Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C11/97(DLA) (11 November 1997)

 


Decision No: C11/97(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 Dungannon Disability Appeal Tribunal dated 30 September 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer that claimant did not satisfy the conditions of either the care or the mobility component of Disability Living Allowance (DLA).
2. The Tribunal found as a fact, which was not in dispute, that claimant has chronic low back pain and suffers from degenerative disc disease and went on to record that:-

"... When has a flare up may require some help washing hair, dressing, out of chair if sits for 1/2 an hour or more and as noted by Examining Medical Practitioner. Alleges flare ups 3/4 days a week. This does not meet the criteria in Tribunal's opinion to satisfy high, low or middle rate care component as regards day or night attention..."

Claimant sought leave to appeal on the grounds that the Tribunal did not give proper attention to the medical evidence and the fact that even the Examining Medical Practitioner said that her bad days were 3 to 4 days a week which detailed the assistance which she needed on those days.

3. I held an oral hearing of the appeal at which the claimant was present and was represented by Mrs H.... The Adjudication Officer was represented by Mrs Moffett. Mrs H... said that there was ample evidence that claimant's condition had deteriorated from the last 18 months. Mrs Moffett cast doubt on the Tribunal's decision that flare ups of 3 to 4 days a week was not sufficient to meet the criteria and that one did not have to satisfy the conditions every day, but that an overall view must be taken as is laid out in Commissioner's Decision 1/95(IB).
4. I have considered all the documents in this case and I have considered all the evidence. I note that the Tribunal based its whole decision on its finding that they reject the appellant's evidence as they are of the opinion it is unreliable, whereas if one goes to the report of the Examining Medical Practitioner he says that there may be a degree of overlay and that she may be able to do more for herself than she outlined in her statement, but he went on to say that, however, he was inclined to give her the benefit of the doubt as she does describe a worsening of her symptoms since September 1995 (around the same time as her GP reports). He also recorded that her disability was 100 per cent physical.
5. I am satisfied that the Tribunal erred in thinking that 3 to 4 days flare up a week was not sufficient to bring her within the criteria for DLA and also the way it dealt with the medical report of the EMP. Consequently I allow the appeal and set aside the decision of the Tribunal.
6. I am satisfied that this is a proper case in which I should give the decision which the Tribunal should have given.
7. The Adjudication Officer, Mrs Moffett has been most helpful in this and having reviewed all the evidence and the evidence of the deterioration within the last 18 months she concedes that there is an entitlement to the middle rate care component and the lower rate mobility component and that those requirements arose from 1 June 1996. Allowing for the 3 months qualifying period her entitlement would then commence on 1 September 1996. The award therefore is the middle rate care and the low rate mobility from 1 September 1996 for life.

(Signed): C C G McNally

COMMISSIONER

11 November 1997