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Secretary of State for Work and Pensions [2009] UKUT 133 (AAC) (10 July 2009)
DLA, AA, MA: general
qualifying periods

IN THE UPPER TRIBUNAL Appeal No. CDLA/860/2008

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision: The decision of the Fox Court appeal tribunal dated 4 October 2007 is set aside and there is substituted a decision that the previous award of the lower rate of the mobility component and the middle rate of the care component of disability living allowance is superseded with effect from 3 June 2007 and the claimant is entitled to the lower rate of the mobility component and the highest rate of the care component of disability living allowance from 3 June 2007 to 10 May 2010.

REASONS FOR DECISION

1. The claimant suffers from severe mental illness and has been in receipt of disability living allowance for some time. In early 2007, her award comprised the lower rate of the mobility component and the middle rate of the care component. On 3 April 2007, what amounted to an application for supersession on the ground that the claimant's condition had worsened was received by the Secretary of State. It was followed by a completed "claim pack" received on 11 May 2007 in which it was stated that the claimant now required care at night and that her increased needs dated from 3 March 2007. The Secretary of State superseded the award of disability living allowance and awarded the lower rate of the mobility component and the highest rate of the care component from 3 June 2007 to 2 June 2009. The claimant appealed on the ground that she had always been entitled to the highest rate of the care component.
2. Unfortunately, the Secretary of State's submission to the tribunal was not one of his better ones, as the Secretary of State's current representative has frankly conceded in his grounds of appeal. The initial details said that the application for supersession had been made on 11 May 2007, although the statement of facts later referred to the letter received on 3 April 2007. The submission then made a reference to a three-month qualifying period in section 65 of the Social Security Contributions and Benefits Act 1992, when it should have referred to section 72, and it compounded the error by setting out neither section 65 nor section 72 but instead setting out section 10 of the Social Security Act 1998 and regulations 6 and 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991) which are concerned with the supersession of decisions. As the Secretary of State now observes, the submission did not even set out regulation 7 accurately or completely, amendments – in particular the addition of paragraph (9) – having apparently been overlooked.
3. Perhaps surprisingly given the everyday subject matter of the appeal, the experienced chairman of the tribunal and the other members appear to have been led up the garden path by the Secretary of State's submission. The tribunal initially allowed the claimant's appeal to the extent of awarding the lower rate of the mobility component and the highest rate of the care component from 11 May 2007 to 10 May 2010, on the ground that, under section 10 of the 1998 Act and regulation 7(2) of the 1999 Regulations, the supersession should have been effective from the date of the application for supersession, which it took to be 11 May 2007. However, when she provided a statement of reasons at the Secretary of State's request, the chairman realised that the application for supersession had actually been made on 3 April 2007 and she wrote that "the Tribunal would revise the decision to allow the supersession (thus awarding the highest rate care component and lower rate mobility) from 3/4/2007".
4. The Secretary of State now appeals with the leave of another tribunal chairman. The appeal is not opposed on behalf of the claimant.
5. Neither the Secretary of State in his submission to the tribunal nor the tribunal expressly referred to the basis of claimant's appeal to the tribunal, which was to the effect that she had always been entitled to the highest rate of the care component. However, it was common ground that there had been an increase in the claimant's care needs on 3 March 2007, the claimant did not ask for an oral hearing and no material was put before the tribunal to suggest that she might have satisfied the condition mentioned in section 72(1)(c) of the 1992 Act (i.e., that she required prolonged or repeated attention or watching over at night) before that date. On the material before it, the tribunal could not have been satisfied that that condition was satisfied before 3 March 2007 and it expressly found that she satisfied that condition only from that date.
6. The tribunal's error was to overlook the brief reference in the submission to a three-month qualifying period for the highest rate of the care component and to concentrate instead on the effective date of the supersession on the erroneous assumption that the claimant otherwise satisfied the conditions for an award of the highest rate of the care component from 3 March 2007.
7. As the Secretary of State submits, the crucial point is that a person does not qualify for an increased rate of disability living allowance until the period of three months has elapsed from the date when the claimant first satisfied the other conditions for awarding that rate. The three-month qualifying period in respect of the care component of disability living allowance is to be found in section 72 of the 1992, rather than section 65 which is concerned with attendance allowance. Section 73 makes similar provision in respect of the mobility component of disability living allowance.
8. The structure of section 72 is somewhat complex. Subsection (1)(a) to (c) sets out alternative conditions for entitlement to the care component of disability living allowance. Subsection (2)(a) then provides –

"(2) … a person shall not be entitled to the care component of a disability living allowance unless –

(a) throughout

(i) the period of three months immediately preceding the date on which the award of that component would begin; or

(ii) …,

he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above ; …"

However, it is subsection (4) which imposes a qualifying period for a particular rate of the care component, doing so by reference to subsection (2). In relation to the highest rate, it provides –

"(4) The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be –

(a) the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection".

9. In the present case, the tribunal accepted that the claimant satisfied the condition mentioned in subsection (1)(c) only from 3 March 2007 and so it followed that it should have agreed with the Secretary of State that the highest rate of the care component could be awarded only from 3 June 2007, at the earliest.
10. Regulation 7(9)(b) of the 1999 Regulations – to which regulation 7(2)(a) must be regarded as subject if it would otherwise be inconsistent, because paragraph (9)(b) makes more specific provision as to the effective date of supersessions in attendance allowance and disability living allowance cases where a change of circumstances is relevant to the question of entitlement to a particular rate of benefit – ensures that a supersession decision awarding a higher rate of benefit is effective from the end of the three-month qualifying period, provided the relevant change of circumstances leading to the award of the highest rate is reported before a month after that date (i.e., within four months of the change of circumstances itself).
11. As the relevant change of circumstances on 3 March 2007 had been reported within the three-month qualifying period itself, the Secretary of State was, and is, plainly right to submit that in the present case the award should have been effective from 3 June 2007. The tribunal's decision as to the date from which the award was effective must plainly be set aside and the correct date substituted.
12. The tribunal did not give any reason for extending the period of the award. I imagine it was done because it had changed the starting date and also time had elapsed before the appeal was heard. In any event, the Secretary of State has not challenged the end date of the award and is not substantially disadvantaged by it, given his power of supersession in the event of an earlier change of circumstances, and accordingly I leave it in place.

MARK ROWLAND

10 July 2009