Decision No: C22/02-03(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 12 December 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against a decision of a Tribunal, affirming a decision of a decision maker, to the effect that the claimant was entitled to low rate care component of Disability Living Allowance (DLA) from 31 January 2000 until 30 January 2001 and is not entitled to mobility component of DLA from 31 January 2000.  Leave to appeal was granted by a Commissioner on 26 November 2002.

2.	A hearing of this appeal took place on 16 April 2003 at which the appellant was represented by Mr Allamby of the Law Centre (Northern Ireland) while the Department was represented by Miss Stewart.  It was appreciated at this hearing that a Great Britain Tribunal of Commissioners was about to adjudicate on a relevant matter in England.  Therefore a decision on the present appeal was not given until the Great Britain decision was promulgated and the implications of the decision were fully appreciated.  The decision of the relevant case (CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002 and CDLA/5141/2002 (hereinafter referred to as CIB/4751/2002, etc.)) was issued on 21 January 2004.  Further relevant written submissions were provided by Mr Allamby and Mr Morrison (in place of Miss Stewart) in light of CIB/4751/2002, etc.  Arising out of this decision, both representatives took a substantially different approach to the issues in the case compared to the approach taken at the hearing of 16 April 2003.  However, it would be remiss of me not to refer specifically to the considerable help given to me by the representatives in this case.  The fact that I consider that I am able to deal relatively shortly with the issues is largely due to their industry and their ability to isolate the relevant issues in a difficult situation.

3.	An original award of DLA covering high rate mobility was made from 13 September 1996 to 12 September 1999.  On 23 June 1999 a renewal claim was made by the claimant.  Then on 20 July 1999 the claimant wrote to the Social Security Agency setting out that her health had deteriorated.  Not surprisingly this additional information was not treated as information that might be used to supersede the pre-existing award but was treated as medical evidence supporting the claimant’s case in relation to the renewal claim.  On 26 July 1999 a reply to a pro-forma was submitted by the claimant’s General Practitioner.  Then on 7 September 1999 an Examining Medical Practitioner (EMP) visited the claimant and produced a report.  On 6 October 1999 a decision was made by a Decision Maker in the Department disallowing the claimant in relation to both components of DLA.  Accordingly the claimant was not entitled to DLA from 13 September 1999.  Then on 25 October 1999 the claimant telephoned the Department to ask that the decision be looked at again.  In addition, on 15 November 1999 the claimant wrote stating that a further deterioration had occurred.  On 10 January 2000 the claimant wrote following up her claim, and detailed her need to borrow a wheelchair from her Occupational Therapist.  On 15 February 2000 the claimant wrote again to progress her claim and gave further details of her then present circumstances.  On 27 February 2000 a further pro-forma report was submitted by the claimant’s General Practitioner.  On 11 March 2000 the Department issued a further decision to the effect that the low rate care component was payable from 31 January 2000 for 12 months although no change was made to the mobility component.  The claimant then appealed this decision on 5 April 2000.  

4.	The Tribunal hearing the appeal came to the decision that is set out in paragraph 1 herein.

5.	Mr Allamby in his latest legal submissions dated 9 March 2004, has helpfully set out the relevant legal issues:

(i)	Was the decision making process flawed – namely the decisions given on 6 October 1999 and 11 March 2000?;

(ii)	If the decision-making process was flawed, did the Tribunal have jurisdiction to correct the errors, and, if so what decision should have been given?

6.	Both parties now accept that this decision making process was flawed.  The decision that the Tribunal was dealing with was that of 11 March 2000.  This decision purported to supersede the disallowance decision of 6 October 1999 due to a relevant change of circumstances.  However, it is clear from Article 9(2) of the Social Security (Northern Ireland) Order 1998 that a refusal of a claim cannot be superseded by a relevant change of circumstances.  This has been confirmed by the Great Britain Tribunal of Commissioners decision in R(I) 5/02 in relation to the equivalent Great Britain legislation, namely section 8(2) of the Social Security Act 1998.  It is clear that when the claimant requested to have the disallowance decision looked at again, the Department through its decision maker, should have given a decision to the effect that it had reconsidered the matter but could not change the decision.  The effect of this is that any appeal in this case is against the decision of 6 October 1999 – the decision that disallowed the renewal claim.

7.	As the decision of 11 March 2000 was made under Article 11 of the Order, namely a decision superseding an earlier decision, it remained in force until changed.  The claimant has a right to appeal against this decision and a Tribunal has jurisdiction to hear such an appeal.  The request of 25 October 1999 made by the claimant asking for her claim to be looked at again was a request for a revision under Article 9 of the Order and arising out of that request, as Mr Allamby has submitted, the decision maker was entitled to gather additional evidence and the claimant was entitled to submit additional evidence, providing such evidence related to circumstances obtaining up to 6 October 1999, in accordance with the provisions of Article 13(8)(b) of the Order.

8.	It is important to establish what the Department actually decided on 11 March 2000.  It seems that the Department issued a new decision which set out that the decision maker had looked again at the decision of 6 October 1999 (although there seems to be a typographical error referring to the date as 25 October 1999) and had taken into account the self-assessment form dated 23 June 1999, reports from her doctor dated 24 July 1999 and 27 February 2000, the EMP report dated 24 July 1999 and 27 February 2000 and the EMP report dated 7 September 1999.  In the circumstances an award of lower rate care component for 31 January 2000 to 30 January 2001 was made.  There appears to be some confusion in relation to the dates as the decision maker revised the decision of 6 October 1999, wrongly assuming that it was a decision dated 25 October 1999 and then, after taking into account a 3 month waiting period, accordingly made an award from 31 January 2000.

9.	It is relatively clear that the decision is deficient.  As Mr Allamby has pointed out: -

(i)	any revision should have been against the decision of 6 October 1999; and

(ii)	any changes of circumstances occurring after 6 October 1999 should not have been taken into account.

10.	The main question in the case is whether the Tribunal had jurisdiction to correct the flaws or errors which amount to substantive defects.

11.	The decision of the Great Britain Tribunal of Commissioners CIB/47512002, etc. at paragraph 25, has clearly decided that, under the post 1998 Appeal System, the basic appellate process is still by way of a rehearing and that the Appeal Tribunal “stands in the shoes of the decision maker” for the purpose of making a decision on a claim.

12.	The Tribunal of Commissioners at paragraph 53 stated as follows: -

“In our judgement, the parties are correct in submitting (as they do) that, when faced with an appeal following a decision under Section 9 or Section 10, an appeal tribunal must start by identifying the decision under appeal.   The legislation is clear in providing that, in the case of a decision under Section 10, it is the Section 10 decision itself which is the subject of the appeal.  In the case of a decision under Section 9, whatever the substance of the position may be, it is the original decision which is required to be treated as under appeal.  The identification of the decision under appeal is vital because, in deciding the appeal, the appeal tribunal cannot take into account circumstances arising after the date of that decision (Section 12(8)(b)).”

The identical relevant Northern Ireland legislation to that quoted by the Tribunal of Commissioners is Articles 10, 11 and 13(8)(b) of the 1998 Order.

13.		In the present case the Tribunal has erred by failing to identify the relevant decision under appeal.  Paragraphs 72 to 76 of CIB/4751/2002, etc. establishes that a Tribunal, standing in the shoes of the decision maker, has jurisdiction to correct a substantially flawed decision except where the decision made by the Department is one which has “so little coherence or connection to legal powers” as to not amount to either a revised or superseded decision at all.  In such circumstances a decision of the decision maker would be declared invalid.  Both parties, and in my view correctly, do not make a contention that the decision of 11 March 2000 was in this category.

14.		It is clear that, in the circumstances, the Tribunal had jurisdiction to correct the flaws in the decision making process.  The decision making process should have been such that the decision maker ought to have reconsidered the decision of 6 October 1999 and refused to change the decision.  The appeal would then have been against the decision of 6 October 1999.  Then the Tribunal, standing in the shoes of the decision maker, ought to have confirmed that the decision of 11 March 2000 was incorrect and that the decision under appeal was that of 6 October 1999.  The Tribunal then should have gone on to either uphold or replace this decision, bearing in mind the provisions of Article 13(8)(b) of the Order which requires a Tribunal not to take into account circumstances arising after the date of the decision, namely 6 October 1999.  

15.		In the circumstances, as both parties have contended, the Tribunal has clearly erred in law, although I have considerable sympathy for the Tribunal as the relevant issues were not brought to its notice.  I therefore allow the Appeal, set aside the Tribunal’s decision and refer the case back to a differently constituted Tribunal for a rehearing.  This Tribunal ought to bear in mind what I have stated in this decision but also should take cognizance of the decision of the Great Britain Tribunal of Commissioners in CIB/4751/2002, etc.

	(signed):  	J A H Martin QC

Chief Commissioner

21 April 2004