Decision No:  C2/07-08(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 27 July 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against a decision dated 27 July 2006 of an appeal tribunal sitting at Belfast.  The tribunal disallowed the claimant’s appeal against a departmental decision dated 7 July 2005 disallowing disability living allowance (DLA) from and including 2 June 2005.

2.	I grant leave.  Both Ms Loughrey of the Law Centre (Northern Ireland), representing the claimant and Ms Fleming of Decision Making Services branch, representing the Department have expressed the view that the said decision is in error of law.  There is some discrepancy in their grounds for so doing.  Common to them, however, and the reason why I grant leave is that an issue arises that the tribunal misapplied section 72(2)(b) and section 73(9)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  These relate to the prospective conditions for DLA.  The representatives were at one in their submission as to the nature of the misapplication.  Both submitted that the tribunal had reached conclusions as to what had actually happened after the date of claiming DLA rather than as to what was likely at the date an award would begin which (per decisions CDLA/2878/2000 and C5/05-06 (DLA)) had to be considered by reference to what was likely at the date of claim.

3.	Both representatives have consented to my treating the application as an appeal and determining any questions arising thereon as if they arose on appeal.

4.	I do consider that the tribunal erred as submitted in that it misapplied section 72(2)(b) and section 73(9)(b) as submitted above.  The tribunal has set out in the first paragraph of its reasoning:

“The issue is whether any resulting mobility or care needs persisted throughout the qualifying periods, ie till January 2006.”

	The remainder of the reasoning then considers what did happen rather than what was likely at the date an award would begin.  I am, therefore, albeit with considerable reluctance, driven to the conclusion that the tribunal did err in misapplying the relevant provisions in that it did not focus on what was likely to happen and I set its decision aside for that reason.

5.	What actually did happen is not of course irrelevant to the consideration required under section 72(2)(b) and section 73(9)(b).  As Mr Commissioner Angus stated in CDLA/2878/2000 (paragraphs 7 and 8):

“7.	Section 12(8) of the 1998 Act provides:-

“In deciding an appeal under this section, an appeal tribunal –
(a)…and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”.

The Secretary of State’s representative argues that the tribunal has not breached section 12(8)(b).  What it did was to consider the evidence available at the date of its decision in order to establish what were the circumstances prevailing at the time at which the claim for benefit was made and decide what was likely at that time.  She refers to Commissioners’ decisions CIB/4792/99, CDLA/14396/96 and CIB/5978/97 as authority for her view that the tribunal was entitled to exercise hindsight in that way.

8.	I do not think that the claimant had section 12(8)(b) in mind but I agree with the Secretary of State’s representative that that provision does not prevent a tribunal from using evidence which becomes available after the date of the adjudication officer’s or the Secretary of State’s decision to decide what were the prevailing circumstances at or before the date of that decision.  That is made clear in CDLA/2934/99 and CDLA/4734/99 which both deal with the effect of section 12(8)(b).  Both decisions point to the distinction between the evidence which is to be gathered from a change in circumstances arising after the date of the decision under appeal and the changed circumstances themselves.”

6.	A decision-maker or a tribunal may consider the evidence available at the date of its decision in order to establish what were the circumstances prevailing at the time at which the claim for benefit was made and decide whether sections 72(2)(b) and 73(9)(b) were satisfied at that time.  It is not prevented from so doing by Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 which is the Northern Ireland equivalent of section 12(8)(b) of the Social Security Act 1998 referred to by Mr Commissioner Angus.  There is, as he states, a distinction between the evidence which is to be gathered from a change in circumstances arising after the date of the decision under appeal and the changed circumstances themselves.  It is only the latter which is forbidden by Article 13(8)(b).

7.	Ms Loughrey put forward another ground of appeal.  This was that the reasons were inadequate as to how the tribunal had dealt with the conditions of entitlement to the care component.  The Department opposed this ground.  I agree with the Department that there is no merit in that ground.  It is quite apparent that the tribunal relied, as it was entitled to do, on the medical evidence and considered that evidence (particular reliance is placed on Mr McCelland’s findings and on the level of biceps and triceps power) was indicative of ability to prepare and cook a main meal and was self-caring to a degree which prevented satisfaction of the relevant conditions.  I consider there to be no merit in this ground.

8.	For the reasons given above the decision is set aside. Both representatives have requested that I remit this matter to a differently constituted tribunal.  I do not consider that this is a case where I should give the decision which the tribunal could have given.  With its medical and disability expertise the tribunal is the more suitable body to do this.  I therefore remit the matter to a differently constituted tribunal for rehearing and re-determination.  I direct that tribunal to bear in mind the views set out above and in CDLA/2878/2000 and C5/05-06(DLA).

9.	The claimant should not take the setting aside of the said decision as indicative of the likely substantive outcome of his appeal.

	(signed):  M F Brown

	Commissioner

	29 May 2007