Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC A63/95(DLA)(10 January 1995)

 


Application No: A63/95(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 to the Social Security Commissioner on a question of law from the decision of the Disability Appeal Tribunal dated 10 January 1995 DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the claimant seeks leave to appeal against the decision of the Disability Appeal Tribunal sitting at Omagh, whereby it was held:-

(a) by unanimous decision that she was not entitled to the mobility component of disability living allowance, and

(b) by majority decision that she was entitled to the low rate of the care component from and including 22 December 1992.

2. The case has a history extending back to December 1986 when the claimant first applied for mobility allowance. It is, however, only necessary to record that the decision of the Disability Appeal Tribunal which she now seeks to challenge was a decision on the claimant's appeal against the Adjudication Officer's decision on review dated 21 March 1994. The claimant had requested a review of an earlier award made on 26 February 1993, and it was after she had been seen by an Examining Medical Practitioner that the decision dated 21 March 1994 was reached. In that decision the Adjudication Officer referred, inter alia to a number of findings of the Examining Medical Practitioner and one of the claimant's grounds of appeal was that the doctor involved had arrived unexpectedly when she was unable to have her carer present. When the claimant's appeal first came on for hearing on 14 September 1994 her representative again voiced criticism of the examination by the Examining Medical Practitioner, and in adjourning the case to enable the claimant to obtain further medical evidence, the Tribunal suggested that an examination by another Medical Practitioner should be considered. That suggestion was adopted, and, on 1 November 1994, the claimant was seen by a different Examining Medical Practitioner whose report was before the Tribunal at the further hearing on 10 January 1995.
3. The grounds of the claimant's application to the Tribunal Chairman for leave to appeal to the Commissioner are set out in a letter dated 14 February 1995 from her then representative, Mr McL… of McL… & T… Consultants …. They comprise criticisms of a number of the Tribunal's findings of fact and it is suggested that the Tribunal did not give full and proper consideration to all the evidence.
4. Leave to appeal having been refused by the Tribunal Chairman, the claimant, now represented by F…, Solicitors, of …, bases her application on somewhat different grounds. It is said that the Tribunal made their decision on insufficient and inaccurate evidence; the principal allegation being that the report of the Examining Medical Practitioner which was before the Appeal Tribunal at the first hearing on 14 September 1994 was incorrect in a number of respects, and that the Tribunal which subsequently decided the case on 10 January 1995 wrongly relied upon that report in preference to the report of the different Examining Medical Practitioner on the later examination on 1 November 1994. It is further submitted that, because of the glaring inconsistencies between the two medical reports, "the claimant is entitled at least to a rehearing of the facts of the appeal." An up-to-date medical report from the claimant's GP has also been submitted.
5. In response to a request for his comments, the Adjudication Officer now concerned with the case, for the reasons set out in his letter dated 24 October 1995, has rejected the grounds relied upon both in this application and in the previous one to the Tribunal Chairman. He has, however, suggested that I might wish to consider whether the Tribunal gave sufficient reasons for concluding that ability to walk 100 yards at one third of normal pace did not constitute virtual inability to walk.
6. Claimant was given the opportunity to submit further observations on the Adjudication Officer's comments before her application for leave to appeal was finally dealt with. By letter dated 20 December 1995 the claimant's representative submitted that the Tribunal's finding that she should with care be able to avoid falls and help herself out of any danger, contradicted their finding that she needed assistance getting in and out of the bath/shower. Further information was also given concerning the present state of the claimant's health; in particular her depression, and reference was made to her award of severe disablement allowance based upon deemed disablement of 80%.
7. It is important to bear in mind that, in cases of this nature, "error in point of law" is not merely the first or principal ground upon which a decision of a Disability Appeal Tribunal may be appealed to the Commissioner: it is the only ground - see section 32(1) of the Social Security Administration (Northern Ireland) Act 1992. The evaluation of evidence is a matter for the Tribunal and the Commissioner has no power to intervene unless the resultant findings of fact were such that no person acting judicially and properly instructed as to the relevant law could reasonably have reached them. It is, moreover, of no assistance to a claimant to submit further evidence to the Commissioner in an attempt to demonstrate that a particular finding of fact was incorrect. A Tribunal can clearly not be faulted for failing to take account of evidence which was not made available at the hearing; nor can they be held responsible for the fact that contradictory medical reports are submitted to them. In this instance the Tribunal would have been fully entitled to choose between the reports of the two Examining Medical Practitioners; but, in any event, I reject the suggestion that they gave preference to the first report and did not take proper account of the second one. In my view it is clear from the Tribunal's decision that the Examining Medical Practitioner's report of 1 November 1994 was taken fully into consideration. I am also unable to accept that there was anything contradictory in the Tribunal's findings on the subject of falls. A need for assistance getting into or out of a bath or shower is not by any means necessarily inconsistent with a general ability to avoid falls or to walk out of doors without guidance or supervision. Altogether the conclusion I have reached is that the grounds relied upon by the claimant in this case, whether in the present application or the earlier one to the Tribunal Chairman, are without substance.
8. I have also considered whether there is any other ground for holding that the decision of the Disability Appeal Tribunal is or may be erroneous in point of law and have reached the conclusion that there is not. So far as the point raised by the Adjudication Officer is concerned, it is a matter of judgment for a Tribunal to decide whether the distance a claimant can walk means that he or she is virtually unable to walk. In this instance the Tribunal were in my view fully entitled to conclude that an ability to walk 100 yards at one third of normal speed did not constitute virtual inability to walk, and to so decide without further explanation.
9. For the reasons given in paragraph 7 and 8 above, leave to appeal will be refused. I would however draw attention to the statement in the Tribunal's reasons for decision on the mobility component that the claimant had suffered "recent exacerbation of the knees" necessitating the use of crutches for 3 weeks up to the date of the hearing. It was pointed out that the qualifying and prospective periods were not satisfied. These are respectively 3 months and 6 months:- see section 73(9) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. Accordingly, if the deterioration in the claimant's walking ability has persisted, she should consider submitting a further claim for disability living allowance; in relation to which all the medical evidence which she has obtained, both before and since the date of the last hearing, will of course be relevant.
10. The claimant has requested an oral hearing of her application; but having considered the circumstances of the case and the reasons put forward for the request, I am satisfied that the application can properly be determined without a hearing. The request has accordingly been refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

28 May 1996