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Neutral Citation Number:
Reported Number:	R(DLA) 3 01
File Number:	CDLA 473 1999
Appellant:
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	07/02/2000
Date Added:	26/03/2002
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	evidence
Secondary Category:
Secondary Subcategory:
Notes:	Tribunal practice - evidence of disablement produced after the date of the decision under appeal - whether admissible evidence of circumstances obtaining at the date of the decision Review - renewal claim providing evidence in support of extension to a limited award - whether an application for review The claimant was in receipt of an award of disability living allowance limited to 11 February 1998. She made a renewal claim on 6 November 1997 which was refused. She applied for a review under section 30(1) of the Social Security Administration Act 1992, submitting that her situation had not altered and that she was also due to go into hospital for a hip replacement operation on 7 March 1998 which she expected would increase her needs. She submitted a report from her GP dated 29 April 1998 which indicated that her mobility would be restricted for six months. On 1 July 1998 a Senior Registrar at the hospital wrote a report which indicated that the claimant had begun mobilisation two days after the operation and was now fully weight bearing. On review, the adjudication officer confirmed the refusal of the claim. The claimant appealed to a disability appeal tribunal who found she had continuing problems after 11 February 1998 but that she had improved sufficiently by the beginning of July to take her outside the conditions of entitlement and so she did not satisfy the six month prospective qualifying period for an award of disability living allowance. They relied on the hospital report of 1 July 1998. The claimant appealed to the Commissioner. Held, allowing the appeal, that: 1. the tribunal erred in law by relying on the hospital report as it did not deal with the issue of whether the claimant was in severe discomfort when walking (para. 13); 2. in view of the evidence and the tribunal's findings of fact, the tribunal erred in law by failing to consider whether the adjudication officer conducting the review ought to have treated the renewal claim as an application for review to extend the period of the claimant's first award to cover the claimant's post operative recovery (paras. 15 to 18); 3. by virtue of section 33(7) Social Security Administration Act 1992 and section 12(8)(b) of the Social Security Act 1998; (i) the "down to the date of hearing rule" as explained by the tribunal of Commissioners in CIB/14430/1996, CIS/12015/1996 and CS/12054/1996 (now reported as R(S) 2/98) did not apply on an appeal to a disability appeal tribunal made on or after 21 May 1998 or on an appeal to an appeal tribunal created by the Social Security Act 1998 (paras. 1.3 and 20 to 24); (ii) in the case of disability living allowance the tribunal's jurisdiction was limited to the inclusive period from the date of the claim to the date of the decision under appeal (para. 58); (iii) the tribunal was not able to take into account a fresh circumstance arising after the date of the decision under appeal (para. 55); (iv) evidence was not admissible if it related to a period later in time than the period within the tribunal's jurisdiction but the tribunal was not limited to evidence that was before the officer who made the decision under appeal or that was in existence at the date of that decision provided the evidence related to the period within the tribunal's jurisdiction (para. 58); (v) when considering the prospective six months qualifying period and the period of an award the tribunal was required to take into account any evidence about the claimant's likely disablement beyond the date of the decision that could be related to the circumstances obtaining at that date, including evidence as to what actually occurred after that date unless that amounted to a fresh circumstance, and was required to make relevant findings of fact on probability based on their assessment of admissible evidence (paras. 59 to 68); 4. in the case of a decision of the Secretary of State to which section 8(2)(b) of the Social Security Act 1998 was applicable, the "down to the date of hearing rule" did not apply on an appeal to the Commissioners (para. 24).
Decision(s) to Download:	dla3_01.doc