Decision No:  C50/03-04(DLA)

IRO (a child)

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 27 March 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant (the mother of the relevant child) against a decision dated 27 March 2003 which upheld a Departmental decision dated 10 December 2002 disallowing disability living allowance (DLA) from and including 1 January 2003.  The Department’s decision was made on foot of a renewal claim, the previous award being due to expire on 31 December 2002.

2.	The claimant appealed the Tribunal decision, her grounds of appeal being contained in an OSSC1 form received in the Commissioners Office on 2 December 2003.  The grounds of appeal were essentially that the Tribunal had erred in its view of the fact situation in that the relevant child did have care needs and that her condition had not improved from when she was awarded DLA.

3.	The Department opposed this ground.  By letter of 10 May 2004 it submitted that the Tribunal’s conclusions as to the child’s care needs were sustainable on the accepted evidence.

4.	I consider there is no merit in the claimant’s grounds.  The Tribunal has clearly set out its assessment of evidence. It did not accept the evidence of the claimant in relation to certain matters and relied instead on the medical evidence.  This it was entitled to do.  So doing its conclusions as to care needs were sustainable.  Its reasons therefore for not renewing the award are clear.  Therefore I find no merit in these grounds.

5.	I granted leave on a different ground.  This was that an arguable error of law appeared to arise as to whether the Department’s decision of 10 December 2002 (being a refusal of DLA and being made prior to the expiry of the previous award) was ultra vires following my decision in C12/03-04(DLA).  This appeal was stayed pending a decision of a Tribunal of Commissioners in Great Britain in CDLA/2751/2003 et al which considered my said decision incorrect in deciding that the Department did not have powers to disallow renewal claims for DLA in advance of the expiry of the previous award.  A subsequent decision of a Tribunal of Commissioners in Northern Ireland, C37/03-04(DLA)(T) has supported the Great Britain decision in this respect.  My decision in C12/03-04(DLA) was wrong in that respect.  The Department does have powers to disallow renewal claims for DLA in advance of the expiry date of the previous award.  The grounds upon which I granted leave in this case are therefore without merit.

6.	The parties have been given an opportunity to comment on C37/03-04(DLA)(T) but the claimant made no comment thereon.  The Department on the basis of same, opposes the appeal.

7.	I am in agreement with the Department.  I can ascertain no error of law in the Tribunal’s decision whether in relation to the grounds stated by the claimant or otherwise.

8.	I therefore dismiss the appeal.

(Signed):  Moya F Brown

Commissioner

11 April 2005