Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C28/96(DLA) (18 June 1996)

 


Decision No: C28/96(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

Newry Disability Appeal Tribunal

dated 19 October 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer that claimant was not entitled to disability living allowance.
2. Claimant is now a gentleman of 59 years of age and through his representative seeks leave to appeal on the following grounds:-

"1. At the hearing Mr W... took issue with the findings of the

Doctor who examined him on behalf of the Department.

Evidence was given at the Tribunal that Mr W...'s previous

medical problems while in New Zealand. We feel that while

the Tribunal should have been adjourned to allow evidence

to be produced of Mr W...'s medical history in New Zealand.

In the alternative since Mr W... disputed the facts contained

in the Doctor's report (ie. the distance which he walked

unaided during the course of examination by the Doctor) the

Tribunal should have been adjourned to allow a further

medical examination of Mr W...."

3. The Tribunal made the following findings of fact:-

"Since 2 August 1992 Mr W... has been able to walk 200 metres before

the onset of severe discomfort. His prothesis is a suitable

artificial aid. Mr W... cannot use it 2-3 days per month due to

skin problems. On the remaining days he is able to go out shopping

and go out with brother though his distance of walking is limited.

Due to back pain he has to stop for a few moments every 50 yards

or so to ease his back but he walks about 100 metres to his

nearest Wellworth store, goes round same and walks home. He also

appears to go into Newry and to be on foot in the centre of the

town. There are behavioural problems but no severe mental

impairment."

and gave reasons for its decision that he was not entitled to the mobility component of DLA as:-

"We do not consider that since 2 November 1992 the limitations

which Mr W... has in terms of walking have been so severe as to

render him virtually unable to walk. We do accept he has some

pain and some limitation in walking and that he falls from time

to time. The outset of severe discomfort is not in our view

so rapid that it limits Mr W...'s distance of walking to the level

of being virtually unable to walk. The falls do not appear so

frequent as to render his manner of walking sufficiently abnormal

as to be virtually unable to walk. The prothesis is on most days

of the month and is a suitable artificial aid. With it Mr W...'s

speed of walking is slow but reasonable and his manner of walking

reasonable. The exertion of walking would not be likely to

endanger his health in any way provided he walks with reasonable

parameters. He does not require guidance or supervision in

walking. All this has been so since 2 November 1992. S72(3) of

1992 Act was not raised and does not appear relevant."

4. Upon receipt of the notice of application for leave the Adjudication Officer made the following written comments:-

"I submit that the tribunal did not err in failing to obtain

evidence of Mr W...'s medical history for the period he was in

New Zealand. The evidence before the tribunal was adequate

to enable the tribunal to determine entitlement to disability

living allowance for the period in issue.

I further submit that the tribunal did not err in law on the

other ground on which the application is based. The tribunal

were faced with evidence from the Examining Medical Practitioner

to the effect that the claimant actually walked 600 yards with

him. While this distance was disputed at the hearing, I submit

that the tribunal had sufficient evidence to enable them to

satisfactorily resolve the discrepancy. There was the statement

made by Mr W... to the Examining Medical Practitioner that he

could walk 800 metres; the opinion of the Examining Medical

Practitioner that he would be able to walk about 500 yards; the

evidence given at the hearing by Mr W... explaining that he

disputed the distance walked with the Examining Medical Practitioner,

and explaining that he had given an "ambitious and historical"

estimate on that occasion. Having considered all the evidence,

the tribunal were entitled to conclude that the evidence of the

examining doctor was to be preferred. I also note that the

distance of 80 metres as stated by Mr W... could support a

finding of "not virtually unable to walk".

Since preparing the above observations, I have been able to

obtain the papers for the current claim. At present Mr W...

has an award of disability living allowance consisting of the

higher rate of the mobility component from 20 January 1995. I

enclose the papers referring to this award. I would draw the

Commissioner's attention to the fact that the award is based on

similar evidence to that which was available to the tribunal in

this case.

Should the Commissioner decide to grant leave, I consent to the

Commissioner treating the application as an appeal and determining

any question arising on the application as if it arose on appeal."

5. I arranged an oral hearing at which claimant was present, he was represented by Mr F… of D…, Solicitors. The Adjudication Officer was represented by Mr Shaw.
6. Mr F... explained that the applicant was an amputee and that he had lived for many years in New Zealand. He drew attention to the fact that a fresh claim was made by the claimant and that he was awarded the higher rate mobility from January 1995 and read an extract from a letter from his current GP, Dr H.... He said that the grounds of appeal of the Tribunal erred on the grounds of natural justice, that it hadn't sufficient evidence, that it should have adjourned to either obtain evidence which was available from New Zealand or that it should have had claimant examined by an independent consultant.
7. Mr Shaw reiterated the remarks which he made in his comments. He said that the Tribunal did not err in law, that they had all the evidence which they considered it required and that it made proper findings of fact and gave proper reasons for its decision.
8. I have considered all that has been said and I have read all the documents. The fact that claimant was awarded a higher rate mobility component from January 1995 has little or no bearing on an application made several years before or on a decision of DAT of October 1993, and while it may well be that had the Tribunal seen the letter from Dr H... dated June 1995 in which he says that he had no doubt that claimant's present condition existed in 1992, it may well be that the Tribunal would have come to a different decision, but it is the function of the Tribunal to make findings of fact and to consider all the evidence and to decide what evidence it considers it needs.
9. The fact that it did not seek further evidence was a matter for that Tribunal and it was a matter for the claimant to produce to that Tribunal whatever evidence he had available to him, which he did to the subsequent Tribunal successfully.
10. I have considered all the arguments. I am satisfied there is no breach of natural justice because the claimant got a fair hearing. That the Tribunal decided that it had sufficient evidence upon which to make a decision and it made a decision, and while a different Tribunal may have come to a different decision, nevertheless, that is not sufficient grounds for setting a decision aside.
11. At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal. For the reasons set out above I dismiss the appeal.

(Signed): C C G McNally

COMMISSIONER

18 June 1996