THE SOCIAL SECURITY COMMISSIONERSPRIVATE
Commissioner's Case No: CDLA/1378/2001
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ACT 1998
APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
COMMISSIONER: MR J MESHER
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The Secretary of State's appeal is allowed. The decision of the Cheltenham appeal tribunal dated 25 August 2000 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 23 to 26 below (Social Security Act 1998, section 14(8)(b)).
- The claimant was born on 29 September 1930. As at August 1997 he had an award of the higher rate of the mobility component of disability living allowance (DLA), made in 1989, for life. At that date he also had an award of the lowest rate of the care component for life, awarded on 25 January 1996 with effect from 10 December 1995. He applied on 12 August 1997 for a review in relation to the care component, but this was turned down and confirmed on second-tier review on 23 April 1998. The claimant appealed, the appeal apparently being received on 18 June 1998. A disability appeal tribunal (DAT) on 15 March 1999 decided that he was not entitled to any rate of the care component from 12 August 1997. There was no appeal against the DAT's decision. A claim pack received on 10 November 1998 was, with the claimant's permission, treated as an application for review. He also reported having fallen and broken his wrist on 24 November 1998. An adjudication officer on 19 July 1999 decided that there had been a relevant change of circumstances since the decision of the adjudication officer of 23 April 1998, as amended by the DAT's decision. However, the decision was not to change the decision on the care component. The claimant appealed.
- The appeal tribunal on 25 August 2000 decided that the claimant had satisfied the requirements for the lowest rate of the care component (on the basis of requiring attention in connection with his bodily functions for a significant portion of the day) from 2 November 1998. It awarded the lowest rate of the care component for the period from 2 November 1998 to 1 November 2001, in addition to the existing award of the mobility component.
- The Secretary of State now appeals against that decision with the leave of a district chairman. The ground put forward was that, as the claimant was over 65, no award of the lowest rate of the care component could be made (Social Security Contributions and Benefits Act 1992, section 75, and Social Security (Disability Living Allowance) Regulations 1991, regulation 3 and Schedule 1). The raising of the issue at that stage is not satisfactory, as the Secretary of State's written submission to the appeal tribunal had made no mention of any problem stemming from the claimant's age and no presenting officer was sent to the hearing on 25 August 2000. However, there is no bar in social security appeals on raising questions of law before a Commissioner which have not been raised before, as the main focus is on the public interest in whether the law has been applied correctly. That is a principle which often works in favour of claimants. It has to be applied where it works in favour of the Secretary of State as well.
- The written submission to the Commissioner dated 9 April 2001 referred first to section 75 of the Social Security Contributions and Benefits Act 1992, which in general prohibits entitlement to either component of DLA for any period after the age of 65 except by virtue of an award made before reaching that age. But regulations can make exceptions to the general rule. The submission then referred to regulation 3 of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations), which lays down a couple of exceptions, which do not apply to the claimant here, and then refers to further exceptions in Schedule 1 to the DLA Regulations. The Secretary of State's submission then asserted that for an award of the lowest rate of the care component to be made the relevant claim or application for review had to be made before the age of 65, so that the only rates of the care component available to the claimant in the present case were the middle and highest rates. However, the submission did not give chapter and verse in identifying the precise provisions in Schedule 1 to the DLA Regulations which had that effect.
- I therefore issued a direction that the Secretary of State was to make a further written submission dealing fully with the provisions of Schedule 1 to the DLA Regulations and explaining why they have the result put forward by the Secretary of State. Unfortunately, the further submission dated 5 November 2001 gave scarcely any more detail. There was no reference to any specific paragraph of Schedule 1, but merely another assertion that it did not provide for an award of the lowest rate of the care component for any period over the age of 65 on a review or supersession for relevant change of circumstances except where the change occurred before the age of 65. That is nowhere near good enough. If the Secretary of State is asserting that an award given to a claimant by an appeal tribunal should be taken away for error of law, the claimant is entitled to have the provisions of legislation which are said to be fatal the claimant's case precisely identified. However, the inadequacies of the submissions for the Secretary of State do not absolve me from investigating the legal position thoroughly.
- The claimant's representative, Ms Whitworth of Gloucester Law Centre, replied in a submission dated 7 December 2001, which also referred to comments made on the application for leave to appeal. I have looked at both documents. They do make a closely argued and properly referenced case for the claimant, although I have concluded that it is wrong in law.
- First, Ms Whitworth bases some arguments on the rules for renewal claims made after the age of 65. Those arguments cannot get off the ground. The claimant has throughout been entitled to the higher rate of the mobility component of DLA under his life award. Therefore, if he purported to "claim" the care component, that had to be treated as an application to review the existing decision so as to add the care component (see section 30(12) of the Social Security Administration Act 1992). There could be no further claim for DLA, let alone renewal claim.
- Second, Ms Whitworth argued in her reply of 7 December 2001 that the claimant's circumstances had changed before his 65th birthday so that he satisfied the conditions of entitlement to the lowest rate of the care component from that time. But that does not help the claimant in so far as his case relies on review on the ground of relevant change of circumstances. The question in the present appeal to the Commissioner is whether the decision of the DAT of 15 March 1999 that the claimant was not entitled to the lowest rate of the care component from 12 August 1997 can be reviewed. There is a difficult question (which I do not have to decide) arising from the circumstance that that DAT was (by virtue of paragraph 3(2) of Schedule 6 to the Social Security Act 1998) prohibited from taking into account any changes of circumstances occurring after the date of the decision under appeal, which appears to have been 23 April 1998. The ground of review was then that there had been a relevant change of circumstances since the decision was given. Does there have to be a change of circumstances after 15 March 1999 or will a change after 23 April 1998, but before 15 March 1999, also count? Whatever the answer, if the claimant were to succeed in showing that there had been a relevant change of circumstances in relation to the decision of the DAT of 15 March 1999, it would have to have occurred after his 65th birthday. Therefore, I must look at the provisions of Schedule 1 of the DLA Regulations which apply to that state of affairs.
- Paragraph 1 of Schedule 1, before the amendments to take account of the regime of revision and supersession from 18 October 1999 onwards, provided:
"Review of an award made before person attained 65
1.-(1) This paragraph applies where--
(a) a person is aged 65 or over;
(b) the person has an award of disability living allowance made before he attained the age of 65;
(c) an application in writing is made in accordance with section 30(7) or 35(4) of the Administration Act for that award to be reviewed; and
(d) an adjudicating authority is satisfied that the decision awarding disability living allowance ought to be both reviewed and revised.
(2) Where paragraph (1) applies, the person to whom the award relates shall not, subject to paragraph (3), be precluded from entitlement to either component of disability living allowance solely by reason of the fact that he is aged 65 or over when the revised award is made.
(3) Where the adjudicating authority determining the application for review is satisfied that the decision ought to be reviewed on the ground that there has been a relevant change of circumstances since the decision was given, paragraph (2) shall apply only where the relevant change of circumstances occurred before the person attained the age of 65."
- Here, the view taken by the appeal tribunal of 25 August 2001 might seem to bring the case within sub-paragraphs (1) and (2) of paragraph 1. There are some technical difficulties with the conditions in sub-paragraph (1), but assuming that those were overcome, the claimant would still be caught by sub-paragraph (3), to which sub-paragraph (2) is subject. For the reason explained in paragraph 9 above, the relevant change of circumstances, in relation to a review of the decision of the DAT of 15 March 1999, could only have occurred well after the claimant's 65th birthday. Therefore, paragraph 1 does not lift the general rule against entitlement after the age of 65.
- The only other potentially relevant provision (I do not go through why the others are not relevant) in Schedule 1 is paragraph 7:
"Award of care component where person entitled to mobility component
7.-(1) This paragraph applies where a person on or after attaining the age of 65 is entitled to the mobility component and--
(a) an adjudicating authority is satisfied that the decision giving effect to that entitlement ought to be revised on a review under section 30, 31 or 35 of the Administration Act, or
(b) the person makes a renewal claim for disability living allowance.
(2) A person to whom this paragraph applies shall not be precluded solely by reason of the fact that he has attained the age of 65 from entitlement under section 72 of the [Social Security Contributions and Benefits Act 1992] by virtue of having satisfied either the conditions mentioned in subsection (1)(b) or in subsection (1)(c), or in both those subsections, but in determining a person's entitlement, section 72 of the Act shall have effect as if in paragraph (a) of subsection (2) of the section, for the reference to 3 months there was substituted a reference to 6 months and paragraph (b) of that subsection were omitted."
Section 72(1) of the Social Security Contributions and Benefits Act 1992 sets out the conditions of entitlement to the care component of DLA. Subsection (1)(b) covers the day-time conditions for the middle rate and subsection (1)(b) covers the night-time conditions for the middle rate, with the satisfaction of both leading to entitlement to the highest rate. The conditions of entitlement to the lowest rate of the care component are in subsection (1)(a).
- Thus, paragraph 7 of Schedule 1 to the DLA Regulations does not allow an award of the lowest rate of the care component on review, even where the conditions in paragraph 7(1) are met. It is restricted to cases where the adjudicating authority awards the middle or highest rate of the care component. That brings the situation in line with the conditions for attendance allowance for those over 65, where there is no equivalent to the lowest rate of the care component of DLA.
- The result is that in so far as the award made by the appeal tribunal was based on a review on the ground of relevant change of circumstances, it was contrary to the general rule in section 75 of the Social Security Contributions and Benefits Act 1992, as there was nothing in the DLA Regulations to lift the effect of that general rule. The appeal tribunal therefore erred in law in making the award of the lowest rate of the care component and its decision must be set aside.
- The representative of the Secretary of State has submitted that the facts are sufficiently recorded for the Commissioner to substitute a decision against the claimant. I would have taken that course if the only issue were review on the ground of relevant change of circumstances. But that is not the only issue, for the reason explained below, so that I refer the appeal against the adjudication officer's decision of 19 July 1999 to a new appeal tribunal for rehearing.
- The reason for that is as follows. The decision which stands in the way of the claimant's entitlement to the lowest rate of the care component (or any higher rate) is that of the DAT of 15 March 1999, holding that he was not entitled from 12 August 1997. I pass over the rather peculiar circumstances in which it has been accepted that the claimant made an application to review that decision. However, it is the case that a DAT's decision could be reviewed under section 35 of the Social Security Administration Act 1992 without an application being made. On the review any applicable ground can be argued. A decision of a DAT could not be reviewed for error of law. But it could be reviewed on the ground of mistake as to or ignorance of a material fact (section 35(1)(a)). It is part of the claimant's present case that the DAT was wrong about the facts as they were in the period from 12 August 1997 to 23 April 1998. If an appeal tribunal were satisfied that the DAT had been mistaken about some material fact (rather than merely drawing different conclusions from the same findings of primary fact) or ignorant of some particular and relevant feature of the claimant's condition, then a ground of review would be made out.
- The appeal tribunal would then have to decide whether, in place of the decision of the DAT of 15 March 1999, the revised decision should be either that the previous award of the lowest rate of the care component should not be altered or that there should be a review to award the middle or highest rate of the care component. If that decision went in favour of the claimant, there would then be a question of the date from which any increased amount of DLA could be payable in accordance with regulations 59(1) and 57(1) and (2) of the Social Security (Adjudication) Regulations 1995. For that purpose it would have to be decided whether the review was made on an application by the claimant and, if not, how regulation 59(1) applied to the case.
- All of that could apply to claimants of any age, although there are several difficult issues involved. However, does the age of the claimant in the present case affect the outcome? The question would arise only if a new appeal tribunal had decided, first, that there was a ground to review the decision of the DAT of 15 March 1999. The new appeal tribunal would then have to put itself in the position of the DAT of 15 March 1999 and decide what decision it should have given (taking account the new or corrected findings of fact) on the claimant's appeal against the refusal to review his existing award of higher rate mobility component and lower rate care component so as to give him entitlement to the middle rate.
- If the new appeal tribunal would, if there were no rules about the age of 65, have given a decision confirming the refusal to review, the position would be as follows. The result of that decision would be to leave the existing award of DLA in place. The adjudication officers' decisions initially and on second-tier review would not count as new awards which replaced the existing award. Nor would the decision of the new appeal tribunal. That is confirmed by the approach of Tuckey LJ in the Court of Appeal in Ashraf v Secretary of State for Social Security (2 December 1999) to what was an award within section 32(1) of the Social Security Administration Act 1992. The claimant would not then be in the position of being entitled to both components of DLA by virtue of an award made before he reached the age of 65, so that section 75 of the Social Security Contributions and Benefits Act 1992 would not impose any limitation on his entitlement after that age. For the lowest rate of the care component was not awarded until after his 65th birthday, from a date also after his 65th birthday. That must have been under paragraph 1 of Schedule 1 to the DLA Regulations, on the basis that the relevant change of circumstances (the satisfaction of the conditions of entitlement) occurred before he reached 65. As that original award of the lowest rate of the care component after 65 was authorised under Schedule 1, no further authorisation is required for a decision refusing to review the decision making that award.
- If the new appeal tribunal were minded to award the middle or higher rate of the care component, then there would in that case be an award made after the age of 65, and there would have had to be a further finding of a relevant change of circumstances since the lowest rate of the care component was awarded. Section 75 would be engaged and the DLA Regulations would have to be examined. But paragraph 7 of Schedule 1 to the DLA Regulations would seem plainly to apply in those circumstances, so that there would be no age barrier to the new award.
- I conclude that, if a new appeal tribunal were to decide that the review ground of ignorance or mistake of material fact was made out, the rules as to entitlement over the age of 65 would not be a barrier to the making of any decision in favour of the claimant. The crucial questions are thus whether that ground is made out in relation to the DAT's decision of 15 March 1999, if so what the revised decision should be and, if the revised decision is either to leave the existing award of the higher rate of the mobility component and the lowest rate of the care component undisturbed or to award a higher rate of the care component, whether there is a limit on the date from which any additional benefit can be made payable. Those questions should be determined by a new appeal tribunal.
- Accordingly, I refer the claimant's appeal against the adjudication officer's decision dated 19 July 1999 to a differently constituted appeal tribunal for determination in accordance with the following directions.
Directions to the new appeal tribunal
- There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunal of 25 August 2000.
- I direct the new appeal tribunal that, for the reasons given in paragraphs 8 to 14 above, any case made on the basis of a review of the DAT's decision of 15 March 1999 on the ground of relevant change of circumstances cannot result in an award of the lowest rate of the care component, because of the claimant's age. Such a case could though result in the award of the middle or higher rate of the care component if the evidence justified it (see paragraph 7 of Schedule 1 to the DLA Regulations).
- However, the questions specified in paragraph 21 above in relation to a possible review of the DAT's decision on the ground of ignorance or mistake of material fact must be determined. For the reasons given in paragraphs 18 to 20 above, the claimant's age is not an obstacle to a decision in his favour on such a review. The representatives of both parties must have the opportunity to put forward a reasoned case on that basis. The approach set out in paragraphs 16 and 17 above is to be followed. I recognise that that leaves some difficult issues of fact and law to be determined, but (as I have had no submissions on those issues) I ought not to give any more specific directions. I remind the new appeal tribunal that, when considering whether the DAT was mistaken or ignorant of any material fact, the DAT's findings must be tested against the actual factual situation in the relevant period, as the new appeal tribunal determines it to have been on the evidence before the new appeal tribunal. The test is not whether the DAT came to a reasonable conclusion on the evidence it had. Whether a fact is material or not will depend in part on the period at which the DAT of 15 March 1999 was allowed to look.
- The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal.
(Signed) J Mesher
Commissioner
Date: 21 February 2002
