Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C4/98(DLA) (23 January 1998)

 


Decision No: C4/98(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

Dungannon Disability Appeal Tribunal

dated 26 March 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal to the effect that the claimant was not entitled to either component of disability living allowance. I arranged an oral hearing at which the claimant was represented by Miss Michelle Wilson of Disability Action and the Adjudication Officer was represented by Mr G L Shaw. At the hearing I granted leave to appeal. Both parties consent to me treating the application as an appeal.
2. Therefore, in accordance with regulation 5(3) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, I treat this application as if it were an appeal.
3. Briefly the facts are that the claimant, who is a 38 year old married woman, has back problems. On 12 March 1996 she had a laminectomy, and, though she has had a reasonably good post-operative recovery and result, she still suffers from low back pain. She lodged a claim for disability living allowance but this was rejected by an Adjudication Officer in September 1996. Although the claimant sought a review and this was carried out the decision was not revised.
4. The claimant appealed to a Disability Appeal Tribunal. The Appeal Tribunal rejected the appeal and decided that the claimant was not entitled to either the care component or the mobility component of disability living allowance.
5. The Tribunal Chairman refused leave to appeal to a Commissioner. The claimant sought leave of a Commissioner for leave to appeal. I arranged for an oral hearing of the application for leave. At the hearing Miss Wilson stated that she only wished to proceed on the appeal relating to the care component of disability living allowance.
6. Miss Wilson submitted that there were three grounds of appeal, namely:-

(i) the Tribunal's decision contains an incorrect proposition in law with

reference to the care component;

(ii) the decision is supported by no evidence; and

(iii) the Tribunal had failed to state reasons for its decision.

7. The Tribunal's decision was as follows:-

"Appeal disallowed. The decision of the Adjudication Officer

dated 6 December 1996 is confirmed. The claimant is not

entitled to any rate of care component of Disability Living

Allowance at any time since 26 July 1996."

8. The findings of fact material to the decision of the Tribunal were stated as follows:-

"The claimant underwent a laminectomy at L5/S1 on 12 March 1996.

She made a good post operative recovery and result, and was

discharged from orthopaedic review on 8 May 1996. She saw

Mr E… again in September 1996 but no further treatment was

proposed. We accept the findings on examination of the

Examining Medical Practitioner in his report dated 13 December

1996 at page 8 and his opinion as to limb function at page 10.

We accept that the claimant always suffers from pain in her

low back and she would have occasional exacerbations when she

would have to remain in bed, the last occasion being in

October 1996. She is particularly stiff in the mornings.

We find that by day that she would require assistance to get

out of bed and to dress her lower garments. She would

sometimes, but not always need help undressing. We find that

the claimant can otherwise attend to all her own bodily

functions by day unaided. She could plan a meal, turn on

taps, peel and chop vegetables and meat from a sitting position,

use a cooker, and lift pots and pans containing sufficient

food for herself. She could stand for a sufficient time to

cook a meal for herself, sitting down as necessary. The

claimant has no occupational therapy aids. She has no stairs.

She uses a stick at times. She is able to drive. At night the

claimant rises to use the toilet on 2-3 occasions. We accept

that at times she would require assistance to sit up in bed, but

we do not accept that this help would be required on most

nights. We find that on most nights she could get out of bed

and use the toilet without assistance.

She is mentally competent and aware of dangers. She has no

history of falls."

9. The reasons for the Tribunal's decision were stated to be as follows:-

"Whilst we accept that even after she had her laminectomy, the

claimant still has pain and loss of function in her back,

nevertheless requires minimal attention in connection with

bodily functions, the attention being mainly required in the

mornings when her back is particularly stiff, and we are unable

to conclude that she requires attention for a significant

portion of the day, so as to entitle her to even lowest rate

care component. She should be able to toilet herself at night,

although would sometimes require help to sit up in bed. We

do not consider that this attention would be required

sufficiently frequently so that it could be regarded as

frequent attention on most nights, and the attention would never

be prolonged. Neither the claimant's General Practitioner, as

evidenced by his report of 8 September 1996, nor the Examining

Medical Practitioner who examined her on 13 December 1996,

consider that she requires more than very minimal attention in

connection with bodily functions."

10. Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 states, inter alia, that a person shall be entitled to the care component of the disability living allowance for any period throughout which "he is so severely disabled physically or mentally that, at night, he requires from another person prolonged or repeated attention in connection with his bodily functions;" section 72(1)(c)(i).
11. Miss Wilson submitted that in light of her problems getting to the toilet at night she required repeated attention in connection with her bodily functions.
12. The claimant consistently made the point that she had difficulty getting to and using the toilet at night and also had problems with incontinence. The Examining Medical Practitioner, in his report confirmed to some extent that the claimant had the problem that she alleged and his report is in no way contradictory to any of her allegations. However, Dr B…, in his factual report as the claimant's General Practitioner, did not support the claimant's case. However, a Dr K… produced a report for the Tribunal hearing which would be more supportive of the claimant's case. This doctor apparently is Dr B…' partner. The claimant at the Tribunal hearing specifically made the point that she had to get out of bed to go to the toilet at least 3 times a night and that her husband had to give her assistance in getting out of bed. In light of the decision of the Northern Ireland Chief Commissioner in R1/72(AA) on the meaning of the word "repeated" it seems relatively clear that the Tribunal, if it accepted the claimant's evidence, supported by the Examining Medical Practitioner and Dr K…, could decide in favour of the claimant on the grounds that "she is so severely disabled physically .... that, at night, (she) requires from another person ... repeated attention in connection with (her) bodily functions."
13. In its decision the Tribunal has failed to say whether the claimant's evidence, and the support from the Examining Medical Practitioner and Dr K…, was accepted or rejected, or whether Dr B…' evidence in the factual report was accepted or rejected. In light of the decision of the Tribunal of Commissioners in Great Britain in case R(SB)8/84 at paragraph 25(3), it is important for a Tribunal to state whether such evidence is accepted or rejected.
14. The Tribunal in its reasons has referred to attention being required frequently and to frequent attention. It is also referred to whether or not attention would ever be prolonged. However, section 72(1)(c)(i) refers to whether or not attention is "prolonged" or "repeated" and does not mention whether or not attention is "frequent". Section 72(1)(b), when referring to day-time attention, uses the word "frequent" when referring to attention. Miss Wilson, in her submissions, suggested that the Tribunal was, in this case not applying the appropriate test but was partly applying a test that was not relevant in this case. In any event, Miss Wilson submitted that it was not clear that the Tribunal applied the correct test to the facts of this case.
15. Mr Shaw on behalf of the Adjudication Officer did not take issue with any of the points made by Miss Wilson.
16. In the circumstances I am satisfied that the Tribunal's decision is erroneous in law because (1) I am not satisfied that the Tribunal applied the appropriate test to the facts of this case, namely the test set out in section 72(1)(c)(i); and (2) the Tribunal has failed to decide whether it should accept or reject the evidence of the claimant, and supporting evidence, that she has substantial difficulties going to the toilet at night and, accordingly, has failed to record appropriately its findings of fact and grounds of decision.
17. I allow the appeal and set aside the decision of the Tribunal for the reasons given herein. Accordingly, I refer the matter back to a differently constituted Tribunal for a rehearing and this new Tribunal should have regard to what I have said in the course of this decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

23 January 1998