MS-v-Department for Social Development (DLA) [2010] NICom 123
Decision No:  C54/10-11(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 14 September 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner granted on 10 September 2010, against the decision of an appeal tribunal, affirming the decision of a decision-maker, to the effect that the claimant is not entitled to either component of disability living allowance.  For the reasons stated below there was a slight variation between the decision of the decision-maker and the decision of the tribunal as the tribunal referred to the fact that there was no grounds for an award in relation to either the mobility or the care component from and including 1 April 2009 while the decision-maker’s decision disallowed the claims from and including 9 May 2009.

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

3.	In this case a Commissioner accepted a late application for leave to appeal on 10 September 2010 and also, in the same determination, granted leave to appeal for the following reasons:

“It is arguable that the decision was wrong in law, because the tribunal has identified the wrong date from which both the mobility and care components should be disallowed.”

	In the same determination a Commissioner held that the other points raised by the claimant, namely, issues concerning the appellant’s ability to walk, were not reasonably arguable.

4.	The claimant is represented by Mr David Gibson of the Citizens Advice Bureau while the Department is represented by Mr Jim Hinton of Decision Making Services.

5.	Since the submission of the application for leave to appeal, neither the claimant nor her representative have taken an active part in the proceedings.

6.	Mr Hinton has identified, and in my view correctly identified, an error in the tribunal’s decision and no counter argument has been made by or on behalf of the claimant.

7.	Mr Hinton’s main point is that the two decision notices, relating to the care and the mobility components, have identified the wrong date from which both the mobility and care components should be disallowed.

8.	The decision before the tribunal concerned a renewal claim which was disallowed from 9 May 2009.  The tribunal in its statement of reasons referred to the decision dated 1 April 2009 which revised a decision dated 10 March 2009.  This decision of 10 March 2009 awarded the claimant the lowest rate of the care component from 9 May 2009, the date of the renewal claim.  However, the decision-maker failed to take into account that the claimant reached the age of 65 on 23 February 2008.  The tribunal, however, correctly pointed to the fact that the claimant’s situation is governed by paragraph 3(2)(b) of Schedule 1 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 which provides that a person who has previous entitlement to the highest or middle rate care component, cannot be entitled to the lowest rate on renewal after such a person has reached 65.  The decision notice in respect of the mobility component states as follows:

“Disallow.  There is no ground for an award of a mobility component from and including 1/4/09.  Grounds for revision exist.”

	The decision notice in respect of the care component is worded identically with the exception that “care” is substituted for “mobility”.

9.	Mr Hinton has pointed out that the date 1 April 2009 is in fact the date the decision was made to disallow both components.  However, the date of the renewal claim was in fact 9 May 2009 and he submits that this is the correct date for disallowance.

10.	In my view, Mr Hinton is correct in his submissions.  I also, on this very highly technical matter, conclude that the tribunal’s decision dated 14 September 2009 is erroneous in law.  Under the provisions of Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998, I have the power to give the decision which I consider the tribunal should have given, if I can do so without making fresh or further findings of fact.  In the present circumstances this is the appropriate course to take as I can make the decision without making fresh or further findings of fact.  Accordingly I allow the appeal and set aside the decision of the tribunal and substitute a decision, in relation to both components, to the identical effect of the tribunal’s decisions on both components except that I substitute the date 9 May 2009 for the date 1 April 2009 as the former date is the correct date for disallowance.

(signed):  J A H Martin QC

Chief Commissioner

1 December 2010