C32/95(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
	Belfast Disability Appeal Tribunal
	dated 20 February 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by a 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 claimant was entitled to the higher rate of the mobility component of disability living allowance and the low rate of the care component from and including 13 January 1994.

2.	This is one of those cases in which the Adjudication Officer was not present at the Tribunal hearing and had not prepared a written submission.  It is accordingly rather more difficult than usual to be certain of the background facts; but as I understand it the order of events was as follows:-

	In May 1992 the claimant submitted self-assessment forms and by decision dated 8 August 1992 the Adjudication Officer awarded her the lower rate of the mobility component of disability living allowance and the lowest rate of the care component from 6 April 1992 for life.  

	In January 1994 the claimant submitted further self-assessment forms which the Adjudication Officer treated as an application for review, - presumably under the provisions of section 28(12) of the Social Security Administration (Northern Ireland) Act 1992, (the 1992 Administration Act).  Reports were obtained from the claimant's GP and an Examining Medical Practitioner, and by a decision dated 28 March 1994 the Adjudication Officer purported to review the decision of 8 August 1992 on the grounds of error in point of law.  The revised decision was that the claimant was not entitled to either the mobility or the care component of the allowance.

	A letter from the claimant dated 7 April 1994 seeking an appeal to a Disability Appeal Tribunal was treated as a further request for a review, and in due course the Adjudication Officer on 11 August 1994 reviewed the decision of 28 March 1994; but decided that he could not revise it so as to award benefit.  It was against this decision of 11 August 1994 that the claimant appealed to the Appeal Tribunal.  

3.	As already stated, the Adjudication Officer was not represented at the Tribunal hearing.  Having found as a fact that the claimant's condition had deteriorated from 28 December 1994, the Appeal Tribunal proceeded to award her the higher rate of the mobility component and the low rate of the care component from and including 13 January 1994.  

4.	The grounds of Mr Shaw's appeal are that the Adjudication Officer should not have treated the further claim by way of the submission of self-assessment forms in January 1994 as an application for review under section 28(12) of the 1992 Administration Act.  He points out that regulation 18(1)((b) of the Social Security (Introduction of Disability Living Allowance) Regulations (Northern Ireland) 1992, (the Introduction of Disability Living Allowance Regulations), provides that a claim received during the currency of an award consisting of two components is to "be treated as not having been made".  In Mr Shaw's submission, this provision, together with the absence of any stated grounds for the request for a review as required by section 28(7) of the 1992 Administration Act, means that the Adjudication Officer had no jurisdiction to conduct the purported review of 28 March 1994, and that the Tribunal should have decided accordingly; confirming the decision of 8 August 1992.  Alternatively, Mr Shaw submits that, if the Appeal Tribunal did have jurisdiction in relation to the Adjudication Officer's decision of 11 August 1994 confirming the purported review of 28 March 1994, they erred in law in deciding that the claimant's award should commence on 13 January 1994.  The Tribunal's decision was based upon a finding that there had been a material deterioration in the claimant's condition since 28 December 1994 and, allowing for the 3 month qualifying period, entitlement could not have commenced until 28 March 1995 at the earliest.  

5.	In the claimant's written observations on the appeal submitted on her behalf by her representative, it is accepted that, having regard to the provisions of regulation 18 of the Introduction Regulations, the Adjudication Officer was in error in purporting to review the decision of 8 August 1992.  It is said that the Tribunal nevertheless had jurisdiction to correct a decision which was otherwise null and void and it is requested that the case be remitted to another Tribunal to consider whether there were grounds to review under section 28(2) of the 1992 Administration Act.  The claimant's representative also accepts that, on any showing, the Tribunal had erred in deciding that entitlement was to commence before 28 March 1995.  

6.	I held an oral hearing at which the claimant, who was present, was represented by Ms Jacqui Loughrey of Belfast Law Centre.  The Adjudication Officer in attendance was Mr Shaw.  He expressed the opinion that when the further claim was received, before taking any action, the Adjudication Officer then in charge of the case should have enquired whether the claimant wished her existing claim to be reviewed, and if so, on what grounds.  If the claimant did not object there was no reason why a review should not have been carried out; in which event the claimant's letter of appeal dated 7 April 1994 would of necessity have been treated as a request for a review in order to trigger the right of appeal under the provisions of regulation 28(1).  If that was indeed the approach adopted by the Tribunal and the assumed basis of their jurisdiction, they should first have considered whether there were grounds for the review of the original decision which justified the revised decision of 28 March 1994.  The Tribunal had erred in law in that there was nothing to indicate that they had considered that aspect of the case.  The Tribunal had also clearly erred in law in awarding benefit from 13 January 1994 on the basis of a material deterioration in the claimant's condition since 28 December 1994.  Allowing for the qualifying period the earliest date for which an award should have been made was 28 March 1995.  Mr Shaw also pointed out that it was implicit in the Tribunal's award of benefit from 13 January 1994 that the claimant did not qualify for any award from 6 April 1992 to 12 January 1994.  

7.	Ms Loughrey said that she had discussed the case with the claimant and explained to her the effect of the arguments now being advanced by the Adjudication Officer.  Having considered the matter, the claimant had now decided that she did not wish her submission of further self-assessment forms in January 1994 to be treated as a request for a review.  She had not been asked if she wanted a review or been requested to identify grounds for a review, and in those circumstances she was not prepared to consent to the course adopted by the Adjudication Officer then in charge of the case.  Ms Loughrey acknowledged that the claimant was being somewhat technical in relying upon the strict application of the provisions of regulation 18 of the Introduction of Disability Living Allowance Regulations, the effect of which was that all decisions subsequent to that of 8 August 1992 were and should be declared invalid.  On this basis the original decision of 8 August 1992 still stood, and it would be for either the claimant or the Department to consider whether there were grounds for its review.

8.	Mr Shaw accepted that the claimant was fully entitled to maintain that she had never requested a review of the original decision of 8 August 1992 and to reject all subsequent decisions as invalidly made.  In the circumstances of this case he was prepared to concede that the Adjudication Officer had no power to compel the claimant to agree to a review and this meant that the decision of 8 August 1992 still stood.  As had been suggested, it would be for the Department to consider whether or not to apply for a review.

9.	In this case the claimant has indicated, as she is fully entitled to do, that she wishes to rely upon the provisions of regulation 18 of the Introduction of Disability Living Allowance Regulations, so as to have her claim for disability living allowance, submitted in January 1994, treated as not having been made.  For my part I have little doubt that, if she had been asked at the time whether she wished that claim to be treated as a request for a review of her existing award she would have said "yes".  However, she was not asked, and she cannot now be required or compelled to give her retrospective consent.  Accordingly for the reasons which have been advanced by both Ms Loughrey and Mr Shaw I accept that the Adjudication Officer had no power to review the original decision of 8 August 1992 and that the subsequent purported review decisions were invalid.  In view of all that has happened in the intervening period, it seems most unlikely that the existing award is now appropriate; but, as has been recognised on both sides, it will be for the claimant and the Department to consider what action, if any, should now be taken to seek a review.

10.	It will be clear from what I have said that I am satisfied that the decision of the Appeal Tribunal was erroneous in point of law.  I accordingly allow this appeal and set the Tribunal's decision aside.  My decision, which I can give without making any fresh or further findings of fact, is that the Adjudication Officer's purported review decisions of 28 March 1994 and 11 August 1994 were made without jurisdiction.  I accordingly declare that they were invalid and that the original decision of 8 August 1992 stands confirmed.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER

	12 February 1996