Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C20/98(DLA) (30 April 1998)

 


Decision No: C20/98(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 claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Belfast Disability Appeal Tribunal dated 16 December 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application for leave to appeal 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. Claimant is aged 34, has a serious heart complaint, vertigo, back trouble and has walking difficulties. Doctors certified that he suffers from transportation of great vessels and chest pain, Supra Ventricular Tachycardia and Dyspnoea. It is also clear from his self-assessment form that he suffers from psychological problems and depression.
3. The Tribunal found as a fact that he suffered from heart trouble, vertigo, and back trouble but unfortunately he did not attend the hearing. The Tribunal made their decision on the General Practitioner's notes and records together with what it described as "the factual report contained in the written documentation dated 16 August 1996." It recorded that he walked slightly slower than normal, at a slower pace but that he could walk a reasonable distance without stopping or severe discomfort in that he did not require guidance or supervision out of doors. It also referred to a Consultant Neurologist's examination of 1995. The Tribunal gave reasons for its decision as follows:-

"Despite claimant's medical problems the tribunal are convinced that

claimant can walk a reasonable distance out of doors slightly slower

but without severe discomfort and without stopping. This distance

would be certainly more than 50 yards. There is no evidence to

suggest that he requires guidance or supervision while out of doors

and similarly no evidence that he requires any attention or

supervision either by day or night. His General Practitioner has

expressed these opinions and we accept those views. Similarly

we accept the General Practitioner's opinion that he can safely

prepare a main cooked meal. Both aspects must therefore be

disallowed."

4. Claimant now seeks leave to appeal against that decision on the grounds that the Tribunal erred in law. I arranged an oral hearing at which the Adjudication Officer was represented by Mrs Gunning and the claimant appeared but was not represented.
5. Mrs Gunning said the Tribunal was in a difficult position because the claimant had not attended. It had to base its decision on the GP notes and what it referred to as the factual report which dealt with claimant's physical needs. However, in the self-assessment form claimant recorded that he was suicidal nearly every day but the Tribunal did not refer to any psychological needs despite the fact that the GP stated that depression was an active problem. Mrs Gunning felt that the Tribunal should have considered claimant's needs in this regard.
6. Mr S... explained the problem with his heart to us and said that he suffered from dizzy spells. As a result of these dizzy spells, he depended upon his mother or a friend to go with him when he went out, but did not need anyone with him at night. He said he could only walk a very short distance and he had to stop because of pain. He was ever conscious of his heart condition and was always anxious not to put himself at risk. He also stated that he suffered severely from depression.
7. I have considered all that has been said and I am satisfied that the Tribunal did the best it could with the limited information it had, but had it gone to his self-assessment form it would have been put on notice about the psychological needs and the depression which the claimant suffers. It is settled law that the Tribunal's function is inquisitorial in order to reach the correct entitlement of the claimant. (See Page -v- Chief Adjudication Officer reported in full as appendix to R(SB) 2/92). It is therefore the Tribunal's duty to consider - any point which can properly be made in favour of the claimant (see R(SB) 2/83). I have also considered what the Tribunal referred to as the "factual report" from claimant's doctor. This factual report in fact records claimant's complaints and merely says that he can walk on level ground indoors, rise from a suitable chair, get in and out of bed, dress and undress, transfer in and out of a wheel chair and attend to his own toilet needs. I would say that there was never any dispute about any of those activities. The question relating to his walking ability is not whether he can walk on level ground or not.
8. In any event I am satisfied that the Tribunal neglected to take into account the claimant's psychological needs and depression. I therefore grant leave to appeal and with the consent of both parties, treat the application as the appeal. I am satisfied that the Tribunal erred in law as I have stated above and I allow the appeal.
9. I set aside the decision of the Tribunal and refer the matter back to be reheard by a different DAT, which shall take account of all claimant's medical conditions.

(Signed): C C G McNally

COMMISSIONER

30 April 1998