Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C73/96(DLA) (7 May 1997)

 


Decision No: C73/96(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (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 31 July 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 higher rate of the mobility component of disability living allowance from and including 4 May 1995; but that he was not entitled to the care component.
2. The Tribunal's findings of fact on which their decision was based were recorded as follows:-

"The claimant is now 18. On 15.10.87 he had his left leg amputated

above the knee and wears a prosthesis. He has just completed a

motor mechanic course. He wears a prosthesis and it rubs him and

irritates him upon walking a reasonably short distance. His stump

is prone to rash and ulcers and he falls. He says today 2-3 times

a week. He told the Examining Medical Practitioner 2-3 times a

month. He has no major injuries from falling - always minor

abrasions. He has Osgood Slates (sic) below right knee and walking

can hurt it. He has low back muscular pain most days. Walking

500 yards to his work experience garage hurt the right leg and he

had to stop and rest. He has no actual pain in his stump more an

irritation. He can manage for himself in his care needs but

carrying food - rather than preparing it - is a problem as is

bathing and lower garments but for the most part he can cope."

Their "reasons for the decision" on the mobility component were:-

"This young man's evidence on his own behalf is given honestly

and personably it is accepted. He fails to prove care needs but

his mobility needs are proven. He cannot manage 200 yards without

severe discomfort in his stump and right knee when he then must

rest and go on. As such he satisfies higher mobility test and

has done so since at least 4.2.95 and will continue to do so."

3. The grounds of Mr Shaw's appeal against the Tribunal's decision are:-

"The facts found were such that no tribunal acting judicially

and properly instructed as to the relevant law could have come

to the determination in question. The reasons given by the

tribunal appear to indicate that the claimant cannot walk

200 yards without severe discomfort. In decision number

CM/379/89 the Commissioner held that while the decision of

virtually unable to walk was basically for the tribunal,

"it was never designed to - and does not - embrace those who

can walk 60 or 70 yards without severe discomfort ... I

have certainly upheld MAT decisions where the relevant

distance was 40 yards.""

4. The claimant's written observations on the appeal are set out in his letter dated 1 January 1997. Not surprisingly, he supports the Tribunal's decision. He also maintains that he would not in fact be able to walk 200 yards without severe discomfort, and suggests that the Tribunal "used 200 yards as a figure of speech".
5. Having considered this matter I am satisfied that the Tribunal's decision to award the claimant the higher rate of mobility component of disability living allowance was one which, on the facts as found by them, no Tribunal, acting judicially and properly instructed as to the relevant law, could reasonably have reached. In my view the Tribunal's error in this regard was largely the result of their failure to record adequate findings of fact and reasons for decision as required by regulation 29 of the Social Security (Adjudication) Regulations (Northern Ireland) 1995. The claimant was clearly able to walk, and accordingly the issue was whether he was virtually unable to do so. In deciding that issue the Tribunal were required to have apply the provisions of regulation 12(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, (the DLA Regs), which are as follows:-

"Entitlement to the mobility component

12.-(1) A person is to be taken to satisfy the conditions mentioned

in section 73(1)(a) (unable or virtually unable to walk) only in the

following circumstances -

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

regard to circumstances peculiar to that person as to place of

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

(b) ..."

In the circumstances of this case I would have expected the Tribunal to have recorded their finding as to the distance beyond which the claimant was unable to walk without severe discomfort, and to have reached a definite finding of fact as to whether or not, having regard to that distance and the speed and manner of his walking, he was "virtually unable to walk". The nearest that the Tribunal came to recording relevant findings of fact was the statement in their "reasons for decision" that the claimant "cannot manage 200 yards without severe discomfort in his stump and right knee when he then must rest and go on." I am satisfied that that finding did not justify their decision that the claimant satisfied the higher mobility test, and that there were no other recorded findings of fact which might have entitled them to reach that decision. They accordingly erred in point of law.

6. For the reasons given in paragraph 5 above I allow this appeal and set aside the decision of the Appeal Tribunal. I have considered whether I should exercise my power to make fresh or further findings of fact and give my own decision on the claim; but have reached the conclusion that I should not adopt that course. It is in my view fair to say that, on the evidence in the case file, the claimant would be most unlikely to qualify for either component of disability living allowance; but one of the purposes of a Tribunal hearing is to enable the claimant to present additional evidence and arguments. I consider that the claimant in this case should be afforded that opportunity, and I accordingly refer the case to another Tribunal. Technically speaking, all issues will be open; but it seems likely that the only question will be whether the claimant is "virtually unable to walk" within the meaning of regulation 12 of the DLA Regs. In reaching their decision on that matter the Tribunal should bear in mind the views of the GB Commissioner in CM/379/89 that, while the decision is theirs, the term "virtually unable to walk" was never designed to - and does not - embrace those who can walk 60 or 70 yards without severe discomfort."

(Signed): R R Chambers

CHIEF COMMISSIONER

7 May 1997