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[2000] UKSSCSC CDLA_1804_1999 (03 July 2000)

JMH/IW/RC/11

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CDLA/1804/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF A DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER J M HENTY


 


1. My decision is that the decision of the DAT was erroneous in law. I set it aside and remit the case for re-hearing in front of a differently constituted Tribunal who are to have regard to the directions set out, in particular, in para 8 below.
2. This is an appeal with the leave of the Commissioner from the decision of a DAT 14.9.98.
3. The claimant underwent a partial mastectomy on account of breast cancer in August 1994. She was awarded both components of DLA at the highest and higher rates respectively, under the provisions relating to those terminally ill contained in section 72(5) and 73(12) SSC & BA, in each case for life, as is normal with such awards. "Terminally ill" is defined in section 66(2)(a) thus:-

"(a) A person is "terminally ill" at any time if at that time he suffers from a progressive disease and his death in consequence of that disease can be reasonably be expected within 6 months".

Under section 72(5), such a person is taken to have satisfied the conditions for highest rate care component for the proceeding 3 months before the claim, and to satisfy those conditions for the remainder of his life. And under section 73(12), by an extraordinary piece of convoluted drafting, a similar result is achieved, so far as the higher mobility rate is concerned.

It seems to me that it is irrelevant whether a person, who is terminally ill, actually satisfies the conditions normally applicable for an award of either component.

4. Section 30(4) of the Administration Act provides:

"(4) On an application under this section made after the end of the prescribed period a decision of an adjudication officer under section 21 above that a person is or was at any time terminally ill for the purposes of section 66(1), 72(5) or 73(12) of the Contributions and Benefits Act may be reviewed if there has been a change of medical opinion with respect to his condition or his reasonable expectation of life."

5. In this case, the consultant surgeon was asked for a report, and his report dated 3.2.97. can be found at pts 55-57. It appears that the claimant was last seen on 27.9.96. Her condition was then being "followed up", and the surgeon concluded:

"Routine follow up. No specific findings since Sept. 1996 to suggest progression of breast cancer."

Following that, the AO concluded there had been a change of circumstances. Such a wide expression, while clearly intended to refer to a review under section 22(b), could, I suppose, with some latitude be extended to cover a review under section 30(4). The effect of the further medical evidence viz. that the claimant was no longer terminally ill, could be termed a change of circumstances. But the AO in this case then went on to identify that change of circumstances viz. "the claimant's needs had decreased". Her needs may or may not have decreased for all that the evidence showed. The only evidence was that of the consultants, which may have constituted, in the words of section 3(4) "a change of medical opinion with respect to [her] condition or [her] reasonable expectation of life." It seems to me that the review was conducted by the AO purely under section 30(2)(b), and that is clearly inappropriate in cases based on a terminally ill award. Reviews of those can only be carried out under section 30(4). It is perfectly possible, for instance, that a person can remain terminally ill and yet, at the same time, have decreased needs. For that reason, the AO's decision is, in my view, fatally flawed.

6. Once an AO has made a review under section 3(4) i.e. the evidence no longer justifies a finding that the claimant is terminally ill, it is then incumbent on him to consider whether the claimant might not still be entitled to an award under the other conditions. This is not a case where the AO can simply say; "The claimant is no longer terminally ill. That is a change of circumstances. Therefore he is no longer entitled to an award." It is true that the AO, in this case, went on to consider the question of entitlement and section 72(1)(a)(b)(c), and section 73(1), but the only evidence was the consultant's report. I would suggest that a report from an EMP at that stage would be appropriate. It would scarcely be appropriate to rely on what the applicant had said in her claim form some 3 years earlier in the circumstances of a case such as this, a point which the first tribunal correctly acknowledged.
7. In his submissions to me, the AO refers to section 32(4). He submits that the AO, in making his decision had failed to tick the appropriate box in P61, and neither is any mention of that fact made in the second tier review. That section provides:

"(4) Where a person has been awarded a component for life on a review under section 30 above the adjudication officer shall not consider the question of his entitlement to that component or the rate of that component or the period for which it has been awarded unless -

(a) ...; or

(b) there has been supplied to the adjudication officer by the Secretary of State or is otherwise available to him information which gives him reasonable grounds for believing that entitlement to the component, or entitlement to it at the rate awarded or for that period, was not to continue."

That sub-section is concerned with the entitlement rather than review. But, in terminally ill cases, the review carries with it the question of entitlement. If evidence within section 30(4) is provided which justifies a review, that review will itself entail a finding that the claimant is no longer "terminally ill" within the definition, and his entitlement under section 72(5) or 73(12) will, thereby, cease. It seems to me that such evidence will automatically satisfy section 32(4)(b), irrespective of whether or not the AO has directly considered the application of such sub-section. However, in view of what I have decided above this question does not strictly arise, and I need say no more. I would note that sub-section (5) is irrelevant for present purposes because, although it purports to limit reviews where a person is terminally ill, it is aimed at the case of a review of an existing award of benefit on the grounds that the claimant is terminally ill and in the interests of confidence. No one likes to be told he or she is terminally ill.

8. Direction

(1) The award in this case was made under the provisions relating to those terminally ill contained in section 72(5) and 73(12) SSC & BA. If a person is terminally ill, it would appear that he is thereby entitled to benefit, irrespective of whether he satisfies the usual conditions for benefit.

The provision for review of such cases is contained in section 30(4). The review carried out in this case, and see particularly the reasons given therefor by the AO, was clearly carried out under section 30(2)(b). Was that a valid review at all irrespective of the S 30(4) point. I think not. Moreover, the only evidence was the consultant's report.

(2) It seems to me that once an AO has carried out a valid review under section 30(4) the award, on the terminally ill basis for life, must automatically cease. There will, therefore, be no life award in existence. The review carries with it the question of entitlement. However, it will then be incumbent on the AO to go on and consider whether the claimant satisfies any of the usual conditions for benefit. In such cases, as the first tribunal acknowledged, up to date medical evidence is required. The evidence of a claim form, which may have been prepared with an award on a terminally ill basis in mind only, is inappropriate especially when, as in this case, it relates to circumstances 3 years earlier.

(Signed) J M Henty

Commissioner

(Date) 3 July 2000