Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2004] NISSCSC C1/04-05(DLA) (12 October 2004)


 


Decision No: C1/04-05(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 30 July 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against a decision of the Tribunal, affirming a decision of a decision maker, to the effect that the claimant was not entitled to any rate of the mobility or the care component of disability living allowance (DLA) from and including 20 November 2002.
2. Leave to appeal was granted by a Commissioner on 19 May 2004. The substantive reasons for granting leave to appeal were as follows: -

"It is arguable that the decision was wrong in law, because the Tribunal did not deal with the issue of the lower rate mobility component of Disability Living Allowance in light of the evidence before it."

3. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
4. In this appeal the claimant is represented by O… R… & Company, Solicitors, while the Department is represented by Mr Kirk of the Decision Making and Appeals Unit.
5. The Tribunal gave the following reasons for its decision in relation to the mobility component: -

"The appellant was previously entitled to high rate mobility. She suffers from asthma and states that she cannot walk too far due to shortness of breath. In her claim form of February 2002 she indicated that she would have to stop after 5 to 10 yards and it would take her 5 minutes to cover this distance. In her evidence today she estimates that she could walk about 20 yards. We do note the evidence from Dr G where he states that the appellant is very breathless on little exertion or at rest but we completely reject the appellant's evidence that her condition results in the high level of disability which she claims. Her claims are not consistent with the medical evidence which resulted from clinical examination. In particular, in the General Practitioner notes and records there is documentation confirming that she was capable of walking 400 metres in 6 minutes in September 2002, and in a very recent walking test she accepts in her own evidence that she walked for about three quarters of a 400 metre distance before having to stop. The Examining Medical Practitioner's evidence also confirms that, in his opinion, she is capable of walking 200 metres most of the time. We conclude therefore that the appellant has grossly exaggerated the effects of her condition. The available clinical evidence persuades us that she no longer satisfies entitled to high rate mobility in that she is not virtually unable to walk and accordingly grounds for supersession are established and the appeal is disallowed."

6. The Tribunal gave the following reasons for its decision in relation to the care component: -

"The appellant has stated in the documentation and her evidence that she has considerable care needs. We reject her evidence. We find that she has exaggerated the effects of her condition. Her evidence is not consistent with the available medical evidence. In particular, the Examining Medical Practitioner carried out a clinical examination and expressed the opinion that the appellant was able to attend to her own bodily functions safely and unaided for most of the time. The appellant states that she was nervous and told the Examining Medical Practitioner things which were inaccurate in that she could do things for herself. We do not find this explanation convincing and as already stated clinical examination did not reveal any areas where the appellant reasonably required help. We also note that the General Practitioner factual report contains information that the appellant normally sleeps downstairs and does not cook but it is not stated that she would reasonably require help with any particular bodily function. If she did have significant care needs, as she has stated, it would be reasonable to presume that this would be documented on the factual report.

We are satisfied, on the available medical evidence, that the appellant no longer satisfies the conditions for entitlement to the care component of Disability Living Allowance at any rate and accordingly grounds for supersession are established and the appeal is disallowed."

7. The Legally Qualified Member (and Chairman) made the following record of proceedings: -

"1. DOCUMENTS CONSIDERED:

Department's submission.

General Practitioner notes and records.

Letter from Dr D 29.7.2003.

2. RECORD OF PROCEEINGS [including evidence considered and details of the adjournment application (if any)]

Representative

Want you to look at High Rate Mobility and Middle Rate Care.

[Claimant]

I have shortness of breath all the time. I also get asthma attacks maybe twice per month. I use inhalers and I have to take anti biotics when I have chest infections. When I walk I get shortness of breath. I need someone with me all the time. I do drive but not very often. I need someone to lean on. Normally I don't be out of the house. I sleep downstairs. I did a walk test on Monday – there is a report – I walked along with a nurse. The walk was on the level and they did tests on me. The nurse walked along beside me holding onto a machine.

I live alone but my sister and sister in law come in to help me out everyday. I can't do anything about the house. I need help getting up everyday. On a good day I could wash my face but everyday I need help putting on my clothes. I couldn't use the bath because of shortness of breath. I need help to get to the toilet. I couldn't cook because of the steam and I couldn't stand long enough.

My sister helps me to get ready for bed.

I told the Examining Medical Practitioner I could do things for myself but I was nervous and said things which weren't right.

I had to stop about twice during the walking test. I fell last December and had to go to Casualty. I took a vertigo attack at home and fell and hurt my ankle. I was told not to go out on my own. When I was doing the walking test I would have been about three quarters the way through the test when I had to stop because of shortness of breath.

Most days I could walk only about from here to the front door at reception (query 20 yards).

Nothing further to add."

8. In my view there is only one issue in this case, namely, whether the evidence in the case raised the issue of lower rate mobility component and whether the Tribunal erred by not dealing with this matter.
9. The relevant legislation in relation to the mobility component of DLA is governed by section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992. While it is somewhat simplistic to make the following statement, for the purposes of this case the higher rate of mobility component is paid to persons who cannot walk at all or have difficulties walking. However, the provisions of section 73 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and in particular section 73(1)(d), make it clear that the lower rate mobility component is available to a person who:

"Is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."

10. The Department in this case do not support the appeal. It accepts, in light of the decision of Mrs Commissioner Brown in C12/01-02(IB), at paragraph 28, that a Tribunal is obliged to deal with issues that are clearly apparent. However, the Department has submitted that, as the Tribunal had come to the conclusion that she had exaggerated her condition, there was no clear evidence relating to entitlement to the lower rate mobility component that required any further explanation or investigation.
11. On the other hand the claimant's solicitor has argued that it was incumbent on the Tribunal to consider, at the very least, the lower rate entitlement and that the Tribunal had erred in not so doing.
12. I do not find this an easy case to decide but on balance I have come to the conclusion that there is merit in the claimant's solicitor's argument. I come to this conclusion bearing in mind that the finding of "exaggeration" relates to the claimant's ability to walk and not to the need for guidance/supervision.
13. In the circumstances, for the reasons set out 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

12 October 2004