Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C4/93(DLA) (11 March 1993)

 


Decision No: C4/93(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 23 June 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Disability Living Allowance Tribunal.
2. I arranged an oral hearing at which claimant did not appear but her husband appeared and spoke on her behalf. The Adjudication Officer was represented by Mrs Fitzpatrick, Solicitor for the Department of Health & Social Services. At the hearing I granted leave to appeal and with the consent of both parties treated the hearing of the application as the hearing of the appeal.
3. Briefly the facts are that the claimant is a married lady now aged 42 who has 3 children and has difficulty walking. She applied for mobility allowance. Her claim was considered and rejected by a Medical Board. She appealed to a Medical Appeal Tribunal. That Tribunal adjourned to receive further medical reports but in the meantime the Regulations were changed and the Medical Appeal Tribunal was not reconvened but the appeal was heard by a Disability Appeal Tribunal at the request of the claimant. That Tribunal decided that while she had difficulty walking she did not comply with the requirements of the Regulations and was not entitled to the benefit.
4. Claimant sought leave to appeal to the Commissioner on the grounds that that Tribunal had erred in law. Her husband argued at length that claimant was entitled to the benefit and drew attention to the fact that she was now in receipt of the higher rate disability allowance.
5. Mrs Fitzpatrick argued that the Tribunal was entitled to come to the decision to which it came and that on the findings of fact which it made, namely that although she suffered pain and heaviness in her legs that this did not become severe until she was on her feet for some 15 minutes, precluded her from getting the benefit under the Regulations.
6. I have considered all that has been said and I have read all the documents and all the reports in this case. It is the function of the Disability Appeal Tribunal to decide the case on the material presented to it. A claimant is entitled to the benefit if unable or virtually unable to walk. On the finding of fact made by the Tribunal it is clear that claimant was not at that time either unable to walk or virtually unable to walk nor was there any evidence that the exertion required to walk was in any way detrimental to her health.
7. While it is clear that the claimant has difficulties and this is now borne out by the fact that she is receiving the disability allowance, nevertheless the Tribunal was entitled to come to the decision it came to on the evidence and I therefore with reluctance dismiss the appeal.

(Signed): C C McNally

COMMISSIONER

11 March 1993