Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C3/98(AA) (24 September 1998)

 


Decision No: C3/98(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE 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

Belfast Disability Appeal Tribunal

dated 16 June 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. In this case the claimant seeks leave to appeal against the decision of the Appeal Tribunal, whereby it was held that the claimant was not entitled to an award of Attendance Allowance from and including 22 October 1996.
2. On 22 October 1996 the claimant made a claim for Attendance Allowance stating that he suffers from partial deafness. On 28 October 1996 an Adjudication Officer disallowed the claim from and including 22 October 1996. A request for review was received on 12 November 1996. On 10 December 1996 the claimant was examined by an Examining Medical Practitioner. On 19 December 1996 a different Adjudication Officer reviewed the decision of 28 October 1996 but did not revise it. On 4 February 1997 Mr S... C... Jnr purported to appeal this decision. On 23 February 1997 the Independent Tribunal Service deemed this appeal to be invalid as Mr C… Jnr had no right of appeal. On 4 March 1997 the claimant appealed against the decision and this appeal was confirmed by the claimant on 2 April 1997.
3. At the appeal hearing the claimant was neither present nor was he represented.
4. On appeal, the Tribunal found the following facts material to its decision:-

"Claimant in this case had appealed against the Adjudication

Officer's decision to disallow Attendance Allowance from and

including 22 October 1996. Claimant did not attend the Tribunal

hearing but the General Practitioner's notes and records were

available. Claimant suffers from reduced hearing in his right

ear for which he uses a hearing aid. He has full function of all

limbs with a slight impairment of the right lower leg. He is

safely mobile indoors, able to self-medicate and can attend to all

his bodily functions without help. There is no history of any

falls and he does not require any assistance or supervision by

day or at night."

The Tribunal gave the following reasons for its decision:-

"Despite his years we feel can cope quite well in terms of his

bodily functions. We accept the views expressed by the

Examining Medical Practitioner who saw claimant on

10 December 1996. That being the case claimant cannot

satisfy the requirements in relation to Attendance

Allowance."

5. Mr C... Jnr on behalf of his father applied to the Chairman of the Tribunal for leave to appeal this decision to a Commissioner. Leave was refused on 25 September 1997 whereupon Mr C... Jnr made a similar application for leave to appeal to a Commissioner. Mr C... Jnr made the following submissions on behalf of his father in support of his application for leave to appeal:-

(i) The claimant is incapable of looking after himself without

assistance of his son Mr C... Jnr.

(ii) The claimant is suffering from a mental deterioration which

has affected his memory.

(iii) The Examining Medical Practitioner was incorrect in concluding

that the claimant only has slight forgetfulness.

(iv) The Examining Medical Practitioner was incorrect in concluding

that the claimant's hearing is only slightly impaired.

6. I gave an opportunity to the Central Adjudication Services to make observations on the claimant's application for leave to appeal. Mr G L Shaw made the following points in a letter dated 10 January 1998:-

"I submit that the tribunal were entitled to reach the decision

that they did on the evidence before them. The tribunal accepted

the report of the Examining Medical Practitioner, and the evidence

in this report would not have supported an award. It is a pity,

however, that Mr C…'s son did not attend the tribunal hearing.

He made it clear in correspondence that he was not in total

agreement with the report, and that he would like to have given

evidence to the Examining Medical Practitioner. The tribunal

hearing would have given the opportunity to remedy this.

The need for attention due to Mr C…'s declining mental state

was raised several times by Mr C…'s son. Indeed mental

capabilities featured as the ground for appeal. Again, it is

a pity that the tribunal did not have the opportunity to enquire

into these aspects.

Nevertheless, the tribunal cannot be said to have erred by virtue

of having insufficient evidence to arrive at their decision. They

had the evidence in the papers, which included the report of the

Examining Medical Practitioner and the various letters from

Mr C…'s son. They were, in my opinion, perfectly entitled to

rely on the medical report. I do feel, however, that in the

light of what I have said in the preceding paragraphs it would

have been preferable had the tribunal chairman recorded findings

and reasons which would have enabled Mr C... to understand how

the tribunal concluded that he can attend to all his bodily

functions without help. I would similarly liked to have seen

findings and reasons as to supervision, especially in the light

of the evidence of forgetfulness and the evidence of the Examining

Medical Practitioner as to a requirement for supervision (page 22)."

7. I arranged an oral hearing of the application for leave at which the claimant was represented by Mr S... C... Jnr and the Adjudication Officer was represented by Mrs Hazel Moffett.
8. Mr C... Jnr expanded on his submissions maintained in the written application for leave to appeal and, in particular, stated that it was unfortunate that he himself did not attend the Tribunal hearing, his non-attendance being attributable to illness. He also submitted that his father was not capable of living on his own. Mrs Moffett adopted Mr Shaw's submissions contained in his letter of 10 January 1998 and reiterated the concern that, while the Examining Medical Practitioner had noted that the claimant required supervision, the Tribunal had not dealt with this issue.
9. It is noteworthy in this case that the Tribunal specifically found that the claimant does not require any supervision or assistance by day or at night. In addition the Tribunal accepted the views expressed by the Examining Medical Practitioner who saw the claimant on 10 December 1996. However, the Examining Medical Practitioner specifically found that the claimant "needs - "full meal" preparation and supervision from son." It is possible that the Tribunal overlooked this finding as the copy document of the Examining Medical Practitioner's report that was produced to me on this application for leave to appeal was somewhat difficult to read.
10. To satisfy the criteria for the higher rate of Attendance Allowance a person must be so severely disabled, physically or mentally, that throughout the day he requires frequent attention from another person in connection with his bodily functions or he requires continual supervision from another person to avoid substantial danger to himself or others; and at night he requires prolonged or repeated attention from another person in connection with his bodily functions or he requires another person to be awake for a prolonged period or at frequent intervals to watch over him to avoid substantial danger to himself or others - Sections 65 and 66 (and in particular Section 65(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).
11. To satisfy the criteria for the lower rate of Attendance Allowance a person must be so severely disabled physically or mentally, that throughout the day he requires frequent attention from another person in connection with his bodily functions or he requires continual supervision from another person to avoid substantial danger to himself or others; or at night he requires prolonged or repeated attention from another person in connection with his bodily functions or he requires another person to be awake for a prolonged period or at frequent intervals to watch over him to avoid substantial danger to himself or others - also Sections 65 and 66 (and in particular Section 65(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).
12. It is clear that the legislation and the facts of the case (in particular the reference by the Examining Medical Practitioner to supervision) has made supervision an issue in this case. Regrettably I conclude that the Tribunal has not dealt adequately with this issue. The Tribunal appears not to have dealt with the matter at all save to state that the claimant does not require any assistance or supervision by day or night even though the Examining Medical Practitioner has specifically stated that the claimant needs supervision from his son.
13. In relation to the other points raised by Mr C... Jnr, I conclude that the Tribunal did not err in law as the Tribunal was required to come to a decision in light of the evidence before it and cannot take into account, for obvious reasons, facts that were not drawn to its attention. I would agree with Mr Shaw that it is unfortunate that Mr C... Jnr did not attend the Tribunal hearing where he could have made the points which he has endeavoured to make before me at the present hearing.
14. In the circumstances I grant leave to appeal and, the necessary consents having been given in accordance with Regulation 5(3) of the Social Security Procedure Regulations (Northern Ireland) 1987, I proceed to determine the questions of law arising on the application for leave as though they arose on appeal and as though the application were an appeal.
15. For the reasons stated at paragraph 12 I conclude that the decision of the Tribunal was erroneous in point of law. I allow the appeal and set aside the decision of the Appeal Tribunal and remit the case for rehearing and redetermination to an entirely differently constituted Appeal Tribunal. That Tribunal will have the opportunity of dealing with all relevant issues, including those raised by Mr C... Jnr before me at this hearing. In light of the passage of time since the original appeal hearing it would be appropriate for up-to-date medical evidence to be available to assist the freshly constituted Tribunal in its deliberations.

(Signed): J A H Martin

CHIEF COMMISSIONER

24 September 1998