Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C8/99(DLA) (23 November 1999)

 


Decision No: C8/99(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

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from a Tribunal's decision

dated 15 June 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by myself, by Mrs J... against a decision dated 15 June 1996 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. That Tribunal had awarded Mrs J... the low rate of care component and the low rate of the mobility component of Disability Living Allowance. An oral hearing of the appeal was not requested and having considered the papers I am satisfied that I can decide the matter without such oral hearing.
2. Mrs J...'s grounds of appeal were set out on the OSSC1(NI) form dated 25 November 1998. Observations were made thereon by Central Adjudication Services (CAS) on 14 April 1999 and further comment on CAS's observations were made by letter dated 20 May 1999 from Mr L… J..., Mrs J...'s son who was acting as his mother's representative.
3. The grounds of the appeal were:-

(i) That the Tribunal found Mrs J...'s application to be overstated.

(ii) That the Tribunal had therefore wrongly interpreted the legalisation and come to a decision based on insufficient evidence.

(iii) As a result of Mrs J...'s disablement she had fallen on the 6 August 1998. [This of course post-dated on the Tribunal's decision.]

4. CAS opposed the appeal.
5. In his further observations Mr J... amplified the grounds set out above. He also reiterated certain evidence that had already been given at the hearing.
6. I am unable to identify any error in the Tribunal's decision in the matters alleged on Mrs J...'s behalf. As regards ground (i), the assessment of evidence is a matter for the adjudicating body (in this case the Tribunal) and if it considers that a person is exaggerating it is perfectly entitled to this view and to say so. That is part of the adjudication role. A person may not agree with the assessment of evidence but that does not mean that the Tribunal is in error in making that assessment.
7. As regards to ground (ii), I consider that there was sufficient evidence on which the Tribunal could have reached the decision which it did. It appears to have taken all the evidence into consideration and as mentioned above what evidence it accepts as matter for the Tribunal.
8. As regards the third ground, the Tribunal cannot be in error for not taking into account incidents which happened after the Tribunal's hearing.
9. I do, however, consider that there was an error of law in this case. The Tribunal has recorded at point five of its Findings of Fact on the care component:-

"The tribunal find as a fact that the appellant gets up a

number of times per night to use the commode in her room,

the toilet being downstairs, and requires help with this

function. The tribunal also find as a fact that the

appellant might occasionally soil her bed sheets and

require help to change these. The tribunal find as a

fact that the appellant does not need anyone to awaken

her at intervals or remain awake to watch over her in

order to avoid substantial danger to herself or others."

10. Under the section heading "Reasons for decision" the Tribunal has recorded:-

"As noted above the tribunal have accepted that the appellant

needs some assistance in using her commode at night time, and

to have soiled sheets changed on her bed and that her immediate

family members, come in a caring and praiseworthy manner

provide such assistance. However, the tribunal is of the view

that the appellant (sic, I take this to mean attention) does

not amount to prolonged or repeated attention from another

person at night in connection with bodily functions."

11. The claimant's evidence in this respect was "I have fallen in the house. I have not hurt myself. I have a lightness in the head. Trying to get up from the toilet. I need help every night. My daughter changes the bed or the sheets. I don't do that at all. I rap the wall for my son. There is always one of my family with me. They help me out of bed. They empty the commode. I am never on my own in the house."
12. At a later stage of the evidence, I am not certain in respect of what, but it would appear in relation to night time attention Mrs J...'s stated "Ten minutes, three times per night." Her son who also gave evidence on her behalf stated "The carer has to perform other duties. Empty it (sic - I take this to mean the commode) every night. I would submit in total 20 minutes. A drink is always there. The sheets might need changed."
13. The Tribunal has stated that it did consider that the evidence of the claimant was not completely reliable and that it did not accept that she had limitations to the extent which she claimed. That view, as I stated above, the Tribunal was entitled to hold. It has nonetheless, accepted that Mrs J... needed some assistance in using her commode at night time and occasionally having soiled sheets changed. While the occasional changing of soiled sheets obviously relates to an occurrence which does not occur regularly and does not take place on the majority of nights, the question of the use of the commode does appear to be accepted as occurring a number of times per night on a regular basis. The Tribunal also appears to have accepted that Mrs J... needed help with this. That being so, I do not consider that the finding of facts are adequate as a basis for the decision made. It may be that the Tribunal considered that the attention required was only once or twice per night and was not therefore repeated. It may be that it considered that the time taken to carry out this attention was of such duration that it was not prolonged. Without more detailed findings of facts on this matter it is impossible for me to ascertain whether the Tribunal correctly applied the statutory conditions in section 72 (1)(c)(i) of the Social Security Contributions and Benefits (NI) Act 1992.
14. This decision should not be read at indicating that in every decision a Tribunal would had made inadequate findings of fact if it does not set out detailed findings on the number of times and the extent in terms of time of night attention. There may be cases when this is not necessary. It will all depend on the evidence. The standard is that a reasonable person reading the decision must be able to understand it, not necessarily to agree with it. In this case, however, for the reasons set out above I find that standard unfulfilled.
15. I set the decision aside for that reason and remit the matter to a differently constituted Tribunal. I direct the new Tribunal to bear in mind the above views.

(Signed): M F Brown

COMMISSIONER

23 November 1999