[2009] NISSCSC C22_08_09(DLA) (02 March 2009) 

Decision No: C22/08-09(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 10 December 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the 	tribunal.  The tribunal allowed the claimant’s appeal in relation to the care 	component of disability living allowance (DLA) by awarding the lowest rate 	from and including 1 October 2006 until 3 May 2007.  The tribunal also 	disallowed the claimant’s appeal in relation to the mobility component of 	DLA and affirmed the decision that the appellant is not entitled to either 	mobility component from and including 1 October 2006.

2.	Leave to appeal was granted by a Commissioner on 9 December 2008 for 	the following reasons:

“It is arguable that the decision was wrong in law, because there is 	a contradiction between the reasons, set out by the legally qualified 	member, for the tribunal’s decision (which states that the claimant 	was not entitled to the care component of disability living allowance 	(DLA)) and the notice of decision (which states that the claimant 	was entitled to the lowest rate of the care component of DLA from 	10 October 2006 to 3 May 2007).”

3.	Having considered the circumstances of the case I am satisfied that the 	appeal can properly be determined without a hearing.  The claimant has 	represented herself while Mr S Toner, of Decision Making Services, 	represents the Department.

4.	The claimant has identified some issues in relation to the past history of 	her awards of DLA.  However, these do not amount to errors of law and, 	even if they can be established, the fact that I am remitting this case to 	another tribunal for other reasons, any confusion in the mind of the 	claimant and/or the Department can be clarified before that tribunal.

5.	Mr Toner has, by letter dated 11 July 2008 drawn my attention to a 	fundamental error in the tribunal’s decision.  The claimant’s claim from 1 	October 2006 was received on 20 July 2006 and, on 18 October 2006, 	was disallowed by the decision-maker.  On 10 December 2007 the tribunal 	decided that the claimant was not entitled to the mobility component from 	and including 1 October 2006. The finding, however, in respect of the care 	component is confusing in that it is recorded in the reasons for decision 	that “the tribunal is satisfied that she is not entitled to any care component 	of Disability Living Allowance” whereas on the notice of decision it is 	recorded that the claimant “is entitled to the lowest rate of the care 	component of DLA from and including 1.10.06 to 3.5.07”.  In addition, the 	reasoning set out in the statement of reasons supports a conclusion that 	the tribunal intended to decide that the claimant was not entitled to the 	care component of DLA.

6.	However, there is a clear contradiction between the statement of reasons 	and the record of proceedings which cannot be treated as if it were merely 	the result of a typing error.  Accordingly I hold that it is an error in law.  

7.	Mr Toner has submitted, by letter dated 21 November 2008, that the 	appropriate course for a Commissioner to take is to make a decision, in 	accordance with the provisions of Article 15(8)(a) of the Social Security 	(Northern Ireland) Order 1998, disallowing both components of DLA from 	and including 1 October 2006, as he submits that that is the decision the 	tribunal ought to have made.  However, I consider that it is not appropriate 	for me to exercise such a power in this case as, having recognised the 	inherent contradiction, it seems to me that it would be unfair not to permit 	the claimant to bring the case before a fresh tribunal to enable that tribunal 	to come to an unambiguous and clear decision on the issues in this case.  	Such a course would also have the advantage of enabling the Department 	and the claimant to clarify the claimant’s claim history, as Mr Toner has 	demonstrated in his submissions of 11 July 2008 that the claimant and the 	Department have totally different views about that history.

8.	In the circumstances, for the reasons set out herein, I conclude that the 	tribunal’s decision was erroneous in point of law.  Accordingly I allow the 	appeal and set the tribunal’s decision aside.  In the circumstances I refer 	the case to a differently constituted tribunal for a rehearing on the merits.  I 	also direct that the Department in its written submission to the tribunal 	includes a record of the claimant’s relevant claim history from January 	2004 onwards, in so far as the information is relevant to the issues in this 	case.

	(Signed):  J A H Martin QC

	CHIEF COMMISSIONER

	2 March 2009