DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner’s Reference: CSDLA 852 2002

1.	The decision of the Dumfries appeal tribunal (the tribunal) held on 29 August 2002 is wrong in law.  I therefore set it aside and remit the case for rehearing by a differently constituted tribunal.

The issue

2.	The appeal concerns a new claim for disability living allowance (DLA) made on 12 February 2002.  The claimant had fractured his hip in an accident on 28 December 2001.  The adverse decision by a decision-maker (DM) on 15 May 2002 was that the claimant was not entitled to DLA, either component at any rate, from and including the date of claim.  This adverse decision was based on medical evidence about the prognosis.

3.	The tribunal dismissed the claimant’s appeal to it on the ground that a three month qualifying period is required for an award of DLA and this was not satisfied at the date of claim.  The issue before it was whether an advance conditional award of DLA may be made and the tribunal decided that it could not.

My conclusion and reasons

The statutory criteria

4.	The tribunal was wrong on this point.  The relevant regulation is Regulation 13A of the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968), not Regulation 13, on which the tribunal relied.  Regulation 13A, so far as material, reads:-

	“13A.–(1)	Where, although a person does not satisfy the requirements for entitlement to disability living allowance on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day (“the relevant day”) not more than 3 months after the date on which the claim is made, then the Secretary of State may award disability living allowance from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day.

	…………

(3)	A decision pursuant to paragraph (1) or (2) to award benefit may be revised under section 9 of the Social Security Act 1998 if the requirements for entitlement are found not to have been satisfied when disability living allowance becomes payable under the award.”

4.	      Regulation 13A thus permits an award of DLA where a claim is made no more than 3 months before the date from which the award takes effect, if the DM considers that by that date the claimant will satisfy the 3 months qualifying period for DLA and is then likely so to satisfy the qualifying conditions for a further 6 month period.  The claim subsists until the matter is determined by the DM (s.8(2)(a) of the Social Security Act 1998).

5.	A claim is to be treated as being continuously made until it is determined.  Therefore, although Regulation 13A only benefits the claimant if the claim is made within the relevant 3 month period, it applies provided that the DLA conditions in question are satisfied by the date of the Secretary of State’s decision under appeal and seemed likely to continue for both the 3 month qualifying period and the 6 month prospective period, so that the Secretary of State could then have made an advance award.

6.	The issue for the tribunal was, therefore, whether on 15 May 2002 when the claim was decided by the Secretary of State (and beyond which circumstances could not be taken because of section 12(8)(b) of the Social Security Act 1998), circumstances existed, (even if proved by later evidence not available to the DM at the time) which justified an award under regulation 13A.

7.	Regulation 13 was not pertinent and the tribunal erred in reliance on it.  It would have helped the tribunal considerably though if the DM in the written submission to the tribunal had referred it to the right regulation or if the representative at the hearing had done so.

Consideration of the evidence

8.	As the claimant’s accident occurred on 28 December 2001, the qualifying period could not be satisfied until 28 March 2002.  His claim was lodged not more than 3 months before that date so if the DM had been satisfied that the claimant fitted any relevant statutory criteria for the 3 months until 28 March 2002 and would be likely to do so for a further 6 month period thereafter, an award under Regulation 13A could be made.  The DM decided that the medical evidence did not support any entitlement because it suggested that the claimant would be “independently weight-bearing within 6 months of his accident.”

9.	On its rehearing of all matters, the issue for the tribunal was whether that decision was right.  Having incorrectly decided that no advance award was legally possible, the tribunal never considered the pertinent questions.  I could have substituted my own decision if the inferences from the medical evidence were clear cut.  But they are not.  The DM relied on a hospital factual report dated 2 April 2002, in which it was stated that on that date the patient was hopping on crutches.  That is not walking, so on that date the claimant satisfied the statutory criteria because he was “unable to walk” under Regulation 12(1)(a)(i) of the Social Security (Disability Living Allowance) Regulations 1991.  To the question “when, if ever, is the patient likely to be able to fully weight bear and walk usefully out of doors?”, the answer on 2 April 2002 was “depends on how stable he is.”

10.	The advice to the DM from the Medical Services was that, on this basis, the claimant should be managing independent weight-bearing within 6 months of the accident barring any set backs or complications.  I am neither able to judge whether this is a fair prognosis nor whether, in the event, there were complications.  Even if there were no set backs, and he managed independent weight-bearing within 6 months of the accident, would the quality of his walking inevitably have improved such that he could not be described as virtually unable to walk?  These questions require to be decided by a new tribunal which contains a medical member.

Summary

11.	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal and the determination of the claimant’s case on the merits is entirely for them.  As my jurisdiction is limited to issues of law, I stress to the claimant that my decision is no indication of the likely outcome of the rehearing.

12.	As the burden of proof on all matters on the new claim lies on the claimant, it may be considered prudent for his representative to produce medical evidence relating to the relevant period.  The question for the new tribunal is whether the criteria for an advance conditional award of DLA have been demonstrated with respect to a date falling within the period beginning when the claim was lodged and ending with the date of the DM’s adverse determination.  Later evidence may be utilised which reflects the claimant’s circumstances as they were during the period under consideration.

					(Signed)
					L T PARKER
					Commissioner
					Date: 11 December 2002