[2003] NISSCSC C14_03_04(DLA) (12 November 2003)

 				Decision No: C14/03-04(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 22 February 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	  
1.	        This is an appeal, leaving having been granted by me, by the claimant against a decision dated 22 February 2002 of an appeal Tribunal sitting at Downpatrick.  The Tribunal disallowed the claimant’s wife’s appeal against a decision of the Department dated 13 May 2001 and decided that the claimant’s wife was not entitled to Disability Living Allowance (DLA) in respect of their daughter, a child, from and including 28 August 2001.  The Department’s decision was made on foot of a renewal claim, an award of DLA having been made in respect of the daughter up to and including 27 August 2001.  The claimant’s wife had, as she was entitled to do, made a renewal claim on 13 March 2001 within 6 months of the expiry of the earlier award. The Department treated that claim as made on the renewal date (28 August 2001) and disallowed it on 13 May 2001.  The claimant’s wife appealed to the Tribunal which disallowed her appeal.

2.       The appeal to me was made by the claimant who is now his daughter’s appointee.  Both the Department (in a letter dated 13 August 2003 from Mrs Gunning of the Decision Making and Appeals Unit) and the claimant have expressed the view that the decision of the Tribunal was in error of law.  However their grounds for doing so are different.  I consider that Mrs Gunning is correct in her letter of 13 August 2003 when she states, based on the reasoning in decision C12/03-04(DLA), that the Department’s decision of 13 May 2001 was outside its powers.  The Department does not have power to make advance refusals of renewal claims for DLA.  If it wishes to refuse a renewal claim it must do so on or after the renewal date.  In this case that renewal date was 28 August 2001 (the day after the expiry of the existing award).  The Department’s decision made on 13 May 2001 was invalid because it was a refusal decision made in advance of the renewal date.  The Tribunal erred by treating as valid an invalid decision.  I set the Tribunal’s decision aside for that reason.  

3.        As regards the claimant’s ground for appealing to me, this was on the basis that his daughter was the only child in Northern Ireland suffering from her condition who did not receive DLA.  The ground is without merit.  I have no means of knowing whether or not it is factually correct.  Even if it was this would not matter.  DLA is not paid because a person suffers from a particular illness or condition.  It is paid to persons who as a result of disablement have certain care and mobility needs.  Each case must be taken on its individual merits.  The fact that others with the same illness are getting the benefit is not relevant.  It is the particular individual’s disablement and the care and mobility needs (if any) arising therefrom which are relevant. 

4.        I am setting the Tribunal’s decision aside for the reasons set out above.  It is now for the Department to make its decision on the renewal claim.  It is to be hoped that this will be done as quickly as possible.  That decision will carry the usual appeal rights.

(Signed):  M F Brown

Commissioner

12 November 2003