Decision No: C19/02-03(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of the Appeal Tribunal
dated 30 January 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, by the claimant, against the decision of the Tribunal to the effect that she is not entitled to the higher rate of the care component of Disability Living Allowance from and including 1 November 1996.  Leave to appeal was granted by a Commissioner on 14 November 2002.  Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without such a hearing.

2.	The claimant claimed Disability Living Allowance in 1996 and on 25 March 1997 was awarded middle rate of the care component for daytime needs and higher rate of the mobility component from and including 1 November 1996.  In a telephone call on 3 November 2000 she stated that her condition had worsened and asked for her case to be looked at again.  The primary issue before the decision maker (and the Tribunal) was whether the decision of 25 March 1997 could be superseded under the provisions of regulation 6(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  In accordance with Great Britain Tribunal of Commissioners decision R(DLA) 6/02 the claimant’s assertion that her condition had deteriorated was enough to allow the Department to investigate her condition.  This is because the Great Britain decision held that an assertion that there has been a relevant change of circumstances is sufficient to satisfy the “threshold” criterion for entry into the supersession process and that once into that process the next step is to investigate and determine the facts.

3.	On appeal the Tribunal accepted there had been a relevant change in the claimant’s condition and, accordingly, the only question at issue in the present appeal to a Commissioner is whether the Tribunal erred when it decided that she was not entitled to a higher rate of benefit.  As the claimant was already entitled to middle rate care component for day time needs the issue is whether she had requirements during the night for the higher rate to be awarded.

4.	The claimant, who is unrepresented, made a generalised application for leave and stated that she was in need of night-time care and assistance to cope with her safety and toilet needs.  The Department, through Mrs Gunning of the Decision Making and Appeals Unit, has given specific support to the claimant and has set out the reasons for such support in the letter dated 18 October 2002 to the Registrar at the Office of the Social Security Commissioners.

5.	In the circumstances I consider it appropriate to quote the relevant part of Mrs Gunning’s submissions.  She has stated the following:

“Section 72(1)(c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 sets out the relevant conditions as follows:

“he is so severely disabled physically or mentally that, at night:-

(i)	he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii)	in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”

Therefore, to be entitled to highest rate care component [the claimant] had to establish that the condition was such that she required prolonged or repeated attention or someone had to be awake to watch over her.  {The claimant] did not contend that she needed someone to watch over her at night so the issue was whether she required prolonged or repeated attention during the night.  In connection with her application to have her case looked at again [the claimant] completed section 2A of Form DLA434 on 19 November 2000.  She stated that she had to be helped to the toilet 4 or 5 times per night 7 nights a week, taking about ½ hour each time and that she was waiting to see a neurosurgeon at the Royal Victoria Hospital.

Under the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998 the tribunal could not take account of any circumstances which did not exist at the date of decision under appeal i.e. 8 January 2001.  The Reasons for Decision indicate that the tribunal considered a physiotherapy report dated 16 January 2001 which stated that she had made a good recovery since her laminectomy and that she had no night needs.  The tribunal would seem to have relied on the contents of that report when it made its decision that [the claimant] did not satisfy the entitlement conditions for night time care.  I submit the evidence in the case indicated that [the claimant] had not had surgery to her spine when she asked for her case to be looked at again.  There is nothing the Reasons for Decision to indicate whether the tribunal considered [the claimant’s] needs at the time of her application and, if it did, it has failed to adequately explain why it considered that she had no night needs at that time.  Accordingly I support the application. 

I note that in her letter of appeal dated 13 March 2001 [the claimant] stated “I am now attending a neurosurgeon for my spine which leaves me very little power in my legs and I keep falling”.  In a letter dated 3 August 2001 she stated that she had had back surgery in The Royal Victoria Hospital and that the hospital social worker had written to Disability Living Allowance Branch.  The papers contain a letter from D... O’H..., Social Worker, Royal Victoria Hospital which is dated 4 July 2001 and confirms that at that time [the claimant] was an inpatient and had had surgery to remove a disc from her spine.  [There is nothing in either the Record of Proceedings or the Reasons for Decision to indicate that the tribunal considered those two letters but I note that the letter from Ms O’H... was received in The Appeals Service on 27 July 2001 and in her letter dated 3 August 2001 [the claimant] appears to be addressing The Appeals Service.  It seems likely, therefore, that those letters would have been in the papers considered by the tribunal.]  The above information would suggest that the physiotherapist report relied on by the tribunal was actually dated 16 January 2002.   …”

6.	I consider that Mrs Gunning’s submissions are correct.  There is nothing in the reasons for decision to indicate whether the Tribunal considered the claimant’s needs at the time of her application.  In addition, in any event, it seems very likely, as Mrs Gunning has suggested, that the report relied on by the Tribunal was actually dated more than one year after the decision under appeal, namely, 16 January 2002, as the date of the decision under appeal was 8 January 2001.

7.	In the circumstances I am satisfied that the Tribunal’s decision is erroneous in law.  Accordingly, I allow the appeal and set aside the Tribunal’s decision.  Consequently I refer the matter back to a differently constituted Tribunal for a new hearing.  This Tribunal, in accordance with the provisions of Article 13(8)(b) of the Social Security (Northern Ireland) Order 1998, must consider the claimant’s condition on 8 January 2001.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

20 JANUARY 2003