Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C53/96(DLA) (5 August 1996)

 


Decision No: C53/96(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 29 August 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 is not entitled to either component of disability living allowance (DLA).
2. I arranged an oral hearing at which claimant did not appear nor was she represented and the Adjudication Officer was represented by Mr Shaw. At that hearing I granted leave to appeal.
3. Briefly the facts are that the claimant is 48 years of age who lives alone. She claimed disability living allowance and her claim was refused by the Adjudication Officer and on an appeal to the Tribunal that Tribunal upheld the decision of the Adjudication Officer.
4. The Tribunal made findings of fact as follows:-

Mobility component

"Since 29 December 1993 Mrs M... has been able to walk out of

doors without severe discomfort for a reasonable distance at a

reasonable speed in a reasonable manner and for a reasonable time,

all without any risk to health for the exertion of so doing.

Mrs M... has adequate vision and hearing and is of normal

intelligence with no balance problems. She does not like to go

out alone as she fears taking a panic attack but she is capable

of doing so. This has been so since 29 December 1993."

and gave reasons for its decision as follows:-

"We accept that Mrs M... is anxious and prone to panic attacks but

do not consider that she is at any risk if she takes a panic attack

when alone out of doors. She is aware of and capable of avoiding

dangers and can make her own way home if she takes a panic attack.

As regards the episodes referred to as "fits" we do not consider

them to be epileptic in form and do not consider there to be any

likelihood of unpredictable falling. We therefore consider there is

no need for guidance or supervision on walking on unfamiliar routes.

We do consider Mrs M...'s joint pains to be mild and to ease with

movement. She is not virtually unable to walk.

All the above applies since 29 December 1993."

Care component

Findings

"Mrs M... suffers from anxiety and depression. Mrs M... takes

panic attacks she "freezes" when they come on but does not have any

other difficulty during them. She has had them while on her own and

has come to no harm. Mrs M... has had 2 episodes which she

describes as "fits". Her ECG has been normal and the episodes where

over a year apart. Mrs M... has had problems with alcohol.

Mrs M... can attend to all her own bodily needs - wash, dress,

toilet and self medicate. She is able to prepare and cook a main

meal for herself.

All above applies since 29 December 1993."

Reasons for Decision

"In light of Doctor O…'s investigations and of the history

of the attacks we are not convinced on the balance of probabilities

that the attacks are epileptic in nature. We would have expected

an ECG abnormality with epilepsy. We note further that Mrs M...

is on no anti-convulsive therapy.

We are not prepared to conclude that the attacks are unpredictable

and unavoidable. One took place at a time of upset and emotional

stress the other while watching television which has been known to

precipitate isolated seizures. We consider that for considerable

periods during the day Mrs M... could be safely left without

supervision without risk to her or to anyone else. We consider

that alcohol may have been involved in the first attack. We do not

consider there is any risk of suicide. We do not consider

Mrs M... needs to be continually supervised throughout the day.

We do not consider she needs anyone to be awake and watching over

her during the night. By night or day she needs no attention in

connection with bodily functions.

All above applies since 29 December 1993."

5. Upon receipt of the application for leave to appeal the Adjudication Officer made the following written comment:-

"I understand the Commissioner is holding a hearing of this case on

Friday, 22 March 1996 and I will be pleased to attend same. Perhaps

you would mention to the Commissioner that I intend raising for

consideration whether the tribunal has dealt adequately with the

question of reassurance. Otherwise I see little wrong with the

tribunal decision.

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."

6. At the hearing Mr Shaw said that the only fault he could find with the decision was that it seemed to place too much emphasise on the attacks themselves which the Tribunal accepted were panic attacks but did not go on to consider the need for reassurance. He said that the Tribunal was over concerned with the medical aspect and what was causing her attacks. He said there was clear evidence, which was accepted by the Tribunal, that she suffers from anxiety and depression and that she suffers panic attacks, but he argued that when the Tribunal concluded that these attacks were not unpredictable and unavoidable it was looking at her medical condition rather than her need for reassurance.
7. He also said that as far as the mobility component was concerned the Tribunal used either an incomplete or the wrong test because the Tribunal said that she was prone to panic attacks but did not consider that she was at any risk if she takes a panic attack when alone out of doors. He said that the Tribunal should have gone on to consider her need for reassurance and that supervision was unrelated to risk and that the Tribunal merely considered the risk aspect. He also said that there would appear to have been some confusion about a difference between attacks and what the doctor referred to as "fits".
8. I am satisfied that Mr Shaw is right when he says that the supervision is unrelated to risk and that the Tribunal appeared to concentrate on the medical aspect of her problem and the risk factor, and did not take into account or consider whether or not her anxiety and depression required supervision and reassurance.
9. I am satisfied the Tribunal erred in law as stated above and I consequently allow the appeal, set aside the decision of the Tribunal and refer the matter back to be reheard by a differently constituted DAT.

(Signed): C C G McNally

COMMISSIONER

5 August 1996