Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C69/96(DLA) (7 November 1996)

 


Decision no: C69/96(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 for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of Ballymena Disability Appeal Tribunal dated 23 February 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. In this case the claimant seeks leave to appeal against the decision of Ballymena Disability Appeal Tribunal dismissing her appeal against the Adjudication Officer's decision on review, given on 10 August 1995, that she was not entitled to either the care or the mobility component of disability living allowance. I grant leave to appeal and, with the consent of the parties, treat the application as the appeal.
2. In reaching their decision on the care component of the allowance the Tribunal recorded the following findings of fact:-

"This lady had a heart attack in May 1994 and now suffers from a

post coronary thrombosis anxiety state. She is not severely,

mentally or physically disabled. She is physically capable of

attending to all her own bodily functions day and night without

assistance. Her fear is unreasonable and irrational. Her

ongoing chest pain is not angina or in any way related to her heart.

It is caused by indigestion and cartochordritis (sic). These conditions

do not cause a need for attention or supervision. They do not

render her unable to prepare a main cooked meal for herself and

she accepted that she could cope with saucepans for one person.

They are not life threatening and there is no need for continual

supervision. She has been prescribed Gaviscon and Keflex only.

She is not disabled by her Crohn's Disease. She cannot remember

the last time she fell. Her General Practitioner in his report

does not refer to other aches and pains mentioned by her so they

cannot be severe."

Their "reasons for decision" were:-

"We accept this lady genuinely believes she is severely ill

following her heart attack nearly 2 years ago but this is not

supported by the medical evidence. She has an anxiety state

but is not receiving any psychiatric care. She is not as disabled

as she feels and most of the time can attend unaided to her bodily

functions and cooking. Her complaints of dizzy spells and falls

are not supported by the medical evidence and are so rare as not

to justify continual supervision. Her chest pain is not life

threatening and does not justify continual supervision. At night

the attention is not prolonged or repeated normally. By day,

she feels the need for attention 2-3 days a week which is a

minority of days and not enough to justify an award."

In relation to the mobility component the Tribunal's findings of fact were:-

"This lady had a heart attack in May 1994 and now suffers from a

post coronary thrombosis anxiety state. This is not a severe

mental disablement. There is nothing physically to stop her

walking. The exertion of walking would not have a risk indeed

the doctors are encouraging her to take as much exercise as

possible. We believe that physically she can walk a reasonable

distance in a reasonable time and manner. We do not accept she

is restricted to 80 yards, or that this distance would take

10 minutes with 3 stops. Any chest pain is heart burn from her

oesophagitis or cartochonditis (sic) and these are not caused by

walking and do not worsen on walking. Her description of the

pain is not typical of either condition but Dr W(, Consultant

Cardiologist is quite clear (and we accept) that she does not

have angina. Her fear is unreasonable and irrational and we do

not accept she reasonably requires guidance or supervision for

most of the time on unfamiliar routes."

The "reasons for decision" were:-

"We think it was reasonable of the Adjudication Officer to allow

the high rate for a year after her coronary to allow for

recuperation.

However, she is now physically able to walk a reasonable distance

in a reasonable time and manner. She is not severely mentally

disabled and has no extreme behavioural problems. The pain she

complains of is not related to walking, is not angina but heart

burn and rib joint pain, does not render her virtually unable to

walk and does not justify guidance or supervision as she would

come to no harm walking on her own from such conditions. The

medical records show all tests are normal."

3. The grounds of the claimant's application for leave to appeal are set out in her letter of 5 June 1996, which is on the case file. Her principal criticism concerns the Tribunal's decision on the mobility component. It is said that they erred in law in basing their decision on an incorrect interpretation of the "guidance or supervision" requirement set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, (the Contributions and Benefits Act), which is in the following terms:-

"73(1) ... a person shall be entitled to the mobility component

of a disability living allowance for any period ... throughout

which -

(d) he is able to walk but is so severely disabled physically

or mentally that, disregarding any ability he may have to

use routes which are familiar to him on his own, he cannot

take advantage of the faculty out of doors without guidance

or supervision from another person most of the time."

Placing reliance upon the decision of the GB Commissioner in CDLA/42/94, the claimant submits that she was not required to establish a need for guidance or supervision in order to avoid danger or deterioration of health; but that it was sufficient for her to demonstrate that, without guidance or supervision, she would be unable to take advantage of the faculty of walking out of doors. She further maintains that the Tribunal were wrong to disregard her fear of falling or of walking unaccompanied because, in their opinion her fear was "unreasonable and irrational." In the claimant's submission the correct issue was whether her fear was genuinely held.

4. In response to an invitation to comment upon the application Mr G L Shaw, the Adjudication Officer now concerned with the case, accepts that the Tribunal's interpretation of the phrase "guidance or supervision" was too restricted. He further accepts that any guidance or supervision required out of doors might also qualify as attention for the purposes of the care component, and if the claimant's fears were genuinely held, the question was not whether they were unreasonable and irrational but whether they gave rise to a reasonable requirement for attention. Mr Shaw also raises a further point concerning the Tribunal's finding that the claimant's post coronary thrombosis anxiety state "is not a severe mental disablement", and that "she is not severely, mentally or physically disabled." The fine distinction between being severely disabled physically or mentally and being severely physically or mentally disabled has been explained by the GB Commissioner in Decision No: CDLA/926/94, and I agree that in this instance it is open to question whether the Appeal Tribunal adopted the correct approach. As the GB Commissioner has pointed out, they should first of all have considered whether the claimant was disabled physically or mentally, and then gone on to ask themselves whether, in consequence, she was so severely disabled that qualifying guidance, attention or supervision was required.
5. Having considered this matter, I agree that the Appeal Tribunal erred in law in only having regard to such guidance or supervision as might be required to enable the claimant to avoid danger or deterioration of health. As Mr Shaw has pointed out, supervision may include encouragement, support, comfort and reassurance. It was, moreover, incorrect for them to have regard only to such guidance and supervision as the claimant might rationally or reasonably require to enable her to take advantage of the faculty of walking out of doors. If the claimant suffers from a post coronary anxiety state and has genuine fears which prevent her from walking out of doors unaccompanied, that is sufficient for the purposes of section 73(1)(d) of the Contributions and Benefits Act. I further agree that, in considering the aggregate of the claimant's care needs, the Appeal Tribunal should have taken into account any need for guidance or supervision when walking out of doors.
6. Being satisfied that the Appeal Tribunal erred in law in the respects set out in paragraph 5 above, I allow this appeal and set their decision aside. I refer the case for determination by another Tribunal who should have regard to the views expressed in this decision.

(Signed): R R Chambers

CHIEF COMMISSIONER

7 November 1996