[2008] UKUT 2 (AAC)

UKUT-AAC
[2008] UKUT 2 (AAC)
[2008] UKUT 2 (AAC) · 2008-11-04
[1]Decision of the Upper Tribunal (Administrative Appeals Chamber) My decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007: I SET ASIDE the decision of the Sunderland appeal tribunal, held on 1 July 2008 under reference 236/08/00898, because it involved the making of an error on a point of law and RE-MAKE the decision. My DECISION is the claimant is entitled to a disability living allowance consisting of the care component at the lowest rate for the inclusive period from 4 February 2008 to 3 February 2010 and the mobility component at the higher rate for the inclusive period from 27 April 2008 to 3 February 2010. Any sum already paid in respect of the period covered by my award must be offset against arrears of entitlement under it and, to the extent that the sum does not exceed the arrears, treated as made on account of them: see Case 1 under regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988. Reasons for Decisiona. A. The issue and my conclusion Section 71(3) of the Social Security Contributions and Benefits Act 1992 provides that finite awards of the care component and mobility component of disability living allowance must not be for different fixed periods. The issue for me is: do the start dates for the award of each component have to coincide? My decision is that they do not.b. B. The claim and award[2]The claimant made a claim for a disability living allowance on 4 February 2008. She gave the cause of her disablement as chronic back pain. She wrote that her pain was variable, but that it always affected her mobility and ability to look after herself. The decision-maker considered the claim pack and an incapacity benefit medical report from November 2007. On 8 February 2008, the officer awarded a disability living allowance consisting of the care component at the lowest rate for the inclusive period from 4 February 2008 to 3 February 2010, but did not include either rate of the mobility component in the award.[3]The claimant exercised her right of appeal to an appeal tribunal. In her appeal, she added that she had anxiety problems. Later she wrote about an incident that had occurred in late March 2008 when she had lost the feeling in her left leg and fallen down seven stairs. She added that, as a result, she was too scared to use the stairs and was sleeping downstairs.[4]The claimant's representative produced a written submission for the Tribunal seeking the mobility component at the higher rate and a higher rate of the care component. In support, she provided two reports by a doctor in the United States who specialised in spinal pain and a medical report by a British doctor in respect of a road traffic accident that occurred on 27 January 2008. C. The Tribunal's decision and reasons[5]The Tribunal dismissed the appeal. The chairman's full statement of the tribunal's decision dealt with the mobility component in this passage:
'With regard to the Mobility Component, the lower rate of the component has not been claimed. The date of this particular claim had been the 4 February 2008. The Decision-Maker's decision had been on the 8 February 2008. The Tribunal felt that at the time of the Decision-Maker's decision [the claimant] certainly had not been qualified for the higher rate of the Mobility Component even though they accepted that she did have problems with her back. In her claim for Incapacity Benefit [the claimant] had indicated she could not walk for more than 200 metres without stopping or severe discomfort. The Tribunal felt that this was possibly true at the time, but that her walking ability had deteriorated since the second accident on the 27 January 2008, and it may well be that as from that date she would qualify for the higher rate of the Mobility Component. However, Regulation 71(3) identified that a Tribunal could not award both Mobility and Care Component for different fixed periods. [The claimant] had entitlement to the lower rate of the Care Component from the 4 February 2008, but, if the second accident would qualify [her] for the higher rate of the Mobility Component, the qualification in payment could not have been put in place until the 27 April 2008, 3 months after the date of the second road traffic accident, and as such were prevented, for that technical reason, from considering the higher award of the Mobility Component.'
The chairman's reference to regulation 71(3) is a slip; the correct legislation is section 71(3). D. The legislation[6]Section 71 of the Social Security Contributions and Benefits Act 1992 provides:
' 71 Disability living allowance (1) Disability living allowance shall consist of a care component and a mobility component. … (3) A person may be awarded either component for a fixed period or for an indefinite period, but if his award of a disability living allowance consists of both components, he may not be awarded the components for different fixed periods.'
[7]Regulation 13A(1) of the Social Security (Claims and Payments) Regulations 1987 is also relevant:
' 13 Advance award of disability living allowance (1) Where, although a person does not satisfy the requirements for entitlement to disability living allowance on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances he will satisfy those requirements for a period beginning on a day ("the relevant day") not more than 3 months after the date on which the claim is made, then the Secretary of State may award disability living allowance from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day. … (3) A decision pursuant to paragraph (1) or (2) to award benefit may be revised under section 9 of the Social Security Act 1998 if the requirements for entitlement are found not to have been satisfied when disability living allowance becomes payable under the award.'
E. The appeal to the Commissioner[8]A district chairman refused the claimant leave to appeal to a Commissioner, but I gave her leave saying:
'In this case, there is a realistic prospect that the decision was wrong in law for misdirecting itself on the meaning of section 71(3) of the Social Security Contributions and Benefits Act 1992. It is arguable that the prohibition on different fixed periods for the care component and the mobility component refers only to the end date of the period, and not to the start date. If that is correct, the tribunal could have made an advance award of the mobility component at the higher rate under regulation 13A of the Social Security (Claims and Payments) Regulations 1987.'
[9]The Secretary of State's representative (Wayne Spencer) supported the appeal, relying on the language in its context, the consequences of the interpretation adopted by the Tribunal and authorities. He proposed that I make an award of both components from appropriate effective dates and the claimant, through her representative, has agreed to that award.[10]On the language in context, Mr Spencer wrote:
'Considered in isolation, the phrase "fixed period" can be understood as referring to a period with both a start and an end date. If this view is applied to section 71(3), it produces a requirement that fixed period awards start as well as end on the same date. In my submission, however, such an approach fails properly to consider the context in which the words "fixed period" appear in section 71(3). The section distinguishes between awards for an indefinite period (originally, for life) and awards for a fixed period. What makes an award of benefit "indefinite" rather than "fixed" is not the way in which it begins (for both types of award start on perfectly definite dates) but rather is the absence of a predetermined end date for the award. In my submission, the phrase in section 71(3) that prohibits "different fixed periods" should likewise be understood as having to do with the end date of the period of the award alone.'
[11]I accept that argument. There is no conceptual reason why an award could not consist of both components for different fixed periods. The policy reflected in the legislation can only relate to administrative convenience and such inconvenience as might arise can only relate to the number of decisions that would be required on renewal of each component and that, of course, is affected only by the end dates of the periods.[12]There are two further considerations.[13]First, on the wording of section 71(3), there is nothing to prevent an indefinite award of one component starting on a different date from a fixed period award of the other component. It that is permissible, why it is not also permissible in the case of two fixed period awards? There is no discernible reason why there should be such a difference in treatment.[14]Second, the adjudication context is relevant. At the time when disability living allowance came into existence, an appeal lay to the disability appeal tribunal. That Tribunal decided cases down to the date of hearing, like all the other Tribunals in the Independent Tribunal Service at the time. It had to take account of any change that occurred after the date of the adjudication officer's decision but before the tribunal gave its decision. The disability living allowance legislation did not override that approach. It would be surprising in that context if a Tribunal at the time were prevented from adding the other component to the adjudication officer's award but from a later effective date. (The down to the date of hearing approach does not apply today, being inconsistent with section 12(8)(b) of the Social Security Act 1998).[15]On the consequences of the alternative interpretation adopted by the Tribunal, Mr Spencer wrote:
'Moreover, it should be borne in mind that an approach that required fixed period awards to start on one and the same date would make it impossible for a claimant to qualify for a fixed period of an additional component on the strength of a change of circumstances occurring after an initial award took effect. It is no small matter to construe a provision as operating to deny additional assistance to severely disabled persons whose condition worsens. It is reasonable to expect any provision having that effect to set out its scope in clear and express terms. Section 71(3), in my submission, does not pass this test.'
[16]This makes the valuable point that section 71(3) applies both when an award is made on a claim and when it is later changed on supersession. The Tribunal's interpretation of section 71(3) is workable in respect of an initial award. It causes some inconvenience when applied to changes to that award. I do not agree that it would prevent a change to that award on supersession from a later date. However, this could only be achieved by superseding the award in respect of both components even if the grounds for supersession related to one component only.[17]On authorities, the Mr Spencer cited R(DLA) 7/02 and CDLA/1190/2006 .[18]In R(DLA) 7/02 , Mr Commissioner Turnbull substituted (at paragraph 20(2)) a decision for that of the Tribunal with different start dates for each of the components. However, he did not mention the interpretation of section 71(3).[19]In CDLA/1190/2006 , Mr Commissioner Howell suggested a way around the interpretation adopted by the Tribunal in this case. He suggested (at paragraph 22) that a decision-maker could make two successive awards. I can illustrate his approach using the dates applicable in this case. The Tribunal found that the claimant had satisfied the conditions of entitlement to the care component at 4 February and would satisfy the conditions of entitlement to the mobility component on 27 April. On Mr Howell's approach, the decision-maker or, on appeal, the Tribunal could make one award (consisting of the care component only) from 4 February to 26 April and then make an advance award under regulation 13A (consisting of the care component and the mobility component) from 26 April. Mr Spencer argued that it was not necessary for me to take that approach. I agree. It is unnecessary on my interpretation of section 71(3). But it serves to show that the same result can be achieved in a more cumbersome way. Another possibility would be to make the award indefinite as to one or both components, leaving it to the Secretary of State to supersede at an appropriate future date. F. Disposal[20]I allow the appeal and make the award that both parties now agree should be made. Signed on original on 4 November 2008 Edward Jacobs Upper Tribunal Judge

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