Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C68/96(DLA) (28 July 1997)

 


Decision No: C68/96(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 Strabane Disability Appeal Tribunal dated 20 June 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) that she was not entitled to either component of disability living allowance (DLA).
2. The facts are that the claimant is a lady of 61 years of age who claimed DLA in January 1993 as she was suffering from arthritis, vertigo and hardening of the arteries. After she was examined by a Medical Officer on behalf of the Department she was awarded the higher rate mobility component of DLA from 15 January 1993 to 14 January 1995. She lodged a renewal claim in August 1994 and in October 1994 an Adjudication Officer reviewed the decision of 4 March 1993 and revised the decision by awarding her the middle rate care component and the highest rate mobility component both from 15 January 1993 to 14 January 1996. She lodged a renewal claim in August 1995 and was again examined by a Medical Practitioner on behalf of the Department in September 1995. As a result, the Adjudication Officer awarded her the lower rate care component from 15 January 1996. He did not award her any mobility component, but withdrew the higher rate mobility component which she had enjoyed up until January 1996.
3. A request for a review was received in October 1995 and a different Adjudication Officer reviewed the decision and revised the decision disallowing DLA altogether from 15 January 1996. Claimant appealed against that decision to a DAT. The Tribunal made findings of fact as follows:-

Mobility Component

"Claimant can walk at least 30 yards at a slow pace before stopping

to rest. She does not need guidance or supervision while walking

out of doors. She uses an umbrella for support. She has fallen

occasionally."

Care Component

"Claimant suffers from osteoarthritis and vertigo. She has

weakness in her wrists which causes difficulty with pots etcetera.

Bending to put things into or take things out of the oven causes

dizziness. The weakness in her wrists also makes it generally

impossible to peel vegetables. This has been a problem since

about January 1995.

She is able to cope with her other bodily functions although there

is a general stiffness which gives rise to some potential

difficulties."

and gave reasons for its decision as:-

Mobility Component

"Claimant is not unable to walk nor can she be regarded as

virtually unable to walk.

Social Security Contributions and Benefits (Northern Ireland)

Act 1992 Section 73."

Care Component

"Claimant is unable to prepare a main meal for herself because

of her inability to peel vegetables. Social Security

Contributions Benefits (Northern Ireland) Act 1992 Section 72."

As far as the care component is concerned the Tribunal awarded her the lowest rate. Claimant sought leave to appeal against that decision. The Chairman of the Tribunal refused leave to appeal and added the following comment - "Claimant's advisors might be referred to recent Commissioner's decision A97/95(DLA) for future reference." An application was then made to the Commissioner for leave to appeal which was granted.

4. I arranged an oral hearing at which claimant was present and was represented by Mr Brian McCaul of Citizens Advice Bureau. The Adjudication Officer was represented by Mr Shaw.
5. Mr McCaul argued that the Tribunal erred in failing to make sufficient findings of fact as to claimant's ability to walk and should have made findings in respect of distance, speed and manner. It did not take into account the fact that claimant had to hold on to things when she was walking.
6. Mr Shaw drew attention to the fact that this was a renewal claim and that the claimant had previously been awarded the higher rate mobility and that on her initial renewal claim she was awarded the lower rate care component but no mobility component. When she sought a review the care component was withdrawn and left her without any benefit at all. He said that the Tribunal should have explained why it came to a different conclusion from the conclusion of the Adjudication Officer in respect of the previous award, although it was not obliged to do so.
7. He accepted that a person who could walk 30 yards was a borderline case but that in reading the reasons for the decision claimant was left wondering why she did not get the benefit. He said that one could infer why she stopped for a rest, but no reason given in the Tribunal's decision. There was no finding relation to discomfort or pain, or the length of time which she had to stop before she could continue to walk. On all the evidence there is no suggestion that claimant is improving.
8. I have considered all that has been said and I have read all the documents and the medical reports. I refer firstly to the regulations which a person must satisfy before being entitled to mobility component. The relevant regulation, is regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992. Regulation 12(1) sets out the circumstances in which a person can be considered to be unable, or virtually unable to walk. Regulation 12(1)(a) reads:-

"(a) his physical condition as a whole is such that, without

having regard to circumstances peculiar to that person

as to place or residence or as to place of, or nature

of, employment -

(i) he is unable to walk,

(ii) his ability to walk out of doors is so limited,

as regards the distance over which or the speed

at which or the length of time for which or the

manner in which he can make progress on foot

without severe discomfort, that he is virtually

unable to walk, or

(iii) the exertion required to walk would constitute

a danger to his life or would be likely to lead

to a serious deterioration in his health; or ..."

9. It is quite clear the relevant portion in connection with this claim is whether or not claimant is able to walk the distance found by the Tribunal without severe discomfort.
10. This matter is discussed at length in the English Court of Appeal decision now known as the Cassinelli case, which sets out how one must consider the severe discomfort which a person suffers in walking. The evidence before the Tribunal given by the claimant was that she is restricted in her walking by pains in her legs up to her thigh. She said that she had pains in her legs and in her lower back. When she was walking for the Examining Medical Practitioner it was a small yard and she was holding on to things. The area was so small that there was not even room for a clothes line.
11. I now turn to the decision of the Tribunal and the reasons given for its decision in the care component, the Tribunal found that she has osteoarthritis and vertigo and awarded her the lower rate care component, but in the mobility component the findings merely refer to the fact that she can walk at least 30 yards at a slow pace before stopping to rest. At no point in the Tribunal's decision is severe discomfort mentioned or considered. There is certainly no finding as to the claimant suffering severe discomfort. This is despite clear evidence from the claimant and her doctor that she suffered from widespread osteoarthritis of the spine. The medical reports also refer to widespread osteoarthritis and pain ++.
12. I am satisfied that the Tribunal erred in not making proper findings of fact or proper reasons for its decision and I am satisfied that it erred in law in this regard.
13. At the hearing I granted leave to appeal and both parties having consented I treated the application as the appeal. For the reasons set out above I allow the appeal and set aside the decision of the Tribunal. In allowing the appeal I note the comment of the Chairman of the Tribunal relating to A97/95(DLA). I am surprised at that comment because if the Tribunal had read that decision then it would clearly have seen the relevance of findings in relation to severe discomfort.
14. I consider that this is a proper case in which I should give the decision which the Tribunal should have given. To enable me to do so I would require to make findings of fact relating to discomfort suffered by the claimant. To enable me to do so I have heard evidence from the claimant herself that she suffers from extensive and severe osteoarthritis. She is in pain all the time in her legs and hip. She is also in severe discomfort when she begins to walk, and suffers pain and discomfort on walking at all times.
15. I accept the evidence of the claimant as did Mr Shaw. In view of the fact that she had been previously awarded the higher rate mobility on the same evidence I am satisfied that she is entitled to the higher rate mobility and that she was so entitled from 15 January 1996. This corresponds with her entitlement to the lower rate care component from 15 January 1996, and both components are awarded for life.

(Signed): C C G McNally

COMMISSIONER

28 July 1997