THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CDLA/2327/1998

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER JACOBS

Decision:

1.	My decision is as follows. It is given under sections 23(7)(b) and 34(4) of the Social Security Administration Act 1992.

1.1	The decision of the Newcastle upon Tyne Disability Appeal Tribunal held on 13th November 1997 is erroneous in point of law: see paragraph 7.

1.2	Accordingly, I set it aside and, as it is not expedient for me to give a decision on the claimant's appeal to the tribunal, I refer the case to a differently constituted tribunal for determination.

1.3	I direct the tribunal that rehears this case to conduct a complete rehearing. In particular, the tribunal must:

	Determine the period over which it has jurisdiction. 

	The tribunal's jurisdiction begins on the date of claim: 11th October 1996.

	It is likely that the claimant’s appeal will be reheard by a new Appeal Tribunal. It has not yet been determined whether an Appeal Tribunal that is rehearing an appeal that was made before 21st May 1998 is required to apply the down to the date of hearing rule or is subject to the limitation on its jurisdiction contained in section 12(8)(b) of the Social Security Act 1998. This question will be determined in CIB/213/1999 before the end of October 1999. This appeal is not to be listed for rehearing until the decision in that case is known. The tribunal that rehears this case will follow CIB/213/1999.

	If the down to the date of hearing rule applies to the rehearing, the tribunal must determine the date on which its jurisdiction ends. In order to do this, it must establish whether the claimant has made any subsequent claim for Disability Living Allowance. If a claim has been made and has been adjudicated upon, the tribunal's jurisdiction runs down to the effective date of that decision. Otherwise, it runs down to the date of the rehearing. The adjudication officer or the Secretary of State must inform the tribunal, either by way of an additional submission or through the presenting officer at the rehearing, whether any claim has been made and, if so, the decision given on it and the effective date of that decision.

Determine the claimant’s entitlement to Disability Living Allowance.

The tribunal must determine whether at any time within its jurisdiction the claimant satisfied the conditions of entitlement to any rate of either component of Disability Living Allowance, having regard to the guidance in paragraph 11.

The appeal to the Commissioner

2.	This is an appeal to a Commissioner against the decision of the Appeal Tribunal brought by the claimant with the leave of a Commissioner. The adjudication officer supports the appeal.

The adjudication officer’s decision

3.	The claimant was born on 24th March 1981. Her claim for a Disability Living Allowance was treated as made on 11th October 1996. The claim was based on the claimant’s stomach pains and vomiting. The GP’s statement on the claim form said that these were of unknown cause and added that she also experienced tiredness. The adjudication officer refused the claim. 

4.	The claimant applied for a review of the decision. A report was obtained from an Examining Medical Practitioner, who recorded that chronic fatigue and nausea and abdominal pain as diagnoses. A different adjudication officer reviewed the decision under section 30(1) of the Social Security Administration Act 1992, but confirmed the refusal of the claim.

The appeal to the Appeal Tribunal 

5.	The claimant appealed against the decision given by the adjudication officer on the section 30(1) review. The claimant did not attend at the hearing of her appeal, but her mother attended and gave evidence, accompanied by a representative from a firm of solicitors.

6.	The tribunal confirmed the refusal to make an award of the care component, but awarded the mobility component at the lower rate for the inclusive period from 11th October 1996 to 10th October 1998.

The error of law

7.	The tribunal began the award of the mobility component at the lower rate on the date of claim. It based its award on “unexpected collapses” to which the claimant was subject “from time to time”. There was no mention of these collapses in the claim pack or in the report of the Examining Medical Practitioner, which was dated 7th March 1997. They were first mentioned, as “blackouts”, in a letter from the claimant’s solicitor on 12th June 1997 (page 93), where it is said that the claimant had had two “this year”. In view of that evidence, the tribunal had to consider when the initial qualifying period of three months for an award was satisfied. On the documentary evidence, there had been no blackouts before 1997 and, perhaps, before March 1997. If the tribunal was basing its decision on the risk of a blackout rather than the occurrence of that risk, it needed to relate the existence of that risk to a particular condition to which the claimant was subject. The failure to deal with these issues is an error of law.

8.	As the tribunal’s decision must be set aside as a result of this error, it is not necessary to deal with any of the other errors of law alleged in the grounds of appeal. Any other error of law that did occur will be subsumed in the rehearing.

The qualifying period for the cooking main meal test

9.	In order to direct the tribunal for the rehearing, it is necessary to deal with a question raised by a Nominated Officer (now called a Legal Officer to the Commissioners) in a Direction. The question was this:

“Does the Adjudication Officer consider that the qualifying period set out in section 72(2)(a)(i) of the Social Security Contributions and Benefits Act 1992, in relation to the condition set out in section 72(1)(a)(ii) (the cooking test), could only commence from the date the claimant attained 16?”

The adjudication officer did not analyse the legislation, but responded that the qualifying period had immediately precede the date on which the award of that component of Disability Living Allowance would begin.

10.	The care component at the lowest rate may be awarded on the basis of a claimant cannot cook a main meal: see section 72(1)(a)(ii). Section 72(6) provides that 

“For the purposes of this section in its application to a person for any period in which he is under the age of 16-

	(a)	sub-paragraph (ii) of subsection (1)(a) shall be omitted”.

11.	Section 72(2)(a)(i) provides that a claimant is not entitled to the care component unless she has satisfied one of the bases for an award for a period of three months. When this provision is set alongside section 72(6)(a) it appears to have the effect that the cooked main meal test is omitted until a claimant attains 16 and that the initial qualifying period of three months cannot begin to run until that date. However, section 72(6)(a) only provides that the cooked main meal test is omitted until a claim attains 16. Once she attains that age, the test is no longer omitted and section 72(2)(a)(i) applies without any restriction on the date from which the period of three months can begin. So, the qualifying period can begin 3 months before a claimant attains the age of 16. This is a rational approach to the legislation which is concerned with the date at which it is appropriate for financial help to be given as a result of an inability to cook a main meal.

Changes made by the Social Security Act 1998

12.	The Social Security Act 1998 is being brought into force in stages over this summer and autumn. It abolishes the title and status of adjudication officers, transferring their functions to officers acting in the name of the Secretary of State. It also abolishes Disability Appeal Tribunals, transferring their existing cases to the new and nameless Appeal Tribunal. I mention these changes for the claimant’s information. It is possible that by the time of the rehearing the claimant’s appeal will fall under the new arrangements. This also explains why one of my directions refers to “the adjudication officer or the Secretary of State”. 

Summary

13.	The tribunal's decision is erroneous in law and must be set aside. I cannot give the decision which the tribunal should have given on its findings of fact and it is not expedient for me to make further findings of facts. There must, therefore, be a complete rehearing of this case before a differently constituted tribunal in order to determine the claimant’s proper entitlement to Disability Living Allowance at all times within the period of the tribunal's jurisdiction. The tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing, except in so far as I have directed the tribunal on the law to apply.

Signed:	Edward Jacobs
		Commissioner

Date:		28th September 1999