[2006] UKSSCSC CDLA_1190_2006 (20 September 2006)

PLH                                                                      Commissioner's File:  CDLA 1190/06

	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: 	Portsmouth 
Tribunal Case Ref:  	U/03/201/2005/01810
Tribunal date:	24 November 2005
Reasons issued:	18 January 2006

     1.     	My decision is that the decision of the Portsmouth appeal tribunal, sitting as a three-person disability appeal tribunal under the chairmanship of Mr P J Norman on 24 November 2005, was erroneous in point of law because the tribunal misdirected itself as to the legislation in section 76(1) Social Security Contributions and Benefits Act 1992 which it purported to apply.  I set the decision aside and since the actual facts about the claimant’s condition are not in dispute, exercise the power in section 14(8)(a) Social Security Act 1998 to substitute the decision I am satisfied the tribunal ought to have given on the basis of those facts and the material before it showing the history of the case.  
     2.     	That decision, on the infant claimant’s appeal against the departmental decision  given on 28 June 2005 determining his continuing entitlement to disability living allowance following the renewal claim submitted on his behalf on 20 May 2005, is that:
(1) the previous departmental decision given on 8 July 2003 is revised as regards the period 26 November 2003 to 25 November 2005 (both dates inclusive) because that earlier decision had been based on an official error (that the question of an award for mobility could not then be considered), so that over that period the claimant is instead entitled to:  
(a) the care component of disability living allowance at the middle rate but no mobility component, from 26 November 2003 to 14 February 2004, both dates inclusive; and
(b) both the higher rate mobility and middle rate care components, from 15 February 2004 to 25 November 2005, both dates inclusive; 
(2) in addition a further continuing award is made by way of renewal on the further claim submitted on 20 May 2005, so that the claimant remains entitled to both higher rate mobility and middle rate care components from and including 26 November 2005 and for the balance of the period from then down to and including 19 May 2008; 
(3) any disability living allowance already paid as regards any part of those periods shall be treated as paid on account of the corrected awards of benefit now made.  
     3.     	The claimant in this case is a young boy now aged five, who has suffered from very severe developmental delay since birth.  It is not disputed that he is and has at all material times been so badly disabled as to meet the medical conditions for the care component of disability living allowance at the middle rate, and (apart from the question of his age) the mobility component at the higher rate.  
     4.     	His mother made a valid claim for the allowance on his behalf on 26 November 2001, and has duly submitted the further claims necessary to maintain his continuing entitlement at all material times ever since: see the renewal claim forms submitted on 30 June 2003 and 20 May 2005 at pages 5, 52.  
     5.     	From the date of his first claim, it is not disputed that he has been entitled to the middle rate care component on a continuing basis.  From that date and while he remained under the age of three, it is also common ground that he was not entitled to anything further for the mobility component because of the condition in section 73(1) Social Security Contributions and Benefits Act 1992 that a person can be entitled to the mobility component only while over the age of three.  From the date of his third birthday on 15 February 2004 he met that condition, there being no dispute that he already met the medical condition of being virtually unable to walk through physical disability.  
     6.     	None of that is in dispute: so what, it may be asked, is this appeal about?  The answer to that is that the departmental officers dealing with the case have considered themselves bound by the procedural provisions of the legislation to refuse this young claimant the additional money for his mobility needs that Parliament has voted for him and other children similarly disabled, for the period of something over 15 months from when it should have started on his third birthday until his mother’s second renewal claim was received on 20 May 2005.  The tribunal on 24 November 2005 in its turn felt itself bound by the legislation to uphold that refusal.  
     7.     	To understand why those decisions were taken, and to explain why I have concluded they were wrong, it is necessary to look at the procedural history of the case and also the legislation itself.  The initial claim was, as I have said, lodged on behalf of the claimant by his mother on 26 November 2001.  It resulted, perfectly properly, in a decision awarding him the middle rate of care component (only) for an initial two-year period ending on 25 November 2003, throughout which he was still under three so could have no entitlement for mobility.  
     8.     	On 30 June 2003 the claimant’s mother submitted a further completed claim form on his behalf, to renew his entitlement from the expiry of the initial two year period. Under the procedural provisions allowing for the making of further claims in advance of the expiry of an existing award, that further claim was accepted as an advance renewal claim to be treated as if it had been made immediately after expiry of the existing award, that is on the “renewal date” of 26 November 2003:  regulation 13C Social Security (Claims and Payments) Regulations SI 1987 No. 1968.  
     9.     	An officer on behalf of the Secretary of State duly made a further award on that renewal claim, for a further period of two years from 26 November 2003 to 25 November 2005:  pages 46 to 51.  However the officer restricted the award to the care component for the whole of that period, and specifically disallowed anything for mobility, on the ground that the claimant was still under the qualifying age for the mobility component.  That age having been reduced from five to three not long after this young claimant was born, he was of course bound to attain the required age in less than three months from the renewal date, and so meet the age condition for very much the larger part of the time for which the new award was being considered and made.  The decision however stated (though without identifying the age or date the person making it had in mind) that he “cannot [sic] be considered for the mobility component of benefit as he does not [sic] satisfy the criteria on age grounds.”: page 51. 
     10.     	That view of the matter was not then challenged by the claimant’s mother, who says she was never made aware at that time that he could be entitled to the mobility component from the age of three, even though the information she had supplied on the renewal claim form clearly showed severe disablement and mobility needs.  It is not possible to be certain what if anything she was told about this in the departmental literature sent to her, as the documents have now been destroyed: the departmental submission to the tribunal explains at page 1E (in what sounds like Newspeak) that “I am unable to confirm for sure as those docs have been correctly destroyed in line with our document retention policy”.  At all events, she did not ask for his entitlement to be reconsidered from the age of three, though it seems highly probable that had she been aware of the change in age she would have done so; and it may also be significant that nor did the department take any action to initiate this itself, though that was or should have been automatic by then with a child approaching the qualifying age.
     11.     	The level of the claimant’s allowance thus remained as it was until the next advance renewal form was issued to the claimant’s mother and returned duly completed by her on 20 May 2005.  The details she gave in that form of the severe physical and mental disablement from which he continues to suffer were thereupon accepted as showing that he met the conditions for entitlement to both higher rate mobility and middle rate care components from the date of receipt of the form.  Therefore, as well as a further award of both those components for the period from the next renewal date of 26 November 2005, the existing award of just the care component (which would otherwise still have had some months to run until its expiry) was “superseded”, by an exercise of the Secretary of State’s power in section 10 Social Security Act 1998 from the date of receipt of the renewal claim on 20 May 2005, so as to include the higher rate mobility component from that date as well.  The ground for that was recorded in the decision dated 28 June 2005 at pages 101 to 103 as 
“C of C [sc. change of circumstances] Customer is now old enough to satisfy the conditions for the higher rate mobility.  .. awarded from date of application as not notified within one month of qp [qualifying period] being satisfied”. 
     12.     	The officer taking that decision only considered whether the existing award of care component could be superseded, on the ground that the claimant’s attaining three on 15 February 2004 had been a “change of circumstances” since that award had been originally made.  She did not consider whether there was any possibility of revising the earlier decision given in 2003 so as to make the award of mobility component, to which the claimant ought as a matter of substance to have been entitled all the time, take effect from an earlier date.  Neither did the tribunal, when his mother appealed against the failure to allow mobility component for the period before 20 May 2005.  
     13.     	The tribunal rejected that appeal, for a reason that its statement issued to the parties on 18 January 2006 at pages 121 to 122 explained as follows:
“By section 76(1) Social Security Contributions and Benefits Act 1992, no person can be entitled to an award of disability living allowance for any period preceding the date on which a claim for it is made or is treated as made by him or on his behalf.  A claim is treated as having been made on the date it is received at an appropriate office of the DWP pursuant to regulation 6(1)(a) of the Social Security (Claims and Payments) Regulations 1987.  Accordingly in this case, the claim/application for supersession must be deemed to have been made as at 20/5/05.  
Therefore claims for disability living allowance and in this case a claim for the higher rate of the mobility component on behalf of the appellant cannot be backdated to cover a period before the date on which a claim is made or is treated as made and accordingly the appellant’s appeal fails.”
     14.     	In my judgment, both the tribunal and the departmental decisionmaker on 28 June 2005 took an unnecessarily restricted view of what the procedural provisions require in this situation, when as already set out it is not disputed that this young claimant had in fact met all the conditions for entitlement to mobility component from the date of his third birthday onwards, and disability living allowance had been duly claimed on his behalf on a continuing basis since well before that date.  
     15.     	In the first place as the very helpful and thoughtful submission of Mr D Scholefield on behalf of the Secretary of State dated 13 July 2006 at pages 135-139 agrees, the tribunal was in error in basing its decision on the requirements of section 76(1) of the 1992 Act as to the making of a claim.  Disability living allowance although divided into two components and five separate rates of benefit is one single benefit, and had been claimed on behalf of this claimant at all material times without a break from 26 November 2001.  It must therefore be incorrect to say, as the tribunal did, that the claimant was prevented from getting any mobility component to which he was otherwise entitled for the period before 20 May 2005 for lack of a claim, and the decision has to be set aside as erroneous in law on that ground.  
     16.     	I further accept Mr Scholefield’s submission that if the question is restricted to what could be done at the date of the decision under appeal of 28 June 2005 by way of “superseding” the previous award of the care component made on 8 July 2003, there is no way that the increase to include the mobility component could be given effect from any earlier date than 20 May 2005.   The legislation simply does not allow for this: see section 10 Social Security Act 1998; regulations 6 and 7 Social Security and Child Support (Decisions and Appeals) Regulations SI 1999 No. 991.
     17.     	Mr Scholefield is further right in my judgment in acknowledging that both the Secretary of State’s officer on 28 June 2005, and the tribunal on 24 November 2005, had another potential route to reconsideration and alteration of the 2003 decision which unfortunately neither of them explored:  that of a possible “revision” under section 9 of the 1998 Act.  If that power were available, it would have permitted the mobility component to be included in the claimant’s award from an earlier date.  Materially, this revising power is available to correct previous decisions based on official error as defined in regulation 1(3) of the Decisions and Appeals regulations already cited.  The real question is whether there was such an error made in the decision of 8 July 2003, in thinking it was impossible to consider the mobility component even for the period of the award then made that fell after the claimant’s third birthday.  
     18.     	If there was such an error, there was no procedural bar to its being put right by the Secretary of State or the tribunal in 2005, and correspondingly is none to its now being put right by me: and again Mr Scholefield rightly does not argue otherwise.  By regulation 3(5) and (10) of the Decisions and Appeals regulations a decision of the Secretary of State under section 8 or 10 of the 1998 Act which arose from an official error may be revised at any time by him, and if and so far as necessary an application for a supersession under section 10 may be treated as an application for a revision under section 9: the vital distinction for the present purpose being that by section 9(3) of the 1998 Act the revision can be given effect back to the actual (or forward) date on which the original decision took, or was to take, effect when it was made.  Moreover the Secretary of State not having addressed the question of such a revision at any point, it is established and conceded that both the tribunal and I have the jurisdiction to consider for ourselves whether the revising power under section 9 should not have been exercised in the decision of 28 June 2005 under appeal instead of the superseding power under section 10: cf. R(IB) 2/04 paragraph 55; R(IS) 15/04 paragraph 78.  
     19.     	Mr Scholefield’s submission concludes however (I think a little regretfully) that there is no ground on which this present case can be brought within that revising power.  It was not, he says, an “offficial error” for the officer giving the previous decision of 8 July 2003 to have omitted to take into account the claimant attaining the age of three, when this circumstance was then only a future event, not due to take place until some time after that decision itself was made.  Hence nothing can now be done to put the matter right and give this severely disabled infant the underlying entitlement to mobility component it is accepted ought to have been his all the time from his third birthday, if everything had been done rightly for him and on his behalf at the time.  
     20.     	Some regret about this conclusion is understandable, as it means that the procedural provisions in the legislation are here blocking, rather than assisting, the basic aim of ensuring that claimants get their correct entitlement via the “co‑operative and non‑adversarial” process of investigating and adjudicating on claims.  This integral (and creditable) feature of the United Kingdom benefits system has been recently referred to with approval by the House of Lords in Kerr v. Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372, per Lady Hale at p 1390 D-G, paragraphs 61-62, and if it exists to protect anyone, high on the list must come a severely disabled infant  unable to fend for himself either physically or legally.  
     21.     	In my judgment however, a fair construction of the legislation does not require me to take such a restricted view of the procedural provisions.  The root of the problem appears to me to be the assumption underlying (and expressly recorded in) the decision of 8 July 2003 that the possibility of the claimant becoming entitled to mobility component as well as the care component in his continuing allowance could not even be considered at that time, even though it was of course bound to happen not long after the start of the continuing period being considered for the purposes of the award, assuming as that award necessarily did that he remained alive at all.  I do not need for this purpose to go into the difficulties that undoubtedly arise in attempting to align the (sensible and beneficial) provisions for advance and renewal claims and awards from future dates in relation to disability living allowance with the apparent blanket requirement in sections 8(2)(b) and 12(8)(b) of the 1998 Act for all “circumstances obtaining” after the date of the departmental decision on a claim to be excluded from consideration altogether; except to say that I agree with the views expressed in other decisions that the breadth of that requirement is not infinite and it must be applied with a modicum of common sense.  For example the “circumstances” of the claimant remaining alive in the days and months after the date of a departmental decision awarding him benefit for a fixed or indefinite period and of day succeeding day, and month succeeding month, during such a period after that date, are not “circumstances obtaining” at the actual date of the decision if one reads those words entirely literally; but no one in their right mind would suggest that they therefore have to be excluded so as to prevent any entitlement to benefit arising for any period after the day of the decision itself:  cf. R(DLA) 4/05 paragraph 20.
     22.     	In my judgment a similarly practical approach has to be adopted to the provisions for advance and renewal awards for forward periods in a case such as the present, where a qualifying period is bound to become satisfied for a further component of the same benefit shortly after the start of a period which is already being specifically considered for the making of an award of at least one component of the allowance in any event.  I can for my part see no reason why in those circumstances a departmental decisionmaker could not consider the making (at once) of two successive awards covering the overall period he or she has in mind, dividing the period up so as to comply with the requirement in section 71(3) Social Security Contributions and Benefits Act 1992 that for any award of disability living allowance consisting of both components, they may not have different fixed periods.  Thus in the present case the decision of 8 July 2003 could have embodied an initial award of the care component alone for the period while the claimant remained under three, followed by a combined prospective award of the two components for the further period from then on; or at least there was nothing to prevent such a course being considered.  
     23.     	I find no difficulty in it being an inherent part of the Secretary of State’s function in determining a claimant’s proper entitlement under a claim to a weekly allowance, under a process that necessarily includes determining the entitlement for a fixed or indefinite forward period from the date of the claim or decision itself, to consider and make awards in such terms for successive periods in the same decision so as to give the correct entitlement in the events that are bound to occur, if the claimant remains alive at all and things otherwise remain as they are.  
     24.     	If and so far as it is necessary to find a specific procedural provision allowing for this, the making of an award in such terms in the present case is in my judgment authorised under regulation 13C of the Claims and Payments regulations already cited, by which the renewal claim made in anticipation of the expiry of an existing award of benefit is treated as if made on the first day after that expiry (the renewal date of 26 November 2003 thus bringing this claim within three months of the claimant’s third birthday); and regulation 13A ibid, which authorises the making of advance awards when the Secretary of State is of opinion that unless there is a change of circumstances the claimant will satisfy the relevant requirements for benefit for a period beginning on a day not more than three months after the date on which the claim is made. If a prospective award can be made under regulation 13A where a person fails to satisfy the requirements for the allowance altogether at the date of claim, but in the absence of a material change in his or her condition is bound to do so within three months if he or she remains alive at all, there can I think be no ground in reason or justice for failing to apply the same principle a fortiori to the requirements for one component when the other is already being awarded, and I hold that the regulations are wide enough to permit this.
     25.     	For those reasons, I reach the conclusion that the Secretary of State’s officer making the decision of 8 July 2003 did misdirect himself or herself in taking the view that the infant claimant “cannot be considered for the mobility component” (my emphasis) on the renewal claim that was under adjudication at that date with effect from the renewal date of 26 November 2003, and that this amounted to an “official error” within the meaning of regulation 1(3) of the Decisions and Appeals regulations; there can be no argument that it fell within any of the exceptions in that definition.  
     26.     	The result is therefore that the power to revise that decision under regulation 3(5)(a) was and is available to correct it so as to include the mobility component in the claimant's award of benefit from the date of his third birthday, and I give the substituted decision in the terms set out above, embodying that revision and the further award for the balance of the period after the renewal date of 26 November 2005 already taken into account by the Secretary of State, for which the continuing entitlement is not disputed.  The whole of the claimant's entitlement will of course require to be reconsidered afresh shortly before the new expiry date of 19 May 2008, or earlier should his condition or circumstances change materially in the meantime. 
     27.     	The appeal is allowed and my decision substituted accordingly.

(Signed)

P L Howell
Commissioner
20 September 2006