Decision No: C36/03-04(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 15 April 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Tribunal, affirming a decision of a decision maker, to the effect that the claimant was not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from 27 July 2002.

2.	Leave to appeal was granted by a Commissioner on 19 December 2003.  The substantive reasons for granting leave to appeal were as follows: -

“It is arguable that the decision was wrong in law, because, in light of Commissioner’s decision C12/03-04(DLA), the decision made by the decision maker dated 11 June 2002 appears to be ultra vires and, therefore, the Tribunal may have erred in law by treating the decision as valid.”

3.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

4.	In this appeal the claimant is not represented while the Department is represented by Miss Fleming of the Decision Making and Appeals Unit.  

5.	The claimant’s grounds of appeal can be summarised as follows: -

(1)	that the Tribunal erred in law by failing to address concerns raised by the claimant and his then representative, Mr R....., at the Tribunal hearing concerning the Examining Medical Practitioner’s report;

(2)	that the Tribunal’s findings in relation to the letter from the occupational therapist were inadequate to explain the alleged conflict with the evidence from the Examining Medical Practitioner;

(3)	that the Tribunal judged the claimant’s integrity without giving him an opportunity to explain or respond to what the Tribunal considered to be inconsistent evidence.

6.	Miss Fleming has set out the facts and the legal issues that arise from the facts in a letter dated 19 October 2003 where she stated, inter alia: -

“[The claimant] had been awarded the lower rate of the mobility component and the highest rate of the care component of Disability Living Allowance (DLA) for a period up to and including 26 July 2002.  On 15 February 2002 form DLA580 was received in the Department.  This was treated as a renewal claim from 27 June 2002, i.e. the day after the expiry of the existing award.  On 11 June 2002 a decision maker decided that [the claimant] was not entitled to DLA from and including 27 July 2002.

The issue of the refusal of a renewal claim before the date on which it is treated as made was considered by Mrs Commissioner Brown in decision C12/03-04(DLA).  The Commissioner held that once the Department has treated a claim as made on a certain date, the only decision which can be given prior to that date is to award benefit; a claim cannot be disallowed before the date on which it is treated as having been made (paragraphs 35 –39).

In this case the decision under appeal to the Tribunal was on the renewal claim which was treated as having been made on 27 July 2002.  That claim was disallowed on 11 June 2002, over one month before the accepted date of claim.  If the rationale in C12/03-04(DLA) is applied to this case, the decision of 11 June 2002 is ultra vires, there is no valid decision on the renewal claim and the Tribunal erred by treating the decision as valid.

If the Commissioner accepts this submission I would respectfully suggest that the case be remitted back to the Department to decide the renewal claim as the date on which that claim was treated as made has been reached.”

7.	The claimant has not taken issue with this submission although an opportunity was given to him to make any relevant written observations.

8.	In my view Miss Fleming is correct in her contentions.  In addition other legal issues that might have arisen in relation to the claimant’s grounds of appeal are no longer relevant in light of the fact that the Tribunal did not have jurisdiction to hear the appeal as there was no valid decision by the Department on the renewal claim.

9.	Therefore I conclude that the Tribunal’s decision on appeal must be set aside as the original decision by the decision maker dated 11 June 2002 has no legal effect.  However the renewal claim remains to be decided by the Department.  This can now be done as the date on which that renewal claim was treated as having been made has now been reached.  I point out that the claimant, on being informed of the Department’s decision (which should be done as soon as reasonably possible), will still have the usual appeal rights in relation to that decision.

(signed):		J A H Martin QC
Chief Commissioner

10 February 2004