Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C5/96(AA) (7 May 1997)

 


Decision No: C5/96(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 16 March 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant appeals against the decision of the Disability Appeal Tribunal sitting at Omagh, whereby it was held that she was not entitled to attendance allowance from and including 18 April 1994.
2. The claimant, who is now almost 73 years of age, applied for attendance allowance in April 1994, stating that she suffered from incontinence, depression, recurrent urinary tract infections, anxiety and back and leg pain. A factual report was obtained from her General Practitioner and on 25 June 1994 she was examined by an Examining Medical Practitioner. On 6 July 1994 an Adjudication Officer disallowed the claim and following a request for a review a different Adjudication Officer confirmed the disallowance by a decision dated 12 September 1994. The claimant's appeal to the Appeal Tribunal was in the following terms:-

"My grounds of appeal being that due to my medical condition

I do need care, attention and supervision. My needs are such

that I do need help with dressing, undressing, bathing, changing

of sheets etc. Due to these needs I now make my appeal in

not being paid attendance allowance."

3. The claimant did not attend the Tribunal hearing but, through her representative, expressed the wish that the appeal should proceed in her absence. As indicated in paragraph 1 above, the Tribunal confirmed the decision that the claimant was not entitled to attendance allowance. Their findings of fact were recorded as follows:-

"Claimant's date of birth is 5 May 1924.

Date of claim 18 April 1994.

Complaints are incontinence, depression, recurrent urinary tract

infections, anxiety and back and leg pain. Medical evidence does

not indicate any condition which should render claimant

housebound.

No recent hospital referral.

Medical evidence does not support claim of requiring frequent

attention throughout the day in connection with bodily functions.

Tribunal relied on evidence of Examining Medical Practitioner

and factual report of General Practitioner as to extent of care

needs.

Medical evidence does not support argument for continual

supervision throughout the day.

No medical evidence of need for help with bodily functions at

night.

No evidence of night time supervision."

The reasons for decision were:-

"The balance of medical evidence is against the claimant's

argument that she is entitled to Attendance Allowance. We do

not accept that she requires throughout the day frequent

attention in connection with bodily functions or continual

supervision in order to prevent substantial danger to herself

or others.

Neither is there any evidence that at night she requires

prolonged or repeated attention in connection with bodily

functions. Nor does she require someone to be awake for a

prolonged period or at frequent intervals to watch over her

to avoid substantial danger to herself or others."

4. The grounds of the claimant's appeal to the Commissioner are set out in her letter dated 25 April 1995. Briefly, she submits that the Appeal Tribunal based their decision on the report of the Examining Medical Practitioner and did not take sufficient account of the report from the General Practitioner. It is said that her own doctor knows her better than a "Board Doctor", and that the Tribunal failed to explain why the evidence of the former was not accepted. It is suggested that Commissioner's decision R1/76(IVB) supports the view that the evidence of a claimant's own doctor should be preferred to that of an Examining Medical Practitioner.
5. In his written observations on the appeal Mr G L Shaw, the Adjudication Officer now concerned with the Appeal, submits that the Tribunal's findings show that they did not unduly favour the report of the Examining Medical Practitioner; but relied also upon the evidence of the claimant's General Practitioner. Mr Shaw did, however, suggest that I might wish to consider whether the Tribunal should have recorded specific findings in relation to the risk of falling, to which the claimant's representative had referred at the Tribunal hearing.
6. I held an oral hearing at which the claimant, who regrettably again was unable to attend, was represented by Councillor J McLaughlin of B( Road, F(, D(, Omagh. The Adjudication Officer in attendance was Mr G L Shaw.

Mr McLaughlin submitted that greater attention should have been paid to the evidence of the claimant's General Practitioner; but he was unable to point to any medical evidence to the effect that the claimant was at risk of falling. The only evidence in support of that contention was to be found in the claim form completed by the claimant, and he accepted that oral evidence given by her at the Tribunal hearing would have carried much more weight. Mr McLaughlin also stated that after the date of the Tribunal hearing the claimant had submitted a further claim for attendance allowance based upon new evidence of a fall, and had been successful in securing an award. Mr McLaughlin did not suggest that this evidence had any relevance to the present appeal.

Mr Shaw discounted any suggestion that the Tribunal had placed undue emphasis on the evidence of the Examining Medical Practitioner. He had not been aware of the subsequent award of attendance allowance but submitted that, as it had ben based upon new evidence, it had no bearing upon the present appeal. Mr Shaw pointed out that an absence of a history of falls did not rule out the possibility of the existence of a propensity to fall; but he agreed that there was really no evidence before the Tribunal from which it might have been inferred that the claimant in this instance required any protection from the risk of falling.

7. As I mentioned at the oral hearing, I am not at all surprised that on the information made available to them, the Tribunal should have decided that the claimant in this case was not entitled to attendance allowance. In the claimant's absence, all the evidence at their disposal is contained in the case file and I have been able to study it for myself. Having done so, I cannot agree that the Tribunal placed undue reliance upon the report of the Examining Medical Practitioner, or failed to take proper account of the report from the claimant's own doctor. I am also satisfied that decision R1/76(IVB) does not provide any support for the contention that the evidence of a claimant's own doctor should be preferred to other medical evidence. I accordingly reject the grounds of appeal upon which the claimant relies. I am also of the opinion that in the light of the evidence then available to them, the Appeal

Tribunal did not err in law in failing to record any specific findings in relation to the risk of falling. Whatever may have been the position later on, there was in my view no evidence at that stage from which it might reasonably have been argued that the claimant required attention or supervision to guard against such a risk. Altogether, the conclusion which I have reached is that the decision of the Appeal Tribunal was not erroneous in law in any respect, and I accordingly dismiss this appeal.

(Signed): R R Chambers

CHIEF COMMISSIONER

7 May 1997