Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C7/99(DLA) (3 September 1999)

 


Decision No: C7/99(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 18 August 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by a Chairman, against a decision dated 18 August 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had allowed Mr M...'s appeal against a decision dated 17 October 1997 by an Adjudication Officer which reviewed but did not revise an earlier decision of 8 April 1997 disallowing Disability Living Allowance from 28 January 1997. The Tribunal allowed the lowest rate care component from 30 March 1997 for life.
2. An oral hearing was not requested in this case and having read the case papers I consider that same was not required. Mr M...'s grounds of appeal were contained in the OSSC1 (NI) form dated 18 December 1998 and a letter dated 11 May 1999 from his representative Mr G....
3. The Adjudication Officer was represented by Mrs Moffett of Central Adjudication Services who made observations on the grounds of appeal on 31 March 1999.
4. Mr M...'s grounds of appeal were that the Tribunal had failed to state if it had accepted or rejected an examining medical practitioner's report which the presenting officer had said would lead to an award of the high rate of mobility component if accepted by the Tribunal. The Tribunal had given no reasons for its treatment of the report and had failed to make adequate findings of fact.
5. Mrs Moffett submitted that while the Tribunal did not specifically state that it rejected the examining medical practitioner's report in respect of the mobility findings, this could easily be inferred from the decision and she referred me in that connection to Decision A36/98(DLA) in support of the principal that technical errors in the record do not necessarily vitiate a decision. Mrs Moffett was, however, of the view that the findings of fact and the reasons for decision in relation to the high rate mobility component were somewhat inadequate in that some explanation should have been given for the apparent rejection of crucial evidence, ie. the asserted severe discomfort on walking and recent deterioration. She referred me to Decision C50/98(DLA) in support of these views.
6. With regard to the examining medical practitioner's report I agree with Mrs Moffett that it was quite easy to infer that same was rejected at least in respect of the mobility findings. I should also mention that I find the report somewhat unsatisfactory in that the examining doctor on being asked for his opinion on the claimant's walking ability before the onset of severe discomfort at part 5 of the relevant report does not give his opinion but records his observations. There is also a very obvious discrepancy at part 3 of the report in terms of the function of the left lower limb; the function gradings would indicate full function of the lower leg, ankle and foot and yet under the observations column the left ankle is reported as "all movements painful and restricted. Long scar lateral aspect about 9". Ankle swollen. Numbness in 2 small toes (due to surgery)". It is nonetheless apparent that the examining doctor considered that the claimant was not overstating his limitations. It is implicit in the Tribunal's decision that it rejected this report and though I would strongly have preferred the reasons for rejection to be given, it could be understood that it did so in light of the treadmill test for angina in October 1997 though it has not dealt with the claimant's comments on the test.
7. I do however consider that there was an error in the Tribunal's decision. This error relates to the findings on the claimant's walking ability. The findings of fact state:-

"He can walk 50 - 60 yards before having to stop because of sudden

cramp-like pain in his left ankle."

In the reasons for the decision it is stated:-

"He can walk 50 - 60 yards before sudden onset of increased pain."

The claimant's representative at the hearing had stated:-

"Weight bearing is the problem: severe discomfort is experienced

before he has to stop: then severe pain."

The appellant had stated:-

"Could walk 50 - 60 yards. Stopped by pain in ankle. No

change in condition. Treadmill test for angina in October

1997 - walked for almost 4 minutes. Very slow speed and in

pain - 100 yards."

8. The Tribunal has not at all dealt with the issue of when severe discomfort came about. It should have done so. This may be before the claimant has to stop and in fact, that was the specific submission in this case yet the Tribunal's findings and reasons do not deal with that. On the other hand the Tribunal may consider that the claimant stopped as soon as severe discomfort came about. That is a matter for the Tribunal but it should clearly record its conclusions as to the walking ability without severe discomfort.
9. I do not consider that this is a case where it is appropriate that I give the decision which the Tribunal should have given. I therefore remit this matter to a differently constituted Tribunal which should decide the matter bearing in mind the views set out above and in particular should deal with the speed, distance, manner and length of time for which the claimant can walk without severe discomfort and with any other issues that arise in this case.

(Signed): M F Brown

COMMISSIONER

3 September 1999