Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A140/96(DLA) (11 March 1997)

 


A140/96(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 22 April 1996

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application brought by Mr F(, the father of the claimant, for leave to appeal on her behalf against the decision of the Disability Appeal Tribunal sitting at Craigavon, disallowing her appeal against the Adjudication Officer's decision that she was entitled to the highest rate of the care component and the lower rate of the mobility component of disability living allowance from 17 October 1994 until 16 October 1999. The only issue before the Appeal Tribunal was whether the claimant was entitled to the higher rate of the mobility component for the period in question and, as indicated, the Appeal Tribunal upheld the Adjudication Officer's decision that the lower rate was appropriate.
2. The grounds relied upon by Mr F... are set out in the Notice of Application dated 2 September 1996, as follows:-

"The original and first Tribunal on Monday, 22nd April 1996 at

Craigavon Civic Centre refused appeal for higher rate of mobility.

I requested a new (2nd) Tribunal which was refused on the grounds

that all medical evidence had been considered. I pointed out that

at the first Appeal Tribunal Dr G(, Consultant (Senior) in

charge of M for 10 years supplied no evidence. This was an

oversight on my (the father) part (see continuation on separate

sheet).

I repeated this fact (on 7.6.96) that I considered, in retrospect

that the evidence in writing of senior consultant psychiatrist, in

charge of M( for 10 years should have been present at the

Tribunal (letter enclosed) did not reply to this opinion by me

but just upheld the decision of the FIRST APPEAL TRIBUNAL

made on Monday, 22nd April. Senior Consultant Dr G....

*I wish to state that the original appeal and the subsequent

refusal in the letter attached was not legally correct because

Dr G...'s opinion was not submitted. I would like a

specific reply to this. Please.

What his opinion will be I do not know. But it should have

been sought and I will abide by it, whatever it is.

*I am also concerned that the same chairperson who originally

presided at the FIRST TRIBUNAL also has the right of decision

in whether or not the Commissioner can hear my appeal. This

does not seem correct procedure to me."

3. Having considered the grounds of this application, I cannot accept that they disclose any valid basis on which it might be held that the Tribunal's decision is or might be erroneous in point of law. So far as the absence of the claimant's medical records is concerned, I have recently dealt with a similar point in Application No: A144/96(DLA), in which I referred to the fact that, as in this instance, consent was given to the production of the claimant's medical records on the basis that all parties to the proceedings would have access to them. The absence of records from Dr G... of Craigavon Area Hospital should therefore have been apparent to Mr F... who, if he had wished to do so, could have applied for an adjournment of the hearing. As I explained in that case, the availability of medical records is not something over which Appeal Tribunals have anything like full control, and to a large extent they are dependent upon the good offices and efficiency of whatever branch of the Health Service happens to be involved. If there is a request for an adjournment to enable one or other party to attempt to secure the production of the records in question, that is another matter. However, where there is no such request and there is nothing exceptional about the case, I do not consider that a Tribunal breaches the rules of natural justice in proceeding to hear and determine the appeal. I am further reinforced in my view that the Tribunal were in no way at fault in proceeding to deal with the appeal on the evidence then at their disposal, by Mr F...' acknowledgement of "an oversight" on his part, and his comment that he "considered in retrospect that the evidence in writing of senior consultant psychiatrist ... should have been present."

I am also satisfied that it was entirely proper that the Tribunal Chairman should have made the initial decision as to whether or not leave to appeal was to be granted. As has already been explained to Mr F..., the Chairman was merely acting in accordance with the relevant provisions of the Social Security (Adjudication) Regulations (Northern Ireland) 1995.

4. I have also considered whether there are any other grounds for holding that the decision of the Appeal Tribunal in this case is or might be erroneous in point of law and have reached the conclusion that there are not. Leave to appeal will accordingly be refused.
5. Mr F... has requested an oral hearing of this application for leave to appeal, 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 therefore been refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

11 March 1997