[2007] UKSSCSC CDLA_3461_2006 (27 September 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the South Shields appeal tribunal of 23 January 2006 is not erroneous in law.  

2.	As a result of a tribunal decision of 28 April 2004, the claimant held an award of the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) from 17 February 2004 to 16 February 2006.  On 5 September 2005, he reapplied for benefit with effect from 17 February 2006, the day immediately after the expiry of his previous award.  On 10 October 2005, a decision maker (DM), acting on behalf of the Secretary of State, made no award whatever of DLA to the claimant in response to the above claim.  That decision was confirmed on reconsideration.  The claimant appealed.  He elected for a paper hearing.  That took place on 23 January 2006.  The tribunal upheld the DM’s decision.  The claimant now appeals with leave of Mr Commissioner Rowland.  His appeal is not supported by the Secretary of State.  

3.	There was before the tribunal, as before the DM, a report from the claimant’s consultant psychiatrist, dated 4 October 2005 (documents 77 -79).  That report gave “structured activity” as part of the claimant’s treatment in answer to question 2 on document 77.  It went on to say that the claimant’s “depressive symptoms are highly related to his ability to establish structured daily activities”.  It also recorded that there had been no history within the preceding 12 months of physical or verbal abuse, self-harm, danger to others or unawareness of common dangers in respect of the claimant.  Finally, it stated, in answer to question 8 on document 79 relating to prognosis, that prognosis was “dependent on [the claimant’s] ability to structure his life”.  That answer also referred back to the preceding comments in regard to “structured daily activities”.  

4.	Reading the statement of reasons issued by the tribunal, which appears as documents 87 – 88, as a whole, it is clear that they entirely accepted the above report and, to a very large degree, based their decision to uphold the DM’s decision upon it.  They referred to the above report in highly favourable terms in several places in the above statement.  There was nothing irrational in the tribunal taking the approach of accepting the above report in its entirety.  They were entitled to do so.  Their endorsement of the consultant’s report, therefore, indicates no error of law.

5.	However, in the third paragraph of document 88, the tribunal state their view that the claimant could reasonably be expected to form a structured routine for his daily living within six months of the commencement of his fresh claim to DLA and that, if he did so, it would remove the need for any award of that benefit.  They further hold that, as a result, he would not therefore fulfil the six months prospective test for the care component, laid down in s.72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992.  

6.	I consider that the tribunal, which included a medically qualified member, was entitled to form the view, applying their own knowledge and experience, which they did, that six months would be sufficient for the claimant to adopt a structured style of living.  Further, it was also not unreasonable for them to conclude, on the basis of the psychiatrist’s report, which they evidently endorsed in its entirety, that adopting such a life-style on the part of the claimant would remove the functional limitations on his daily living on which, in turn, his requirements for attention and/or supervision rested.  

7.	A more technical question, however, also arises.  Does section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992 apply to a renewal claim for the care component of DLA?  In paragraphs 6 onwards on document 119, the Secretary of State submits that it does.  I note that the above submissions have not been responded to directly by the claimant’s representative (see document 125).  For myself, I entirely agree with them.  In my judgement, a renewal claim for disability living allowance is, for the purposes of the above statutory provision, a fresh claim for benefit.  That means that the six months prospective test applies from the date from which any renewal award would commence.  That result follows, in my view, from the phrase in s.72(2)(a)(i) of the above Act‑

“… the date on which the award … would begin.”

I cannot see how that can mean anything other than the day immediately after the expiry of a previous award in a case like the present.  The above phrase is clearly being referred to by the words “that date” appearing in s.72(2)(b)(i).  Indeed, it defines those words.  Further, I consider that it is highly significant that regulation 6 of the Disability Living Allowance Regulations 1991 explicitly removes the three months retrospective period of satisfying the conditions of entitlement, where an award has been previously made within two years of a fresh claim, but is completely silent on the six month prospective period.  That silence buttresses the interpretation in respect of the latter issue which I have applied above.  My approach to the interpretative question under discussion is also consistent with sub-patragraph 4 of paragraph 13 of R(M)1/96.  I fully accept, on the basis of CDLA/3324/2001, reproduced in support of the written submissions made on behalf of the Secretary of State, that there can be cases where an award of DLA of less than six months can be made.  However, the above decision makes it clear that the six month prospective rule lays down a minimum period for which the conditions of entitlement have to be satisfied – see especially paragraphs 7 and 9.  It also establishes that the minimum prospective period and the length of an award are distinct questions.  As I have held above, the minimum prospective period applied in this case from 17 February 2006. Thus, the tribunal were correct to enforce it from that date.  Indeed, they were required to do so on the facts as they found them to be.  Thus, they did not err in law.  

8.	Further, I do not consider that the tribunal erred in law in any other respect.  I have carefully considered the grounds of appeal laid out at document 109.  The first of these has been dealt with in paragraphs 5 – 7 above.  In respect of the second stated ground of appeal, I would simply comment that there was no evidence in the consultant psychiatrist’s report, on which the tribunal firmly relied, supporting the view that the improvement in the claimant’s symptoms was due to the assistance of support services.  In respect of the third ground of appeal, I consider that the tribunal have adequately explained their reasoning in respect of the cooking test, especially as in doing so they have explicitly dealt with the issue of the shakiness of the claimant’s hands.  Finally, in respect of the fourth stated ground of appeal, I hold, reading their decision as a whole, but with particular reference to the second last paragraph on document 88, that the tribunal have adequately complied with the requirements laid down by R(M)1/96, paragraph 15.

9.	The claimant’s appeal is thus dismissed.

					(signed)
					A J GAMBLE
					Deputy Commissioner
					Date:  31 July 2007