Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C31/96(DLA) (8 July 1996)

 


Decision No: C31/96(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 25 April 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application brought on behalf of the claimant by her mother seeking leave to appeal against the decision of a Disability Appeal Tribunal which upheld the decision of an Adjudication Officer on review that claimant was entitled to the lower rate mobility component from 7 March 1993. Claimant was already in receipt of the higher rate care component from the same date, so the Tribunal was only concerned with the mobility component.
2. The Tribunal made findings of fact and reasons for its decision as follows:-

Findings of Fact

"Appellant (Date of Birth 10.11.68) was awarded the highest rate of

the Care Component from and including 7.3.93 and accepts this, but

appealing the award of the lower rate Mobility Component from that

date on the grounds of extremely disruptive behaviour.

We accept that the probabilities are that she has either a state of

arrested development of the brain or an incomplete physical

development of the brain and severe improvement of intelligence

(her IQ is in the low 40s) and social functioning.

We do not accept that her behaviour can be described as extremely

disruptive when out of doors. She has not caused physical injury to

herself and others or damage to property (the damage to her clothes

could be accidental). She does not regularly require another person

to intervene and physically restrain her, although this may happen

occasionally if she gets tired or separated from her mother, who

could only think of one example (in the Post Office). She is not

normally aggressive out of doors and is OK shopping as long as she

can hold on to her mother or father. We accept she is supervised

while awake, day and night and is entitled to the high rate of Care."

Reasons for decision

"On the evidence we have heard today we cannot accept that A…

displays extremely disruptive behaviour which regularly requires

another person to intervene and physically restrain her to prevent

physical injury to herself or another or damage to property. Such

intervention is occasional only and mainly occurs in the house and

not outdoors while walking."

3. Having received the decision an application was made to have the decision set aside, the grounds being that claimant's mother arrived at the hearing without any medical evidence or anyone to represent and assist her. She felt that the decision was wrong, and said that the doctor and the Social Worker also supported the application. She also provided further evidence from the Social Worker and from Professor N…
4. The Chairman rejected the application for setting aside and recorded "that the extra evidence now provided after the hearing supports our decision to award the lower rate of the mobility component and not the higher rate".
5. Claimant then sought leave to appeal to the Commissioner against that decision on the grounds that the decision was supported by no or insufficient evidence and that it breached the rules of natural justice.
6. The Adjudication Officer upon receipt of the application for leave made written comments in which he pointed out as follows, that the application did not appear to raise a specific point of law. However he then raised the following technical points which I set out in full:-

"4. The Tribunal erred in failing to have regard to the issue

before them which was whether grounds existed to review the

decision of 19 August 1993. If they did have regard to this

issue then the tribunal erred in law because the chairman

failed to record findings and reasons as he was obliged to do

by regulation 25(5) of the Social Security (Adjudication)

Regulations (Northern Ireland) 1995. Findings were required

to show:-

* the grounds which were satisfied to enable review to be

carried out;

* any relevant material facts;

* the date the decision was effective from;

* the question of restriction on payment of arrears

including good cause if appropriate; regulation 57 and

59 of the Social Security (Adjudication) Regulations

(Northern Ireland) 1995 refers.

5. I submit that decision number CSDLA/128/94 confirms that

tribunals should determine review questions along the above

lines.

6. The tribunal erred in awarding disability living allowance

from 7 March 1993. The date of claim for the award under

review was 25 October 1993 (the day following expiry of the

previous award; see regulation 13C of the Social Security

(Claims and Payments)(NI) Regulations 1987; and decision

C21/95(DLA) of Northern Ireland Chief Commissioner). There

can be no entitlement prior to the date of claim; see S76(1)

of the Social Security Contributions and Benefits (NI)

Act 1992.

7. I note that the tribunal appear to have only decided the

mobility component. If this is what happened, I submit that

the tribunal should have gone ahead to determine the care

component too, for review of this component was the issue

before the tribunal. In any case disability living allowance

is one benefit and should be determined accordingly.

8. The tribunal erred in applying an incorrect test for the

determination of disruptive behaviour by only having regard

to disruptive behaviour out of doors. Regulation 12(6) of

the Disability Living Allowance Regulations makes no reference

to any such restriction. I submit that this test requires

behaviour to be assessed throughout the whole of the day and

night.

9. 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.

10. Should the Commissioner decide to remit the case to another

tribunal for rehearing I will undertake to have a submission

prepared which would draw the tribunal's attention to the issues

in the case."

7. I arranged an oral hearing of the application at which claimant and her mother appeared without representation and the Adjudication Officer was represented by Mr Shaw. At that hearing Mrs T..., the girl's mother said that she did not understand how the lower rate mobility was allowed and the higher rate mobility was refused, that she had to give up her work to look after the girl and her husband was now out of work which meant that they had no car and that the girl could not manage on public transport.
8. Mr Shaw accepted that the only question in this application was whether or not claimant was entitled to the higher or lower rate mobility component. He reiterated his remarks relating to the application and said that the questions asked by the Tribunal were incorrect, that it should have considered behaviour all of the time and considered whether an ordinary person would regard the behaviour as disruptive.
9. I have considered all that has been said and I have read all the documents in this case. At the hearing I granted leave to appeal and both parties having consented I propose to treat the application as the appeal.
10. As far as Mr Shaw's point that the Tribunal should have considered the care component, it is quite clear that that is a very technical point but that there is an entitlement to the higher rate care component and I can see no merit in going down that road. In any event the Tribunal in its findings of fact recorded:-

"... We accept she is supervised while awake, day and night and is

entitled to the high rate of Care."

I am also satisfied that there is no merit in the suggestion that the rules of natural justice were in any way breached because the hearing was a proper hearing, there was no breach of natural justice and that the Tribunal in no way erred in that regard.

11. I am satisfied however that the only error which can be identified and substantiated is the manner in which the Tribunal dealt with the disruptive behaviour. Mr Shaw accepts that it erred in that regard and for that reason I allow the appeal and set aside the decision of the Disability Appeal Tribunal.
12. I now must consider whether or not I should refer the matter back or whether I can give the decision which the Tribunal should have given. As Mr Shaw said that the Tribunal only considered the walking out of doors. I have considered the opinion of Professor N…of the Department of Medical Genetics at the Belfast City Hospital. He records that A... is now 27 years of age and that he has known her since November 1970. He records that she has a rare syndrome characterized by mental handicap, gross obesity, both truncal and proximal limbs, small hands and feet, enamel hypoplasia and bilateral partial simian creases. She is hyperactive. She can't sit still to watch TV, but is continually up and down, that her obesity affects her mobility. Her parents have to provide 24 hour supervision. She attends a day centre, has to be taken and returned home under parental supervision and supported the application for the higher mobility allowance. I have also considered the fact that the Tribunal accepted that she is supervised while awake day and night and while I can appreciate how the Tribunal arrived at their decision I am satisfied having considered the additional evidence which was not before the Tribunal but which was considered by them in the application to set their decision aside, that additional evidence is sufficient to merit the award of the higher rate mobility component. My decision therefore is that claimant is entitled to the higher rate mobility component from and including 24 October 1993, this is in line with the starting date for the higher rate care component.

(Signed): C C G McNally

COMMISSIONER

8 July 1996