Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C4/03-04(DLA) (4 November 2003)

 


Decision No: C4/03-04(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 15 October 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the Chairman, against a decision of the Appeal Tribunal sitting at Coleraine on 15 October 2002 ("the Appeal Tribunal"). For the reasons which I am about to give, that decision is erroneous in point of law. I therefore allow the appeal and set aside the decision below. I remit the matter to a differently constituted Tribunal ("the new Tribunal") and direct that there be a complete rehearing.
2. The question, which the Appeal Tribunal was required to address, was whether the claimant was entitled to either or both components of disability living allowance (DLA). She had made a claim for that benefit on 25 January 2001. The claim was unsuccessful and she appealed. After an adjourned hearing to enable further medical evidence to be obtained, her appeal came before the Appeal Tribunal, which consisted of three members, on 15 October 2003. The unanimous decision of the Appeal Tribunal was to dismiss the appeal.
3. The claimant then sought permission to appeal to a Commissioner. Her grounds of appeal were that the claim pack which she had completed contained references to falls and that, in consequence of such references, the Department's representative had made the following express submission to the Appeal Tribunal.

"I respectfully request the Tribunal to investigate fully if [the claimant] has a history of falls and if she is presently at risk [as] to falls."

The Appeal Tribunal did not, however, carry out such an investigation or even refer to the matter.

4. Permission to appeal was granted by the Chairman. In granting permission he added the following, very fair, comment. "Point of law: The issue of risk as a result of falls was not fully investigated by the tribunal." Although I think it probable that the Chairman was merely stating that the point was arguable, I think his comment is correct. The Appeal Tribunal's statement of facts and reasons makes no mention of falls and there is no reference to them in the Chairman's note of the evidence. I am satisfied that the question was not explored at the hearing.
5. Nevertheless, I have sympathy with the Appeal Tribunal. The evidence about the claimant's falls was not particularly forcefully presented in her original evidence and she made no reference to falling when before the Appeal Tribunal. That body might be pardoned for overlooking the matter and, possibly, thinking that it was no longer relied upon. I would be reluctant to allow the appeal were it not for the fact that the Department has lodged well argued submissions supporting the appeal on the grounds of error of law because of a failure to consider the question of falls. Those submissions satisfy me that it is right to allow the appeal and set aside the decision of the Appeal Tribunal.
6. I remit the matter to the new Tribunal. If the question of falls is still a live issue, then the new Tribunal must investigate and make appropriate findings. The only person who knows about her falls is the claimant. She is, therefore, the only person who can obtain and lodge evidence about this aspect of her appeal. She is now on notice that, unless the point is abandoned expressly, the new Tribunal will expect to hear evidence about any falls she has had and any propensity to fall which she says that she suffers from. If there is any evidence which confirms what she says, and in particular medical evidence, details thereof should be lodged in advance of the new hearing.
7. For these reasons, I allow the appeal and remit the matter to the new Tribunal for rehearing.

(signed): J P Powell

Deputy Commissioner

4 November 2003