Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC A36/98(DLA) (29 January 1999)

 


Application No: A36/98(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 above-named claimant for leave to appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Disability Appeal Tribunal dated 11 June 1997
DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by Mrs A... for leave to appeal against a decision dated 11 June 1997 of a Disability Appeal Tribunal (herein after called "the Tribunal") sitting at Belfast.
2. The Tribunal had disallowed Mrs A...'s appeal against an Adjudication Officer's decision disallowing her claim for Disability Living Allowance.
3. My decision is that the application for leave is dismissed.
4. I held an oral hearing of the application. Neither Mrs A... nor her representative attended but Mrs Gunning of Central Adjudication Services attended to represent the Adjudication Officer.
5. The claimant's grounds for seeking leave are contained in a document attached to the OSSC1 (NI) form dated 28 November 1997 and were as follows:-

". They have failed to make sufficient findings of fact and

. Have failed to give adequate reasons for the decision.

As the Tribunal have failed to make sufficient findings of fact

and failed to give adequate reasons for the decision as required

by virtue of Regulation 26E(5) of Social Security (Adjudication)

Regulations 1986.

They have failed to explain why they have refused to accept my

evidence and the evidence of my GP in favour of the EMP's report.

They have failed to state adequate reasons why they preferred the

evidence of the EMP over my GP's evidence with regard to the cooking

test.

They have failed to state adequate findings of fact and/or reasons

why they concluded that I do not require guidance or supervision

when out of doors despite evidence pointing to the contrary.

They have failed to state adequate findings of fact and/or reasons

why they refused to award the mobility component at the lower rate.

They have failed to state adequate reasons why they failed to award

the care component at any rate.

For all these reasons I submit that the decision is erroneous in law

and should be set aside".

6. At hearing Mrs Gunning said she agreed with a couple of the points on the failure to make findings of fact and state adequate reasons but that she was not saying that Mrs A... would satisfy the conditions for an award of Disability Living Allowance. She thought prompting and encouragement had not been addressed.
7. Reading this decision as a whole and reading it against the background of the evidence given (and while I do not consider that the decision is well recorded) it does nevertheless explain to any reasonable person why the Tribunal reached the decision it did. In terms of the Tribunal's assessment of evidence it is quite clear reading the decision that the Tribunal preferred the Examining Medical Practitioner's report as it was supported by hospital records and accorded with the Tribunal's own views having observed the witness. This is a matter for the Tribunal and it appears to me that the Tribunal was perfectly reasonable in reaching the view that it did. Indeed over many matters there was no disagreement between the Examining Medical Practitioner and the claimant's own General Practitioner. There is very substantial discrepancy between the claimant's own evidence and that of his General Practitioner.
8. As regards the grounds relating to the cooking test, the Tribunal has indicated that it accepts the evidence of the Examining Doctor. That evidence is more than a mere opinion, it sets out clearly the observations which the doctor made ie full function of all limbs, the claimant was also able to bend and open the oven door and lift out a utensil on what she stated to be a bad day. In addition the Tribunal accepted the Adjudication Officer's submission in relation to same. That submission again highlighted the clinical findings of the Examining Doctor. While I would have strongly preferred the Tribunal to have set out expressly in its own words the reasons why it preferred the Examining Doctor's report it is nonetheless apparent to any reasonable person reading the decision why the Tribunal preferred that report. This was because of the clinical findings and observations made as opposed to the lack of detail in the General Practitioner's report. It is also worthy of note that the General Practitioner, while indicating problems with certain activities in relation to the cooking test, did not say that same could not be done.
9. With regard to the requirements for guidance or supervision when out of doors and the adequacy of findings of fact and reasons with relation to the low rate mobility component, again the Tribunal has adopted the argument set out by Mr McG... in the submission. In this case I am unable to find any error in law in the Tribunal so doing.
10. I do not consider that there is any error of law demonstrated by Mrs Gunning's point about the Tribunal failing to address issues of prompting and encouragement. I have dealt in previous decisions with the extent of a Tribunal's inquisitorial duty and in this case I do not think that issues of prompting and encouragement required to be explored further. Same were raised neither by the claimant nor most notably by her own doctor. Despite specific enquiries in the DLA additional section form the only mention was by the Examining Medical Practitioner in relation to a possibility of needing some prompting to wash and attend to personal hygiene. The claimant having specifically indicated in the DLA additional section form that this was not needed, I can see no reason why the Tribunal should have explored the matter further.
11. Any technical errors which there are in the decision did not in my view vitiate it and I can therefore see no point in my granting leave to appeal. I therefore dismiss the application for leave.

(Signed): M F Brown

COMMISSIONER

29 January 1999