Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C55/96(DLA) (4 June 1997)

 


Decision No: C55/96(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 Appeal to the Social Security Commissioner on a question of law from the decision of the Londonderry Disability Appeal Tribunal dated 21 May 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which held that claimant was not entitled to either component of Disability Living Allowance (DLA).
2. Claimant is a man aged 41 who claimed DLA in September 1995. He stated that he suffered from poor vision, high blood pressure and severe back pain due to arthritis. He was refused the benefit by an Adjudication Officer, and on a subsequent review a different Adjudication Officer did not revise that decision.
3. Claimant appealed to a DAT which confirmed the decision of the Adjudication Officer. It would appear that the only points at issue at that Tribunal were (1) claimant's entitlement to the lower rate care component in respect of an inability to cook a main meal and (2) his inability to walk which would entitle him to a mobility component.
4. The Tribunal in their findings referred to the Examining Medical Practitioner's opinion that claimant could prepare a meal and use a cooker. It also recorded that the Examining Medical Practitioner and the claimant's General Practitioner were of the opinion that claimant would have difficulty in coping with heavy pans.
5. As far as the mobility component was concerned the Tribunal found that he had no problem in walking except for his back pains and that he could walk a reasonable distance, at reasonable speed in a reasonable time and manner before the onset of severe discomfort. Therefore, he was not entitled to any rate of mobility.
6. The claimant sought and obtained leave from the Chairman of the Tribunal on the grounds that the Tribunal erred in law in not taking into account the decision of Great Britain Commissioner CDLA/085/1995.
7. I held an oral hearing at which claimant was represented by Mr Mu... and the Adjudication Officer was represented by Mr Shaw.
8. Mr Mu... argued that claimant had pains in his hands due to arthritis and that he could not cope with heavy pans. He therefore would be unable to cook a main meal for himself and quoted CDLA/085/1994 as an authority.
9. Mr Shaw referred to his written comments on the appeal and reiterated his remarks in his written comments when he said:-

"The application does not disclose in what way the tribunal may have

erred in applying the test in S72(1)(a)(ii)(the main meal test). I

am therefore unable to comment meaningfully. The decision of the

tribunal does appear to be consistent with the evidence and the

findings and reasons recorded by the chairman appear to be adequate.

I note the record of proceedings shows that it was argued before the

tribunal that the test in S72(1)(a)(ii) was objective and that it

was irrelevant whether the pans used in cooking were heavy or light.

It may therefore be that the application is based on the fact that

the tribunal accepted that Mr M... would have difficulty in

coping with heavy pans. I submit that such a finding is not

inconsistent with a decision that the claimant did not satisfy the

test in S72(1)(a)(ii). The test requires only that the claimant

is able to manage pans containing sufficient for one meal. As

observed by the tribunal such a pan would not be regarded as heavy.

The objective nature of the test as explained in decision number

CDLA/085/94 merely relates to the fact that the tribunal should

not take account of the actual pans used by the claimant. In that

sense it can be said that it is not relevant whether the pans

are heavy or light."

10. I have considered all that has been said and I have taken into account the fact that this whole question was gone into very thoroughly in CDLA/085/1994, which was considered by the Tribunal. Basically the only argument which was advanced against the Tribunal's decision was that claimant could not cope with heavy pans. I think heavy pans are inconsistent with preparing and cooking a main meal for one person. The Regulations require the Tribunal to consider whether the claimant satisfies the day-time conditions contained in section 72(1)(a)(i) and (b)(i) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which requires a person to be so severely disabled physically or mentally as to not be able to prepare and cook a main meal. This test is a subjective one to be determined by the DAT as a question of fact based upon the evidence before them. I am satisfied that the evidence before them entitled them to come to the decision to which they came and that there is no error of law in either the findings of fact or the reasons for the Tribunal's decision and I therefore dismiss the appeal.

(Signed): C C G McNally

COMMISSIONER

4 June 1997