Decision No: C22/95(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of
the Disability Appeal Tribunal
dated 7 December 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by Mr G L Shaw, the Adjudication Officer now concerned with the case, against the decision of the Disability Appeal Tribunal sitting at Belfast, whereby it was decided that the Tribunal had no jurisdiction to entertain an appeal against a purported review decision which was held to be invalid.

2.	The rather involved background facts are as follows:-

	(a)	By decision dated 21 August 1992 the Adjudication Officer awarded the claimant the higher rate of the mobility component of disability living allowance from 18 April 1992.  

	(b)	A further claim, submitted on 1 June 1993, included details relating to the care component, and this was treated as an application for a review of the original decision.  A GP's factual report was obtained and the claimant was seen by an Examining Medical Practitioner.  Thereafter the Adjudication Officer on 30 January 1994 reviewed the original decision of 21 August 1992 and decided that, from and including 24 April 1992 the claimant was entitled to the higher rate of the mobility component but was not entitled to any rate of the care component.  In the decision of 30 January 1994 there was no reference to the reports from the claimant's GP or the Examining Medical Practitioner; but it was held that the conditions of entitlement to the higher rate of the mobility component had been satisfied from 24 January 1992.  Allowing for the 3 month qualifying period, this meant that the award could not commence until 24 April 1992.  The original decision of 21 August 1992 was said to have been erroneous in point of law in that the correct qualifying period had not been imposed and the question of entitlement to the care component of disability living allowance had not been considered.

	(c)	On the same date, (30 January 1994), the Department requested a review of the decision of 30 January 1994 on the grounds that, as and from 16 December 1993, (the date of the Examining Medical Practitioner's report), the claimant no longer satisfied the conditions for the receipt of any component.

	(d)	By decision dated 14 February 1994 an Adjudication Officer - apparently the same one who had given the decision on 30 January 1994 - purported to review that decision and revise it so as to disallow both components from and including 16 December 1993.  It was said that the decision dated 30 January 1994 could be reviewed on any ground because the application for review had been made within 3 months of its notification to the claimant, and extensive reliance was placed upon the contents of the Examining Medical Practitioner's report of 16 December 1993.

	It was this decision of 14 February 1994 which, as stated in paragraph 1 above, the Tribunal held to have been invalid.  

3.	The grounds of Mr Shaw's appeal are that the Tribunal erred in law in deciding that they had no jurisdiction to determine the appeal.  As I understand it, his argument is that, in considering whether there were any grounds for the review of the decision of 30 January 1994, the Tribunal erred by addressing the wrong issue.  They should have considered whether the decision of 30 January 1994 had been correct in the sense that valid and proper grounds for a review of the original decision of 21 August 1992 had been established.  In other words the request for a review made within 3 months of the decision of 30 January 1994 did not open the door to a review on any grounds of the substantive decision in the case; but only enabled the Adjudication Officer to consider whether there were any grounds for holding that the decision of 30 January 1994 had been incorrectly reached.  I may say that the claimant's representative, Mr Stockman of the Law Centre (NI), agrees that this is the correct approach to an application for review under section 28(1) of the Social Security Administration (Northern Ireland) Act 1992, (the Administration Act), where the decision to be reviewed is itself a review decision under S.28(2).  As he has pointed out, if that were not the position, the restrictions on review could be entirely by-passed by the simple expedient of applying immediately for a section 28(1) review.  The Tribunal were not, however obliged to confine their consideration to the question of whether the grounds for review upon which the decision of 30 January 1994 had been based were valid grounds within the terms of S.28(2); they could also have gone on to consider whether there were any other valid S.28(2) grounds upon which the decision of 30 January 1994 might have been based.

4.	Mr Shaw further submitted that the request for a review dated 30 January 1994 was also intended to raise the question of the possible withdrawal of the claimant's entitlement to benefit by virtue of the provisions of regulation 17(7) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, (the Claims and Payments Regulations), which states that "in any case where benefit is awarded in respect of days subsequent to the date of claim, the award shall be subject to the condition that the claimant satisfies the requirements for entitlement; and where those requirements are not satisfied the reward shall be reviewed."

	It was said that, applying this provision, the Tribunal should have considered whether, on all the evidence, the claimant's entitlement to benefit should be terminated.  Mr Shaw then went on to discuss the question of the date from which any such termination should take effect, and other ancillary matters arising from the application of the provisions of regulation 17(7).

5.	Mr Stockman submitted detailed and helpful comments on the appeal in his letter of 21 July 1995.  I do not propose to set them out in detail in this decision; but briefly he accepted that the Tribunal had been wrong to base their decision on the absence of grounds to review the decision of 30 January 1994.  He nevertheless maintained that they had been correct to decide that the Adjudication Officer's decision of 14 February 1994 was invalid and that consequently the decision of 30 January 1994 still stood.  In Mr Stockman's submission the principal defect in the decision of 14 February 1994 was that, in breach of section 28(11) of the Administration Act, the purported review was carried out by the same Adjudication Officer who took the decision dated 30 January 1994.  On the further question of the absence of grounds for review, he agreed with Mr Shaw that the correct issue was whether proper grounds had been established for the review on 30 January 1994 of the original decision of 21 August 1992.  

6.	By letter dated 21 November 1995, Mr Shaw expressed his further views upon the relationship of regulation 17(7) of the Claims and Payments Regulations to the Attendance Allowance and Disability Living Allowance adjudication system.  Having previously been of the opinion that a decision made under regulation 17(7) was effectively made under section 28(2) of the Administration Act, he now submitted that it was section 28(2)(e) which enabled an Attendance Allowance or Disability Living Allowance decision to be reviewed on the ground that a claimant no longer satisfied the requirements for entitlement to an existing award.  Section 28(2)(e) reads as follows:-

		"28(2)  On an application under this section made after the end of
		the prescribed period, a decision of an Adjudication Officer under
		section 19 above which relates to an attendance allowance or a disability
		living allowance may be reviewed if -

		(e)	the decision was to make an award wholly or partly after the
			date on which the claim was made or treated as made but 
			subject to a condition being fulfilled and that condition has
			not been fulfilled."

	It was pointed out that there was no equivalent provision for other benefits and it was suggested that this was the proper basis for the review of an award on the grounds of non-satisfaction of the requirements for entitlement.  

7.	I held an oral hearing which was attended by Mr Shaw and Mr Stockman.  

	Mr Shaw accepted that there had been a breach of the provisions of section 28(11) of the Administration Act in that the purported review of 14 February 1994 had been carried out by the same Adjudication Officer who had conducted the earlier review of 30 January 1994.  That Adjudication Officer had no jurisdiction and, albeit for the wrong reason, the Tribunal had been correct to hold that his decision was invalid.  The Tribunal had however been wrong to decide that they had no jurisdiction.  Although the Adjudication Officer's decision of 14 February was invalid, it was nevertheless effective until it was so declared.  Mr Shaw further maintained that if the review of 14 February 1994 had been carried out by a different Adjudication Officer, one of the matters which should have been considered was whether there were grounds for review as in section 28(2)(e) of the Administration Act.  In Mr Shaw's submission the effect was the same as if the condition now to be found in regulation 17(7) of the Claims and Payments Regulations was being applied, and this meant that, subject always to satisfaction of the required onus of proof, it would have been open to the Adjudication Officer to arrive at a different decision on the same evidence as before.  There was no need for any relevant change of circumstances.  As it happened, there was in the present case a wealth of additional evidence in the GP's factual report and the report of the Examining Medical Practitioner, which would have justified review on the grounds of mistake or change but that was coincidental.

8.	As already indicated Mr Stockman was in broad agreement with Mr Shaw's views on the issues which arose when the review was requested of the Adjudication Officer's decision of 30 January 1994.  If a different Adjudication Officer had undertaken that review, he should first have considered whether there were any section 28(2) grounds for the review of the original decision which would have justified the decision of 30 January 1994.  However, on the subject of review on the grounds of non-satisfaction of the conditions of entitlement Mr Stockman did not agree that S.28(2)(e) of the Administration Act gave effect to the provisions of Reg 17(7) of the Claims and Payments Regulations and thus enabled a different decision to be given on the same facts as before.  In his submission regulation 17(7) does apply to disability living allowance cases; but a decision on the question of non-satisfaction of the conditions of entitlement was in his view a decision made under sections 18 and 19 of the Administration Act, which could not be appealed to a Tribunal without first undergoing a review under section 28(1).  Mr Stockman continued to maintain that on any showing the purported review of 14 February 1994 was invalid in that there had been a clear breach of the provisions of section 28(11).  The Adjudication Officer who made the decision of 30 January 1994 had no power to conduct the further review on 14 February 1994 and accordingly, although the Tribunal had erred in law, they had arrived at the correct result.

9.	The primary issue in this appeal is a simple one.  Having studied the case file I am satisfied that the Adjudication Officer who conducted the review on 14 February 1994 was the same person who had taken the decision of 30 January 1994.  There was therefore a clear breach of the provisions of section 28(11) of the Administration Act and I agree that for this reason the purported review of 14 February 1994 was invalid.  The Appeal Tribunal reached the same conclusion but for a different reason, which in the terms in which it has been recorded, was erroneous in law.  If there had been no question of a breach of section 28(11) of the Administration Act, the Tribunal should have considered whether there were grounds for the review of the original decision of 21 August 1992 which justified the decision of 30 January 1994, and it occurs to me that this was probably what the Presenting Officer invited them to do.  Instead, the Tribunal incorrectly based their decision on an absence of grounds for the review of the decision of 30 January 1994.  As the Appeal Tribunal's decision was erroneous in law, I allow the appeal and set the decision aside.  I consider however that this is a case in which it is expedient that I should make further findings of fact and, in exercise of my powers under sections 21(7) and 32(4) of the Administration Act, give the decision which the Appeal Tribunal should have given.  I accordingly adopt the Appeal Tribunal's findings of fact except that for paragraph 4 of those findings I substitute the following:-

		"On 30 January 1994 an Officer of the Department requested a review
		of the Adjudication Officer's decision of 30 January 1994 and on
		14 February 1994 the same Adjudication Officer purported to review
		that decision and disallow both components of disability living
		allowance from and including 16 December 1993."

	My decision is that the appeal against the purported review decision of
	14 February 1994 is allowed as that decision was invalid, and that
	accordingly the decision of 30 January 1994 still stands.  The reason
	for my decision is that the purported review decision of 14 February
	1994 is invalid because, in breach of the provisions of S.28(11) of the 
	Administration Act, it was carried out by the same Adjudication
	Officer who took the decision dated 30 January 1994.  

10.	There remains the more difficult question of what action should now be taken in relation to the review decision of 30 January 1994 in respect of which the Department on the same date, requested a review on the grounds that, as from 16 December 1993, the customer no longer satisfied the conditions for the receipt of any component.  Mr Shaw and Mr Stockman accepted that this was in effect a request for a review under the provisions of regulation 17(7) of the Claims and Payments Regulations; but there was disagreement as to how those provisions should be applied.  Fortunately, assistance has been forthcoming in the shape of a recent decision of a Tribunal of GB Commissioners, a copy of which was made available to me by Mr Shaw after the date of the first oral hearing.  The decision concerns the effect and proper application of the GB equivalent of regulation 17(7) of the NI Claims and Payments Regulations.  In an earlier Tribunal decision, R(S) 5/89, it had been held that the regulation made provision for a separate system of review, independent of the normal powers of review under the Act itself.  This interpretation had led to unforeseen complications, and having given the matter careful consideration, the Tribunal in the recent case reached the conclusion that it was incorrect.   The following paragraphs from the appendix to decision CSIS/137/94 serve to explain the Commissioners' views.  They also make it clear that the question of the application of the provisions of regulation 17(7) to disability living allowance cases was addressed.  

		"18.	The fundamental question is whether regulation 17(4) 
		provides for its own separate and independent jurisdiction for
		conducting reviews of entitlement, as held by the Commissioners
		in R(S)5/89, regardless of whether any other provision for 
		review would also be available in the circumstances.

		19.	We have reached the conclusion, after a full reconsideration
		of the statutory provisions and the existing authorities, that 
		this is mistaken, and that the function of regulation 17(4) is
		limited to making mandatory a review of a future or continuing
		award under the normal review powers, once it appears that the
		requirements on which the award was based are not, or are no
		longer, satisfied.

		23.	Regulation 17(4) does not purport to set up a separate
		system of review, and in our view that is not its effect.  There
		is no mention of who is to conduct a review or of whether or
		how the review decision may be challenged on appeal, or itself
		further reviewed should it turn out for example to have proceeded
		on a mistaken basis; all matters which the normal review 
		provisions cover in detail, and would need to be mad e clear by
		an independent review provision if such had been intended.

		24.	Moreover since regulation 17(4) is not confined to awards
		within the general adjudication system only, to hold that it 
		created a separate and independent review system would produce
		the result that in disability cases the use of this separate 
		procedure would be mandatory when the requirements for benefit 
		ceased to be satisfied during the currency of an award, even
		though this would by-pass the specific provisions of sections
		30-35 of the Act for successive reviews and rights of appeal
		to a disability appeal tribunal, and would leave the claimant
		without any right of appeal to a tribunal at all, since neither 
		section 22 nor section 33 would apply.  We have been left 
		unpersuaded that there is any satisfactory answer to the 
		practical problems and anomalies to which the "independent" 
		construction of regulation 17(4) appears to us to give rise.

		25.	Nor in our view is there any practical need for attempting
		to infer that a separate review jurisdiction was intended to be 
		introduced by regulation 17(4) when it contains nothing express
		to suggest this.  If the condition about the "requirements for
		entitlement" on which the relevant award is based turns out not
		to be satisfied (either at the starting date of an award or
		subsequently), then the award itself is bound either to have
		been based on a mistake of fact or law, or to depend on the
		continuance of circumstances which have materially changed.  In
		particular we are unable to see how the requirements for 
		entitlement under an award, having initially been satisfied,
		could cease to be so without this also representing a relevant
		change of circumstances within the normal provisions for review.
		All the relevant possibilities appear to us already to be 
		covered by sections 25, 30 and 31, which expressly allow for
		regulations that require a mandatory review without anyone
		applying for it, specify clearly who is to conduct the review,
		and provide for proper rights of appeal and further review
		where necessary.

		Conclusions on how regulation 17(4) relates to sections 25, 30
		and 31

		26.	For the reasons just given, we reach the clear conclusion
		that regulation 17(4) creates no separate review jurisdiction
		that can operate independently of sections 25, 30 and 31, and 
		that in every case where the regulation applies it does so by
		making a review mandatory under whichever of the normal 
		provisions is appropriate."

	If I may say so, I consider this to be a most helpful decision with which I find myself in full agreement. 

11.	The views expressed by Mr Shaw and Mr Stockman on the function of regulation 17(7) of the Claims and Payments Regulations and the effect of a request for a review within its terms must now be considered in the light of the decision discussed in the preceding paragraph.  At my request Mr Shaw and Mr Stockman have made further written submissions on the effect of this decision, and once again I express my thanks to them for their assistance.  

12.	In his letter of 18 July 1996, Mr Shaw has explained in detail why the GB decision has not caused him to alter his earlier view that section 28(2)(e) of the Administration Act 1992 gives a general power to the Adjudicating Authority to reconsider the whole question of the claimant's entitlement to attendance allowance or disability living allowance.  There is, in his opinion, no requirement to look at any of the other possible grounds for review and it is sufficient for the Adjudicating Authority merely to identify one of the entitlement conditions which is not satisfied.  Having given this matter full consideration I find myself unable to accept this interpretation of the effect of section 28(2)(e) of the Administration Act.  I would acknowledge at once that it is difficult to envisage circumstances to which the paragraph was intended to apply; but it seems to me that the wording is such that it could only have effect in those special cases in which there is an advance award, expressed to be subject to the future fulfilment of a condition of some kind, which is never in fact fulfilled.  A normal award of attendance allowance or disability living allowance is not expressed in such terms, and I cannot accept that section 28(2)(e) of the Administration Act has a far-reaching effect for which Mr Shaw contends.  I am also of the opinion that Mr Shaw's suggested interpretation is in direct conflict with decision CSIS/137/94.  It is correct to say that the Commissioners did not investigate in detail the consequences of their decision for attendance allowance and disability allowance claims, but there is no reason to assume that this aspect of the case was overlooked, and indeed there are a number of references to the GB equivalent of our section 28 of the Administration Act.  I am also of the opinion that paragraph 25 of the appendix to their decision demonstrates clearly that the Commissioners did not accept that there was any need for a provision which might enable an award to be withdrawn unless there had been ignorance of or a mistake of fact or law or a relevant change of circumstances.  I repeat that, in my view, whatever its meaning and effect, section 28(2)(e) of the Administration Act was not intended to apply to what I would term the normal, run-of-the-mill award of disability living allowance.

13.	Broadly speaking, Mr Stockman was in agreement with the views expressed by the GB Commissioners in CSIS/137/94, and he accepted that if a different Adjudication Officer had conducted the review of 14 February 1994, he could have examined the grounds for review and reached the disallowance decision arrived at, either by upholding the grounds for review identified by the previous Adjudication Officer in the decision of 30 January 1994, or on the basis of alternative grounds such as ignorance of a material fact or relevant change of circumstances.  He did not suggest that the provisions of section 28(2)(e) of the Administration Act had the far-reaching effect for which Mr Shaw contended.  

14.	The involved and somewhat unusual facts of this case, and the complexities of the legislation, have effectively prevented me from dealing with this appeal in a simple and straightforward manner.  I will, however, do my best to explain my views on how matters stand at present, and what action is now required.

	(a)	Although this appeal has been allowed, I have, in effect, come to the same conclusion as the Appeal Tribunal, namely that the purported review decision of 14 February 1994 was invalid, and that the decision dated 30 January 1994 still stands.  Technically, the Tribunal were wrong to hold that they had no jurisdiction.

	(b)	The Department's request for a review dated 30 January 1994 should be submitted to a different Adjudication Officer from the one who made the decision of the same date.

	(c)	Although the request for the review dated 30 January 1994 was obviously made within 3 months of the date of the decision of the same date, the Adjudication Officer conducting the review will be restricted to consideration of whether there were valid grounds for the review decision of 30 January 1994.  Such grounds were those set out in section 28(2) of the Administration Act and accordingly the Adjudication Officer will not have the freedom to review on any grounds which he would normally have on a review within 3 months of an initial award of benefit.  

	(d)	The fact that the request for a review dated 30 January 1994 was expressed in terms of regulation 17(7) of the Claims and Payments Regulations does not affect the situation.  The powers to review are the normal powers set out in the Administration Act, which are in no way enlarged by the provisions of regulation 17(7).

	(e)	Any party dissatisfied with the decision on review, conducted in accordance with sub-paragraphs (c) and (d) above may appeal to a Disability Appeal Tribunal.

	(Signed): R R Chambers

	CHIEF COMMISSIONER

	14 August 1996