Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C18/99(DLA) (3 February 2000)

 


Decision No: C18/99(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
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 9 December 1998
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the Tribunal Chairman, by the claimant against a decision dated 9 December 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had disallowed the claimant's appeal in relation to his claim for Disability Living Allowance and had decided that he was not entitled to the allowance from and including 6 May 1998.
2. The claimant appealed by means of an OSSC1 (NI) form dated 19 March 1999. His grounds of appeal were three-fold and as follows:-

(i) That the decision was inequitable and unfair as not being consistent with decisions given in similar sets of circumstances.

(ii) That the Tribunal placed to much emphasis on the distances of walking recorded by his GP and himself many months ago, and failed to take account of his updated evidence on walking limitations.

(iii) That he suffered from the late effects of Poliomyetis.

3. Mrs Gunning of Central Adjudication Services, representing the Adjudication Officer, made comment on the appeal by letter of 1 November 1999.
4. With regards to the first ground Mrs Gunning stated that every claim for benefit was considered individually on its merits and there was nothing to indicate that the Tribunal in this case did not approach and handle the case in the proper manner. She submitted that there was no merit in the first ground.
5. As regards the second ground, Mrs Gunning stated that the reasons for the decision clearly showed why the Tribunal preferred to accept the claimant's original evidence of his walking ability to the evidence which he gave at the hearing. The decision also showed that the Tribunal was aware of the legal criteria to be considered in deciding whether someone could be regarded as being virtually unable to walk. She submitted that there was no merit in this ground.
6. The claimant made further observations on Mrs Gunning's comments by letter dated 17 November 1999. Much of these observations consisted in comment on the "late effects of Polio and Post-polio Syndrome". The claimant also commented that he did not doubt that each claim for benefit was considered on its merits but from knowledge of other decisions, he was not convinced that an equitable standard was being applied in similar cases, nor that all successful claimants were genuine. As regards the second ground he submitted that he could not now walk any distance without pain and was annoyed that there was a refusal to accept his up-dated evidence especially as there had been no medical examination.
7. I am unable to find any error of law on the grounds contended by the claimant. The Tribunal did, as it was correct in law to do, deal with this case on its individual merits. A claimant for benefit, may feel aggrieved that others, who are perceived to be in similar circumstances, have received an award or that others, who are perceived to be less affected than the claimant have received an award. That does not mean there was an error on the part of the Tribunal. The full facts of other cases may not be known, other cases may be given awards on the basis of evidence which is inadequate or untrue, the variety of circumstances is considerable. A Tribunal cannot say that it does not think that a claimant is entitled to an award but because someone else has received it in similar circumstances it will make an award. That would be an error of law and it is one which the Tribunal did not commit in this case.
8. As regards the claimant's second ground of appeal, it is quite apparent that the Tribunal has considered all the evidence put before it and has decided that it preferred the written evidence. This it was perfectly entitled to do and it has given clear reasons why it did so. The Tribunal has not erred in law in this respect.
9. I do, however, consider that there has been an error in law in another respect. This is in relation to the Tribunal's failure to apply decision C34/98(DLA). The claimant had clearly raised the issue of the applicability of the low rate mobility component due to risk of falling when walking out of doors. This was clearly set out in his DLA claim form and at hearing. The Tribunal has found, as it was obviously entitled to do on the evidence, that the claimant was able to go out alone. That, however, is not the end of the matter. The question at issue is whether a reasonable person would permit the claimant to go out walking on unfamiliar routes without guidance or supervision most of the time. The Tribunal stated "... Commissioner's decision CDLA/757/1994 in any event makes it clear that a propensity to falling is not grounds in any event for an award of low rate mobility component based on supervision grounds."
10. For the reasons set out in decision C34/98(DLA) I do not consider that a propensity to fall can be ignored in deciding whether or not a person is entitled to low rate mobility component.
11. I therefore set the Tribunal's decision aside as in error of law and remit the matter for rehearing before a differently constituted Appeal Tribunal. That Tribunal should, if it accepts the claimant's evidence as to falls, apply C34/98(DLA). It should ask itself the three questions set out at paragraph 9 of that decision with the modification that the word "completely" in the third question is, in my view, tautologous. With that modification the said questions are:-

(1) Can the claimant walk?

(2) Is the claimant so severely disabled physically or mentally that, disregarding his ability to use familiar routes on his own, he is actually unable to walk out of doors without guidance or supervision most of the time?

(3) Is the claimant so severely disabled physically or mentally that, disregarding his ability to use familiar routes on his own, it would be unreasonable to expect him to walk out of doors without guidance or supervision most of the time?

12. It may also depending on the evidence have to consider factors such as the ability to prevent falls e.g. by resting, use of sticks etc., the frequency of falls, the likely effects of any fall, previous history and the effects of any previous falls whether or not the person does walk outdoors without supervision - this list is not exhaustive or prescriptive. Not every person who has a tendency to fall will satisfy the statutory conditions, each case must be considered on its facts to ascertain if the statutory conditions are met.
13. The Tribunal should also bear in mind paragraph 9 of GB Commissioner's Decision CDLA/2643/1998 where the Commissioner states:-

"Three parts of the test which appear to me particularly relevant to this kind of case and to place limits on the application of the provision, are: "cannot"; "supervision" and "most of the time". Use of "cannot" in the test rules out a mere preference to have a companion when walking outdoors ("I would prefer to have someone with me"): the claimant must be found able to say- "I cannot walk outdoors without someone with me." Further, the need is for "supervision", which involves more than mere accompaniment - something in the nature of over-seeing. So "I need someone to accompany me" is not sufficient: it has to be something like "I cannot walk out of doors without someone to keep an eye on me". Then there is the further requirement of "most of the time". So it needs to be, "I cannot walk outdoors without someone to keep an eye on me most of the time."

14. A submission to the Tribunal by the decision maker covering the application of C34/98(DLA) would no doubt be of assistance. It also appears that the Tribunal when considering the matter will only be able to consider the circumstances applying at the date of the Adjudication Officer's decision under appeal i.e. the decision of 13 August 1998. If the claimant feels that his condition has worsened since that date, he may wish to consider lodging a further application for Disability Living Allowance. That is a matter for the claimant and any advisor he may have.

(Signed): M F Brown

COMMISSIONER

3 February 2000