Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C51/96(DLA) (5 August 1996)

 


Decision No: C51/96(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 Limavady Disability Appeal Tribunal dated 25 October 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 the Adjudication Officer that claimant was not entitled to either component of disability living allowance (DLA).
2. Briefly the facts are that the claimant, a lady of 61 years of age, suffers from severe pains in her legs and arthritis spondylitis. The Tribunal in rejecting her claim found the following facts:-

Care Component

"Medical conditions as on mobility component.

Tribunal accept the Examining Medical Practitioner assessment of

Mrs H...'s ability to prepare a cooked main meal.

We find that there may have been a deterioration in her spondylitis

in the last few weeks for which she is now having physiotherapy but

we do not accept that this condition has existed for 3 months and

may be alleviated by the physiotherapy.

The Tribunal took into account the report of Doctor Healy but do

not consider that this contradicts the findings of Examining

Medical Practitioner. We find that Mrs H... on the

basis of the findings of examination by the Examining Medical

Practitioner should be able to use taps, cooker, peel and chop

vegetables and cope with hot pans. We do not accept that her

condition is such that she should be unable to stand to prepare

a cooked meal for herself."

and recorded reasons for its decision as follows:-

"The only component at issue was the low rate of care for

preparation of a cooked meal.

The Tribunal accept the assessment of the Examining Medical

Practitioner as to Mrs H...'s ability to prepare a

cooked main meal. We note that she is at present having an

exacerbation of her spondylitis and is receiving physiotherapy

for it. We do not find any evidence that this condition has

existed for three months or is likely to continue for a further

six months as it may well be relieved by the physiotherapy."

Mobility component - Findings

"Appellant aged 60. Has osteoarthritis of her lower back, neck

and hips and cervical spondylosis, this causes pain and stiffness.

She has no impairment of gait or balance and has had no falls. We

accept the Examining Medical Practitioner assessment of Mrs

H...'s walking ability on the basis of the medical

examination carried out. We do not accept that the medical evidence

suggests that Mrs H... should have severe discomfort on

walking before a distance of 150 yards.

Mrs H... has agrophobia and claustrophobia but we do not

accept that the evidence indicates that this is so disabling for

her to require any guidance when walking, neither do we accept

that a need for supervision is established. Mrs H...

gets chest pains in crowds and has to leave. There was no

evidence of this occurring on other occasions or when walking

in crowded areas."

Reasons for decision

"The appeal is disallowed because the Tribunal are satisfied that

the medical evidence does not support the severity of symptoms

by Mrs H.... Looking at all the available medical

evidence we find that she should be able to walk for a reasonable

distance at a reasonable speed in a reasonable manner in a reasonable

length of time without severe discomfort. There was no medical

evidence presented to support the argument of recent deterioration

in her condition since seen by Doctor H… on 13 September 1995.

There was no medical evidence to support a claim for guidance and

supervision on walking out of doors on unfamiliar routes. The

appellant herself did not claim any need for guidance and her

supervisory needs are more that of reassurance than supervision."

3. Claimant's grounds of appeal were set out in a long and detailed submission and pinpointed four alleged errors of law in the Tribunal's decision -

1. Her inability to lift heavy saucepans.

2. The decision was perverse.

3. That the Tribunal misunderstood the meaning of "guidance and supervision".

4. That the Tribunal was wrong in looking for corroboration by medical evidence alone.

5. That some of the Tribunal's statements are unintelligible.

6. The reasons given were inadequate.

4. Mr Shaw commented upon the points raised. He said the Tribunal had accepted that claimant had supervisory needs that amounted to reassurance rather than supervision and said that the Tribunal erred in that it did not explain why these needs did not amount to supervision. He referred to a GB Decision CDLA/040/94.
5. I arranged an oral hearing at which claimant was represented by Mr Daniel Mugan of the Churches Advice Centre and the Adjudication Officer was represented by Mr Shaw. At the hearing I granted leave to appeal and with the consent of the parties treated the hearing of the application as the hearing of the appeal.
6. Mr Mugan went through his grounds of appeal and emphasised the various matters including his argument that the Tribunal misdirected itself on the meaning of supervision. He also said that the Tribunal was wrong in considering and in emphasising heavy saucepans, because the saucepans contained sufficient for one person. He said that what the Tribunal had overlooked was that the saucepans might be heavy for the claimant.
7. Mr Shaw said that there were many points raised and it was difficult to know where to start. However he regarded that the main error and possibly the only error in the Tribunal's decision was concerning reassurance.
8. I have considered all that has been said and I have read all the documents. Mr Mugan in his submission referred, as did Mr Shaw, to the GB Commissioner's decision CDLA/040/1994 and Mr Mugan quoted from Commissioner Mesher when he stated:-

"It is my understanding that 'supervision' means accompanying the

claimant and at least monitoring the claimant in the circumstances

for signs of a need to interfere so as to prevent the claimant's

ability to walk out of doors being compromised. In fact that

intervention in the past has not been necessary. The fact that

that intervention in the past has not been necessary is not relevant.

It is unhelpful to draw a line between the notions of reassurance

and supervision. The fact that a claimant merely derives

reassurance from the presence of some one does not prevent it being

guidance or supervision."

9. I am satisfied that on that point the Tribunal erred because the Tribunal recorded "her supervisory needs are more that of reassurance than supervision", although it is mistyped in the typed version of the "reasons for decision". Having found that she needed reassurance it confused the meaning of reassurance and I am satisfied that that is an error in law and consequently I allow the appeal and I set aside the decision of the Tribunal.
10. As there is not sufficient evidence for me to make a finding I am obliged therefore to refer the matter back to be reheard by a differently constituted Tribunal.

(Signed): C C G McNally

COMMISSIONER

5 August 1996