Decision No: C17/96(DLA)

RE: D…(A MINOR)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	DISABILITY LIVING ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Dungannon Disability Appeal Tribunal
	dated 2 October 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the Adjudication Officer for leave to appeal against the decision of a Disability Appeal Tribunal (DAT), leave having been refused by the Chairperson of the Tribunal.

2.	Briefly the facts are that a child, D… was born on 27 August 1990 and when he was 2 year old a claim was made for disability living allowance (DLA) and an Adjudication Officer made a decision on 7 September 1992 awarding the middle rate care allowance from 9 July 1992 to 8 July 1995.  The child suffers from asthma.  As a result of a request for a review the Adjudication Officer reviewed the decision and revised it to award the highest rate care component from 6 October 1992 to 27 August 1994 but that decision was reviewed at the request of the Department because it contained an error in law in that there was an existing award covering that period which remained until reviewed.

3.	The Adjudication Officer then carried out a review in February 1994 in respect of an application which was made some 18 months previously and he reviewed the decision and revised the decision and held that the care component of the DLA at the highest rate was payable from 9 July 1992 to 31 March 1993 and the middle rate from 1 April 1993 to 8 July 1995 both dates inclusive.  That decision was based on the evidence contained in the self-assessment claim form, letter of review and a report from D...'s GP.  Claimant lodged notice of appeal against that decision .

4.	The DAT heard that appeal and it is against the decision of that Tribunal that this appeal is now concerned.  That Tribunal's decision was:-

		"Disallow high rate care component from 9.7.1992.  Award Middle
		rate care from 9.7.1992-30.4.1996.  Award low rate care component
		from 1.5.1996 - 30.4.1998."

5.	Before that appeal was heard by the DAT a renewal claim and self-assessment form was lodged by the claimant as a result of which the Adjudication Officer decided that there was entitlement to middle rate care component from 9.7.1995 to 26.8.1998.

6.	For some reason on 23 June 1995 the DLA Branch wrote to the claimant asking whether or not she wished to proceed with her appeal requested in a letter of 15 April 1994 and she replied that she did.  That letter of course referred to the decision of 3 February 1994, the decision of 6 June 1995 still subsists and was not appealed against.

7.	The appeal therefore as the Tribunal quite rightly pointed out, was against the decision of 3 February 1994.

8.	The Adjudication Officer sought leave to appeal from the Chairman of that Tribunal on the following ground:-

		"The tribunal erred in law by failing to limit their award of
		disability living allowance so as to terminate on 8 July 1995.
		This is because the adjudication officer had already made an award
		on 6 June 1995 of the middle rate of the care component for the
		period 9 July 1996 to 26 August 1998, on the basis of the renewal
		claim received 11 May 1995."

	The Chairperson refused leave and the Adjudication Officer then applied to the Commissioner for leave on the same grounds.  I granted leave and held an oral hearing of the application.  At the hearing the Adjudication Officer was represented by Mr Shaw and he drew attention to the fact that the Tribunal was in fact dealing with the decision of 3 February 1994 and that that decision had dealt with the situation up to 8 July 1995 and that was the only decision the Tribunal was concerned with and that it erred in law in giving a decision past that date.

9.	I am satisfied that the Adjudication Officer is correct and that the Tribunal did so err.  I therefore allow the appeal and set aside the decision of the Tribunal.  I think it is appropriate to give the decision which the Tribunal should have given.  I accept that the Tribunal correctly disallowed the high rate care component from 9 July 1992, it correctly awarded the middle rate care component from 9 July 1992 but it should have ended that award on 8 July 1995.  My decision therefore is that the high rate care component is disallowed from 9 July 1992.  Claimant is entitled to middle rate care component from 9 July 1992 to 8 July 1995, a fresh award was made from that date.

(Signed): C C G McNally

COMMISSIONER

10 May 1996