Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2001] NISSCSC C5/01-02(DLA) (24 October 2001)

 


Decision No: C5/01-02(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 16 August 2000 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a decision dated 16^th August 2000 of an Appeal Tribunal sitting at Belfast. The Tribunal had disallowed the claimant's appeal in relation to Disability Living Allowance. It appears that the appeal related only to the mobility component of that allowance. The Tribunal disallowed the appeal and effectively disallowed Disability Living Allowance from and including 28^th January 1997.
2. In his appeal to me the claimant was represented by Mr Gibson of the Citizens Advice Bureau. The grounds of appeal were set out in an OSSC1 form dated 25^th January 2000. The grounds were that the Tribunal had given inadequate reasons for its decision. Mr Gibson submitted that the Tribunal had not adequately explained why it had rejected crucial evidence contained in two Examining Medical Practitioner's reports dated 27^th April 1998 and 17^th March 2000 respectively and in a General Practitioner's report dated 16^th February 1998. Referring to my decision C50/98(DLA) he stated that that decision supported the claimant's contention that as the evidence in question was crucial evidence, some reasons should have been given as to why the Tribunal rejected same.
3. In observations dated 15^th August 2001 Mr Toner of the Decision Making and Appeals Unit of the Department for Social Development supported the appeal on the grounds that the reasons for the decision were inadequate in that the decision lacked evidential assessment. Mr Toner submitted that this lack was highlighted as in his view the General Practitioner's report dated 16^th February 1998 and the Examining Medical Practitioner's report dated 27^th April 1998 appeared to be more representative of the claimant's condition in the earlier part of the period under consideration, than a later report dated 30^th May 2000 from Mr D… FRCS upon which, in Mr Toner's submission, the Tribunal had relied.
4. It may be of assistance in this case if I set out the section of the decision which purports to contain the Tribunal's reasoning. This is brief in the extreme. It is as follows:-

"This claimant does appear to have walking restriction in terms of distance and speed. It is noted that he complains of left ankle pain but Specialist Report does not indicate any objective feature to explain the pain."

In the section headed "Records of Proceedings" the Tribunal has made mention of reports of Mr H…, Mr D… and the two Examining Medical Practitioners. Mr H…'s report which was dated 15^th October 1997 is noted as pointing out that the fracture to the left fibula (which appears to be the main cause of walking limitation) did not involve the articular surface of the ankle joint and that he anticipated recovery over a period so far as the left ankle was concerned.

5. I would state at the outset that a Tribunal is entitled to rely on and to give weight to evidence as it sees fit. I note Mr Toner's comments on the dates of the medical report but Mr H…'s report is in fact earlier in time than the Examining Medical Practitioner and General Practitioner's reports. It may also be that Mr D…'s report would have bearing on the situation from the outset of the claim.
6. However, I do agree with both representatives that the Tribunal's reasoning is totally inadequate in this case. There is no indication as to what the Tribunal considered to be the level of restriction on the claimant's walking ability (it appears that only the mobility component was an issue in the case). There is also no indication that the Tribunal made any finding or reached any conclusion as to whether the claimant's condition had changed in anyway during the lengthy period before it.
7. I consider that the evidence of the various doctors was crucial in the case, as indeed was the claimant's own evidence as to his walking ability. None of this appears to have been properly assessed and there is no indication of the Tribunal's view of the true fact situation throughout the period before it. The decision is therefore not properly explained and I set it aside as in error of law for that reason.
8. It is with considerable reluctance that I yet again remit this matter to a differently constituted Tribunal. On the previous occasion when I dealt with this case (decision C7/99(DLA)) I directed the Tribunal to deal with the speed, distance, manner and length of time for which the claimant could walk without severe discomfort. That has not been done or at least not recorded. In light of the lengthy delay which this claimant has had to face in having his appeal decided and in light of the considerable public expense which the decision making process has involved to date, I would have preferred to decide the matter myself. However, I do not have before me the claimant's General Practitioner records and I do consider that it would be of considerable assistance in this case if these were available (though it is for the claimant to decide if he wishes to consent to their production). In addition the expertise of the medical member of the Tribunal would be of considerable assistance. I therefore remit this matter to a differently constituted Tribunal for re-hearing and re-determination. I direct the claimant's representative to indicate to that Tribunal for what periods it is submitted that the claimant satisfied the conditions of entitlement to the higher rate of the mobility component of Disability Living Allowance. The representative should also indicate whether or not he considers the conditions for the lower rate of the said component to have been satisfied for any period and if so for what period and on what basis.
9. I direct the Tribunal to make its own assessment of the evidence and to set out the reasons for that assessment.
10. I further direct the Tribunal to make findings as to the claimant's walking ability throughout the period which is in issue. It should then apply the concept of virtual inability to walk to the findings and reach and record its conclusions in accordance with the legislative provisions.
11. The Tribunal will, as this is a decision on appeal from an Adjudication Officer's decision under the old 1992 legislation, have to consider the matter from the date of claim to the date of hearing unless some other effective decision has intervened.
12. In light of the very long time delay in this case I would urge that the matter be listed for hearing as quickly as possible although that matter is outside my jurisdiction.

(Signed): M F Brown

COMMISSIONER

24 October 2001