PLH                                                                     Commissioner's File:  CDLA  1930/04

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Disability Living Allowance
Appeal Tribunal: 	Harlow 
Tribunal Case Ref:  	U/42/919/2003/01157
Tribunal date:	12 February 2004
Reasons issued:	15 March 2004

     1.     	This claimant’s appeal succeeds.  The decision of the Harlow appeal tribunal on 12 February 2004 was, as the Secretary of State concedes, defective in law in the way they addressed the question of whether the claimant already had an existing entitlement to the benefit in dispute, and the effect that had on the appeal before them.  I set the decision aside and remit the case under section 14(8)(b) Social Security Act 1998 to a fresh tribunal for that question to be considered more fully and some clear findings made, which is an essential precondition to determining what, if anything, there was to be decided on the appeal.
     2.     	The facts of this case are unusual.  The claimant, a man now aged 46, is accepted as suffering from a perfectly genuine condition of rheumatoid arthritis which he finds very disabling.  It is clear from the evidence before the tribunal, and again not in dispute, that in 1995 a decision was made by an adjudication officer under the legislation then in force awarding him both components of disability living allowance, at the higher rate of mobility and the middle rate for care, in each case for the remainder of his life. He continued to receive the benefit at those rates until the middle of 2000, when he was convicted of an offence and sent to prison.  
     3.     	Under section 113 Social Security Contributions and Benefits Act 1992 a person in that position is disqualified while actually undergoing his sentence of imprisonment from receiving the benefit to which he is otherwise entitled. The entitlement itself however is not forfeited, and unless some other change or event occurs to justify its removal, the right to receive benefit under the life award ought simply to revive when the term of imprisonment ends without any need for a fresh claim or a medical assessment.  
     4.     	In fact this was not treated as such a case, even though according to the claimant’s recollection all he did was surrender his payment book in accordance with the standard instructions when he went into prison, and ring up saying he wanted to start getting his benefits again when he came out in 2003.   Such departmental records as now survive appear to show his entire entitlement as having been terminated, not just payment suspended, with effect from 16 June 2000.  When his telephoned request for the restoration of his benefit was received on 10 February 2003, he was therefore treated as a fresh claimant and sent a completely new claim form to fill in.  
     5.     	The claimant did complete that form as he was asked, and was sent for a medical examination which took place on 15 April 2003. The examining doctor confirmed that he did indeed have a severe degree of rheumatoid arthritis in many joints and substantial impairment in the functions of all his limbs, with a serious degree of pain, weakness and loss of grip in his wrists and hands; though the doctor’s assessment was that the claimant could nevertheless walk a distance of 50 metres without severe discomfort at a slow pace, with adequate balance using a stick.  After a delay while enquiries were made about the nature of care he was getting in the bail hostel where he was then living, an officer of the Secretary of State made a decision on the case as a new claim from 10 February 2003, refusing to make any award for mobility but awarding the care component at the lowest rate from 10 February 2003 to 9 February 2005 because of the claimant's inability to prepare a cooked main meal.  The appeal before the tribunal on 12 February 2004 was the claimant's appeal against that decision, which was of course a lot less favourable to him than the entitlement he had previously been awarded for life. 
     6.     	The claimant’s case was that his condition had not improved at all since that previous award had been made, a fact confirmed by the examining doctor’s report which showed a deteriorating condition and a similar level of need over the last four to five years.  Despite taking detailed evidence from the claimant himself and the lady who cares for him and assists him when he goes out, the tribunal rejected his appeal and confirmed the award of only the care component for a limited period.  The tribunal expressly recorded that in reaching this decision they had approached the appeal as one entirely relating to a fresh claim, saying: 
“[the claimant’s] mobility component had correctly previously been terminated due to him serving a period of imprisonment.  The appeal therefore [sic] relates to a new claim with the decision date of 13 June 2003 being the subject of this appeal.”  
     7.     	The significance of that is that on such a fresh claim it would have been for the claimant to show the tribunal on the new evidence that he did affirmatively meet the conditions for entitlement and not the other way round, and there is no doubt from the terms of the tribunal’s decision and statement of reasons sent to the parties on 14 March 2004 at pages 154-155 that this was the way the tribunal did approach it.  That point is of particular importance given the borderline nature of the evidence on mobility and the medical finding that the distance he could walk before the onset of discomfort was as little as 50 metres: a similar distance to what he had himself estimated in the claim form, and one where the decision on “virtual inability to walk” could easily go either way.
     8.     	There is in my judgment no doubt that, as conceded in the submission of Mr T Lawton on behalf of the Secretary of State dated 3 August 2004 at pages 182-183, the tribunal did misdirect themselves on the effect of the claimant's period of imprisonment when referring to the question of his previous entitlement in the passage quoted above.  If the period of imprisonment itself was the only thing that had happened to affect his previous benefit under the life award as the tribunal appears to suggest, then it could not have been “correct” in terms of section 113 cited above for the benefit entitlement itself to have been “terminated” as the tribunal stated.  All that could lawfully have happened would have been the suspension of payment of the claimant’s benefit for the period while he was in prison and temporarily disqualified from receiving it.  In making that incorrect premise the basis for going on to determine the appeal before them as one on a fresh claim the claimant had been lawfully obliged to make, the tribunal in my judgment erred in law by failing to establish that there was a proper legal basis for the Secretary of State's decision they purported to confirm.  For that reason, I set their decision aside.
     9.     	Although I had initially hoped that it might be possible for me to give a final decision on the case myself, it would not, I think, be fair to attempt to do so on the material at present before me.  The rather scant departmental computer records that have helpfully been produced as a result of Mr Lawton’s enquiries do on their face appear to show that there was some decision given purportedly ending the claimant's entitlement (as distinct from merely suspending payment) on 28 September 2000.  However it seems that any record of the reasons for that decision has been deleted, and the only evidence referred to was “Further info from the Customer”, without anything to show that this might have related to his medical condition as distinct from the notification it is agreed he did give of the fact that he had gone into prison: see the extract from the computer printout now included at page 200 of the appeal file.  Against that the claimant’s own letter at pages 192-193 is clear that the only notification he gave was that he was in prison, as he was required to do, and that 
“This was the last contact I had, until my release.  When I was released I then had to start up my benefits.  I phoned DLA, explained what I wanted and the situation etc.  A new claim pack was sent and the rest as they say is history.… . The benefit was not taken away from me, it was surrendered as the law states you have to do.”  
     10.     	If as that letter suggests there was in fact no reconsideration of the medical  or other conditions of entitlement carried out or any decision taken and notified on that aspect at the time he went into prison, then it has to follow that there must be some mistake in the computer record and his life benefit award has never validly been taken away from him.  Conversely there is nothing inherently impossible in the department having taken a second look at the question of any continuing entitlement in the light of whatever was revealed by checks carried out on his physical state at that time, or for that matter the nature of the conviction itself (which was I think for a physical assault).  However I do not find it possible to make a satisfactory finding about all this on the material at present before me. The task of sorting out what really did happen will I think be far better undertaken by a fresh tribunal, where the claimant himself will have an opportunity to give further evidence and be asked questions on it, and the department of producing a more comprehensive explanation of what its records really show.  
     11.     	I direct the new tribunal that the starting point has to be the claimant’s admitted entitlement to the higher rate mobility and middle rate care components for life under the 1995 award, which it appearls continued in force at the time he went into prison (see the entitlement notice of 22 April 1999 at page 132); and that the mere fact of his imprisonment was an insufficient ground for that entitlement to have been taken away. 
     12.     	Thus for the decision under appeal to the tribunal to have been an effective one, they must be satisfied that something else took place in June or September 2000 resulting in a valid and effective decision to supersede and terminate the existing life entitlement at that time.  If they find there was, then they should of course proceed to consider and determine the merits of the appeal against the refusal of any higher rate of benefit on the fresh claim in the normal way.  
     13.     	If there was not, then the consequence has in my judgment to be that what took place in 2003 when the claimant was required to fill out a fresh claim form and a decision was purportedly made on it as a fresh claim was fundamentally flawed.  The true position was that the original entitlement for life was then still in being, and there can be no question of the departmental decision of 13 June 2003 taking effect as a decision that it ought to be superseded on one of the permitted grounds, when plainly it decided nothing of the sort: compare the references to a similar abortive decision on a fresh claim while there was in fact a continuing entitlement, in paragraphs 18-19 of the decision of the Tribunal of Commissioners in case CIB 2836/02.  On that footing, the fresh tribunal in this case will simply have to declare the decision of 13 June 2003 a nullity, confirm the existence of the continuing entitlement under the original life award, and determine the date from which payment under that award should have been resumed; leaving it to the Secretary of State to start afresh by operating the statutory machinery for superseding that award in the same way as for any other if he considers it should no longer continue, for example by reason of ignorance or mistake of fact in the original decision or a change of material circumstances at some point after it was given.  
     14.     	The appeal is therefore allowed and the case remitted for rehearing and redetermination by a fresh tribunal in accordance with the directions given above.
	
(Signed)

P L Howell
Commissioner
13 December 2004
     1.