Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C19/96(DLA) (2 May 1996)

 


C19/96(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 and

appeal to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 30 June 1995

DECISION 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 Armagh; whereby it was held that she was not entitled to either the care component or the mobility component of disability living allowance. I grant leave to appeal and, with the consent of the parties treat the application as an appeal.
2. The grounds of the claimant's appeal, as set out in her notice of application are:-

"That the Chairman used but a part of Dr G…'s Report and so

did not give a full account of it and decision was made on a

selected version."

Having studied the case file the conclusion which I have reached is that there is no justification for this criticism. It is clear from Dr G…'s report that the claimant has for some years suffered considerably from coccydynia and pain in her right foot. No doubt these conditions have caused her great distress; but in themselves I do not consider that there is evidence that their effect has been such as to establish the claimant's entitlement to either component of disability living allowance. For example, the claimant may suffer pain from her coccyx associated with prolonged sitting and rising and returning to the sitting position, but it by no means follows that in consequence she would require attention or supervision throughout the day or night sufficient to qualify her for the care component of disability living allowance. Similarly, the fact that she suffers pain on walking does not necessarily mean that she is either unable or virtually unable to walk within the terms of the relevant regulations. The Tribunal were required to consider the limits of the claimant's ability to walk without severe discomfort, and Dr G…'s report contained a statement to the effect that she walked "a distance of 50 to 60 yards at a brisk pace without complaint or evidence of a limp". Clearly, this had a considerable bearing upon the Tribunal's finding of fact that the claimant was not virtually unable to walk, and I can well understand why.

3. Although, as I have indicated, I am of the opinion that the grounds of appeal upon which the claimant has relied are without substance, I am satisfied that the Appeal Tribunal's decision was erroneous in law in another respect. As I see it, the importance of the claimant's complaints of pain lies not in the effect which they may have had on her daily life, but in the fact that they originated in falls resulting from Menieres disease. Throughout the case file - in the claim forms and the various medical reports - there are repeated references to the risk of falling, to the absence of any warning of the onset of an attack of vertigo, and to the possible consequent need for continual supervision. In my view this was the principal issue in the case, yet it was scarcely touched upon in the Adjudication Officer's submission to the Tribunal. Reference was made to the advice in the Disability Hand Book concerning Menieres disease "that reassurance only may be deemed and this does not amount to guidance/supervision." It was not explained that this advice was based upon the assumption that someone suffering from Menieres disease would have warning of an attack and be able to sit or lie down before falling. It had therefore little if any relevance to the present case; where it was not disputed that the claimant received no warning and had already suffered injury as a result of falling. The issue of the claimant's need for supervision to guard against the risk of falling having been clearly raised, the Tribunal should in my view have dealt with it specifically in relation to both components of disability living allowance. So far as the care component was concerned, the Tribunal made no reference to it in either their findings of fact or their reasons for decision. In recording their decision on the mobility component it was merely stated without comment that supervision or guidance were not required, and again nothing was said about the risk of falling. Altogether I am satisfied that this important issue was not given the attention and consideration which it clearly required, and that the omission constituted an error in point of law.
4. I should perhaps add that in response to an invitation to comment upon the application for leave to appeal in this case, the Adjudication Officer now dealing with it submitted that there was nothing to indicate that the Tribunal had made selective use of Dr G…'s report. He did however suggest that the Tribunal might have erred in law in not making specific findings as to the risk associated with falls, how remote that risk was and whether any supervision needs arose. The Adjudication Officer's views on these points were accordingly very similar to mine. He was also critical of the Tribunal's findings of fact in relation to the claimant's walking ability, and it may be that some greater detail would have been desirable. On the whole, however, it seems to me that the recorded findings of fact were just about adequate. For example, although there was no specific reference to the time taken to walk 50 to 60 yards, it may well have been sufficient to record that it was performed "at a brisk pace".
5. For the reasons given in paragraph 3 above I allow this appeal, set aside the decision of the Appeal Tribunal and refer the case for determination by another Tribunal. All issues will again be open and my only direction is that the Tribunal should ensure that they deal fully with the important question of the claimant's possible need for supervision to guard against the risk of falling.

(Signed): R R Chambers

CHIEF COMMISSIONER

2 May 1996