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[2008] UKUT 3 (AAC) (03 November 2008)

 


IN THE UPPER TRIBUNAL Appeal No. CDLA 2609 2008

ADMINISTRATIVE APPEALS CHAMBER

Before Dr David Williams, Judge of the Upper Tribunal

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. The appeal is referred to a new tribunal to hear the appeal again in accordance with the directions below.

Directions for new hearing

A The rehearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1. The claimant and appellant, Mrs D, is appealing against a decision of the Sutton tribunal on 11 04 2008 under reference 154 08 00933. The decision under appeal is that Mrs D was not entitled to disability living allowance from and including 11 09 2007. This was because she was not in Great Britain until after her 65^th birthday.
2. I gave permission to appeal to consider in full whether that was the correct decision of the tribunal. Was the decision of the tribunal the proper decision on the evidence? I directed a submission from the secretary of state's representative before considering the matter.

The facts

3. Mrs D spent some time in the United States of America. Her absence from Great Britain was while she was in the USA. This was because of the death of her mother, who lived in the USA, and then her own illness there. I mention that because this is not a case where any element of European Union law is relevant to the appellant's absence.
4. Mrs D was 65 on 1 11 2007. She made her claim for disability living allowance on 11 09 2007. It was therefore a claim for disability living allowance. But to be entitled then, she had to meet the residence requirements in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 ("the Regulations"). It was decided that she was not entitled to claim disability living allowance on the date of claim under those provisions. Instead, it was decided that she could only become entitled on grounds of residence from

4 11 2007. At that time she was over 65. So her claim was treated as a claim for attendance allowance from that later date. I understand that she was awarded the lower rate of attendance allowance from that date.

5. The tribunal recorded that it was common ground between the parties that Mrs D arrived back in Great Britain from the USA on Saturday 5 May 2007. It noted that 26 weeks from that date was Saturday 3 November 2007. Mrs D was then over 65. It decided that no claim for disability living allowance could be made.
6. The grounds of appeal for Mrs D did not dispute those facts. But it was contended that the test was set in terms of weeks, not complete weeks. She was present in the week in which she was 65. So she could claim disability living allowance.
7. The appeal therefore puts in issue the precise scope of the tests for presence.

The law

8. Section 71(6) of the Social Security Contributions and Benefits Act 1992 provides:

"A person shall not be entitled to a disability living allowance unless [she] satisfies prescribed conditions as to residence and presence in Great Britain.

9. The residence test, in regulation 2(1) of the Regulations, is that:

"… the prescribed conditions … in relation to any person on any day shall be that -

(a) on that day –

(i) [she] is ordinarily resident in Great Britain; and

(ib) [she] is not a person subject to immigration control …, and

(ii) [she] is present in Great Britain; and

(iii) [she] has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day"

I have not set out the immigration test in full because it is not in issue here.

10. As argued for Mrs D, each day counts. It is therefore relevant to note section 173 of the Social Security Contributions and Benefits Act 1992 ("age"). This states that:

"the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of [her] birth."

11. That apart, there are no relevant definitions of what is meant by any of the terms in regulation 2 either in the Regulations or the Acts. There is much case law about the meaning of "ordinary residence". That involves taking a view of the facts over three or four years
12. Attention should be paid to regulation 2(2). The part relevant to this appeal states:

"For the purposes of paragraph (1)(a)(ii) and (iii), notwithstanding that on any day a person is absent from great Britain, [she] shall be treated as though [she] was present in Great Britain if [her] absence is by reason only of the fact that on that day -

…

(d) [her] absence from Great Britain is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 26 weeks; or

(e) [her] absence from Great Britain is temporary and for the specific purpose of [her] being treated for incapacity, or a disabling condition, which commenced before [she] left Great Britain and the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of the forgoing condition in this sub-paragraph, [she] should be treated as though [she] were present in Great Britain."

13. The effect of paragraph 2(2) is to put a proviso into paragraph 2(1)(a)(ii) and (iii) that those rules only apply if absence from Great Britain is either permanent or exceeds the cumulative effects of the tests in paragraph 2(2). In particular, I agree with the Commissioner in decision CDLA 2089 2004. Paragraph 2(2)(d) requires first that any absence be temporary and then separately that it be less than the stated period. Paragraph 2(2)(e) may be relevant, but only if the Secretary of State issues a certificate.

Application to this appeal

14. Although regulation 2(2) of the Regulations was recited to the tribunal in the formal submission for the Secretary of State, I can see no finding confirming either that the conditions of that paragraph did or that they did not apply. Indeed, the papers do not contain the facts on which any such finding could be based. There is a statement that Mrs D went to the USA on 29 01 2004 because she went to assist her younger brothers after her mother's death. There is other information to suggest she did not come back to Great Britain because she was herself suffering from serious health problems. It is stated that various problems were detected in 2006, but not when her incapacity or disablement from those conditions started. I can see nothing to say that she did not visit Great Britain at all in that time. It is therefore possible that both regulation 2(2)(d) and regulation 2(2)(e) are relevant to this appeal. For that reason I must find the decision of the tribunal inadequate.
15. The other issue is how the tests apply if there was no deemed presence. Mrs D who claimed disability living allowance on 11 09 2008 and was 65 on 1 11 2008. The Secretary of State treated the claim for disability living allowance as an advance claim for attendance allowance. That ruling is an interpretation of Regulation 2(1)(a)(iii) as requiring that someone be present for the whole of a week for it to count. The precise phrase is:

"has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding …"

16. In my judgment that rule requires that "week" be read with its ordinary meaning. That is the same as the meaning of "week" as defined for incapacity benefit in section 171G(2) of the Social Security Contributions and Benefits Act 1992: "week" means any period of 7 days." It also requires that someone be present for a period or periods of 26 weeks, not that the person be present in (during some part of) those weeks. In other words, the rule requires that there be a cumulative presence equalling 26 periods of 7 days to meet the requirement of regulation 2(1)(a)(iii) if the individual is not assisted by Regulation 2(2).
17. It follows that if all the facts were as assumed by the tribunal then Mrs D becomes entitled to benefit only on completion of the 26 periods of 7 days from her arrival in Great Britain. That period ends, as the tribunal found, on Friday 3 November 2007. So the first date on which the requirements of the Regulations were met was on Saturday 4 November. Mrs D was 65 at the start of 1 November, so on the facts found by the tribunal she was over 65 when her claim for allowance first became valid.
18. I must therefore allow the appeal so that proper consideration can be given to the application of regulation 2(2) of the Regulations to this appeal. But I direct that if regulation 292) is found on the facts to be of no assistance to Mrs D then the new tribunal must find, as this tribunal did, that she has no claim to disability living allowance.

David Williams

Judge of the Upper Tribunal

3 November 2008