Decision No: C15/01-02(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on question of law from the decision of the Appeal Tribunal
dated 26 July 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Legally Qualified Panel Member, by the Department against a decision dated 26 July 2001 of an Appeal Tribunal sitting at Newry.  That Tribunal had allowed the claimant’s appeal in relation to Disability Living Allowance.  The appeal was against a Departmental decision dated 11 March 2000.

2.	The claimant had been in receipt of an award of the lowest rate of the care component of that allowance from 28 August 1994.  He attained age 65 on 25 April 1999.  He had made several requests for review of the decision of 21 June 1994 (which awarded him the lowest rate care component from 28 April 1994).  On 10 November 1998 a decision was made to review but not to revise his earlier award.  A letter dated 22 December 1999 was received by the Department on 30 December 1999 stating that the claimant’s medical condition had “deteriorated considerably over the past couple of years” and that he had been advised by his doctor to seek a review of the rate of benefit not only for personal care but also for mobility as this had been badly affected for some time.  He requested that his claim be looked at again.  This was treated as a supersession request and the decision of 30 November 1998 was superseded but at the same rate.  This was done by decision of 11 March 2000.  On 28 April 2000 the claimant requested reconsideration and on 13 August 2000 the Department made a decision reconsidering the decision of 11 March 2000 but not changing it.  The claimant appealed.  The claimant attained age 65 on 25 April 1999.

3.	The Tribunal allowed his appeal.  It decided that from 13 August 2000 the claimant satisfied the criteria for an award of the higher rate of the mobility component.  This was for an indefinite period.  It decided further that from that date also the claimant satisfied the criteria for an award of the middle rate of the care component for day needs.  The Department’s submission to the Tribunal had mentioned the claimant’s age and the provisions of section 75 (1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which subject to certain exceptions provides that no person shall be entitled to the mobility component of Disability Living Allowance after that person has attained the age of 65 unless the claim is one for renewal of an award of the mobility component.  The Department submitted to the Tribunal that as the claimant had not been entitled to that component before his 65th birthday and his request for a reconsideration was received on 30 December 1999 (after his 65th birthday), he could not be entitled to the mobility component.  

4.	The Tribunal made the decision set out above and the Department appealed.  The grounds of appeal were set out in the letter dated 20 November 2001 from Mr Toner of the Decision Making and Appeals Unit.  Essentially the grounds were as follows: -

1.	As regards the mobility component, the deterioration identified by the Tribunal occurred after the claimant had attained age 65 and consequently the decision to award the mobility component was erroneous in law.  

2.	The Tribunal awarded the claimant the middle rate of the care component from and including 13 August 2000, which was the date of the decision under appeal to it.  The reasons for the decision did not, however, explain why the Tribunal started the award only from that date and the reasons were therefore inadequate.

5.	The relevant legal provisions are contained in Article 75(1) of the Social
Security Contributions and Benefits (Northern Ireland) Act 1992.  That sub- section provides as follows: -

	“Except to the extent to which regulations provide otherwise, no person
shall be entitled to either component of a disability living allowance for any period after he attains the age of 65 otherwise than by virtue of an award made before he attains that age.”

6.	The relevant excepting regulation is regulation 3 (4) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1991.  That regulation refers to Schedule 1 of those Regulations which makes certain provision relating to persons aged 65 or over. 

7.	There is no exception to Article 75(1) for persons who were not entitled to the mobility component before attaining age 65 and who could satisfy the conditions thereafter by reason of a change of circumstances occurring after attaining age 65 (Schedule 1 paragraph 1(1)(2) and (3)).  I find it impossible to ascertain from the Tribunal’s decision whether it considered the relevant changes of circumstances (i.e. becoming virtually unable to walk and increased care needs) occurred before or after the 65th birthday.  That of itself is an error of law in this case and I set the decision aside for that reason.  To ascertain whether or not any of the exceptions in the said Schedule could assist the claimant it is necessary to know when the relevant change of circumstances occurred i.e. before or after the 65th birthday.  Only then can it be known whether paragraphs 1(1) and 1(2) of the Schedule can assist the claimant.

8.	There is a further error in that the Tribunal does not appear to have given consideration to Article 75(1).  For that reason also I set the decision aside.

9.	If the relevant change of circumstances occurred on or after the claimant’s 65th birthday he cannot be entitled to the mobility component on the basis of that change of circumstances.  This is because he would be caught as regards that component by Section 75(1) as he would not be within paragraph 1(2) of Schedule I to the said Regulations nor any of the other exceptions created by Schedule I.   This is subject to one proviso which may not be relevant but which I mention for completeness sake.  It is based on Schedule I paragraph 4.  If the claimant (as does not appear to be the case) was a vehicle scheme beneficiary, he may be assisted by that paragraph.  No issue has been raised that he was such a beneficiary but the new Tribunal (to which I am referring this case) should ascertain whether or not there is any relevant issue relating thereto.

10.	Leaving this proviso aside, if the relevant change of circumstances occurred before the claimant’s 65th birthday then paragraph 1(2) of Schedule I may assist him as regards the mobility component.  The date of the relevant change of circumstances is therefore vital.  In connection with the mobility component, if the change did not come about prior to 25 April 1999, it is of no relevance as any change on or after that date could not lead to entitlement to the said component.

11.	As regards the Department’s second ground of appeal I am in agreement with Mr Toner that it is not clear why the Tribunal took a start date of 13 August 2000 for the raising of the award for the care component.  The reasons are therefore inadequate to explain the Tribunal’s decision.  I set the decision aside for that reason also.

12.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore refer this matter to a differently constituted Appeal Tribunal.  That Appeal Tribunal should determine whether the original award of the care component should be superseded.  It should determine whether and if so when relevant changes of circumstances occurred.  My having set aside this present decision is not in any way indicative of the eventual result.  That will be a matter for the new Tribunal which should bear in mind the provisions of Section 75(1), Regulation 3(4) and Schedule I.  

13.	For completeness sake I mention that the Department’s submission to the Tribunal is inaccurate in that, at page 11 thereof it states “Section 75 of the Social Security Contributions and Benefits (N.I.) Act 1992 provides that no person shall be entitled to the mobility component of Disability Living Allowance after that person has attained the age of 65, unless the claim is a renewal of an award of the mobility component.  That bald statement makes no mention of the fact that there are exceptions to the general rule.  It is to be hoped that the Department will take steps to correct this error as soon as possible.

(Signed):  M F Brown

	COMMISSIONER

	17 April 2003