Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC A97/95(DLA) (6 August 1996)

 


Application No: A97/95(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 above named claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of the Disability Appeal Tribunal dated 2 May 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 Belfast; whereby it was held that he was not entitled to either the care or the mobility component of disability living allowance.
2. The grounds upon which the claimant relies in support of his application are as follows:-

"That the tribunal's decision was unreasonable.

The tribunal found that I could only walk 75 yards before I

experienced severe discomfort and that this did not constitute

virtual inability to walk. The tribunal further found that after

rest of up to 10 minutes I could proceed to walk a further distance

of 75-125 yards and therefore that I could walk an aggregate

distance of some 150-200 yards at a reasonable speed.

In assessing the ability to make progress on foot without severe

discomfort the tribunal has to have regard to the distance, speed,

length of time and manner of walking. With regard to distance, I

respectfully submit that a finding that I can only progress 75 yards

before the onset of severe discomfort but I am not virtually unable

to walk borders on unreasonableness. With regard to the length of

time it takes to get from "A" to "B", the tribunal found that the

length of my actual walking time combined with a stop of 10 minutes

to progress 150-200 yards was not indicative of virtual inability

to walk. I respectfully submit that this is an unreasonable

decision".

3. In response to a request for his comments upon the application, Mr G L Shaw, the Adjudication Officer now concerned with the case, submitted that the tribunal did not err in deciding that the claimant was not virtually unable to walk. In his letter dated 29 January 1996 Mr Shaw quoted the following passage from GB Commissioner's decision CM/379/89:-

"Mobility Allowance was introduced for the benefit of those who were

totally unable to walk. It was appreciated, however, that there

would be people who, although they could manage a few steps, were so incapacitated that they ought to get benefit. So the alternative of

"virtually unable to walk" was inserted into the relevant legislation.

It was never designed to - and does not - embrace those who can walk

60 or 70 yards without severe discomfort. The issue is basically one

for the MAT. But I myself would be very surprised were the MAT to

hold "virtually unable to walk" a claimant who could cover such

distances without severe discomfort. I have certainly upheld MAT

decisions where the relevant distance was 40 yards".

4. A copy of Mr Shaw's letter of 29 January 1996 was sent to the claimant and his representative with an invitation to submit further observations before I gave my decision on the application. In reply, the claimant's representative, Mr Odhran Stockman, of the Law Centre (NI), stated that he did not intend to respond in detail; but referred to a further GB Commissioner's decision:- No. CDLA/1042/95.
5. Having considered this matter and, in particular, having studied the GB decisions Nos. CM/379/89 and CDLA/1042/95, referred to respectively by Mr Shaw and Mr Stockman, I have reached the conclusion that there is no substance to the grounds of the claimant's application. In decision No. CDLA/1042/95 the appeal tribunal had found as a fact that the claimant was able to walk 100-150 yards before severe discomfort forced him to stop. The Commissioner accepted that this finding did not make it sufficiently clear what was the distance the tribunal considered the claimant was able to walk without suffering severe discomfort. In his view the finding appeared necessarily to imply that a walk of 100-150 yards did involve severe discomfort, so that the distance that could be walked without it would presumably have been less; although how much less was left uncertain. On this narrow ground the Commissioner decided that the tribunal had erred in law in failing to record findings and reasons with regard to the material question of how far the claimant was limited in his ability to walk any distance without suffering severe discomfort. The Commissioner did not decide that a finding to the effect that the claimant was only able to walk 100 yards before experiencing severe discomfort would not have been sufficient to support the conclusion that he was not virtually unable to walk. Indeed, the Commissioner quoted with approval the very passage from decision No. CM/379/89 to which Mr Shaw has referred. In my view this indicates that the Commissioner would not have considered it proper to interfere with the tribunal's decision that a claimant who could walk 60 or 70 yards without severe discomfort was not virtually unable to walk. Decisions CM/379/89 and CDLA/1042/95 are by no means contradictory, and applying them to the circumstances of the present case I do not consider that there is anything to suggest that the tribunal erred in law in holding that, although the claimant could only progress 75 yards before the onset of severe discomfort, he was nevertheless not virtually unable to walk.
6. I have also considered whether there is any other valid ground for holding that the decision of the Disability Appeal Tribunal is or may be an erroneous point of law and have reached the conclusion that there is not. Leave to appeal will accordingly be refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

6 August 1996