Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C19/03-04(DLA) (15 March 2004)

 


Decision No: C19/03-04(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 19 September 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the unanimous decision of the Tribunal, affirming the decision of the decision maker, to the effect that the claimant is entitled to the higher rate mobility and the middle rate care component of disability living allowance (DLA) from 28 October 2001 until 27 October 2003. Leave to appeal was granted by a Commissioner on 9 October 2003.
2. The claimant made a renewal claim in respect of the period from 28 October 2001 on 7 June 2001 in which she indicated that she suffered from severe fibromyalgia, depression and incontinence. After a report was completed by her General Practitioner the claimant was examined by an Examining Medical Practitioner on 6 September 2001. On 16 September 2001 it was decided that the claimant satisfied the conditions of entitlement for the higher rate mobility and middle rate care component from 28 October 2001 until 27 October 2003. She had been in receipt of the top rate of both components from 28 October 1998 until 27 October 2001. On 19 January 2002 the decision of 16 October 2001 was reconsidered but it was not changed. Thereupon the claimant appealed to a Tribunal.
3. The Tribunal affirmed the decision at a paper hearing.
4. Having considered the circumstances of the cases I am satisfied that this appeal can properly be determined without a hearing.
5. In the application for leave to appeal the claimant put in issue whether the Tribunal erred in law by not accepting that she also had night-time needs and therefore erred in not awarding the highest rate of the care component.
6. This case can be dealt with fairly shortly. On 2 September 2003 a Legal Officer had directed the Department, through the Decision Making and Appeals Unit, to consider specifically the Tribunal's treatment of the Examining Medical Practitioner's report dated 6 September 2001 and, in particular, to answer the following questions: -

"(a) Are there any inconsistencies in the report in general and in particular between pages 18 and 15?

(b) If so, was the Tribunal obliged to explore any such inconsistencies, and did it do so adequately or at all?"

7. Mr Toner, of the Decision Making and Appeals Unit, replied, inter alia, as follows: -

"In response to the … direction I have looked at the EMP report dated 6 September 2001 and in particular pages 15 and 18. In connection with night needs the EMP stated on page 15 that [the claimant] could, without someone's help, turn in bed, move position in bed and replace the cover/pillow. On page 18 he stated that each night on 1 or 2 occasions she needed help to get out of bed to go to the toilet for 10 minutes at a time and that on 2 occasions she had to be repositioned (in bed) for 3 minutes at a time. I did not detect any other inconsistencies in the report.

I have again examined the reasons for decision and the Tribunal clearly rejected the evidence from [the claimant] as regards her care and supervision needs during the night in view of the medical evidence available. The reasons also show that the Tribunal, when assessing night needs, accepted the EMP's opinion and calculated that [the claimant] required attention during the night 2 times each night for 3 minutes at a time. The Tribunal did not accept that such attention amounted to prolonged or repeated attention and quoted Commissioners' decisions C64/98(DLA) and CDLA/521/1995 as authority.

It now appears to me that the Tribunal, when calculating [the claimant's] night needs, accepted the EMP's opinion in respect of requiring help with repositioning in bed amounting to 2 times every night for 3 minutes at a time as the full extent of the attention and did not take account of the attention required on one occasion each night to get out of bed to go to the toilet.

In view of the aforementioned … for the reasons given above, I submit that the Tribunal erred in law and that its decision should be set aside and the appeal referred to a differently constituted Tribunal for determination."

8. The claimant, who is not represented, has not taken issue with the Departmental submission.
9. In my view Mr Toner is correct in his submissions. The Tribunal in this case explicitly relied on the report of the Examining Medical Practitioner to be preferable to other evidence, even though within the report there is an inherent contradiction. Accordingly, in my view, the inconsistencies in the report required some further explanation by the Tribunal before it could base its findings on the report. Therefore I conclude that Mr Toner is correct in his submission that the Tribunal erred in law. This conclusion deals in substance with the point made by the claimant (now set out at paragraph 5 herein).
10. In the circumstances, for the reasons stated herein, I conclude that the Tribunal's decision was erroneous in point of law. Accordingly I set the Tribunal's decision aside and refer the case to a differently constituted Tribunal for a rehearing on the merits.

(signed):J A H Martin QC

Chief Commissioner

15 March 2004