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CA/1474/97
The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application for leave to appeal against a decision of the Wakefield disability appeal tribunal, dated 3 January 1997, whereby they determined that the claimant was not entitled to attendance allowance. The adjudication officer now concerned with the case supports the application and both parties have consented to my treating the application as the appeal.
2. The chairman recorded the following findings of fact made by the tribunal:-
"The appellant is aged 69. He is asthmatic. In autumn 1995 following 2 admissions to hospital he was told he had angina and was given a spray and tablets. In August 1996 the Appellant fell when getting out of the bath. Since then it is claimed he has needed supervision. There is no medical evidence as to the angina and for his knee condition. The Appellant's night needs in evidence today are inconsistent with page 59 of the appeal documents. His needs today are indicated at 1/2 times a night.
In the absence of any medical evidence produced by the Appellant and deciding between the claim pack and verbal evidence of the Appellant and the Attendance Allowance Medical Report the latter is preferred it being a report from an independent Medical Advisor following a clinical and verbal examination of the Appellant conducted in the presence of his daughter who fully understood what was going on."
The chairman recorded the following additional reason for the tribunal's decision:-
"Any supervisory needs would arise from 3 August 1996. The time of the qualifying period is not satisfied as of today's date and accordingly the effects of the fall on that date cannot be taken into account."
3. The claimant seeks leave to appeal on the ground that the tribunal failed to state reasons why the medical report of Dr Ali was preferred to the evidence of the claimant and that the tribunal failed to give reasons as to why evidence submitted about supervision needs arising from asthma attacks had been rejected. I do not find those grounds compelling. As to the first ground, it is clear from the last sentence of the tribunal's findings that they simply regarded Dr Ali's evidence as being more reliable than the claimant's. As to the second ground, the chairman's note of evidence suggests that the case was put to the tribunal on the basis that the claimant required attention in connection with his asthma and supervision only in connection with his falls. There was no suggestion that the claimant might need continual supervision throughout the day in connection with his asthma.
4. The adjudication officer now concerned with the case supports the appeal on a different basis. He points out that the tribunal left open the question whether the claimant might have required continual supervision from 3 August 1996, deciding simply that, even if he did, he would not have qualified for attendance allowance at the date of the hearing before them because the 6 month qualifying period (see section 65(1)(b) of the Social Security Contributions Benefits Act 1992) had not quite elapsed. He referred me to section 65(6) which provides:-
"Except in so far as regulations otherwise provide and subject to section 66(1) below -
(a) a claim for an attendance allowance may be made during the period of six months immediately preceding the period for which the person to whom the claim relates is entitled to the allowance; and
(b) an award may be made in pursuance of a claim so made, subject to the condition that, throughout the period of six months, that person satisfies:
(i) both the day and the night attendance conditions, or
(ii) if the award is at the lower rate, one of those conditions."
In the light of that provision, he continues:-
"I therefore submit that it was incumbent on the tribunal to determine the question of supervision in the usual way, with appropriate reference to the established caselaw on the matter and determine whether, throughout the period of 6 months from 3/8/96, the claimant satisfied the conditions for an award, and subject to the conditions continuing to be satisfied, consider starting the award from the date 6 months after 3/8/96. The tribunal have failed to consider a prospective award and their decision is thereby in error of law."
5. Section 65(6) comes into play only if the claim is made within the relevant 6 month period. However, it seems to me to follow from CDLA/2/93 and other cases where it has been held that tribunals must consider claims down to the date of their decision, that a claim is to be treated as being continuously made until it is determined. Were it otherwise, a tribunal would be unable to make a prospective award in even the clearest case and the claimant would be obliged to make a further unnecessary claim. On the other hand, section 65(6)(b) is in discretionary terms and a tribunal cannot be bound, any more than an adjudication officer, to consider a prospective award in every case. Section 65(6) exists to promote speedy adjudication and to avoid an unnecessary proliferation of claims and appeals. However, those desirable goals must be balanced against the need for adjudication to be accurate. If the tribunal is doubtful about recent evidence, they are entitled to decline to consider a prospective award so that the claimant can make a fresh claim which will require him to complete another claim pack and enable an adjudication officer to arrange a further medical examination. However, if that is their view, they must explain their decision in terms that make it clear to the claimant that he should make a new claim immediately. Otherwise, the claimant may reasonably believe that an unfavourable decision by the tribunal means that it is not worthwhile making another claim straightaway.
6. In the present case, it cannot be said that the tribunal were bound to decide that the claimant was entitled to attendance allowance from 3 February 1997. The evidence was not sufficiently compelling. Furthermore, the claimant was represented by a benefits advice centre (unlike the claimant in CDLA/14598/96) who might have been expected to understand the reference to "the qualifying period" and to appreciate that the tribunal had left open the possibility of entitlement to attendance allowance from 3 February 1997 and therefore to understand the need for the claimant to make another claim. On balance, I am not persuaded that the tribunal in this case erred in law. If they thought the claimant had an arguable case from 3 February 1997, they were bound either to determine it or to indicate that the claimant should make a new claim. In my view, they gave a sufficient indication of the need to make a new claim, given the circumstances of this case. However, it appears that no further claim has been made, which suggests that the sort of broad hint that the tribunal gave, while not insufficient as a matter of law in a case where a claimant is represented by an apparently competent representative, may not always be sufficient in practice.
7. However, there is another point in this case. The claimant has always maintained that he needed supervision because of his tendency to fall. Falls were mentioned in the claim pack and Dr Ali recorded that the claimant told him that he had fallen a couple of weeks before the medical examination on 27 June 1995. The tribunal's reasons suggest that they thought that the risk of falling might have merited consideration of the supervision condition but they refer only to the fall in August 1996 and state that it is only since then that he claims to need supervision. In fact, the claimant's representative told the tribunal he had had "quite a few falls" and had been "unsteady on feet since date of claim". In any event, the fact that the claimant first fell in August 1996, would not have meant that the risk of falling first arose then, unless a serious risk only arose as a result of the consequences of that particular fall. There is some suggestion that that was the case here because the chairman recorded the claimant as saying that he had only been left on his own "since fall and knee injury 3/8/96" but the claimant's case before the tribunal was nonetheless that he did require supervision in connection with falls before August 1996. It therefore seems to me that the tribunal ought to have considered whether the claimant did require continual supervision due to his tendency to fall before that date. There is no sign of the chairman's record of their decision that they did so and, on that ground, I am satisfied that their decision is erroneous in point of law.
8. With some hesitation, I conclude that I should refer this case to another tribunal for determination. The evidence that the claimant has ever required continual supervision is sketchy but I do not consider that I can properly determine the issue without either an oral hearing or written submissions specifically directed to that issue.
9. Accordingly, I grant the claimant leave to appeal and I allow his appeal. I set aside the decision of the Wakefield disability appeal tribunal dated 3 January 1997 and I refer the case to a differently constituted tribunal for determination.
(Signed)
M Rowland
Commissioner
13 May 1998
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