Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C45/99-00(DLA) (27 March 2000)

 


Decision No: C45/99-00(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

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 27 November 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Tribunal to the effect that the claimant was entitled in relation to Disability Living Allowance to (i) the lowest rate of the care component for the period 2 March 1995 until 26 November 1998 and the middle rate of the care component from and including 27 November 1998 for life and (ii) the lower rate of the mobility component from 2 March 1995 until 23 June 1998 and the higher rate of the mobility component from and including 24 June 1998 for life.
2. Both parties consent to me treating the application as an appeal. Therefore, in accordance with regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as if it were an appeal.
3. The claimant originally made a claim for Disability Living Allowance on 2 March 1995 stating that he suffered from over production of red blood cells, arthritis in his hands, depression, hearing difficulties and general fatigue. After the completion of a report by his General Practitioner and an examination by an Examining Medical Practitioner, an Adjudication Officer on 18 May 1995 awarded the claimant the higher rate mobility component and the lowest rate care component of Disability Living Allowance from and including 2 March 1995. A request for review was then received on 14 June 1995. A further report was completed by the claimant's General Practitioner. On 4 September 1995 a different Adjudication Officer reviewed the decision dated 18 May 1995 but did not revise it. The claimant then appealed to a Tribunal. On appeal a Tribunal on 19 December 1996 awarded the claimant the lowest rate care component from 2 March 1995 for life and the lower rate mobility component from 19 December 1996 for life. However on appeal to a Commissioner the decision was set aside on 24 March 1998 and referred back to be reheard by a differently constituted Disability Appeal Tribunal. The matter came before a Tribunal on 15 April 1998 but was adjourned. The matter again came before another Tribunal on 24 July 1998, but again the case was adjourned. The reasons for the adjournments are not material to the present proceedings but there is no doubt that decisions to adjourn were for good and proper reasons. The matter finally came before a Tribunal again on 27 November 1998.
4. The Tribunal came to the following findings of fact material to its decision in relation to the care component:-

"At date of claim, 2.3.95 General Practitioner reported he had

polycythaemia and required monthly bleeding (venesection), had

a constant itch and tiredness. He was awarded lowest rate care

by the Adjudication Officer on 18 May 1995, confirmed by

Disability Appeal Tribunal on 19.12.96 and this seems reasonable.

Examining Medical Practitioner 9.5.95 confirmed help was needed

with cooking and bathing.

Now we have Dr F… report of 2.9.98 indicating considerable

daytime attention and cooking needs and we accept this as factual.

Doing the best we can, amidst a good deal of conflicting evidence,

we would accept that by today's date he has satisfied the

qualifying period for middle rate care."

The Tribunal gave the following reasons for its decision in relation to the care component:-

"There has been a deterioration and a change in the weight of the

medical evidence which originally justified the lowest rate of

care but now justifies the middle rate."

The unanimous decision of the Tribunal in relation to the care component was in the following form:-

"Appeal allowed.

[Claimant] is entitled to

(i) the lowest rate of the care component of Disability Living

Allowance for the period 2.3.95 - 26.11.98, and

(ii) the middle rate of the care component of Disability Living

Allowance from and including 27.11.98 for life for day

time attention or supervision.

Qualifying periods satisfied.

Any Disability Living Allowance already paid to be treated as paid

on account of this award."

5. The Tribunal made the following findings of fact material to its decision in relation to the mobility component:-

"At date of claim, 2.3.95 the medical evidence did not support the

award of high rate mobility (see General Practitioner 4.9.95 which

indicated a need for guidance or supervision). Social Security

Appeal Tribunal on 19.12.96 allowed low rate mobility 19.12.96

for life and that seems to have been correct at the time on the

evidence available.

However now we have Dr F… report of 2.9.98 and this indicates

a physical deterioration in mobility around 24.3.98 and we accept

from that date he has been virtually unable to walk (see Mater

Infirmorum Hospital records for 24.3.98)."

The Tribunal gave the following reasons for its decision in relation to the mobility component:-

"Doing the best we can with a lot of conflicting evidence, going

back nearly 4 years!, we feel low rate mobility was the correct

award until this year when there is medical evidence of

deterioration and virtual inability to walk, in addition to a lot

of psychiatric evidence about his mental state."

The unanimous decision of the Tribunal in relation to the mobility component was in the following terms:-

"Appeal allowed.

[Claimant] is entitled to

(i) the low (sic) rate of the mobility component of Disability

Living Allowance for the period 2.3.95 - 23.6.98, and

(ii) the high (sic) rate of the mobility component of Disability

Living Allowance from and including 24.6.98 for life.

Qualifying periods satisfied.

Any Disability Living Allowance already paid to be treated as paid

on account of this award."

6. The claimant, who is now represented by Ms Loughrey of the Law Centre (NI), sought the leave of a Chairman to appeal to a Commissioner on the following grounds:-

"I respectfully submit that the decision of the tribunal was

erroneous in law as follows:

In their decision dated 10 February 1999 the tribunal have not

stated whether account was taken of my night time care needs

despite strong and compelling evidence which was available in the

form of a report from Dr F… of 2 September 1998.

In not stating whether account was taken of my night time needs I

respectfully submit that the Tribunal have erred by failing to

provide adequate findings of fact and reasons for their decision."

Leave to appeal was refused by a Chairman on 1 June 1999.

7. Ms Loughrey, on behalf of the claimant, then sought the leave of a Commissioner to appeal.
8. Mr Toner, the Adjudication Officer (now the Departmental Official) concerned with this case, made two relevant written submissions by letters dated 10 October 1999 and 31 October 1999. The relevant submission, in relation to this case, is set out in the second letter and is in the following terms:-

"... since the commencement of his claim it had been consistently

claimed either by or on behalf of [claimant] that he had night-time

needs. Because the Tribunal accepted the EMP report dated 2

September 1998 as factual as regards daytime and cooking needs,

and as the EMP report also indicated night-time needs at pages 18,

19 and 20 I submitted that it was incumbent on them to make findings

of fact regarding night-time needs. If the Commissioner accepts

that my submission is correct I consider that this is an appropriate

case to remit to a different Tribunal for determination. My

reasons for this view are as follows:

There is strong evidence in [claimant's] favour in the

form of the EMP report dated 2 September 1998 which would

indicate considerable day-time and night-time needs from

a date before the commencement of the qualifying period

that proceeded the date of the Tribunal's hearing on 27

November 1998.

In a previous appeal in this case, Commissioner McNally

held that the Tribunal had erred in law in relation to the

care component by not dealing with whether there was a

requirement for reassurance, prompting or motivation

(see Commissioner's decision C43/97(IB), paragraph 5).

The Tribunal did not deal with these matters."

9. If the claimant has relevant night-time needs, potentially an award of the highest rate care component can be made in such circumstances by reason of the provisions of section 72(1)(b) and (c) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
10. I accept that Mr Toner has accurately set out in his written submissions quoted herein the fact that the Examining Medical Practitioner's report has indicated night-time needs. I therefore agree with Ms Loughrey and Mr Toner that the Tribunal has erred in law by not making the necessary findings of fact regarding night-time needs.
11. In the circumstances I allow the claimant's appeal against the decision of the Tribunal on the grounds that its decision is erroneous in point of law and I set it aside. I refer the case to a differently constituted Tribunal for redetermination. This Tribunal should take into account the contents of this decision and should also bear in mind that Mr Commissioner McNally, in a previous appeal in this case, held that a Tribunal hearing this matter ought to at least consider "if there is a requirement for reassurance, prompting or motivation", as the Tribunal of 27 November 1998 does not appear to have addressed its collective mind to this issue.

(Signed): J A H Martin

CHIEF COMMISSIONER

27 March 2000