Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC A4/96(AA) (12 February 1997)

 


A4/96(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE 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 July 1996

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 attendance allowance.
2. The claimant's application is in the following terms:-

"I wish to appeal on the following point of law

1. That the Tribunal erred in law in not taking into account

the medical evidence available.

2. That the Tribunal also erred in law in taking a decision

based on medical evidence which was out of date.

3. That the Tribunal erred in law in not taking account of the

deterioration in the claimant's condition after the

Adjudication Officer's decision."

The application was accompanied by a letter dated 21 November 1996 from the claimant's solicitors, Messrs P( of (.Street, Belfast, in which the grounds of appeal were further explained as follows:-

"In addition to the contentions advanced in part A of the enclosed

Appeal we would also submit that the Tribunal was in breach of the

rules of natural justice in that we contend that its findings are

not based on evidence having probative value. In particular we

would point out that firstly in their reasons for the decision the

Tribunal referred to the "up-to-date evidence of the Examining

Medical Practitioner's report", whereas the Examining Medical

Practitioner's examination took place approximately 13 months

prior to the hearing. Furthermore the Tribunal found "... no

evidence to suggest that there has been a deterioration.", whereas

evidence was adduced to the Tribunal that the Claimant had had

a second heart attack in November, 1995.

Furthermore, and in the alternative, it is contended on behalf

of the Claimant that, for the reasons set out above, the Tribunal

firstly took into account an irrelevant consideration (i.e. as is

evidenced by the fact that it considered a report obtained some

13 months previously to be "up-to-date") and secondly disregarded

a relevant consideration (in finding no evidence of deterioration

when evidence was adduced of a second heart attack in November 1995)."

3. The somewhat unusual grounds of appeal may be explained by a brief outline of the background facts.

When attendance allowance was first claimed in May 1995 the claimant had certain disabilities arising from pneumoconiosis, myocardial infarction and prostate gland trouble. It was said that, by reason of these disabilities, he had requirements for attention and/or supervision which entitled him to an award. The Adjudication Officer's decision disallowing the claim was made on 20 June 1995, and it was the confirmation of this disallowance by review decision dated 5 September 1995 that was the subject of the claimant's appeal to the Disability Appeal Tribunal. In November 1995, between the date of the notification of his appeal and its hearing by the Disability Appeal Tribunal, the claimant suffered a further heart attack, and it was alleged on his behalf that as a result his condition had deteriorated. The Tribunal rejected this submission and confirmed the decision to disallow the claim.

4. The substance of the grounds upon which the claimant now seeks leave to appeal to the Commissioner is that the Appeal Tribunal -

(a) based their decision on evidence which was out of date and of no probative value; and

(b) failed to have regard to the fact that the claimant had suffered a further heart attack in November 1995 after the date of the Adjudication Officer's decision on review of 5 September 1995.

Having studied the case file and the record of the Tribunal's decision I cannot accept that they erred in either respect. It may have been somewhat inappropriate to refer to the evidence of the Examining Medical Practitioner as being up-to-date; but it is abundantly clear that the Tribunal were well aware of the fact that the examination had taken place some 14 months previously, and they expressly recorded that they could find no evidence to suggest that there had been a deterioration. The submission on the claimant's behalf that this last comment flies in the face of the evidence regarding the claimant's second heart attack in November 1995 is in my opinion totally ill-founded. It confuses illness with disability. The question was not whether the claimant had suffered further illness; but whether his condition had deteriorated in the sense that his disabilities were such that his requirements for attention and/or supervision had increased. The Tribunal expressly found that he had made a good recovery from his heart attacks, and in such circumstances it was in my view understandable that they should have reached the conclusion that there was no evidence of a deterioration.

5. Altogether, the conclusion which I have reached is that there are no grounds for holding that the decision of the Disability Appeal Tribunal is or may be erroneous in point of law. Leave to appeal is accordingly refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

12 February 1997