Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C62/96(DLA) (3 June 1997)

 


Decision No: C62/96(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 4 March 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 disallowed his claim for either component of disability living allowance (DLA) from 23 June 1995. Leave having been granted by the Commissioner, having been previously refused by the Chairman of the DAT.
2. Briefly the facts are that the claimant is a man of 42 years of age who claimed DLA in June 1995 on the grounds that he suffered from congenital dislocation of the hip, osteoarthritis and high blood pressure.
3. The Tribunal held that he was not entitled to either component and in respect of the care component gave its reasons as:-

"Mr F... even on his own evidence today does not require

frequent attention throughout the day, nor attention for a

significant portion of the day. He is of normal intelligence,

can take precautions to avoid bringing on dizzy spells and

does not require anyone to supervision him by day.

As regards the cooking test - it is quite possible to rest

between the different stages of preparing and cooking a meal

and to sit down during the cooking. Mr F... does not

prepare and cook meals but he is able to do so.

Night needs were not put in issue and do not appear relevant.

All the above applies from 23 June 1995."

and in respect of the mobility component gave reasons as:-

"We find Mr F... to be a credible witness and accept his

verbal evidence today. The evidence does not in our view

establish virtual inability to walk. The overall walking

ability is too great before the onset of severe discomfort.

It is apparent that Mr F... can walk 50-100 yards before

severe discomfort, that the discomfort is alleviated by a

very short rest and that he can then continue. We do not

think a reasonable person could describe this as virtual

inability to walk.

Low rate mobility component was not put in issue and does not

appear relevant as Mr F... is of normal intelligence and

can take precautions to avoid dizzy spells.

All the above applies from 23 June 1995."

4. I arranged an oral hearing of the appeal at which claimant was present and was represented by Mr B... and the Adjudication Officer was represented by Mr Shaw.
5. Mr B... argued that the claimant had a number of adaptations around his house and that he was not applying for the care component, only for the mobility component. He said that claimant was in constant pain and that he was in severe discomfort when he started to walk and the pain got so severe that he had to stop. The Tribunal found him to be a credible witness and accepted his verbal evidence on the day. Nevertheless claimant laid emphasis on the halts he had to make when he was walking. Mr Shaw said he was not sure what the significance of these halts were, the duration of the halts might be important but not in this particular case. He said that the Tribunal were influenced by the Examining Medical Practitioner's report which was not in favour of the claimant.
6. I have considered all that has been said and I have read all the documents in this case. I initially granted leave to appeal because I was concerned at the approach taken by the Tribunal once the claimant had stated that he was in constant pain and the Tribunal said he was a credible witness. I found it difficult to reconcile that with the Tribunal's finding that he could walk a reasonable distance of between 50 and 100 yards without severe discomfort because it has been well established that severe discomfort is a less serious condition than pain. If the claimant is in pain at all times then he must be in severe discomfort when he begins to walk. I am satisfied therefore that the Tribunal erred in that regard. I therefore find that the Tribunal erred in law as stated. I allow the appeal and set aside the Tribunal's decision. I hesitate to give the decision which the Tribunal should have given and consider it more advisable to refer the matter back to be reheard by a differently constituted DAT.

(Signed): C C G McNally

COMMISSIONER

3 June 1997