R(DLA) 5/02

Mr. J. Mesher	CDLA/3861/1999
6.7.00
Care component – renewal over age 65 – whether entitlement to lowest rate permissible following award of highest rate
The claimant was in receipt of the highest rate care component for a period of two years, during which time she reached the age of 65. She made a renewal claim. The adjudication officer made no award of the care component. On appeal to a Disability Appeal Tribunal, the tribunal decided that the claimant met the conditions of the cooking test. The decision notice stated that the claimant was entitled to the lowest rate of the care component. The full statement of facts and reasons subsequently produced, recorded that the decision was incorrect because of the claimant’s age so that she was not entitled to the lowest rate of the care component. The claimant appealed to the Commissioner on the grounds that she was not barred from entitlement after reaching the age of 65.
Held, allowing the appeal, that:
1.	the decision had to be taken as that stated on the decision notice;
2.	the claimant was caught by the basic rule in section 75(1) of the Social Security Contributions and Benefits Act 1992 excluding persons of 65 or over from entitlement;
3.	the claimant was potentially excepted from that rule by paragraph 3(1)(b) of Schedule 1 to the Social Security (Disability Living Allowance) Regulations 1991 by virtue of her renewal claim;
4.	however, paragraph 3(2)(a) was not applicable because she had not been entitled at the lowest rate of the care component on the previous award, so that no new award of that rate could be made;
5.	paragraph 3(2)(b) was not applicable because she did not meet the medical conditions for the middle or highest rates of the care component.
The Commissioner referred the case to a new tribunal for a rehearing in relation to the mobility component.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the Blackburn disability appeal tribunal dated 28 January 1999 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for determination in accordance with the directions given in paragraph 19 below (Social Security Act 1998, section 14(8)(b)).

2.	This appeal stems from the renewal claim for disability living allowance (“DLA”) made for the period starting on 7 March 1998. The claimant (who was born on 11 December 1932) had previously been entitled to the higher rate of the mobility component of DLA and the highest rate of the care component for the period from 7 March 1996 to 6 March 1998. The general practitioner’s report on the claimant’s care needs, following which that award was made, as well as recording the inability to carry out many activities, mentioned that she could not use a cooker, cope with hot pans or peel and chop vegetables. On the making of the  renewal claim, the claimant was examined by an examining medical practitioner (“EMP”) on 15 November 1997. He gave the opinion that the claimant could walk about 50 to 60 metres before the onset of severe discomfort, taking about three to four minutes for that distance. The EMP recorded limited needs for assistance and no need for supervision or any night-time assistance. He ticked that the claimant could peel/chop vegetables, use taps, use a cooker and cope with hot pans. The adjudication officer awarded the higher rate of the mobility component for the period from 7 March 1998 to 6 March 2001, but made no award of care component.

3.	On the claimant’s application for review, the decision on the care component was maintained. The adjudication officer recorded that entitlement to and the rate of mobility component had not been considered. The review decision drew attention to the provisions on when there can be entitlement to the care component after reaching the age of 65. The claimant appealed. It was said on her behalf that she could not maintain a reasonable standard of personal hygiene or nutrition on her own, and had, partly because of her psychological condition, failed to reveal the extent of her needs to the EMP. Medical reports were submitted about her physical and psychological condition following her road traffic accident in December 1995.

4.	The claimant attended the hearing by the disability appeal tribunal (“DAT”) on 28 January 1999 accompanied by her husband and represented by Mr. A Lingard of Lancashire County Council Welfare Rights Service. Mr. Lingard seems to have relied in particular on the claimant’s short-term memory problems and general loss of confidence in preventing her from being able to prepare a cooked main meal for herself. However, the claimant also gave evidence that her hip was not as bad and that she could walk for about half a mile in all, with some stops of about two to three minutes.

5.	The DAT’s decision, as recorded on two decision notices, was that the claimant was entitled to the lowest rate of the care component from 7 March 1998 to 6 March 2003, on the cooking test, but that she was not entitled to an award of the mobility component as from 28 January 1999, as she had said that she now had no pain in the hip and was able to walk up to half a mile with stops. However, on the statement of material facts and reasons for decision, the chairman recorded that the decision on the care component was incorrect because of the claimant’s age. It was accepted that she could not prepare a main meal because she could not effect the necessary planning. It was said that her representative had accepted that there were no other care or supervision needs. On the mobility component, it was repeated that there was no entitlement because the claimant could walk up to half a mile albeit at slightly less than average pace.

6.	The claimant now appeals to the Commissioner, with leave very properly granted by the chairman of the DAT. The appeal was put primarily in terms of being against a decision that she was not entitled to the lowest rate of the care component. It was submitted that the proper interpretation of the legislation was that the claimant was not barred from entitlement after reaching 65. The adjudication officer then concerned with the appeal, in the submission dated 9 October 1999, took the view that the DAT’s award of the lowest rate of the care component could not be removed by the chairman’s statement of findings and reasons, but that the award was erroneous in law.

7.	On that issue, it might be argued that there is an error of law whenever there is such a discrepancy between the decision notice and the statement of findings and reasons. Certainly, if the award of the lowest rate of care component had been right in law on the findings of fact made by the DAT, there was no explanation of the reasons. If the award was wrong in law, the decision (which I agree with the adjudication officer had to be taken as stated on the decision notice) was wrong. But the essential question in how the claimant’s case should finally be determined is the effect of the legislation on people over 65 in her circumstances.

8.	I considered that Mr. Lingard should have the opportunity to develop his written submissions on that question in more detail and directed an oral hearing. Mr. Lingard attended on behalf of the claimant. The Secretary of State (who has now taken over the functions of adjudication officers) was represented by Miss. A. Main Thompson of the Office of the Solicitor to the department of Social Security. I am grateful to both representatives for their assistance.

9.	Mr Lingard put the case for the claimant as well as it could be put, but I cannot accept his submissions.

10.	The legislative provision relied on to exclude the claimant from entitlement to the lowest rate of the care component is section 75(1) of the Social Security Contributions and Benefits Act 1992:

	“(1) Except to the extent to which regulations provide otherwise, no person shall be entitled to either component of a disability living allowance for any period after he attains the age of 65 otherwise than by virtue of an award made before he attains that age.”

The Social Security (Disability Living Allowance) Regulations 1991 (“the DLA Regulations”) provide exceptions from the operation of that rule. In particular, paragraph 3(1) and (2) of Schedule 1 provides:

	“(1) This paragraph applies where a person on or after attaining the age of 65––
	 (a)	is entitled to the care component and an adjudicating authority is satisfied that the decision awarding it ought to be revised on review under section 30, 31 or 35 of the [Social Security Administration Act 1992]; or
	 (b)	makes a renewal claim for disability living allowance.

	 (2) Where a person was entitled on the previous award or on the award under review to the care component payable––
	 (a)	at the lowest rate, that person shall not be precluded, solely by reason of the fact that he is aged 65 or over, from entitlement to the care component; or
	 (b)	at the middle or highest rate, that person shall not be precluded, solely by reason of the fact that he has attained the age of 65, from entitlement to the care component payable at the middle or highest rate,
	but in determining that person’s entitlement, section 72 of the [Social Security Contributions and Benefits Act 1992] shall have effect as if in paragraph (a) of subsection (2) of that section for the reference to 3 months there was substituted a reference to 6 months and paragraph (b) of that subsection was omitted.”

11.	Section 72(1) and (2) of the Contributions and Benefits Act sets out the conditions of entitlement to the care component. Then subsection (3) says that three weekly rates of care component are to be prescribed by regulations and subsection (4) provides:

	“(4) The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be––
	 (a)	the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;
	 (b)	the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and
	 (c)	the lowest rate in any other case.”

12.	In the present case, the claimant was of course caught by the basic rule in section 75(1) of the Contributions and Benefits Act, but came within paragraph 3(1)(b) of Schedule 1 to the DLA Regulations. Although her renewal claim form was submitted before her 65th birthday, by virtue of regulation 13C(2)(a) of the Social Security (Claims and Payments) Regulations 1987 the claim can be treated as made on 7 March 1998, after her 65th birthday. But she was on the face of it not assisted by paragraph 3(2). Head (b) did not help her, because it only allows entitlement to the highest or middle rate of the care component and from 7 March 1998 she only met the medical conditions for the lowest rate. Then, although head (a) allows entitlement to any rate of the care component, it was said for the Secretary of State that the claimant fell outside it because on the previous award she had not been entitled to the care component payable at the lowest rate. She had been entitled to the care component payable at the highest rate.

13.	Mr Lingard submitted that the claimant should be regarded as having had an “underlying entitlement” to or an “underlying right to payability” of the lowest rate of the care component under her previous award. Thus, although the fact that the claimant came within section 72(4)(a) of the Contributions and Benefits Act meant that she could not come within section 72(4)(c), the lowest rate of the care component should be regarded as “payable” for the purposes of paragraph 3(2)(a) of Schedule 1 to the DLA Regulations. He suggested that whenever someone satisfied the day conditions for the care component it was almost inevitable that they would also have satisfied the conditions for the lowest rate. The present case was stronger, because in the evidence on which the award of the highest rate of the care component was based were express findings of satisfaction of the cooking test for the lowest rate. Mr. Lingard submitted that, unless paragraph 3(2)(a) were interpreted so as to include such “underlying payability”, the perverse result would follow that the claimant was penalised in relation to someone in the same circumstances but less disabled before reaching 65. If she had only been paid the lowest rate of the care component from 7 March 1996 to 6 March 1998, there would have been no doubt that she could be paid the lowest rate on the renewal claim from 7 March 1998. There could also be different results according to the accidents of the timing of claims shortly before the 65th birthday and of the length of awards.

14.	That was a valiant attempt to get the claimant within the scope of the legislation, but I am afraid that it cannot stand against the plain words of paragraph 3(2) of Schedule 1. The test could have been put in terms of the satisfaction of the various conditions of entitlement on the previous award, but it was not. It was put in terms of what the claimant was entitled to be paid “on the previous award”. That points inexorably to the test being what rate of the care component is to be paid (i.e. is payable) under the award in question. I agree with Miss. Main Thompson that the effect of section 72(4) of the Contributions and Benefits Act is that only one rate of the care component can be payable at any time. Paragraphs (a), (b) and (c) are mutually exclusive. I cannot find any room within paragraph 3(2) of Schedule 1 for an “underlying payability” of the kind put forward by Mr. Lingard. I have considered Commissioner’s decision CIB/14383/1996, where, as Mr. Lingard pointed out, it was held that in some circumstances a benefit could be regarded as payable when it was not actually paid. But the context here is entirely different, and the decision does not help the claimant’s case.

15.	That does leave the claimant worse off than if she had only been entitled to the lowest rate of the care component on her previous award. I can appreciate the feelings of unfairness that that would cause. Mr. Lingard did not in so many words submit that the result was so perverse that the provision in paragraph 3(2) of Schedule 1 was irrational, and so ultra vires, but an argument along those lines could perhaps have been made. Miss. Main Thompson suggested that the provision has to be looked at alongside the rules on attendance allowance for the over-65s (“AA 65+”). The conditions of entitlement for AA 65+ are essentially the same as for the care component of DLA, but without the provision for the lowest rate. It is I think rational for the government to take that view and restrict entitlement to the more severely disabled, thus avoiding some problems of distinguishing between disability and the ordinary effects of the ageing process. It would be equally rational for the DLA Regulations to make the conditions for the award of the care component on a renewal claim after 65 the same as for award of AA 65+ on a new claim. But paragraph 3(2)(a) goes further and allows the lowest rate of care component to be awarded on a renewal claim after 65, but only where the lowest rate has actually been in payment on the previous award. The exclusion of those in the claimant’s position from that protection could be described as harsh or as unfair, but I do not think that it is irrational, a provision that no Secretary of State in his senses would make. There is some rational sense in giving the protection only to those who were actually receiving and relying on the lowest rate of the care component, in the light of the rules for new claims by the over-65s.

16.	My conclusion is therefore that the DAT erred in law in deciding that the claimant was entitled to the lowest rate of the care component from 7 March 1998 to 6 March 2003, and that its decision must be set aside.

17.	The question then arises of how the claimant’s appeal against the adjudication officer’s decision dated 24 March 1998 should be dealt with. Miss. Main Thompson took a different view from that expressed in the written submission of 9 October 1999, which had requested that the case be remitted to another appeal tribunal for rehearing. She submitted that I could substitute the proper decision on the care component and that on the mobility component the DAT’s findings of fact were sufficiently clear and comprehensive for me to give the same decision, that there was no entitlement to the mobility component from 28 January 1999. Mr. Lingard submitted that the case should go back to another appeal tribunal for rehearing, as the way in which the DAT dealt with the mobility component was unsatisfactory. There had been no suggestion before the hearing on 28 January 1999 that the claimant’s entitlement to the mobility component was in issue, there had been no prior thought about putting forward evidence on that component and the claimant’s own evidence was, Mr. Lingard suggested, unreliable. The DAT’s reasoning on the mobility component had been attacked in the application for leave to appeal to the Commissioner.

18.	I do not find this question easy. The claimant’s evidence to the DAT about her walking was clear, and was checked with her by the chairman. Her husband and a skilled representative were present. Her husband did not intervene to say that the claimant was over-estimating her walking ability. Mr. Lingard did not intervene to say that entitlement to the mobility component had not previously been in issue and that he requested an adjournment to consider obtaining further evidence. On the other hand, the EMP on 5 November 1997 had found substantial impairment of both hips and in the letter of appeal the point that the claimant was reluctant to admit to the existence of disabilities was made plainly. Bearing in mind that the DAT’s decision has to be set aside for another reason (so that I do not have to say that the DAT erred in law on the mobility component), I have concluded that it is better that I do not substitute a decision on the claimant’s appeal against the adjudication officer’s decision of 24 March 1998.

19.	Accordingly, I refer that appeal to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for rehearing in accordance with the following directions. No-one who was a member of the DAT of 28 January 1999 is to be a member of the new appeal tribunal. If a rehearing takes place, there must be a complete rehearing on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any conclusions expressed or findings made by the DAT. However, the fact that the claimant gave the evidence recorded in the record of proceedings on 28 January 1999 will form part of the relevant evidence. The new appeal tribunal must apply my conclusions of law on the interpretation of paragraph 3 of Schedule 1 to the DLA Regulations, so that on the renewal claim from 7 March 1998 the claimant cannot be entitled to the lowest rate of the care component. Although the new appeal tribunal need not consider the mobility component on the appeal (Social Security Administration Act 1992, section 33(4)), it may do so. As the appeal was made before 21 May 1998, section 12(8)(b) of the Social Security Act 1998 will not apply and the “down to the date of the rehearing” principle will operate. If the new appeal tribunal takes the mobility component into consideration, it will have to ask itself whether the conditions of entitlement are satisfied for any dates from 7 March 1998 down to the date of the rehearing (subject to any decision made on any fresh claim).

20.	The current situation, the DAT’s decision having been set aside, is that the operative decision is the adjudication officer’s award of the higher rate of the mobility component in the decision dated 11 December 1997, which was not revised in the adjudication officer’s second-tier review decision of 24 March 1998. In view of what I have held about entitlement to the care component, the claimant and Mr. Lingard may wish to consider withdrawing her appeal against the adjudication officer’s decision of 24 March 1998. Under regulation 40 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 a withdrawal can be effected by notice in writing to the clerk to the appeal tribunal and does not require the consent of a chairman or any other officer of the appeal tribunal. If the appeal were withdrawn, that would leave the claimant’s award of the mobility component intact. It would then be for the Secretary of State to consider whether to take action to supersede the decision of 11 December 1997 on the ground of ignorance or mistake of material fact or relevant change of circumstances or some other ground.

Date: 6 July 2000						     (signed) Mr. J. Mesher
Commissioner