicitors, who also submitted that the Tribunal had erred in law.  This submission was based on a contention that the decision dated 20 January 2003 was an advance refusal being a refusal of one of the components.  

4.	I find no merit in this last ground.  DLA is one benefit made up of different components.  (see section 71(1) and (2) of the Social Security (Northern Ireland) Act 1992).  Section 71(1) provides that DLA shall consist of a care component and mobility component.  Section 71(2) provides that there may be an entitlement to either component or to both.  A decision awarding DLA (as did the decision of 20 January 2003) cannot therefore be a refusal of DLA, albeit the benefit awarded consists of one component only.

5.	The decision in C37/03-04(DLA) did, as the Department submits, confirm that the Department can disallow a renewal claim for DLA in advance of the expiry date of the original award.  It overturns my decision in C12/03-04(DLA) in that respect.  My said decision was wrong in deciding that such advance disallowances were ultra vires.

6.	The decision of the Tribunal is in error of law for deciding that the Department’s decision of 20 January 2003 was an advance refusal of the renewal claim for DLA.  This is factually incorrect.  The decision actually made an award of DLA as set out above albeit the award consisted of only one component of the benefit.

7.	The proposition (which appears to be inherent in the claimant’s submission and to some extent in the Tribunal’s decision) that there were effectively two concurrent decisions on entitlement to DLA on 20 January 2003 is not correct.  There was one decision only and that was an award of DLA.

8.	The Tribunal’s decision was therefore in error of law firstly in treating the decision of 20 January 2003 as a refusal and secondly (following C37/03-04(DLA)) in deciding that the Department did not have power to make advance refusals of renewal claims.  It does have such power but in this case it actually made an award of DLA.

9.	I set the Tribunal’s decision aside as in error of law for the above reasons.  I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore remit this matter to a differently constituted tribunal for re-determination.

10.	The previous Tribunal determined the matter on the papers.  I direct the claimant, if she wishes the new tribunal to conduct a hearing of her appeal to let the clerk to the tribunal know in writing as soon as possible.

11.	The claimant wins her appeal.

(Signed):  M F Brown

Commissioner

18 April 2005