Crossley v Social Security Commissioner

A claimant is not entitled to disability living allowance for a period before the claim date unless the statutory scheme and regulations provide for that result. A previous award of a related benefit does not, by itself, create a general power to backdate a later claim many years after the earlier award ended. Section 76(2) of the Social Security Contributions and Benefits Act 1992 authorises regulations; it does not itself confer an unrestricted backdating entitlement. For the higher care component, the statutory night-time tests must be established on the facts. Where the claimant can attend to bodily functions independently and no substantial danger requiring supervision is identified, the higher rate is unavailable.

The applicant, who had received a one-year award in the late 1970s and a later lifetime disability living allowance award from 1998, challenged the refusal to increase the care component and to backdate the later award to the 1970s. The Cardiff Appeal Tribunal dismissed his appeal on 24 January 2000. A Social Security Commissioner dismissed his further appeal on 16 August 2001. The applicant sought permission to appeal and an extension of time in the Court of Appeal. The central issues were whether the evidence satisfied the higher-rate care test and whether the earlier award engaged the backdating provisions of section 76 of the 1992 Act.

1. Application refused. The delay was readily excusable, but no proposed appeal could succeed. The court granted liberty to apply within 30 days on written legal advice addressing the construction of section 76(2).
2. For the higher rate of the care component, section 72(1)(c) required proof that, at night, the claimant needed prolonged or repeated attention from another person in connection with bodily functions, or needed another person awake for a prolonged period or at frequent intervals to avoid substantial danger to himself or others.
3. The tribunal had found that the applicant could turn, change position, get in and out of bed, replace bedding, deal with soiling, and use a commode or urine bottle safely without assistance. It also identified no substantial danger requiring someone to watch over him. The Commissioner was therefore entitled to uphold the tribunal’s conclusion that neither statutory test was satisfied.
4. Section 76(1) established the general rule that disability living allowance was unavailable for any period before the date on which a claim was made or treated as made. The applicant’s 1998 claim was treated as made on 8 September 1998.
5. Section 76(2) did not mean that anyone who had previously received an award relating to a component later incorporated into disability living allowance could automatically backdate every subsequent claim. It merely enabled regulations to provide for earlier entitlement where the claimant had previously been entitled to the relevant component. Even the assumed possibility that an earlier claim had been wrongly refused could not, two decades later, create a right to backdate the 1998 award or provide an escape from section 76.
6. The court expressed sympathy for the applicant but held that sympathy could not determine the appeal. The transcript was to be expedited and supplied at public expense.

• Court of Appeal (Civil Division) — refused the application for permission to appeal against the Social Security Commissioner’s decision of 16 August 2001, with liberty to apply within 30 days on written legal advice.
• Social Security Commissioner — dismissed the appeal from the Cardiff Appeal Tribunal on 16 August 2001.
• Cardiff Appeal Tribunal — dismissed the appeal on 24 January 2000 against refusal of the higher care component and backdating.