Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C67/97(DLA) (26 January 1998)

 


Decision No: C67/97(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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Strabane Disability Appeal Tribunal

dated 10 March 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application for leave to appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which held that claimant was not entitled to either component of disability living allowance (DLA).
2. A claim was first made in April 1996 for DLA on the grounds that B... suffered from chronic asthma, chest pains, headaches, dizzy spells and a shake in both legs. The Adjudication Officer disallowed the claim from 18 June 1996. A review was requested but the decision was not revised. Claimant appealed to a DAT which upheld the Adjudication Officer's decision. Against that decision the claimant now seeks leave to appeal on the grounds that the Tribunal erred in law in making incorrect findings of fact and not giving proper reasons for its decision. The Tribunal recorded findings of fact and reasons for its decision as follows:-

CARE COMPONENT

Findings of Fact

"B... has asthma and chest pain which is to be investigated but

it has been confirmed that there are no heart problems.

Her medication is volumax, pulmicort inhaler, serovent ponstan,

and triludan for hay fever. There is no medical evidence that

the appellant requires any help with bodily functions. No

evidence of any recent acute attacks. Has had 3 course of oral

steroids the last being one year ago. No evidence of any hospital

admissions. Should be able to use her inhalers unaided at her age.

No evidence needs help with bodily functions at night. Disturbed

sleep pattern doesn't give rise to care needs. Sleep walks at night

no medical evidence that this gives rise to care needs.

No need for supervision by day or night."

Reasons for Decision

"The Tribunal did not find that the care needs claimed were

substantiated by medical evidence.

We find that B... could attend to all her own bodily functions

unaided.

B... is too young to present a claim in respect of preparation

of a cooked main meal.

There was no medical evidence to support night care needs and we

did not find any to be established."

MOBILITY COMPONENT

Findings of Fact

"B... has asthma and chest pain which is to be investigated but

it has been confirmed that there are no heart problems.

Her medication is volumax, pulmicort inhaler, serovent ponstan,

and triludan for hay fever. There is no medical evidence that the

appellant requires any help with bodily functions. No evidence

of any recent acute attacks. Has had 3 course of oral steroids

the last being one year ago. No evidence of any hospital admissions.

Should be able to use her inhalers unaided at her age.

The Tribunal accept the General Practitioner Factual Report

assessment of the walking ability at 200 yards in 3-4 minutes.

There is no medical evidence that B...'s asthma particularly

severe or that her walking ability is restricted beyond this.

A girl of B...'s age should be able to administer her inhaler

unaided.

No evidence of any need for guidance or supervision."

Reasons for Decision

"Having seen B... and considered the medical evidence we were

satisfied that the medical evidence did not support the claim

made. We are satisfied that B... should be able to walk for

a reasonable distance of at least 200 yards in 3-4 minutes at a

reasonable speed and reasonable manner without severe discomfort."

3. I arranged an oral hearing of the application at which the Adjudication Officer was represented by Miss Moffett but the claimant was not present or represented. Mrs Moffett referred to the notes made by claimant's mother on the DAT8 form which showed clearly there was a dispute between what was said by the mother and what was said by the child's GP. Mrs Moffett said that the girl suffered from incontinency every night although that was not mentioned in the original claim but there was evidence before the Tribunal to that effect and the Tribunal failed to address that evidence. She said there was indications and evidence that the child was sleep walking every night and that that indicates that the Tribunal did not properly consider that because it said there was no medical evidence of care needs. There certainly was evidence of sleep walking which would raise the question of a care need. She also said that the evidence was that the girl needed help getting up and recovering after a fall and the Tribunal did not address this either. Mrs Moffett said that the Tribunal took the view that a girl of her age should be able to administer her own medication but that was a generalisation which may or may not relate to the claimant particularly.
4. Mrs Moffett accepted the Tribunal erred in not making the proper findings of fact. She said it would be helpful if this girl was medically examined.
5. I have considered all that has been said and I have read all the documents in this case. I think that Mrs Moffett's concession that the Tribunal erred as she said is quite correct and I accept her concession. I therefore grant leave to appeal.
6. I consider this is a proper case in view of the fact that the Tribunal erred in law to allow the appeal and to set aside the decision of the Tribunal and refer the matter back to be reheard by a different DAT. In view of the fact that the Adjudication Officer is of the opinion, which I share, that the Tribunal should have the advantage of medical evidence I would recommend to the Adjudication Officer that a proper examination be carried out and a full medical report be obtained before the case is relisted for hearing by a differently constituted DAT. The only medical evidence which was before the Tribunal was a form filled in by the doctor which, as far as I was concerned, was completely illegible.

(Signed): C C G McNally

COMMISSIONER

26 January 1998