Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C25/96(DLA) (20 May 1996)

 


Decision No: C25/96(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

Belfast Disability Appeal Tribunal

dated 7 September 1995

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 disability living allowance.
2. I held an oral hearing at which claimant did not appear but was represented by Mrs Johnston of the Law Centre. The Adjudication Officer was represented by Mr Shaw.
3. Briefly the facts are that claimant is now a lady aged 32 who suffers from pelvic inflammatory disease and anxiety state and is subject to panic attacks, she also has other complaints.
4. The Tribunal which heard her appeal against the decision of the Adjudication Officer given on review gave reasons for their decision in respect of the mobility component as:-

"On all the evidence appellant can walk and is not virtually unable

to walk. There is nothing in the evidence to indicate that the

exertion required when walking would cause any risk to her life

or be likely to lead to a deterioration in her health.

On the weight of all the evidence she does not require supervision

or guidance while walking out of doors most of the time."

and gave reasons for its decision in respect of the care component as:-

"On all the evidence appellant does not require from another person

frequent attention throughout the day in connection with her bodily

functions or repeated or prolonged attention at night in connection

with her bodily functions.

She does not require continual supervision during the day or

watching over for prolonged periods or frequent intervals at night

in order to avoid substantial danger to herself or others.

She does not require attention in connection with her bodily

functions for a significant portion of the day and she is capable

of preparing a cooked main meal for herself.

She does not satisfy any of the criteria for the award of care

component."

5. Claimant's grounds of appeal as set out in her application were:-

"I wish to appeal on the following point of law ..... That the

Tribunal erred in law by failing to consider Commissioners

decision *109/94(CDLA/042/94) and its interpretation of guidance

and supervision as regards low rate mobility component. Had they

so considered the criteria laid down in that decision then a

different conclusion may have been reached.

No evidence was taken at the hearing as to the purpose served by

the guidance or supervision exercised by Mrs M...'s sister when

she accompanied Mrs M... out of doors."

6. Upon receipt of the application for leave to appeal the Adjudication Officer made written comments as follows:-

"1. The application for leave to appeal is based on the failure

of the tribunal to consider the lower rate mobility component

in the light of the unreported decision CDLA/042/94. I would

concede that the lower rate mobility condition in S73(1)(d)

of the Social Security Contributions and Benefits (NI) Act 1992

has not been addressed correctly. The test requires the

tribunal to consider the ability of the claimant to take

advantage of the faculty of walking out of doors on unfamiliar

territory without guidance or supervision.

2. The application makes the more specific point that the tribunal

failed to consider the purpose served by any guidance or

supervision received by Mrs M.... I submit that it was

the task of the tribunal to determine whether her condition

reasonably requires her to be accompanied, or to require

attention, most of the time. I submit that the task the

tribunal were faced with was to determine whether any guidance

or supervision is required out of doors, on unfamiliar

territory. This would probably involve determining whether

the reassurance reasonably supplied by the person accompanying

the claimant amounts to supervision. CDLA/042/94 is relevant

to the issues involved in determining the lower rate of the

mobility component.

3. In the decision on the care component the tribunal found that

the main disabilities were pelvic inflammatory disease and

anxiety, and that none of the disability conditions in S72(1)

were satisfied. In arriving at this conclusion the tribunal

appear to have taken no account of any requirements for

reassurance stemming from the anxiety. The evidence of the

community psychiatric nurse and Examining Medical Practitioner

both pointed to these needs. See the letter from nurse M…

dated 14 November 1994 and the medical report, page 23. I

would draw attention particularly to the decision of the House

of Lords in the case of Mallinson which settled that the

spoken word can amount to the attention with a bodily function,

and that attention received out of doors counts towards

satisfaction of the care component."

7. At the oral hearing I granted leave to appeal and both parties having consented treated the application as the appeal.
8. Mrs Johnston argued that the Tribunal failed to take account of decision 109/94 of a Commissioner in Great Britain who set out clearly guide lines for situations where a claimant requires someone to give assurance because of panic attacks in unfamiliar routes.
9. Mr Shaw accepted that claimant could easily be entitled to the lower rate mobility component because the supervision was important and that the reassurance was clearly there in the evidence. He said that this lady had psychiatric problems and she had to be prompted to take her medicine and that care could well be an issue because no account was taken of the reassurance stemming from the anxiety and that the spoken word can amount to attention with bodily functions in accordance with the Mallinson case.
10. I have considered all that has been said and I have read all the documents including the medical report, the report from the Psychiatric Nurse and the report from claimant's own GP. I have great difficulty in reading the Medical Officer's report as it is handwritten and I was not provided with a typed copy, but the pieces of it which I could read made it clear that she needed her sister with her practically all the time and that she gives her comfort and reassurance both inside the house and outside the house and I accept Mr Shaw's argument relating to Mallinson, that the spoken word can amount to attention of a bodily function and that attention received out of doors counts towards satisfaction of the care component. I also am satisfied that out of doors the evidence was sufficient to show that because of her panic attacks she could not take advantage of walking in unfamiliar routes without the supervision of another person and as set out in 109/94 this guidance or supervision in relating to the mobility test could mean directing or leading and it may constitute oral directions, persuasion or suggestion and supervision means accompanying the claimant and at least monitoring the claimant in the circumstances for signs of a need to intervene. The monitoring does not cease to fall within the meaning of supervision by reason only that intervention by the person accompanying the claimant has not in the past actually been necessary.
11. The Tribunal erred in law in not considering the need for the supervision in unfamiliar routes and also in not considering whether or not supervision and reassurance which she received from other members of her family did not satisfy the test that she required attention from another person for a significant portion of the day in connection with her bodily functions. Taking all that into account I am satisfied the appeal must be allowed, and the decision set aside.
12. I also consider that this is a proper case in which I should give the decision which the Tribunal should have given. I have considered all the evidence and all the documents in the case and I am satisfied that because of the claimant's psychiatric condition and her panic attacks that she is entitled to the mobility component and the care component of disability living allowance at the lower rate from the date the claim was received in the office, namely 12 August 1994 for life.

(Signed): C C G McNally

COMMISSIONER

20 May 1996