Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C52/96(DLA) (2 August 1996)

 


Decision No: C52/96(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 Londonderry Disability Appeal Tribunal dated 4 October 1995
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a late application for leave to appeal against the decision of Disability Appeal Tribunal (DAT) which supported and upheld the decision of an Adjudication Officer that claimant was not entitled to either component of disability living allowance (DLA).
2. I granted the late application for leave to appeal. At the hearing I granted leave to appeal and both parties having consented I treat the application as the appeal. For the reasons set out below I dismiss the appeal.
3. Claimant is a married lady now aged 44. She suffers from severe pains in her back and from asthma. Her husband who is a Veterinary Surgeon was in general practice up until several years ago when he had to give up practice because of his wife's allergic reaction to animal dust.
4. The Tribunal considered both component of DLA and made the following findings of fact and reasons for their decision to disallow the appeal as follows:-

Mobility component

"Findings

The claimant is 43. She has 4 children aged between 17 and 3. Her

husband is a Veterinary Surgeon who gave up private practice 2 years

ago due to the allergic reactions of his wife to animal dust. She

has 2 conditions (a) Severe brittle asthma and (b) Chronic low back

pain/sciatica (right leg). She has intermittent attacks of both

conditions. These attacks can be severe and require visits to

hospital including casualty. She has been seen by Consultant

Neurosurgeon Mr F… and Mr B… and by Doctor D… Consultant

Chest Physician on numerous occasions. Despite being asked several

times by all 3 panel members as to the frequency of both sets of

attacks, Mrs C... could not be definitive - nor indeed could her

husband. What her husband did say was that Mrs C... had to

lie down each day for several hours due to the pain in her back.

She does not need attention at night on a repeated basis nor does

she need help during the day every day. She did say she could

cook for herself if not suffering from either form of attack. She

can walk when not in pain with her back but her husband did say

walking exacerbates the back condition.

The Tribunal finds that there are days (which it finds hard to

quantify) when this lady would be unable to cope with here bodily

functions and cooking for herself and indeed to walk any distance

but these days are not often. Rather they are sporadic."

"Reasons for decision

It is accepted that this lady has chronic back pain and severe

brittle asthma. This incapacitates her from her household duties

and ordinary recreation and indeed work but this is not the test

for Disability Living Allowance which deals with personal care

attention to ones own bodily functions. Cooking one main meal

for oneself and ability to walk a reasonable distance out of

doors without severe discomfort. As the Tribunal has found

there may be days when the test is satisfied but these are

intermittent and certainly not regular enough to satisfy the

very difficult test for Disability Living Allowance."

Care Component

"Findings

The claimant is 43. She has 4 children aged between 17 and 3. Her

husband is a Veterinary Surgeon who gave up private practice 2 years

ago due to the allergic reactions of his wife to animal dust. She

has 2 conditions (a) Severe brittle asthma and (b) Chronic low back

pain/sciatica (right leg). She has intermittent attacks of both

conditions. These attacks can be severe and require visits to

hospital including casualty. She has been seen by Consultant

Neurosurgeon Mr F… and Mr B… and by Doctor D… Consultant

Chest Physician on numerous occasions. Despite being asked several

times by all 3 panel members as to the frequency of both sets of

attacks, Mrs C... could not be definitive - nor indeed could her

husband. What her husband did say was that Mrs C... had to lie

down each day for several hours due to the pain in her back. She

does not need attention at night on a repeated basis nor does she

need help during the day every day. She did say she could cook

for herself if not suffering from either form of attack. She can

walk when not in pain with her back but her husband did say

walking exacerbates the back condition.

The Tribunal finds that there are days (which it finds hard to

quantify) when this lady would be unable to cope with her bodily

functions and cooking for herself and indeed to walk any distance

but these days are not often. Rather they are sporadic."

"Reasons for decision

It is accepted that this lady has chronic back pain and severe

brittle asthma. This incapacitates her from her household duties

and ordinary recreation and indeed work but that is not the test

for Disability Living Allowance which deals with personal care

attention to ones own bodily functions. Cooking one main meal

for oneself and ability to walk a reasonable distance out of doors

without severe discomfort. As the Tribunal has found there may

be days when the test is satisfied but these are intermittent and

certainly not regular enough to satisfy the very difficult test

for Disability Living Allowance."

5. The claimant sought leave to appeal on the grounds that the Tribunal erred in law and that it ignored crucial medical evidence. The Adjudication Officer made written comments on that application as follows:-

"The application is made on the basis that the tribunal ignored

crucial medical evidence. I am unable to comment meaningfully as

I am not clear as to exactly what evidence Mrs C... is referring.

The tribunal appears to have arrived at its decision on the basis

that although the disability conditions (or some of them) are

satisfied at times, Mrs C... did not persuade the tribunal that

this occurred on a sufficiently frequent basis. I would submit

that in effect the claimant has failed to prove her case to the

tribunal to the extent that they found themselves unable to make

detailed findings on the disability conditions.

Should the Commissioner decide to grant leave I consent to the

Commissioner treating the application as an appeal and

determining any question on the application as if it arose on

appeal."

6. At the oral hearing claimant was represented by Mr Mullan and the Adjudication Officer was represented by Mr Shaw. Mr Mullan said that the Tribunal failed to consider the entirety of the medical evidence. He said medical evidence was available from Dr D… and Dr C…. He said that claimant's condition was both permanent and long-standing and was sufficient to establish disability. He said that her complaints were two-fold, that was her back pain and her asthma. He said the question at issue was whether or not the attacks occurred with sufficient frequency and that the evidence of the medical men would have allowed the Tribunal to come to a proper decision and that the Tribunal decision did not take account of the medical evidence. He criticised the Tribunal's decision as disallowing the appeal because claimant was unable to provide times and dates and said that it would be unfair to expect claimant to keep a diary or a log of events.
7. Mr Shaw said that the issue was not whether claimant was disabled or not but did she need personal attention on a frequent basis, for example in dressing, toilet arrangements etc. The Tribunal found that her problems, although severe, were intermittent but to be entitled to the benefit the frequent attention was required. He accepted that she had chronic back pain and asthma and that she spent two or three hours a day in bed but that the evidence was not before the Tribunal to satisfy it as to the frequency of her need for assistance.
8. I have considered all that has been said and I have read all the documents in this case. I accept firstly that the mobility component of the DLA is not really an issue, what was an issue was the care component. To satisfy the test for the care component of DLA one must require attention with ones bodily functions and I accept all that has been said on behalf of the claimant. I accept that she has very severe chronic pain and this is borne out by the fact that she has on occasions received injections of morphine. I also accept that she spends several hours a day in bed and that she is ably assisted by her husband and her daughter. I also accept that her husband had to give up general practice because of claimant's allergy to animal dust.
9. I have considered the findings of the Tribunal that there are days when she is unable to cope with her bodily functions or cook for herself but that this attention is not as frequent as would bring her within the regulations. Before a Tribunal could make a finding as to the frequency of her inability to cope it would need some evidence and the person to give that evidence would be either the claimant or her husband. Both of them gave evidence to the Tribunal and the Tribunal found as a fact that there was a complete lack of any definite evidence as to the frequency of her attacks. I am satisfied therefore on that basis and on the basis of the evidence which was before the Tribunal it had no option but to come to the decision to which it came, namely that on the evidence claimant was not entitled to either component of DLA. I will only add that I have every sympathy with the claimant. I consider that she is severely handicapped by the pain that she suffers and it may well be that if a fresh claim was made and the frequency of her attacks was substantiated to show a deterioration in her condition that may go a long way to convincing an Adjudication Officer that she would be entitled to the award.

(Signed): C C G McNally

COMMISSIONER

2 August 1996