CDLA 2349 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. With the consent of both parties, I replace it with the decision that the tribunal should have taken. This is:  

Appeal allowed. The appellant is entitled to the lower rate of the mobility component of disability living allowance from and including 8 05 2007 to 7 11 2008. The appellant is entitled to the lowest rate of the care component from 8 05 2007 to 7 11 2008 for help preparing main meals. 

2	The claimant and appellant is appealing with my permission against the decision of the Luton tribunal on 15 05 2008 under reference 914 08 00208. 
  
REASONS FOR THE DECISION 

3	The parties have agreed that I should set aside the decision of the tribunal, and replace the decision, for the reason given when I granted permission to appeal. In summary, this was that the tribunal failed to indicate any reason why it had given so short an award of allowance that the effect was to prevent the appellant making a timely renewal application. 

4	The appellant was appealing against a decision of the Secretary of State refusing to award disability living allowance. The tribunal heard the case on 15 05 2008. It allowed the appeal. But ended the award of both the lower rate of the mobility component and the lowest rate of the care component a week before the hearing date, on 7 05 2008. 

5	I am told that the appellant put in a new claim on 16 05 2008, the following day. Even if that were entirely successful there would be both a loss of disability living allowance fully for a week or more and a delay while payments of the allowance restarted. And it may be – I do not know – that loss of disability living allowance might trigger loss of other benefits or elements of benefits dependent on receipt of the allowance. Examples are disability and pensioner premiums of the income-related benefits. Those effects follow directly from the tribunal decision. The choice of an award period that causes these effects has to be a positive decision needing clear justification. The tribunal offered none. A majority of the tribunal considered that the award ought to be a short award, but did not explain why it should be so short that it caused these consequences.   

5	I have corrected this apparent unfairness following the consent by the secretary of state's representative to a decision extending entitlement for an additional six months. Whether the award lasts that long will depend on the new claim made from 16 05 2008.  

									David Williams
									Commissioner 
									10 09 2008

[Signed on the original on the date shown]