Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C54/96(DLA) (5 August 1996)

 


Decision No: C54/96(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 Craigavon Disability Appeal Tribunal dated 9 January 1996
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 disallowed an appeal by the claimant and withdrew from him the mobility component for disability living allowance (DLA) from 11 January 1995.
2. The Tribunal decided that the award of the low rate care component from 11 January 1995 should stand but disallowed the mobility component and in doing so found as a fact that claimant "is of normal intelligence with adequate sight and hearing, aware of and able to avoid dangers. He is moderately depressed and takes panic attacks. He has had these when out alone and has been able to telephone his psychiatric nurse and his relatives to be brought home. This applies from 11.1.95", and gave reasons for their decision as follows:-

"High rate mobility component was not put in issue and does not

appear relevant.

Mr R... does not require guidance or supervision when walking

out of doors. He prefers to be accompanied but is perfectly

able to walk out alone. He can phone to be brought home if he

takes a panic attack and indeed could in our view get himself

home and is at no risk if out alone.

This applies to familiar and unfamiliar routes.

The above all applies from 11.1.95."

3. The claimant then sought to have the decision of the Tribunal set aside in that they did not take on board the medical evidence which he provided to substantiate his claim.
4. The Tribunal rejected that application and gave reason for such rejection as, "there was no procedural injustice in the case. The Tribunal took into consideration all the evidence in the case, made its own assessment of same (as it is entitled to do) and reached its decision."
5. Claimant then sought leave to appeal to the Commissioner but that appeal was also refused. He then applied directly to the Commissioner and I arranged an oral hearing of that application at which claimant was represented by Mr McCann and the Adjudication Officer was represented by Mr Shaw. At that hearing I granted leave to appeal and both parties having consented, I treated the application as the appeal.
6. At the hearing Mr McCann said the Tribunal misinterpreted the requirements for guidance and assurance in that a claimant needed reassurance. Also while the Tribunal at the end of its reasons for refusing mobility allowance said "This applies to familiar and unfamiliar routes.", nevertheless at no time during the course of the hearing or in any of the evidence was unfamiliar routes considered. The main point was that the Tribunal did not take into account the panic attacks from which he suffers and the reassurance which he requires which he is out walking.
7. Mr Shaw said that this was one of those cases in which claimant had been awarded the low rate mobility component and the low rate care component from 1 July 1995 by an Adjudication Officer. Claimant then wrote in drawing attention to the dermatitis which was a nervous condition and considered that he was entitled to the higher rate care component. He also drew attention to the fact that he was embarrassed in leaving home for any length of time as his nerves got the better of him and he got the impression that people were making fun of him and that he then panicked.
8. As a result of that letter the Adjudication Officer had him medically examined by an Examining Medical Practitioner and then purported to review the decision of 28 January 1995 and to withdraw the mobility component from 1 July 1995.
9. Mr Shaw then said that as a result of him seeking the higher rate he lost the mobility altogether. He then drew attention to the fact that claimant's wife wakens at night to comfort him when he feels panicky and depressed after having bad dreams and said that the Tribunal recorded this fact but then rejected the effect of it by saying, "he would be at no risk if his wife did not talk to him when he had suicidal dreams". Mr Shaw said that was the wrong test and it was not whether or not he was at risk but whether or not his wife gave him reassurance and that the attention he would get if it was reassurance was in connection with bodily functions.
10. Turning to the lower rate mobility component Mr Shaw said that the Adjudication Officer gave him the lower rate and he said both the Adjudication Officer and the Tribunal would have needed to explain to a claimant why it was being taken away. He also conceded that the Tribunal erred in considering that claimant was not at risk when he had his panic attacks because he could get himself home. Again Mr Shaw conceded that the risk factor was the wrong test and the test should be whether or not he needed reassurance and conceded that on the evidence it was clear that in panic attacks he would need reassurance and that the Tribunal therefore erred in law in its approach to the mobility content and conceded that the evidence clearly entitled him to the lower rate mobility as the first Adjudication Officer had found.
11. I have considered all that has been said and I have read all the documents in the case. I think that Mr Shaw's concession is a very proper one which I accept. I accept that the Tribunal erred as he said and used the wrong test for the mobility and also that there is no evidence that it considered claimant's walking in unfamiliar routes although at the end of the reasons for its decision it mentioned them but at no time was it mentioned during the hearing. Also it did not properly consider the reassurance aspect of attention.
12. For the above reasons I allow the appeal and set aside the decision of the Tribunal. I consider that this is a proper case in which I should give the decision which the Tribunal should have given. I have considered all the evidence, in particular the evidence relating to the panic attacks and the need for reassurance and hold that claimant is entitled to the lower rate care component and the lower rate mobility component from 11 January 1995 for life.

(Signed): C C G McNally

COMMISSIONER

5 August 1996