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The Social Security (Introduction of Disability Living Allowance) Regulations (Northern Ireland) 1992

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Part VClaims, Payments and Adjudication

Second tier adjudication

15.  For the purposes of this Part of these regulations, “second tier adjudication” means adjudication by an adjudication officer; and for these purposes section 100D(1)(1) (appeals following reviews) shall apply to any decision given by an adjudication officer as if it were a decision given by him on a review under section 100A(1) (review of a decision on any ground).

Claims for a single component of disability living allowance

16.—(1) Where a person—

(a)had an award of attendance allowance or mobility allowance, but not both, for a period commencing before 6th April 1992; and

(b)in accordance with the above regulations is treated as from 6th April 1992 as having one award of disability living allowance at the weekly rate applicable in his case to either the care component or the mobility component,

he may submit a claim for a disability living allowance relating solely to that component to which he has no entitlement.

(2) Any such claim made after 4th April 1993 shall be treated as an appplication for a review under section 100A(1), if made within the period prescribed under that provision, or if not, under section 100A(2), of any award of disability living allowance in force at the time the claim is made.

(3) Subject to paragraph (4), an award of disability living allowance consisting of one component may be made by virtue of this regulation in addition to any award of disability living allowance consisting only of the other component which is treated as having been made to the claimant in accordance with the preceding provisions of these regulations.

(4) An award shall not be made in accordance with paragraph (3) where the period of the award would commence after 4th April 1993.

(5) Where a claim, submitted in accordance with paragraph (1), is received in an office of the Department before 5th April 1993, any award on that claim may, notwithstanding anything in section 37ZE(1)(2), commence on a date not earlier than 6th April 1992.

Claims in addition

17.—(1) This regulation applies in a case where an adjudicating authority in determining a person’s claim for, or application for a review of a decision relating to, disability living allowance is satisfied that the person satisfies the conditions of entitlement to the care component which qualify him for the highest or middle of the three weekly rates prescribed under section 37ZB(3) or to the mobility component which qualify him for the higher of the two weekly rates prescribed under section 37ZC(10), or to both, and that the person is neither—

(a)entitled to attendance allowance or mobility allowance or both; nor

(b)awaiting a determination by an adjudicating authority on—

(i)a claim made by him or on his behalf for one or both of those benefits,

(ii)an application for a review, made in accordance with section 104(2), of a decision relating to one or both of those benefits, or

(iii)an appeal from a decision given on a claim or an application for a review of a decision relating to one or both of those benefits.

(2) Subject to paragraphs (3) and (4), where in determining a person’s claim for, or application for a review of a decision relating to, disability living allowance in a case to which this regulation applies, an adjudicating authority is satisfied that the person—

(a)in addition to satisfying the conditions of entitlement to the care component, also satisfied the conditions of entitlement to attendance allowance for a period before 6th April 1992; or

(b)in addition to satisfying the conditions of entitlement to the mobility component, also satisfied the conditions of entitlement to mobility allowance for a period before 6th April 1992,

other than the condition that he makes a claim for the benefit in question in the manner and within the time prescribed in relation thereto, the authority shall treat the claim for disability living allowance or, in the case of an application for a review of the decision relating to disability living allowance, the claim on which that decision was made, as a claim also for—

(i)attendance allowance, where sub-paragraph (a) is satisfied,

(ii)mobility allowance, where sub-paragraph (b) is satisfied, or

(iii)attendance allowance and mobility allowance, where subparagraphs (a) and (b) are satisfied,

and shall determine that claim accordingly.

(3) Where a claim for disability living allowance is a claim for a single component in accordance with regulation 16 then paragraph (2) shall apply only where the adjudicating authority is satisfied that the person fulfils or fulfilled the conditions of entitlement to—

(a)attendance allowance, where the claim is for the care component; or

(b)mobility allowance, where the claim is for the mobility component.

(4) Any award of mobility allowance or attendance allowance arising on a claim treated as made in accordance with paragraph (2) shall be for a period ending not later than 5th April 1992.

(5) Where an adjudicating authority is satisfied that the person, whose claim or application he is determining, satisfies the conditions of entitlement to mobility allowance for a period before 6th April 1992, then he shall determine that claim or application as if section 37ZC(9)(a) were omitted.

Claim for disability living allowance treated as not having been made

18.—(1) Subject to paragraph (2), a claim for disability living allowance shall be treated as not having been made where the person who made the claim, or on whose behalf the claim was made—

(a)has an award of both attendance allowance and mobility allowance and each award is for a period due to expire after 5th April 1992;

(b)has an existing award of disability living allowance, consisting of both components;

(c)has two existing awards of disability living allowance, where one award consists of the care component and the other award consists of the mobility component; or

(d)has an award of disability living allowance consisting of one component and has in addition submitted another claim for a single component of that benefit in accordance with regulation 16.

(2) Paragraph (1) shall not apply where the claim for disability living allowance is made in anticipation of the expiry of the award of attendance allowance or of mobility allowance or of disability living allowance.

Claims for attendance allowance or mobility allowance treated as not having been made

19.  Where after 2nd February 1992 a person has made a claim for disability living allowance, then any claim made on that day or subsequent to that day for attendance allowance or mobility allowance shall be treated as not having been made.

Claims for disability living allowance where a person has an award of attendance allowance or mobility allowance

20.—(1) Subject to paragraph (3), where a person—

(a)has an award of attendance allowance; and

(b)makes a claim for disability living allowance,

the claim for the care component shall be treated as not having been made.

(2) Subject to paragraph (3), where a person—

(a)has an award of mobility allowance; and

(b)makes a claim for disability living allowance,

the claim for the mobility component shall be treated as not having been made.

(3) Where the claim for disability living allowance is made in anticipation of the expiry of an award of attendance allowance or of mobility allowance, then paragraph (1) or, as the case may be, paragraph (2) shall not apply.

Claims for both old and new benefits outstanding

21.—(1) This regulation applies where—

(a)a claim for either mobility allowance or attendance allowance, or both, has been made by or on behalf of a person;

(b)the claim or claims have not been determined by 3rd February 1992, or if it or they have been determined the decision given was that no award be made and an application for a review of that decision or an appeal to an appeal tribunal from that decision awaits determination on or after 3rd February 1992; and

(c)a claim for disability living allowance is made by the person mentioned in sub-paragraph (a) before the determination on the claim or, as the case may be, the application for review or appeal, is made.

(2) Where the person mentioned in paragraph (1)(a) has claimed—

(a)attendance allowance, but not mobility allowance, the claim for disability living allowance shall be treated, until the claim, application for review or appeal is determined, as a claim for the mobility component only;

(b)mobility allowance, but not attendance allowance, the claim for disability living allowance shall be treated, until the claim, application for review or appeal is determined, as a claim for the care component only; or

(c)attendance allowance and mobility allowance, the claim for disability living allowance shall be treated, until the claims, applications for reviews or appeals in respect of both those benefits are determined, as not having been made.

(3) When the claim, application for review or appeal is, or both are, determined and—

(a)the person is awarded attendance allowance, then the claim for the care component shall be treated as not having been made;

(b)the person is awarded mobility allowance, then the claim for the mobility component shall be treated as not having been made;

(c)the person is awarded both attendance allowance and mobility allowance, then the claim for disability living allowance shall continue to be treated as not having been made; or

(d)no award is made, the claim for disability living allowance in so far as it has not been determined, shall then be referred to the adjudication officer for his determination.

Determination of claims for, or of applications for review of decisions relating to, attendance allowance

22.—(1) The Board shall not consider any question reserved for their determination under section 105(3) where the claim for, or application for a review of a decision relating to, attendance allowance was made after 15th March 1992, whether or not the person to whom the question refers has attained the age of 65.

(2) In a case to which paragraph (1) applies, an adjudication officer shall determine the claim, or application for review, in accordance with the system of adjudication for attendance allowance introduced by the Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991.

(3) Any question referred for determination by the Board, under section 105(3) or 106(1) which has not been determined by 5th April 1992, shall be determined as soon as is reasonably practicable thereafter in accordance with paragraph (4).

(4) For the purposes of paragraph (3), the question shall be determined—

(a)except in a case to which sub-paragraph (b) applies, by an adjudication officer; or

(b)where the application for a review of a decision of the Board is made within 3 months of that decision being given, as a second tier adjudication.

(5) For the purposes of this regulation, any application for a review of a decision which required the leave of the Board shall itself be treated as an application for review.

(6) In determining any question in accordance with paragraph (4) any correspondence issuing from the Board indicating the matters which, in the Board’s opinion arise on a question before them, together with the submissions (if any) made by or on behalf of the claimant in response to that correspondence, may be taken into account by an adjudication officer as evidence relating to the question to be determined.

(7) Where, before 6th April 1992, the Board has issued a certificate in accordance with section 35(2)(3) but an adjudication officer has not determined the claim or, as the case may be, the application for review to which the certificate relates, then in determining that claim or application for review an adjudication officer shall treat the certificate—

(a)if it specifies both the conditions mentioned in section 35(1)(a) and (b)(4), as evidence that the person satisfies or is likely to satisfy both the conditions mentioned in subsection (1)(a) and (b) of section 35 throughout the period mentioned in the certificate; and

(b)if it specifies one or other of those conditions, but not both, as evidence of his falling within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout the period mentioned in the certificate.

(8) Where the Board has, before 6th April 1992, determined a question referred to them under section 105(3) and the decision is such that no award of attendance allowance could have been made on the basis of it, then in determining on or after 6th April 1992 any claim for, or application for a review of a decision relating to, attendance allowance to which the Board’s decision relates, an adjudication officer shall treat the decision of the Board, and any reasons given by the Board in support of their decision, as evidence that the person does not satisfy those requirements to which the decision relates.

(9) For the purposes of the provisions of Part III of the Act in so far as they relate to the review of decisions of adjudication officers, any certificate issued by the former Board shall, after 5th April 1992, be treated as a decision of an adjudication officer and as such shall be subject to review on the same grounds and in the same circumstances as decisions of adjudication officers.

Appeals to Commissioners from decisions of the Board

23.—(1) This regulation applies where—

(a)a person has appealed to the Commissioner against a determination of the Board under section 106(2)(5); and

(b)the Commissioner determines the appeal on or after 16th March 1992.

(2) Where the Commissioner holds that the Board’s decision was erroneous in point of law, he shall set it aside and—

(a)he shall have the power—

(i)to give the decision which he considers the Board should have given, if he can do so without making fresh or further findings of fact, or

(ii)if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; or

(b)in any other case he shall refer the decision for second tier adjudication with directions for its determination.

(3) Where, in accordance with paragraph (2)(a), the Commissioner gives the decision himself, he shall refer that decision to an adjudication officer with directions to determine the claim or application for review from which the appeal to the Commissioner arose.

Persons claiming mobility allowance

24.—(1) In this regulation, the expression “medical question” has the meaning it bore in regulation 53 of the Adjudication Regulations on 3rd February 1992.

(2) Any claim for mobility allowance made after 15th March 1992, or any application for a review of a decision made after 9th February 1992 relating to the medical question or otherwise to mobility allowance, shall be subject to adjudication in accordance with the provisions of the Act relating to disability living allowance, and the modifications, additions and exclusions set out in Section B of Part IV of the Adjudication Regulations shall be disregarded.

(3) Subject to paragraphs (4) to (14), where a claim for, or an application for a review of a decision relating to, mobility allowance, other than a claim or application for review mentioned in paragraph (2), has not been determined as at 6th April 1992, then that claim or application for review shall as from that date be subject to adjudication in accordance with the provisions in the Act relating to disability living allowance.

(4) Where a medical question arose on a claim or question to which paragraph (3) refers then, in determining that claim or question, the adjudication officer—

(a)shall have regard to any report received from the medical practitioner to whom the medical question has been referred;

(b)if the report from the medical practitioner to whom the medical question has been referred has not been received by the adjudication officer, may—

(i)subject to sub-paragraph (ii), await that report and have regard to it before determining the claim or application for review, or

(ii)where that report has not been received by the adjudication officer within 6 weeks of the question being referred to the medical practitioner, determine the claim or application for review without waiting for that report;

(c)where the medical question has been determined by a medical board before 6th April 1992, shall have regard to any report made by the medical board on that question;

(d)where the medical question has been referred to a medical board otherwise than on an appeal by the person claiming the allowance, but the medical board has not determined that question by 6th April 1992, shall consider the question as if—

(i)the reference had not been made, and

(ii)the provisions in section 115C(6) (references of claims to medical practitioners and the Disability Living Allowance Advisory Board) relating to disability living allowance applied also to the medical question;

(e)where the medical question has been referred to the medical board following an appeal by the person claiming the allowance but the medical board has not determined that question by 6th April 1992, shall consider the question as if—

(i)it were an application for a review under section 100A(1) (reviews of decisions by adjudication officers) of the decision appealed against, and

(ii)the provisions in section 115C relating to disability living allowance applied also to the medical question;

(f)where the medical question has been referred to a medical appeal tribunal, shall be bound by any decision given by the medical appeal tribunal on the matters to which it relates.

(5) No reference on a medical question to a medical board shall be made by an adjudication officer after 9th February 1992.

(6) Any medical question which would, but for paragraph (5), have been referred to a medical board shall be subject to adjudication in accordance with the provisions of the Act relating to disability living allowance, and for this purpose the medical question shall be determined as though it were a second tier adjudication.

(7) Any appeal on a medical question from a decision of a medical board which is made on or after 10th February 1992 shall be subject to adjudication in accordance with the provisions of the Act relating to disability living allowance and the provisions of Section B of Part IV of the Adjudication Regulations shall be disregarded.

(8) Section 100D(1) shall apply to the appeal mentioned in paragraph (7) as if the decision appealed against were the decision of an adjudication officer given on review under section 100A(1) and the appeal shall be to a disability appeal tribunal.

(9) Any medical question referred to a medical appeal tribunal which has not been determined by 6th April 1992 shall—

(a)where the person to whom the question relates so consents, continue to be heard by the medical appeal tribunal; or

(b)where he does not consent, be subject to adjudication in accordance with the provisions of the Act relating to disability living allowance, and for this purpose, the medical question shall be determined by a disability appeal tribunal and not by a medical appeal tribunal.

(10) Where a disability appeal tribunal is determining, in accordance with paragraph (9), a medical question which was considered by a medical appeal tribunal but adjourned with a request for further information or a report, then the disability appeal tribunal shall await the submission of that information or report but not for more than 3 months from the date the information or report was requested, and shall, if it is available, take it into account in determining the question before them.

(11) Any decision of an adjudication officer, a medical board or a medical appeal tribunal on a medical question may be reviewed at any time by an adjudication officer if—

(a)he is satisfied, in the case of a decision of a medical appeal tribunal by fresh evidence, that the decision was given in ignorance of, or was based upon a mistake as to, a material fact; or

(b)there has been a relevant change of circumstances since the decision was given.

(12) Section 104A(3), (4) and (6) to (9) shall apply to reviews under paragraph (11) as they apply to reviews under that section.

(13) Section 112A(7) (appeal etc. on question of law to Commissioner) shall have effect in relation to a decision of a medical appeal tribunal on a medical question subject to the modifications that in subsection (5A) as if for “a medical appeal tribunal” there were substituted “an adjudication officer” and as if subsection (5B) were omitted.

(14) Where the Commissioner returns a question to an adjudication officer in accordance with paragraph (13) section 100D(1) shall apply to the decision of the adjudication officer on that question as if it were a decision given by him on a review under section 100A(1).

Reference to an adjudication officer

25.—(1) This regulation applies where, on or after 3rd February 1992, a disability appeal tribunal are determining an appeal which relates to a claim for attendance allowance or a disability appeal tribunal or a medical appeal tribunal are determining an appeal which relates to a claim for mobility allowance.

(2) Where the disability appeal tribunal or medical appeal tribunal are unable to make an award of the benefit claimed, but, solely on the evidence before them they are satisfied that the claimant may qualify for—

(a)where the claim relates to attendance allowance, the lowest of the three weekly rates of the care component prescribed under section 37ZB(3); or

(b)where the claim relates to mobility allowance—

(i)the lower of the two weekly rates of the mobility component prescribed under section 37ZC(10), or

(ii)the higher of those two weekly rates because he may fall within section 37ZC(1)(c) (entitlement to mobility component for the severely mentally impaired),

the disability appeal tribunal or medical appeal tribunal may refer to an adjudication officer the question of the claimant’s entitlement to disability living allowance.

(3) Where an adjudication officer has a question referred to him in accordance with paragraph (2), he shall treat—

(a)the claim for attendance allowance as being also a claim for disability living allowance relating solely to the care component; or

(b)the claim for mobility allowance as being also a claim for disability living allowance relating solely to the mobility component,

made on 3rd February 1992 and proceed to determine that claim in accordance with section 99(8).

(4) An award made in accordance with paragraph (3) may be for a period commencing on 6th April 1992 or on such later date as the adjudication officer may, in the circumstances of the particular case, determine.

Payments of disability living allowance

26.—(1) This regulation applies to the payment of awards of disability living allowance where the award arises in accordance with Part II or III of these regulations.

(2) Subject to paragraphs (3), (4) and (5), where a person has an award of attendance allowance, mobility allowance or disability living allowance which—

(a)is payable by direct credit transfer in accordance with regulation 21 of the Claims and Payments Regulations; and

(b)is superseded by an award which is treated as made under Part II or III of these regulations,

the award mentioned in sub-paragraph (b) shall continue to be paid by direct credit transfer into the same bank or other account as the award which it superseded; and for this purpose, any application made or treated as made and any consent given or treated as given in relation to the terminated award shall be treated as made or given in relation to the award mentioned in sub-paragraph (b).

(3) Where a person—

(a)has two awards of disability living allowance; and

(b)those awards are paid separately, but into the same bank or other account, by direct credit transfer in accordance with regulation 21 of the Claims and Payments Regulations,

then those payments may at any time before 6th April 1993 be combined into one payment, equal to the aggregate of the two payments, payable by direct credit transfer into that account.

(4) Where a person has two awards of disability living allowance paid by direct credit transfer in accordance with regulation 21 of the Claims and Payments Regulations into different accounts, those payments may, with the consent of the Department, be made into such one bank or other account as the person to whom the payments are made may specify in a notice in writing to the Department.

(5) For the purposes of paragraph (3), any application made or treated as made and any consent given or treated as given in relation to a terminated or cancelled award shall be treated as made or given in relation to the award treated as having been made by virtue of these regulations.

(6) Where a person has an award of disability living allowance which is payable by direct credit transfer in accordance with regulation 21 of the Claims and Payments Regulations, any further award of disability living allowance made to that person shall be paid by direct credit transfer into the same bank or other account as the award first mentioned; and any application made or treated as made and any consent given or treated as given in relation to the award first mentioned shall be treated as made or given also in relation to the further award.

(7) Subject to paragraphs (8) to (14), where attendance allowance was payable to a person otherwise than by direct credit transfer, any disability living allowance arising in accordance with Part II of these regulations shall be payable on the day of the week on which attendance allowance was or would have been payable.

(8) Subject to paragraph (9), where mobility allowance was payable to a person otherwise than by direct credit transfer, any disability living allowance arising in accordance with regulation 8 shall be payable on Wednesdays.

(9) Where both attendance allowance and mobility allowance were payable to a person otherwise than by direct credit transfer, any disability living allowance payable in accordance with an award treated as made by virtue of these regulations shall be payable—

(a)from such date before 6th April 1993 as the Department may in any particular case determine—

(i)except in a case to which head (ii) applies, on Wednesdays, or

(ii)where in any particular case payment of attendance allowance was combined with the payment of another benefit and that benefit was payable on a day of the week other than Wednesday, the care component shall be payable on that day and the mobility component shall be payable on Wednesdays;

(b)until that day, the care component, shall be payable in the manner in which and at the time when attendance allowance was payable and, the mobility component shall likewise be payable in the manner in which and at the time when mobility allowance was payable.

(10) Where attendance allowance was payable to a person otherwise than by direct credit transfer and an award of the mobility component is made to that person, any award of disability living allowance treated as having been made by virtue of these regulations shall be payable, from such date before 6th April 1993 as the Department may in any particular case determine—

(a)except in a case to which sub-paragraph (b) applies, on Wednesdays; or

(b)where in any particular case payment of attendance allowance was combined with the payment of another benefit and that benefit was payable on a day of the week other than Wednesday, the care component shall be payable on that day and the mobility component shall be payable on Wednesdays.

(11) Where in accordance with this regulation payment of a person’s award of disability living allowance is changed to a Wednesday, and because of this change in pay day the interval between the first Wednesday pay day and the last previous pay day (referred to in this paragraph as “the relevant period”) is greater than it would have been but for that change, then the first Wednesday payment of disability living allowance shall include by way of adjustment an additional payment which is equal to the daily rate for the benefit or part of a benefit which is subject to that change, multiplied by a number determined by deducting from the number of days in the relevant period, the number of days which would have been in that period but for the change in pay days; and for the purposes of this paragraph the “daily rate” is an amount equal to one-seventh of the weekly rate, rounded up to the next penny.

(12) Where before 6th April 1992 a person has an award of attendance allowance and of mobility allowance and—

(a)those awards are paid in a different manner; and

(b)both awards are terminated or cancelled in accordance with Parts II and III of these regulations,

then as from 6th April 1992, the awards of disability living allowance shall be paid in accordance with paragraph (13).

(13) In cases to which this paragraph refers, disability living allowance shall be paid—

(a)from such date before 5th April 1993 as the Department may in any particular case determine—

(i)on the day, for the period and in the manner specified in an election made by that person and approved by the Department, or

(ii)where no such election is made within 4 weeks of a form of election being posted to that person, on Wednesdays by means of a benefit order book;

(b)until that date, on such days, at such intervals and in such manner as the former awards of attendance allowance and mobility allowance were paid.

(14) Where a person who has not attained the age of 65 on 6th April 1992—

(a)has claimed attendance allowance or disability living allowance and pursuant to that claim an award of attendance allowance was made after 2nd February 1992; or

(b)has applied for a review of a decision of the Board or the adjudication officer not to award attendance allowance and pursuant to that application an award of attendance allowance is made after 2nd February 1992,

and that award is for a period commencing before 6th April 1992, both the attendance allowance and any disability living allowance granted in place of the award of attendance allowance shall be payable at four weekly intervals on Wednesdays, unless in any particular case the Department arranges otherwise.

Persons unable to act

27.—(1) Subject to paragraphs (2) to (4), a person who, before regulation 3(3) came into operation, was entitled to attendance allowance in respect of a child shall, after 5th April 1992 be regarded for the purposes of regulation 42 of the Claims and Payments Regulations (persons able to act on behalf of children) as the person appointed on behalf of that child.

(2) An appointment having effect in accordance with paragraph (1) may be terminated—

(a)when the child attains the age of 16 years;

(b)when the child ceases to be entitled to disability living allowance; or

(c)in accordance with regulation 42 of the Claims and Payments Regulations.

(3) Where on 5th April 1992 a person holds an appointment in respect of a child in accordance with regulation 42 of the Claims and Payments Regulations and that person is different from the person mentioned in paragraph (1) as being entitled to an attendance allowance in respect of that same child, then that appointment shall terminate on 6th April 1992 and the Department shall make a new appointment in accordance with regulation 42 of the Claims and Payments Regulations, to take effect on that day.

(4) The day specified in this regulation is the day on which the Department, in accordance with regulation 26, directs that both payments of disability living allowance be combined into a single payment.

(1)

Section 100D was inserted by paragraph 5 of Schedule 1 to Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991

(2)

Section 37ZE was inserted by Article 3(2) of the Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991

(4)

Section 35(1)(b) was substituted by Article 3(1) of the Social Security (Northern Ireland) Order 1988

(5)

Section 106(2) was substituted by paragraph 8 of Schedule 3 to the Social Security (Northern Ireland) Order 1989

(6)

Section 115C was inserted by paragraph 13 of Schedule 1 to the Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991

(7)

Section 112A was inserted by paragraph 1 of Schedule 9 to the Social Security Act 1986 (c. 50) and amended by paragraph 9(2) of Schedule 3 to the Social Security (Northern Ireland) Order 1989

(8)

Section 99 was amended by paragraph 4 of Schedule 5 to the Social Security (Northern Ireland) Order 1986 and paragraph 2 of Schedule 3 to the Social Security (Northern Ireland) Order 1989. See also Article 3(3) of the Social Security Adjudications (Northern Ireland) Order 1983

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