Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C71/96(DLA) (7 May 1997)

 


Decision No: C71/96(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 Disability Appeal Tribunal dated 7 August 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by Mr G L Shaw, the Adjudication Officer now concerned with the case, against the decision of the Disability Appeal Tribunal sitting at Belfast; whereby it was held that the claimant was entitled to the high (sic) rate of the care component of disability living allowance from and including 2 October 1995, but that he was not entitled to the mobility component. The claimant's mother, Mrs S Mc... is his appointee.
2. The grounds of the appeal are that the Tribunal erred in point of law by:-

(a) making an award of the highest rate of the care component on

the basis of findings that the disability conditions in

S72(1)(a)(i) of the Social Security Contributions and

Benefits (NI) Act 1992 (attention for a significant portion

of the day) and S72(1)(c)(i) (prolonged or repeated attention

by night) were satisfied. The middle rate only would be

payable on the basis of these findings. S72(4)(b) applies, and

(b) incorrectly applying the test in S73(1)(d) for the lower rate

of the mobility component. This requires consideration of the

needs for guidance and supervision in unfamiliar areas only.

3. Briefly, the background to the appeal is as follows:-

(i) The claimant had been in receipt of the highest rate of the

care component of disability living allowance from 22 September

1992 to 3 October 1994.

(ii) Following receipt of a renewal application, an Adjudication

Officer on 24 August 1994 disallowed the claim from and

including 4 October 1994.

(iii) A review was requested and on 25 October 1994 a different

Adjudication Officer reviewed the decision of 24 August 1994

but did not revise it.

(iv) On 2 October 1995 a further claim for disability living

allowance was submitted on the claimant's behalf.

(v) On 28 November 1995 an Adjudication Officer disallowed the

claim from and including 2 October 1995.

(vi) A review was requested and on 7 March 1996 a different

Adjudication Officer reviewed the decision of 28 November 1995

but did not revise it.

(vii) It was the claimant's appeal against the Adjudication Officer's

decision on review dated 7 March 1996 which was the subject of

the hearing before the Appeal Tribunal on 7 August 1996. As

stated in paragraph 1 above the claimant was awarded what I

assume to be the highest rate of the care component and the

mobility component was disallowed.

It should be noted that all claims by or on behalf of the claimant have been in respect of the care component of disability living allowance. He has never claimed the mobility component.

4. There has been no response from the claimant or his appointee to the invitation to submit written observations on the appeal.
5. It is clear from study of the Tribunal's decision that they did indeed err in law in awarding the claimant the highest rate of the care component of disability living allowance on the basis of their recorded findings of fact and reasons. As Mr Shaw has pointed out, satisfaction of the conditions of entitlement identified by the Appeal Tribunal did not qualify the claimant for such an award. The correct award was one of the middle rate of the care component. I accordingly allow this appeal and set aside the decision of the Appeal Tribunal.
6. So far as Mr Shaw's second ground of appeal is concerned, I would again refer to the fact that it was never at any time suggested by or on behalf of the claimant that he was entitled to the mobility component. As disability living allowance is a composite benefit, the Tribunal acted correctly in recording their decision on both components; but in view of the absence of any evidence of mobility needs they were in my opinion justified in dealing shortly with that aspect of the case. As Mr Shaw has pointed out, it was only necessary to consider the claimant's possible needs for supervision and guidance when walking out of doors over unfamiliar routes for most of the time. In this instance the Tribunal held that the claimant does not require supervision while out of doors for most of the time in respect of his mobility, and in my opinion that is sufficiently all-embracing to apply to the claimant's walking ability in both familiar and unfamiliar areas. I note, however, that the Tribunal omitted any reference to the absence of a need for guidance when the claimant was walking out of doors. I would regard the omission as a slip rather than an error in point of law; but it is something which I can easily correct under the power given to me by sections 32(4) and 21(7) of the Social Security Administration (Northern Ireland) Act 1992.

Although as stated in paragraph 5 above, I allow this appeal and set aside the decision of the Appeal Tribunal this is not, in my view, a case which requires to be referred to another Tribunal. Without making any fresh or further findings of fact in relation to the care component I can give the decision which the Tribunal should have given: namely, that the claimant is entitled to the middle rate of the care component from and including 2 October 1995. So far as the mobility component is concerned I further find as a fact that the claimant is not unable or virtually unable to walk and that he does not at any time require guidance or supervision from another person when walking out of doors over familiar or unfamiliar routes. I accordingly confirm that the claimant is not entitled to the mobility component from and including 2 October 1995.

(Signed): R R Chambers

CHIEF COMMISSIONER

7 May 1997