[2002] NISSCSC C46/02-03(DLA) (15 July 2003)

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Cite as: [2002] NISSCSC C46/02-03(DLA), [2002] NISSCSC C46/2-3(DLA)

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    [2002] NISSCSC C46/02-03(DLA) (15 July 2003)

    Decision No: C46/02-03(DLA)

    SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
    SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
    DISABILITY LIVING ALLOWANCE
    Appeal to a Social Security Commissioner
    on question of law from a Tribunal's decision
    dated 16 August 2002

    DECISION OF THE SOCIAL SECURITY COMMISSIONER

  1. This is an appeal, leave having been granted by me, by the Department against a decision dated 16 August 2002 of an Appeal Tribunal sitting at Belfast. That Tribunal awarded to the claimant the middle rate of the care component of Disability Living Allowance from and including 23 June 2000. It decided that the claimant was not entitled to the mobility component of that Allowance from and including 23 June 2000. My decision is given in the final paragraph.

  2. The Department's ground of appeal, both in its application for leave dated 7 February 2003 and at hearing before me, was that the Tribunal had exceeded its jurisdiction. The Tribunal award was an indefinite award. The background facts were that the claimant had claimed Disability Living Allowance from 23 June 2000 and this had been disallowed by the Department on 15 September 2000 (decision A). The claimant appealed this decision but before the appeal was heard he made a fresh claim and based on this claim he was awarded the Allowance (the high rate mobility component and the low rate care component) from 1 March 2001 to 28 February 2004. This award was made on the 20 March 2002 (decision B). As decision A was still under appeal the Tribunal was asked to restrict any award it might make to 28 February 2002 (the day before decision B took effect). The Tribunal however made an indefinite award and did not restrict the award as requested. The Department did not obtain a copy of the full statement of the Tribunal's reasons (I waived the requirement that the application for leave should be accompanied by same). I am not therefore privy to the Tribunal's reasons for so doing.

  3. Miss Murray of the Decision Making and Appeals Unit represented the Department. I held a hearing of the appeal which Miss Murray and the claimant attended. Miss Murray submitted that the Tribunal only had jurisdiction up to the 28 February 2002. In this connection she referred to section 17(1) of the Social Security (Northern Ireland) Order 1998. That sub-section provides that:

    4. "Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under Article 12, any decision made in accordance with those regulations shall be final."

  4. Miss Murray submitted that the Department's decision B was final until it was either appealed, superseded or revised and that the Tribunal did not therefore have any jurisdiction to go beyond the date when that decision came into effect.

  5. The claimant did not oppose this argument. In response to my enquiry as to the protection of the Tribunal's award of the care component, which was at a higher rate than had been awarded by the Department, Miss Murray informed me that the Department's decision would be revised by the Department in the claimant's favour so as to award this higher rate of the care component. The claimant, who attended the hearing, informed me that in fact he had received a letter saying that this was to be done.

  6. I am in agreement with Miss Murray that the Tribunal's decision is in error of law in that the Tribunal only had power to make a decision covering the period up until the Department's decision B came into effect (ie. up to and including 28 February 2002). I therefore set the Tribunal's decision aside as in error of law. No-one raised any objection to the level of the Tribunal's award. Miss Murray requested that I give the decision which the Tribunal should have given and the claimant had no objection. I therefore substitute my own decision to the effect that the claimant is entitled to the middle rate of the care component of Disability Living Allowance from 23 June 2000 until 28 February 2002 for night-time attention. Both dates are inclusive. I further decide that from 23 June 2000 until 28 February 2002 (both dates inclusive) the claimant is not entitled to the mobility component of Disability Living Allowance.

  7. The appeal is allowed and my decision as set out above is substituted for the Tribunal's decision.

    8. (Signed): MOYA F BROWN

    COMMISSIONER

    (Dated): JULY 2003

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