Upper Tribunal (Administrative Appeals Chamber), May 28, 2013,  UKUT 268 (AAC)
|Resolution Date:||May 28, 2013|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||PH v Secretary of State for Work and Pensions (DLA)|
PH v Secretary of State for Work and Pensions (DLA)
 UKUT 0268 (AAC)
IN THE UPPER TRIBUNAL Case No. CDLA/227/2011
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant's appeal is allowed. The decision of the First-tier Tribunal is set aside and there is substituted a decision that the award of the higher rate of the mobility component of disability living allowance made on 18 December 2006 in respect of the period from 8 March 2007 to 7 March 2010 is not superseded with effect from 1 September 2009 or 21 December 2009 but is superseded so as to extend the period of the award to 21 November 2010.
REASONS FOR DECISION
This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal given on 28 September 2010, expressed as awarding the claimant the higher rate of the mobility component of disability living allowance from 21 December 2009 to 7 March 2010. No challenge is made to the First-tier Tribunal's decision not to award the care component but it is contended on behalf of the claimant that the award of the mobility component should have been for a period that stretched at least until the date of the First-tier Tribunal's decision. The Secretary of State opposes the appeal, contending that the First-tier Tribunal had no power to make an award in respect of any period after 7 March 2010.
The issue arises out of the procedural history of the case, from which it can readily be seen why the First-tier Tribunal made its award for such a limited period. The claimant had been entitled to disability living allowance for some time. On 18 December 2006, a renewal claim was allowed and the higher rate of the mobility component was awarded from 8 March 2007 to 7 March 2010. On 1 September 2009, the claimant made an application for supersession with a view to obtaining the care component. Not only was that unsuccessful but, in the light of an examining medical practitioner's report, the Secretary of State decided on 21 December 2009 that the claimant was entitled to neither component from 21 December 2009. The claimant appealed, but her appeal was not heard until 28 September 2010, when the First-tier Tribunal dismissed the appeal in respect of the care component but allowed the appeal in respect of the mobility component and restored the original award.
However, the period of the original award had expired on 7 March 2010, before the date of the First-tier Tribunal's decision. I am told that a new claim was made on 22 November 2010, shortly after the claimant had been sent the First-tier Tribunal's statement of reasons. The claim was disallowed. I am not sure on what ground. The claimant had reached the age of 65 but that fact ought not to have been the reason for the disallowance because her claim was a renewal claim within the terms of paragraph 5 of Schedule 1 to the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890), having been made within 12 months of the end of the period of the previous award. Nonetheless, the new claim could not cover the period from 8 March 2010 to 21 November 2010 because section 76(1) of the Social Security Contributions and Benefits Act 1992 provides that a person is not entitled to disability living allowance for any period preceding the date on which a claim for it is made. The issue in this case is whether the First-tier Tribunal should have made a decision in terms that prevented such a gap in potential entitlement from arising.
Normally, the claimant would have been invited to make a renewal claim under regulation 13C of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) in or about September 2009, to be effective from 8 March 2010. I do not know whether she received such an invitation but did not complete the renewal claim form because she had just answered all the same questions in her application for supersession and was waiting for the decision on that application or whether her application had the result that a renewal claim form was never sent to her or whether a renewal claim form was sent by her but not received. It does not matter. The claimant could, of course, have made a new claim while her application for supersession and subsequent appeal were pending but she certainly did not need to do so until 8 March 2010 and she could not be expected to realise that the position might have changed on that date because, with her previous award having been terminated prematurely by the Secretary of State (erroneously as the First-tier Tribunal subsequently decided), there was, from her point of view, no longer anything significant about that date. Once the Secretary of State had made his decision on the claimant's application for supersession, a renewal claim cannot have appeared relevant because there was no current award to renew. Equally, a new claim based on a change of circumstances cannot have appeared relevant when the claimant's case in relation to the mobility component was that there had been no relevant change in her condition. The claimant probably quite reasonably believed that, if she was successful on her appeal, the First-tier Tribunal could make an award for any appropriate period. The Secretary of State says that its powers were more limited.
On an appeal under section 12 of the Social Security Act 1998, the First-tier Tribunal has the powers that the Secretary of State had when making the decision being challenged (R(IB) 2/04). It has no greater powers and, in particular, is not entitled to have regard to circumstances not obtaining at the time of the original decision (section 12(8)(b)) but it is entitled to consider issues not considered by the Secretary of State even if they are not raised by the appeal (section 12(8)(a)).
So, the questions in the present case are, firstly, whether the Secretary of State had the power, on 21 December 2009, to extend the award of the mobility component of disability living allowance and, secondly, whether the First-tier Tribunal doing so would have involved impermissibly having regard to circumstances not obtaining on 21 December 2009.
The decision on 21 December 2009 was made by way of supersession under section 10 of the Social Security Act 1998. Strictly speaking, there were two decisions. First, on the claimant's application, there was the refusal to supersede the...
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