Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C48-95(DLA) (7 December 1995)

 


Decision No: C48/95(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

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Omagh Disability Appeal Tribunal

dated 21 December 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer that she was not entitled to either component of the disability living allowance (DLA).
2. The facts are that the claimant, a lady now of 65 years of age, made a claim in August 1993 for both components of DLA. An Adjudication Officer refused same in November 1993. She sought a review of that decision and a review was carried out by a different Adjudication Officer but did not revise the decision and consequently she was refused both components of the benefit.
3. She appealed to a DAT and that Tribunal upheld the decision of the Adjudication Officer. It made the following findings of fact in respect of both components:-

"Nil award not revised on review.

Appellants medical complaints include rheumatoid arthritis with some

deterioration in knees and ankles. Just takes 'odd' volteral.

No other medication. Was on anti-depressants for about 2 months

last winter. Suffers from Bunions. No surgery planned. Not

inpatient in relation to any medical complaints - just had tests

done. No steroid treatment.

Appellant: Can walk a reasonable distance in reasonable time speed

and manner without severe discomfort. Balance and gait good.

Guidance/supervision not required. Exertion of walking would not

cause danger to life.

Serious deterioration to health. Can attend to all her own bodily

function. Can prepare a cooked main meal if she has the ingredients.

Has only slight impairment in left upper limb, left lower limb and

right thigh and knee.

Is aware of common dangers, mentally competent does not wonder, is

not aggressive or destructive. No falls since last winter. No

treatment necessary or hospitalization. Bathroom next to bedroom

in bungalow. No aids in home. Uses an umbrellas to lean on when

walking."

4. The Tribunal also recorded reasons for its decision regarding the mobility component as:-

"There was a conflict in the evidence as between Appellant's claim

form and what she told the Examining Medical Practitioner both as

regards the Care Component and the Mobility Component. Appellant

then admitted to her condition having deteriorated subsequent to the

Examination Medical Practitioner's report. We accept some deterioration

but we reject the Appellant's evidence that it is as bad as she

contends. The claim form referred to 100 yards yet Appellant said

she had no idea of distance and couldn't comment about what distance

on the claim form. She told the Examining Medical Practitioner 300-

400 yards. Although Appellant denies this Dr McD… refers to 80

yards but did not do a walking test or specify time etc. The

Examining Medical Practitioner refers to ability to walk 400-500 yards

without severe discomfort. Weighing up all the evidence we are

satisfied that Appellant could walk a reasonable distance in

reasonable time speed and manner without severe discomfort.

We do not accept that Appellant has dizziness all the time.

Dr McC… refers to dizzy spells on the 16.9.93. There was no

investigation and we do not accept that dizzy spells are frequent

or significant. Further we do not accept that there is a danger

of falling. Appellant is mentally competent, aware of dangers.

Guidance and supervision when outdoors most of the time is not

required."

5. I granted late leave of claimant's application for leave to appeal and arranged an oral hearing of the application at which the claimant was represented by Mr McL…. The Adjudication Officer was represented by Mr Shaw.
6. Mr McL… argued that the Tribunal erred in law in that it did not have enough medical evidence. That it did not mention Mr K…'s report and that the claimant had gone to great lengths to get this report. He also argued that the Tribunal did not accept that she had dizzy spells. It did not say why it did not accept this evidence and that it did not spell out what evidence it had for the finding that although claimant had some deterioration in her health it was not as bad as she said. Nor did they spell out what evidence there was for their finding that there was no danger of the claimant falling. He said that there was abundant medical evidence to contradict the evidence of the Examining Medical Officer and that the Tribunal seemed to have relied heavily upon his findings.
7. Mr Shaw said that Mr K…'s report did not contain anything which could be singled out as different from the other medical reports and that it was unreasonable to expect the Tribunal to record every piece of evidence. He said it was the task of the Tribunal to assess the evidence before them and come to a conclusion and that they were entitled to come to the decision which it came to and that the decision was consistent with the evidence. He said that there were matters which were not medical matters at all, namely the distance which she could walk etc.
8. I have considered all that has been said and I have read all the papers and all the medical reports. I think that the claimant possibly was misled in the manner in which the decision was recorded because there are two serious defects in the typing of the decision. Turning first to the findings in the third paragraph which speaks of her exertion on walking, it records, "Exertion of walking would not cause danger to life." and then the next paragraph began, "Serious deterioration to health." Whereas in fact what had been handwritten in the decision was, "Exertion of walking would not cause danger to life/serious deterioration to health. Also in the reasons for the decision it is recorded, "She told the Examining Medical Practitioner 300-400 yards. Although Appellant denies this Dr McD… refers to 80 yards but did not do a walking test or specify time etc." What in fact was written in the handwritten decision was, "She told the Examining Medical Practitioner 300-400 yards although Appellant denies this. Dr McD… refers to 80 yards ..." which gives a completely different meaning. In any event the reasons for the decision records the fact that the claimant had no idea of distance and one of the reasons for holding against the claimant was that the Medical Practitioner who examined her referred to her ability to walk 400-500 yards and recorded that she told him 300-400 yards, and that her own doctor said 80 yards.
9. The Tribunal is entirely wrong to think that the report of the Examining Medical Officer that she was able to walk 400-500 yards was evidence. It was no more than a recording of what the claimant had told him and the Tribunal recorded that the claimant had no idea of distance.
10. In view of the fact that a mobility allowance is concerned primarily with how far a claimant can walk without severe discomfort, taking into account the manner, and the time and speed a claimant can walk it is absolutely essential that a Tribunal makes proper findings relating to claimant's ability to walk. If it rejecting the opinion of her GP that she can only walk 80 yards on the grounds that he did not carry out a walking test it is difficult to see how it can accept an opinion of an Examining Medical Officer who did not carry out a walking test either but accepted the word of the claimant who it was accepted had no idea of distance.
11. I am satisfied therefore that the Tribunal erred in law in not making proper findings of fact relating to claimant's walking ability and that it further erred in accepting an opinion based on what claimant told the Examining Medical Officer and considering that to be evidence.
12. At the hearing I granted leave to appeal, both parties having consented I treated the application as the appeal. For the reasons set out above I am satisfied that the Tribunal erred in law. I therefore set the decision aside and refer the matter back to be reheard by a differently constituted Appeal Tribunal.

(Signed): C.C.G. McNally

COMMISSIONER

7 December 1995