Abbas v Secretary of State for Work & Pensions [2005]

Summary

This decision consider the power of the commissioner to extend a decision beyond the confines of an existing award.

The claimant had been receiving high rate disability living allowance (DLA), which was removed on renewal of her claim. Her appealed failed so she appealed to Commissioner Henty who awarded low rate care component but took the view that the appeal was only concerned with the residual period covered by the original DLA award and that there was no appeal in relation to the refusal of the renewal claim.

This was held to be wrong in law.

"39. The Commissioner, in substituting his own decision for the decision of the Appeal Tribunal in relation to supersession, made an award of care component at the lowest rate for the remainder of the period covered by the 1997 award; that is to say, the period from 20th September 2000 to 23rd January 2001. But he took the view that any award of benefit after that date would depend on any further renewal claim made. He thought that the appeal before him was concerned only with the residue of the period covered by the 1997 order; and that there was no appeal in relation to the refusal of the renewal claim which had been contained in the form DBD575.

40. It is accepted on behalf of the Secretary of State - in the light of the observations made by Ward LJ last year - that the Commissioner was wrong to take that view. On 4th June 2004 the Secretary of State made an open offer to award DLA care at the lowest rate from 24th January 2001. The true position was that, once he had decided that some care component could be awarded for the residue of the earlier period, it was necessary to go on to decide whether that care component could continue in relation to the subsequent period in relation to which a claim had been made. He had that power under section 14(8)(a)(ii) of the 1998 Act - that enabled him, if he considered it expedient, to give such decision as he considered appropriate in the light of the findings that he had made. In the light of the findings that he had made, it was plainly expedient to consider what the position should have been after 23rd January 2001; and the Commissioner's failure to do so is accepted to be an error in law which founds an appeal to this court."

The situation was remedied by the Secretary of State who gave an undertaking to issue a new decision awarding the care component at the lowest rate from 24th January 2001 (the day after the old award ceased) until 31 December 2005. The claimant would then be able to apply for a renewal of benefit with effect from 1st January 2006.

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