[2007] UKSSCSC CDLA_1313_2007 (19 November 2007)

CDLA/1313/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I have to dismiss this appeal as the decision of the Wolverhampton appeal tribunal dated 1 February 2006 is not erroneous in law. 

REASONS

1.	The claimant is a man born in 1969.  He suffers from chronic depression which his GP describes as moderate (page 46); he also appears from his medical records to have had back problems for some time.  He appears to have claimed a disability living allowance (DLA) unsuccessfully in 2004, since there are some 2004 papers mixed up with the papers relating to the 2005 claim to which this appeal relates.  At all events, he says in his appeal notice (page 2) that he had been suffering from chronic pain in his left leg since January 2005.  From the medical records in the papers it seems that the claimant had seen his GP about this pain and was referred to various medical practitioners. 
2.	The claimant applied for a DLA claim pack on 27 June 2005 (see page 3).  On 28 June a physiotherapist recommended an MRI scan (pages 88-89); the claimant was seen by a consultant on 6 July and an MRI scan was arranged (page 87); by 12 July the scan had disclosed a prolapsed disc and the consultant recommended a discectomy (page 86) and he was put on the consultant’s NHS waiting list, which was six months long.
3.	In fact the claimant was operated on, it seems at a private hospital, on 23 July 2005 (page 77) and discharged on 26 July (page 76).  He signed the DLA claim form on 27 July and sent it in within the relevant deadline, with the result that (as the tribunal correctly noted) the date of his claim is to be taken as being 27 June.  It is date-stamped as having been received by the Department on 1 August.
4.	Before the operation the claimant had very severe sciatic pain; the claim form also complains of dizziness.  His GP described him (page 46) as having been in ‘constant agony due to sciatica’ prior to the disc operation.  The claimant was seen by the consultant again on 17 August (page 83), when the consultant found him much better and more mobile, considered a full recovery might take up to six months but was pleased with his overall progress.  The claimant later told the appeal tribunal that at that time he was able to accompany his children on a 10-15 minute walk to school.
5.	On 30 August a decision-maker rejected his claim for DLA on the grounds that he was not likely to satisfy the conditions of entitlement for six months (page 49).  I explain below why this mattered. That decision appears to have been based on the report from the claimant’s GP, dated 18 August, at pages 46-48; in it the GP predicted that the claimant would have care needs for a foreseeable 2-4 weeks, described the claimant’s ability to get around as ‘limited – no details documented’ but added that the claimant should make a good recovery.  
6.	On 27 September 2005 the claimant appealed against the refusal of DLA (page 1).  On 13 October the decision was reconsidered but not changed (page 54).  It seems that an appeal tribunal held in November 2005 was adjourned for further medical records to be provided.
7.	By 3 November the claimant's condition appears to have deteriorated again to the extent that his GP sought to refer him back to the consultant (page 80); it is not clear whether he saw the consultant again then, since the consultant’s report to the Department written in January 2006 (page 99) gives 17 July as the last time the claimant saw the consultant.  I suspect that the claimant did not see the consultant again until some time later in 2006.
8.	The appeal came before another tribunal on 1 February 2006 (page 101). The statement of reasons (pages 102-103) gives an account of the history of the case and sets out the claimant’s evidence to the tribunal, the general effect of which was that in late August 2005 the claimant did not qualify for either the care or mobility component of DLA, but his condition had deteriorated again in the meantime.  
9.	The claimant made a fresh claim for DLA in January 2007 and was awarded the higher rate of the mobility component and the lowest rate of the care component.  He also had a further operation at about that time.
10.	I can only overturn the tribunal’s decision if the tribunal made an error of law.  The law on DLA is quite technical.  A person cannot be eligible for DLA before the date of his claim for it; in the claimant’s case that is taken as 27 June 2005, when he requested the claim pack.  Then, in order to be eligible for either the care or the mobility component of DLA, a claimant has to have a certain degree of disability or restricted mobility; I shall call these the ‘disability conditions’.  In addition, he has to have satisfied the disability conditions for a period of three months prior to that date and it has to be likely to that he will continue to satisfy the disability conditions throughout the six month period beginning on that date (sections 72(2) and 73(9) of the Social Security Contributions and Benefits Act 1992).  The purpose of this is to restrict entitlement to people whose disabilities are likely to be long-term.
11.	The reason why the claimant’s appeal was rejected by the tribunal was that he did not satisfy the disability conditions on 30 August 2005 when the decision-maker decided his claim.  The tribunal reached this conclusion on the basis of what the GP and consultant reported in August 2005 and what the claimant told them about his walking and self-caring abilities in August 2005, i.e. shortly after the operation..
12.	Deciding what the facts are is a matter for the tribunal.  I can only interfere with their decision if it was wrong because of an error of law by the tribunal.  I do not consider that the tribunal made an error of law.
13.	The tribunal directed themselves on the law as follows: that they ‘had to consider the condition of the Appellant as he was at the date of the Respondent’s decision on the 30th August 2005 and the condition of the Appellant had to satisfy the conditions for an award 6 months from the date of claim ie the 27th June 2005’.  They went on to find unanimously that on 30 August 2005 the claimant did not satisfy the conditions of entitlement to either component of DLA.
14.	The fact that the claimant did not, on the tribunal’s findings, satisfy the disability conditions on 30 August did not mean that he did not satisfy those conditions prior to the operation.  But, as I have mentioned above, one of the pre-conditions for an award of DLA is that the claimant must be likely to satisfy what I have called the disability conditions for six months.  The wording of the relevant parts of the provisions (which I have extracted and re-arranged to make it easier to follow and in which have also used, for brevity, my term ‘disability conditions’) is as follows:
	... a person shall not be entitled to the care/mobility component unless he is likely to continue to satisfy the disability conditions throughout the period of six months beginning with the date on which the award of that component would begin.
15.	This means that, before a decision-maker can award DLA, it must be possible to say that the claimant will be likely to satisfy the disability conditions for a period of six months starting with the date on which the award begins.  On the tribunal’s findings of fact, it would not have been possible for the decision-maker to say that.  The decision-maker could not have awarded DLA from the date of the claim (27 June), even if he thought the disability conditions were satisfied then, because the improvement which the tribunal found to have occurred after the operation meant that it was impossible – and therefore not likely - that the claimant would satisfy the disability conditions throughout the six month period from 27 June to 26 December.  
16.	I should add for completeness that the tribunal were also right in law not to take into account the deterioration in the claimant’s condition which appears to heave taken place in the Autumn of 2005 and led to his being re-referred to the consultant and eventually operated on again.  This is because section 12(8) of the Social Security Act 1998 prohibits the tribunal from taking into account things which did not happen until after the decision-maker’s decision. 
17.	Something seems to have gone wrong with the handling of the appeal within the appeal tribunal office.  There is no record of the proceedings in the papers, and it appears that there was a delay in notifying the claimant of the tribunal’s decision which led to him not appealing to the Commissioner until March 2007.  Neither of these things affected the tribunal’s hearing of the appeal, but the delay will have been extremely unsatisfactory for the claimant.  It will have delayed the consideration of the appeal by a Commissioner by nearly a year.  I have noted above that the claimant made a fresh claim for DLA in January 2007 and was awarded the higher rate of the mobility component and the lowest rate of the care component.  It is possible (though I do not know) that the claimant might have made a successful fresh claim earlier if the tribunal had not delayed in issuing its decision.
18.	These are not things that I can do anything about since Commissioners do not have any jurisdiction over possible maladministration, but I consider it right to mention them.

	(signed on the original)	Nicholas Paines QC
		Deputy Commissioner
		19 November 2007