[2005] NISSCSC C15/04-05(DLA) (4 January 2005)

Appeal No:  C15/04-05(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 1 October 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the Tribunal to the effect that the claimant was not entitled to either rate of the mobility component of disability living allowance (DLA) from and including 13 May 2001 and was not entitled to any rate of the care component of DLA from and including 30 October 2001.  Leave to appeal was granted by a Commissioner on 18 October 2004 for the following reasons:-

“It is arguable that the decision was wrong in law, because the tribunal removed entitlement to the care component from and including 30 October 2001 even though the effective date of the decision under appeal was 12 August 2001, in light of the decision of the Great Britain Tribunal of Commissioners in CIB/4751/2002 [now R(IB)2/04] etc, paragraphs 95-97 and 197.”

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

3.	The claimant is represented by Mr Murphy, Citizens Advice Bureau, Londonderry while Mrs Gunning (replacing the original representative, Mr Fletcher), of Decision Making Services, represents the Department.

4.	It is necessary to set out at some length the relevant history in this case so that the issues can be clearly identified.  On 1 June 1996 the claimant was awarded highest rate care component and lower rate mobility component of DLA for the period from and including 28 September 1995.  On 26 August 1999 a letter was received from the claimant stating that his health had deteriorated and he made it clear that he wished to be considered for higher rate mobility component.  On 23 February 2000 the decision of 1 June 1996 was superseded and higher rate mobility component was awarded from 13 May 1999 to 12 May 2001 while the earlier award of care component was confirmed.  On 30 January 2001 renewal claim forms were received from the claimant with the aim of securing a further award of mobility component from 13 May 2001.  On 12 August 2001 a decision maker decided that the claimant was not entitled to either component of DLA from and including 13 May 2001.  On 3 September 2001 the claimant appealed.  On 19 October 2001 the Department requested a supersession of the decision dated 12 August 2001 and, on 30 October 2001, the decision of 12 August 2001 was superseded.  The effect of this was that it was decided that the claimant did not satisfy the criteria for an award of either the care or mobility components of DLA from and including 13 May 2001.  On 21 November 2001 the Department made a written submission to the Tribunal stating that (i) the decision of 12 August 2001 was incorrect; (ii) the decision of 30 October 2001 replaced the decision of 12 August 2001; (iii) the appeal was properly against the decision of 30 October 2001.  On 26 June 2002 the hearing of the appeal tribunal was adjourned so that the claimant could be examined by a Consultant Orthopaedic Surgeon and also for the Department to prepare an addendum addressing any continuing errors in the submission papers.  On 14 May 2002 the claimant was examined by a Consultant Orthopaedic Surgeon.  The Department then prepared a further submission for the Tribunal.  This submission identified two incorrect dates in the original submission but essentially the Department’s view of the case remained unchanged.  On 1 October 2002 the Tribunal decided that grounds to supersede had been established and that the claimant was not entitled to mobility component from and including 13 May 2001 and was not entitled to care component from and including 30 October 2001.

5.	The claimant applied for leave to appeal on the grounds that: -

the Tribunal based its decision in part on the fact that the claimant had aids installed to enhance his lifestyle and, these aids in fact do not diminish his disability,

the Tribunal did not consider the pain he experiences even though it was outlined in various reports and papers before the Tribunal,

all the appeal papers were not sent to the Consultant Orthopaedic Surgeon charged with preparing a report for the Tribunal.

6.	However, as Mr Fletcher pointed out in his submission dated 17 June 2003, if it is reasonable to expect someone to use an aid that is readily available, that person’s care or mobility needs should be considered taking into account the effect of that aid.  The use of aids should not be ignored by tribunals – see decision C9/95(DLA) and, in particular decision C19/98(DLA) at paragraph 9.  Decision C16/98(DLA) – at paragraph 4 – also makes it clear that a tribunal is entitled to consider the use of aids when considering the effect of pain on a claimant.

7. 	In relation to the claimant’s claim that the Tribunal did not consider properly the pain that he experienced, the Tribunal cannot be faulted as it specifically considered the claimant’s pain and noted the following in the reasons for decision in relation to the mobility component: -

“Appellant referred to pain.  There are different levels of pain and the criteria refers to “severe discomfort”.  Weighing up all the evidence the Tribunal is of the unanimous opinion that appellant could walk a reasonable distance – at least 100 yards, in reasonable time, speed and manner without severe discomfort.”

It is clear that the Tribunal dealt with “the pain” issue although as Mr Fletcher pointed out, it is also relevant that the claimant’s evidence was considered by the Tribunal to be overstated and unreliable.  This was a conclusion to which the Tribunal was entitled to come, as the fact finding body in this case.

8.	In relation to the point that the Consultant Orthopaedic Surgeon did not receive all the relevant papers, it seems that he was provided with all the medical reports and the claimant’s self-assessment forms.  That is sufficient for the Consultant in these circumstances to carry out his duties.  I, accordingly, agree with the Departmental submission that there is no error in law in this respect.

9.	However, my decision on the points raised by and on behalf of the claimant do not deal with all issues in this case.  The reasons for granting leave to appeal relate to an issue raised by Mrs Gunning, after considering the relevance of the Tribunal of Commissioners’ decision in Great Britain in CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002 and CDLA/5141/2002 - now reported as R(IB)2/04.

10.	Mrs Gunning, on behalf of the Department, made, inter alia, the following  relevant submission on 1 March 2004:-

“The circumstances of [the claimant’s] case are similar to those in CDLA/4753/2002 in that he had been awarded one component for an indefinite period and the other for a definite period and prior to the expiry of the fixed period award he submitted a renewal claim form.  The Commissioners held that an application for renewal of an award of disability living allowance which was for a fixed period in respect of one component and for an indefinite period in respect of the other component must be treated as an application for supersession of the awarding  decision (paragraph 146).  They further held that for the purpose of such an application there is a relevant change of circumstances if it is considered that at the expiry of the fixed period the claimant will still qualify for an award of that component (paragraph 152).  When that principle is applied to [the claimant’s] case the Department’s submission to the tribunal was correct in stating that the decision of 12 August 2001 was erroneous as it should have been a supersession decision.

The submission to the tribunal shows that the decision of 30 October 2001 replaced the decision of 12 August 2001 due to an error of law and the appeal was against the decision of 30 October 2001.  I would submit that this was somewhat misleading because the decision of 30 October 2001 actually revised the decision of 12 August 2001 due to an official error, the error being the decision of 12 August should have been a decision superseding the decision of 23 February 2000.  As was held in paragraph 38 of the Tribunal of Commissioners decision, where a decision is revised the appeal then lies against the original decision as revised, which in this case is 12 August 2001.

In this case the supersession process was initiated by [the claimant] when he submitted a claim form in an attempt to have his award of mobility component extended beyond 12 May 2001.  When that claim form was received [the claimant] was examined by an examining medical practitioner (EMP) and when the evidence was assessed it was decided that he did not satisfy the entitlement conditions for an award of either component of disability living allowance.  In the submission to the tribunal it was contended that the latest evidence indicated that [the claimant’s] care needs had decreased and that there were grounds to supersede the decision awarding higher rare (sic) care component.  I submit that the issue of entitlement to the care component was properly at issue before the tribunal.

In relation to the effective date for supersession of the care component I would submit that both the dates identified by the decision maker (13 May 2001) and the tribunal (30 October 2001) were incorrect.  The Tribunal of Commissioners held that were (sic) a claimant applies for a renewal/supersession of an award and the Department decides adversely to the claimant the supersession should be regarded as being made on the Departments own initiative and in accordance with Article 11(5) of the Social Security (Northern Ireland) Order 1998 be effective from the date of decision, see paragraphs 95-97 and 197 of the Tribunal of Commissioners decision.

In conclusion it is my submission that:

•	the claim forms completed by [the claimant] and received in the Department on 30 January 2001 were an application for supersession of the awarding decision

•	the decision of 30 October 2001 was a revision of the decision of 12 August 2001 and the appeal was treated as being against that decision

•	the tribunal decision that [the claimant] did not satisfy the entitlement conditions for the mobility component from and including 13 May 2001 is sustainable on the evidence and the tribunal has adequately explained the reasoning for the decision
•	the tribunal was entitled to decide that [the claimant’s] condition had improved to the extent that the criteria for an award were no longer satisfied and that there were grounds to supersede and it has adequately explained its reasoning

•	the tribunal erred in removing entitlement to the care component from and including 30 October 2001 as the effective date of the decision under appeal was 12 August 2001.”

11.	The relevant parts of the Great Britain Tribunal of Commissioners’ decision R(IB)2/04 are as follows:

“95.  We now turn to CPAG’s submission (1)(b).  Miss Lieven submitted that this submission was wrong because, if the appeal tribunal were itself to supersede by making a less favourable award in a case where the Secretary of State had refused the claimant’s application for supersession, that would not be a supersession on the Secretary of State’s own initiative, but rather a supersession on the claimant’s application.  She submitted that the words “or on an application made for the purpose” in regulation 6(2) refer to any situation in which it was the claimant’s application, rather than the Secretary of State’s initiative, which lead to the Secretary of State considering the matter at all.  However, we are of the view that it would not be correct to describe a supersession reducing a claimant’s entitlement as being “on an application made for the purpose”, when the claimant’s purpose in making the application was to obtain a more favourable award.

96.  In our judgement, however, the fact that the appeal tribunal’s supersession decision would be regarded as one made “on the Secretary of State’s own initiative” is not a ground for saying that the tribunal had no power to make it.  As we indicated in relation to Issue 1 (see paragraph 55(8) and (9) above), the appeal tribunal’s function on appeal is in our judgment to make the supersession decision which it considers the Secretary of State ought to have made, and this may involve exercising powers only expressly given to the Secretary of State.  If the appeal tribunal supersedes unfavourably to the claimant when the Secretary of State simply refused the claimant’s application for supersession, the appeal tribunal is not usurping the Secretary of State’s power to supersede.  It is exercising its function of determining on appeal whether the Secretary of State’s decision was correct, and of making the correct decision if it was not, effectively standing in the Secretary of State’s shoes.  The same applies to CPAG’s objection that the appeal tribunal would be exercising the Secretary of State’s power (implicit in the provision in section 10(2) that the Secretary of State need not consider any issue not raised by the application or which did not cause him to act on his own initiative) to consider issues not raised by the application.  In our judgment, for the reasons given more fully under Issue 1, it is implicit that an appeal tribunal has power to do so in order properly to decide the appeal.
97.  Section 10(5) provides that, subject to provision to the contrary in regulations, “a decision under this section shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.”  In our judgment, where the primary rule in section 10(5) applies (i.e. is not varied by regulation 7), in the situation where an appeal tribunal supersedes adversely to the claimant following a refusal by the Secretary of State of a claimant’s application for a favourable supersession, the tribunal’s supersession (being effectively the exercise by the tribunal of the Secretary of State’s power to supersede “on his own initiative”) would take effect from the date of the Secretary of State’s decision under appeal.  The appeal tribunal makes the decision, standing in the shoes of the Secretary of State and on the basis of facts down to the date of the Secretary of State’s decision.

…

197.  An application for renewal of an award of disability living allowance which was for a fixed period in respect of one component and for an indefinite period in respect of the other component must be treated as an application for supersession of the awarding decision (paragraph 146).  For the purposes of such an application, there is a change of circumstances if it is considered that at the expiry of the fixed period the claimant will still qualify for an award of that component (paragraph 152).”

12.	Neither the claimant nor his representative, Mr Murphy, made any submissions to the contrary to those made by Mrs Gunning on this point.

13.	In my view Mrs Gunning is entirely correct in her submissions.  In addition the inevitable conclusion that arises is that the only error in the Tribunal’s decision relates to the effective date of its decision concerning the care component.  In these circumstances it is my responsibility to hold that the Tribunal’s decision was erroneous in point of law.  Accordingly, I set it aside.  However, in accordance with the provisions of Article 15(8)(a)(i), I have the power to give the decision that I consider the Tribunal ought to have given as I can do so without making fresh or further findings of fact.  Accordingly I find that there were grounds for supersession and that the claimant is not entitled to either the mobility component from and including 13 May 2001 or the care component from and including 12 August 2001.

14.	In light of my decision the question of an overpayment to the claimant has arisen and was anticipated.  However, Mrs Gunning in a letter dated 23 September 2004 has made it clear that if the Department’s contentions were accepted by the Commissioner, it would result in the claimant being overpaid benefit for the pay week from 15 August 2001 to 21 August 2001.  However, Mrs Gunning pointed out that in the circumstances the Department would not be taking any steps to recover that benefit and in the circumstances I find it appropriate to record this concession formally in this decision.

(Signed)  J A H Martin QC

Chief Commissioner

4 January 2005