THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSDLA/237/03

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  L T PARKER

Oral Hearing

Appellant:  				          Respondent:  Secretary of State

Tribunal:  Glasgow			     Tribunal Case No:  

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	I grant the application for leave to appeal and, with the consent of the applicant and respondent, treat and determine the application as an appeal.

2.	On that appeal, my decision is that decision of the Glasgow appeal tribunal (the tribunal) held on 26 November 2002 is not erroneous in point of law.  Accordingly, that decision stands.

The issue

3.	The adverse decision under appeal to the tribunal was a decision by a decision maker (DM) made 15 May 2001 on a claim for disability living allowance (DLA) made on 9 February 2001.  The DM’s adverse decision was that the appellant is not entitled to DLA from and including 9 February 2001.

4.	By the time of the tribunal hearing, a further claim for DLA dated 18 July 2002 had been made by the appellant and a decision by a DM carried out on 24 September 2002 which again found that the appellant was not entitled to DLA, but this time from and including 18 July 2002.

5.	The tribunal allowed the appeal to the extent that it awarded the lowest rate of the care component of DLA, on the basis that he reasonably required attention with bodily functions for a significant portion of the day, from 9 February 2001 until 17 July 2002.

6.	The short point arising on the appeal is whether the tribunal was wrong in law to restrict its jurisdiction to the period up to 17 July 2002.  It is submitted that section 12(8)(b) of the Social Security Act 1998 precluded the tribunal from taking into account any circumstances not obtaining at the time when the decision appealed against was made.  Neither the lodging of the fresh claim nor the decision made on it happened until long after the DM decision of 15 May 2001 in issue before the tribunal.

7.	Alternatively, it was argued that the tribunal failed to give reasons for rejecting the same point made at the oral hearing.  The record of proceedings does not record on its face that the argument was put.  However, I do not consider it necessary to obtain the chairman’s comments.  As I do not accept the submission, if the tribunal did fail to give reasons for rejecting it, then my course of action would be to allow the appeal but substitute my own decision to the same effect as that of the tribunal.  This would be an empty exercise and I see no point in pursuing what did or did not happen at the hearing further.

Statutory provisions

8.	Social Security Act 1998

	“12. – (8)	In deciding an appeal under this section, an appeal tribunal – 
	(a)	…;
	(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
	……………
	17. – (1)	Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of the Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.”

Oral hearing

9.	The case came before me for an oral hearing on 25 September 2003.  The claimant was represented by Mr Craig, from the Queen’s Cross Housing Association Limited.  The Secretary of State was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.  I am grateful to them both for their submissions.  In essence, Mr Craig relied on the terms of s.12 of the Social Security Act 1998 and Mr Brown on those of section 17 of the same Act.

My conclusion and reasons

10.	The effect of s.17(1) is that decisions are final, subject to appeals, revisions or supersession, or judicial review.  Therefore, the basic premise must be that the decision of the second DM on 24 September 2002 was final with respect to the question of entitlement from and including 18 July 2002, except insofar as it was subject to any of the judicial mechanisms above set out. 

11.	The second DM decision was not under appeal to the tribunal.  Section 12(8)(b) has to be applied in conformity with s.17(1) and with the basic rule that there cannot be overlapping decisions in respect of the same benefit.  If this were not the case, the current benefit position could be chaotic and the results would certainly not always benefit the claimant.  In this case, the appellant might have been awarded higher rate mobility component and highest rate care component by the second DM for the period from 18 July 2002.  It would be invidious if section 12(8)(b) permitted a tribunal to interfere with that decision and to extend its own award, of lowest rate care component only, into the period covered by the second award.

12.	I agree with Mr Brown that “circumstances” is not apt to cover “decisions”.  There are two distinct stages.  Firstly, a tribunal must decide the period over which it has jurisdiction to make an award.  Usually, this is open ended if the adjudicating body considers that the facts justify entitlement on this basis.  However, this is not so where a decision has already been made on a later period.  Section 17(1) of the Social Security Act 1998, combined with fundamental legal principle, then curtails the period over which a body adjudicating as from an earlier date can extend its own award.

13.	Once the period over which there is jurisdiction to make an award is established, an appeal tribunal must then determine entitlement.  In deciding entitlement, and how a claimant is likely to continue to satisfy the statutory criteria for entitlement within the period over which the tribunal has jurisdiction to make an award, it cannot take into account any circumstances after the date of the decision under appeal.

14.	Therefore, the tribunal must look at all issues of entitlement through the prism of how circumstances appeared (or should have appeared when taking into account evidence which only appears later but is relevant to the circumstances at the date of the adverse decision) to the DM at the time of the relevant decision.  Even if an appellant has an operation two days after the date of the adverse decision which wholly restores him to health, that is not a matter for the tribunal either in considering whether he fits the statutory criteria throughout the appropriate qualifying period or on the issue of how long he is likely to continue to do so.

Summary

15.	The tribunal was accordingly right to consider that it had no jurisdiction to consider the period from 18 July 2002.  Section 12(8)(b) of the Social Security Act 1998 is inapplicable.

						(Signed)
						L T PARKER
						Commissioner
						Date:  7 October 2003