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Neutral Citation Number:
Reported Number:	R(DLA)4/05
File Number:	CDLA 2751 2003
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	09/03/2004
Date Added:	23/03/2004
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Claims and payments
Secondary Subcategory:	jurisdiction
Notes:	Tribunal jurisdiction - appeal against prospective decision on a renewal claim - whether tribunal entitled to take account of change of circumstances between date of decision and renewal date Prospective claim - whether Secretary of State entitled to disallow claim before renewal date Regulation 13C of the Social Security (Claims and Payments) Regulations 1987 provides for renewal claims for disability living allowance to be made up to six months in advance of expiry of an existing award and to be treated as made on the renewal date subject to the condition that the claimant satisfies the requirements for entitlement on the renewal date. In the first two cases, the Secretary of State disallowed the claims. A tribunal allowed an appeal in part in the first case and another tribunal dismissed an appeal in the second case. On further appeals by the claimants, it was argued that the Secretary of State had not been entitled to disallow the claims before the renewal dates for the reasons given in C12/03-04(DLA). It was also argued that the tribunals' reasoning on other issues in the two cases was inadequate. In the third case the Secretary of State allowed the renewal claim prospectively but, on appeal, the tribunal had purportedly applied section 12(8)(b) of the Social Security Act 1998 by refusing to have regard to the actual condition of the claimant at the renewal date but taking into account those effects of a recent amputation that they considered could reasonably have been anticipated. On appeal by the claimant, reliance was placed on CDLA/3848/2001, where the Commissioner had held that regulation 13C effectively created an exception to section 12(8)(b) because a decision made prospectively on a renewal claim required a prediction as to what the claimant's circumstances would be on the renewal date and the claim subsisted up to the renewal date. Held, allowing the first and third appeals and dismissing the second appeal, that: 1. section 8(2)(a) of the 1998 Act, providing that that a claim ceases to subsist when the decision is made, applies in the case of a decision made prospectively just as it applies in any other case (paragraph 14); 2. the express effect of section 8(2)(b) is to prevent the Secretary of State from taking account of an anticipated change of circumstances when making a prospective decision on a renewal claim, and consequently a tribunal is prohibited by section 12(8)(b) from taking account of any change of circumstances occurring between the date of decision and the renewal date so that the tribunal's decision in the third case was erroneous in point of law: CDLA/3848/2001 (and the suggestion in R(IB) 2/04 that a renewal claim requires prediction) should not be followed (paragraphs 13, 15, 18 and 36); 3. the power to make an award and the power to disallow a claim are both implicit in the duty to decide a claim, imposed by the 1998 Act, and there is a further implied duty to determine a claim without undue delay (paragraphs 16 and 22) and, consequently, the Secretary of State has the power to disallow a renewal claim prospectively, although he may defer a decision where there are grounds for anticipating that there is likely to be a significant change of circumstances: C12/03-04(DLA) should not be followed (paragraphs 16, 22 to 26); 4. The tribunal's decision in the first case was erroneous in point of law on other grounds but the tribunal's decision in the second case was not (paragraphs 30 and 33).
Decision(s) to Download:	R(DLA) 4_05 bv.doc