Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2004] NISSCSC C48/03-04(DLA) (14 September 2004)

 


Decision No: C48/03-04(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 12 February 2003 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by myself, by the claimant against a Tribunal decision dated 12 February 2003. The Tribunal decided that grounds existed on 29 September 2001 to supersede a Departmental decision dated 18 September 1998. It decided that the claimant was entitled to the lowest rate care component of disability living allowance (DLA) for the main meal test from and including 8 August 2001 this being the effective date of supersession. With regard to the mobility component of DLA the Tribunal disallowed the claimant's appeal. It decided that grounds existed on 29 September 2001 to supersede the Departmental decision dated 18 September 1998. It decided that the claimant was no longer entitled to the mobility component of DLA from and including 8 August 2001, this being the effective date of supersession. DLA being one benefit, this was a composite decision.
2. The background to the case was that the claimant had, on 18 September 1998, been awarded the higher rate of the mobility component and the lowest rate of the care component from and including 22 October 1998 (this was a continuation of an earlier award on a renewal claim, that earlier award being for the period 22 April 1997 to 21 October 1998). The claimant had, on 8 August 2001 made application for supersession of the award on the basis that she had cardiac problems. The decision of 18 September 1998 was reconsidered but the Department decided not to change it. Its decision to that effect was made on 29 September 2001 and the claimant then appealed to the Tribunal.
3. In its submission to the Tribunal the Department included the following paragraphs: -

"[The claimant's] self-assessment of her walking ability on the most recent form (Tab No 5) is consistent with her previous statement. In view of this I submit it would appear that the existing indefinite award of higher rate mobility component would appear to be appropriate.

However I would respectfully ask the tribunal to consider all the evidence available to them on the day of the hearing and determine whether the existing indefinite award of higher rate mobility component continues to be appropriate."

4. When the Tribunal came to hear the appeal it had before it the claimant's medical notes and records. These included the findings of an exercise stress test conducted at Tyrone County Hospital. This test was undertaken in July 2001 and the claimant completed 7 minutes 28 seconds of the Bruce Protocol. The Tribunal held an initial hearing on 14 May 2002 and adjourned in order that a report could be obtained from Dr R..., Consultant Physician, Tyrone County Hospital, Omagh or from another Consultant Physician nominated by the Appeal Service to deal with the following: -

(a) claimant's general medical condition

(b) her ability to walk

(c) her ability or otherwise to dress, undress, wash, bath, shower and use the toilet.

5. At the resumed hearing on 12 February 2003 the Tribunal again had the medical notes and records and it also had the report requested from Dr R... which was dated 6 September 2002. That report recited the claimant's cardiac history and made a review of the claimant's notes relating to a "sprain" of her right ankle in 1993. It also made more detailed comment on the cardiac investigations and in particular on the treadmill test. Dr R... stated: -

"Other cardiac investigations which have been undertaken have included a 24 Hour Arrhythmia Tape performed in December last year for what was described as "palpitations". There was no evidence of any paroxysmal tachycardias, asystole or bradycardias on that tape. In July 2000 she underwent a treadmill test and completed 7minutes 28 seconds of the Bruce Protocol indicating good exercise tolerance [I agree with the Tribunal and indeed it has not been contested before me, that this is a misprint for July 2001]. The reason for stopping was chest pain radiating into both arms. The maximum ST Segment Depression was 1.6 mms in the inferior leads. We did not feel that this was a strongly positive treadmill test at that time but did indicate mild angina in Stage 3 of the Bruce Protocol. Echocardiograph showed no obvious cardiac chamber enlargement with no left ventricular hypertrophy. The mitral, aortic and tricuspid valves appeared normal. There was trivial mitral regurgitation on doppler and the global ejection fraction was 72%.

In summary therefore this lady has previous history of myocardial infarction with some post-infarct angina. In addition she has difficulty with walking because of a painful right leg and ankle which appears to be longstanding and which she attributes to having sprained her ankle many years ago. This has been investigated by Orthopaedic Surgeons, a Rheumatologist and MRI Scan revealed no gross significant disease affecting the ankle. Her risk factors are being well controlled by her General practitioner and she is being reviewed regularly at the Cardiac Clinic. Her ability to walk appears to be largely determined by her leg and ankle pain for which she is receiving treatment.

It would appear that the various treatments over the years have not produced much improvement despite the fact that there was no obvious severe underlying lesions detected.

She should be able to dress, undress, wash and shower herself provided she takes her time and follows the advice which she has been given.

I feel that she may well require assistance from time to time particularly if she goes out shopping as excessive exercise, lifting or carrying would almost certainly bring on some angina. She uses the treatments that she is on appropriately and at the present time her cardiac status is static with no marked deterioration. My feeling is that if she did not have her leg discomfort her walking ability may well be impaired by angina and it is the difficulty walking that restricts her getting more effort related angina."

6. The Department at the adjourned hearing on 14 May 2002 had referred specifically to the conflict between the apparent inability to walk and the exercise stress test findings in July 2001, i.e. the 7 minutes at stage 3. At the resumed hearing the Departmental representative is quoted as stating: -

"Accepts that Dr R... is inconclusive re walking. As for Care Component no evidence to justify any award."

7. The Tribunal made the decision set out above and the claimant has appealed to me. The initial grounds of appeal were contained in an OSSC1 form received in the Commissioners' Office on 4 August 2003. The claimant is represented in the appeal to me by Mr Brennan of DAIS Limited. The grounds contained in the OSSC1 form are set out in a letter dated 22 June 2003 attached to that form and signed by Mr Brennan. They are as follows: -

(1) The record of proceedings for the two hearings gives no indication that the claimant was warned that her award of benefit in relation to the higher rate of the mobility component was at risk and the statement of reasons is silent with regard thereto.

(2) The Tribunal preferred the evidence of the exercise tolerance test when formulating its opinion on the claimant's walking ability. In the record of proceedings the claimant made representations as to the difficulties which she had in carrying out the test and in particular she had to hold on to two bars. The Tribunal erred in law by failing to consider the way in which the claimant performed the walking test and that this was relevant to her manner of walking.

(3) The Tribunal relied on medical evidence to support its conclusion that there was no evidence to support the claimant's contention that she had fallen. There was no request from the medical experts to comment on the claimant's problem with falls. This was therefore based on speculation.

(4) The Tribunal accepted Dr R...'s statement that the claimant should be able to dress, undress, wash and shower herself provided she takes her time. In CDLA/2481/95 it was held that the length of time taken for a person to attend to bodily functions could determine whether help was reasonably required. The argument was advanced to the Tribunal that the length of time which the claimant took was so long that she reasonably required help. The Tribunal made insufficient findings of fact with regard to this argument.

8. The Department made observations on the application by letter dated 17 February 2004. The matter had been stayed awaiting the outcome of a decision of a Tribunal of Commissioners in Great Britain in CIB/4751/2002 and others. The Department was represented by Mrs Gunning of the Decision Making and Appeals Unit. Mrs Gunning initially submitted that the Tribunal had applied the supersession threshold test advocated in a decision of a Tribunal of Commissioners – R(DLA)6/02 which was overturned by the Court of Appeal in England in the case of Wood –v- Secretary of State for Work and Pensions. She submitted further that if grounds for supersession had been established in relation to the mobility component the effective date of the decision (pursuant to the decision of the Tribunal of Commissioners in Great Britain in decision CIB/4751/2002 and others) should have been 29 September 2001 and not the date of application for supersession.
9. I directed that a letter dated 19 February 2004 be sent to the parties asking them to make written submissions on the following points: -

(a) whether the Tribunal identified improved walking ability; and

(b) if so whether the award was superseded on this basis.

Mr Brennan's submission was received on 25 February 2004. It was not directly on the points on which I had requested submissions but raised other points as follows:

(a) there was no indication that a warning was given to the claimant or that the Tribunal indicated that it had a discretion whether or not to consider removing the award of the higher rate of the mobility component.

Mr Brennan noted the Department's argument that the claimant was aware that her existing award could be considered but submitted that this did not discharge the Tribunal from following the requirements indicated by the Commissioners in paragraphs 93, 94, 194, 88-97 and 150 of the above decision.

(b) The Tribunal had failed to investigate the manner in which the claimant had carried out the walking test and the manner in which she walked generally.

In relation to both points the decision of a Tribunal of Commissioners in Great Britain in CIB/4751/2002 and others was relied on.

10. Mrs Gunning's submission was received on 22 March 2004. She submitted that the Tribunal had identified improved walking ability and referred particularly to Dr R...'s report on 6 September 2002 stating that the treadmill test indicated good exercise tolerance. Mrs Gunning submitted that while it would have been preferable if the Tribunal had made specific findings as to the distance, speed and manner of the claimant's walking it was implicit from the decision that those elements were considered. She submitted that the Tribunal had established that the claimant's walking ability had improved to such an extent that she could no longer be regarded as being virtually unable to walk and therefore she was not entitled to higher rate mobility component.
11. Mrs Gunning also submitted that the change of circumstances on the basis of which the Tribunal had superseded the award was that the claimant was no longer virtually unable to walk.
12. I granted leave and the Department then made further observations by letter dated 20 April 2004. Mrs Gunning therein again submitted that the grounds for supersession of the award relating to the higher rate mobility component had been established. She submitted that the Tribunal did not apply the correct effective date for the supersession in that pursuant to CIB/4751/2002 and others (paragraphs 95-97 and 195) the Tribunal was standing in the shoes of the Department and that the effective date of the supersession should have been the date of the Department's decision which was the subject of the appeal, i.e. 29 September 2001. She submitted further that the Tribunal was not obliged to expressly warn the claimant that her award of higher rate mobility component was at risk. Referring to the above decision she submitted that it had decided that a tribunal could give a less favourable decision than that which had been made by the Department but unless the matter had been raised in the Department's submission the tribunal must consciously consider whether to exercise its discretion to consider matters not raised in the appeal. It had further held that such discretion must be exercised judicially and in accordance with Article 6 of the European Convention on Human Rights (ECHR) and the principles of natural justice. This involved at the very least ensuring that the claimant had been given sufficient notice of the tribunal's intention.
13. As regards the present case Mrs Gunning submitted that in the Department's main submission to the Tribunal dated 28 January 2002 the Tribunal was asked to consider all the evidence available to it on the day of the hearing and determine whether the indefinite award of mobility component continued to be appropriate. In a further submission dated 3 October 2002 the Department submitted that the criteria for either component of DLA was not satisfied. I pause here to note that the said further submission contains the following sentence: -

"In view of the above evidence I submit that the criteria for an award of either component of DLA are not satisfied."

14. Mrs Gunning further submitted that at the initial hearing of the appeal on 14 May 2002 the claimant had handed in a written submission, the last sentence of which stated: -

"In light of the above facts, I would respectfully ask the Tribunal to continue the award of high rate mobility and award high rate care to [the claimant]."

She had also handed in a further submission at the hearing on 12 February in which the Tribunal was again asked to continue the award of higher rate mobility component. In Mrs Gunning's submission these submissions by the claimant indicated that she was aware that the Tribunal would be considering her existing entitlement to higher rate mobility component. In view of that and as the issue had been raised in the Department's submission, Mrs Gunning submitted that there was no need for the Tribunal to warn her that her existing entitlement was at risk.

15. Mrs Gunning asked me, if I accepted that the Tribunal had erred in law in relation to the effective date for the supersession to give the decision which the Tribunal should have given, i.e. that there were grounds to supersede the decision awarding higher rate mobility component and that the claimant was not entitled to that component from and including 29 September 2001.
16. By letter received in the Commissioners' Office on 27 April 2004 Mr Brennan made further submissions. He submitted that the reference to the mobility component in the Department's submissions did not discharge the Tribunal from ensuring that the claimant was aware that it would be considering this issue. He again referred to paragraph 93 and 94 of the above-mentioned Tribunal of Commissioners' Decision. He submitted further that based on that decision it was the responsibility of the Tribunal to ensure that the claimant had sufficient notice of its intention to consider superseding adversely. He submitted that this had not been done and that this omission contravened Article 6 of the European Convention on Human Rights and the rules of natural justice.
17. As regards the Department's request that I make the decision which the Tribunal should have made he contended that such a determination could not be made without further oral evidence from the claimant as I would have to be satisfied that there had been an improvement in the claimant's ability to walk.
18. He also raised an additional ground, this being that the claimant's daughter (it may have been her niece the papers are slightly unclear) had given evidence to the Tribunal that she was up at least once per night and needed to settle the claimant as the claimant was anxious. He submitted that Dr R... in his report of 6 September 2003 had commented that he found the claimant to be "an anxious and nervous lady". Mr Brennan submitted that the Tribunal's statement of reasons made no reference to the problem the claimant experienced at night. The claimant was clearly arguing that she needed help in settling to sleep and in Mr Brennan's view the Tribunal made insufficient findings of fact on this particular point. In this connection he referred to paragraph 12 of CDLA/12912/96.
19. I gave the Department an opportunity to comment on this additional ground and by letter received in the Commissioners' Office on 20 May 2004 Mrs Gunning did so. She submitted that the Tribunal had considered whether either the middle rate or the highest rate of the care component was appropriate and had decided that it was not. It was entitled to come to that conclusion but the claimant was also entitled to an explanation as to why her evidence was rejected. In this connection Mrs Gunning referred to paragraph 20(8) and (12) of C38/03-04(DLA)(T) and paragraph 9 of C50/98(DLA). She submitted that the Tribunal had failed to adequately explain why it decided that the claimant did not have sufficient needs at night to warrant an award of DLA and accordingly had erred in law. Mr Brennan was given an opportunity to comment on the letter of 20 May 2004 but did not do so.
20. I am in agreement with Mrs Gunning that the Tribunal applied the incorrect effective date of supersession. Based on the decision in CIB/4751/2002 and others the Tribunal should have made the effective date 29 September 2001, i.e. the date of the Department's decision.
21. As regards the other grounds of appeal I do consider that the Tribunal had grounds to supersede the award of the higher rate of the mobility component. Dr R..., in his report of 6 September 2002 commenting on the treadmill test indicates that the reason for stopping was chest pain radiating into both arms. He also indicates that the claimant when asked directly about her limiting symptoms stated that it was her painful leg which stopped her from doing a lot of activities. This report was in September 2002 and of course post-dated the decision under appeal. However, the Bruce Protocol test was done in July 2001, the decision being in September 2001. The report indicates that the leg problems were longstanding and that because of the abnormal gait the claimant was unable to undertake treadmill testing at 2 September 2002. If that is so it would seem there must have been a change in the claimant's gait as she was able to undertake the test in July 2001. Based on the July 2001 test Dr R... had concluded that the claimant's performance on the test indicated "good exercise tolerance". The Tribunal which was unable to take into consideration circumstances not obtaining at 29 September 2001, reached the conclusion that the claimant was not virtually unable to walk and it was obviously entitled so to do on the evidence. The Tribunal obviously considered the distance which the claimant could walk and whether she had had any falls. The exercise stress test also includes speed of walking. The evidence on which the Tribunal based its conclusions therefore related to distance, speed, time and manner of walking and I can ascertain no error of law in the Tribunal's conclusion with respect thereto. I consider that it did apply the correct test and did not err in relation to concluding that the claimant was not virtually unable to walk as at 29 September 2001.
22. As regards the ground relating to warnings, I consider there is no merit in that ground. It is quite obvious that the issue was raised by the Department in its submission. It is also quite obvious from the claimant's submissions that she was well aware that it had been raised. The decision in CIB/4751/2002 and others is authority for the proposition that a Tribunal is entitled to supersede the original decision on a ground which leads to a decision less favourable to the claimant than that original decision. As the Tribunal of Commissioners states at paragraph 55: -

"In our judgment, if an appeal tribunal decides that the Secretary of State's decision under Section 9 or Section 10 changing or refusing to change a previous decision was wrong then (subject to the restriction in Section 12(8)(b), if relevant) it has jurisdiction to make the revision or supersession decision which it considers the Secretary of State ought to have made, even if that means making a decision under Section 9 when the Secretary of State acted only under Section 10, and vice versa."

23. Again at paragraphs 83 and 84 the Tribunal of Commissioners states:

"83. We have formulated this issue as follows. When a claimant appeals against a decision refusing to accede to his application for supersession (or acceding to the application but not making a decision as favourable as the claimant wished), does an appeal tribunal have power to supersede the original decision on a ground which leads to a less favourable award than the superseded award?

84. This issue in practice arises primarily in relation to disability living allowance."

24. At paragraph 89 the Tribunal of Commissioners states: -

"First, there is in our judgment no possible warrant for reading the words "need not" in Section 12(8)(a) as "shall not". "Need not" is clearly permissive, whereas "shall not" would have been mandatory. If Parliament had meant "shall not", it could easily have said so."

At paragraph 90 the Tribunal of Commissioners states: -

"Second, issues not raised by an appeal are in their nature quite likely to be issues as to whether the tribunal should make an award less favourable to the claimant than did the Secretary of State. In providing in Section 12(8)(a) that a tribunal need not consider issues not raised by the appeal (and therefore necessarily that it had the power to do so), Parliament was implicitly providing that tribunals could consider whether to make a decision less favourable to the claimant than did the Secretary of State. As pointed out in Paragraph 32 above, appeal tribunals are part of the adjudication system designed to ensure that claimants receive neither more nor less than the amount of social security benefits to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). It would be wrong to issue guidance of the sort contended for by CPAG fettering the discretion of the tribunal to consider issues not raised by the appeal."

25. At paragraph 94 the Tribunal of Commissioners states: -

"There must, however, be a conscious exercise of this discretion [to supersede adversely] and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal's intention to consider superseding adversely to him to enable him properly to prepare his case. The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal's decision may also be material to what Article 6 and the rules of natural justice demand. Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing."

26. This paragraph has been relied on by the claimant's representative. It is, however, a comment on section 12(8)(a) of the Social Security Act 1998. That subsection provides: -

"In deciding an appeal under this section, an appeal tribunal –

(a) need not consider any issue that is not raised by the appeal;"

In this case, however, the issue was raised by the appeal. The Department had specifically raised it. The Tribunal's discretion was therefore removed. It had to consider the award of the mobility component and indeed the existing award of the care component. Both these were raised by the Department which is of course as much entitled to raise issues on the appeal as is the claimant.

27. In those circumstances I can ascertain no obligation whether by case law or otherwise to always give a warning to a claimant. Of course there will be occasions when fairness demands this but in this case I do not think that that was so. The claimant was well aware of the fact that the mobility component was in issue. Her own submissions reflect this and the Department's submissions are clear to that effect. The Tribunal was not exercising a discretion. Once the Department raised, as it did, the question of entitlement to the mobility component, the Tribunal was obliged to consider it. I can ascertain no merit in this ground.
28. Mr Brennan's submission of 21 February 2004 submitted that the Tribunal had erred in that it had not taken into consideration evidence given by the claimant that the exercise stress test had been conducted holding on to two bars. This appears to have been stated by Mrs C... who represented the claimant before the Tribunal. I can ascertain no evidence by the claimant to this effect nor did Mrs C... indicate either that she had been present when the test was carried out or that the claimant had told her this. That being so I find no error in the Tribunal not commenting specifically on Mrs C...'s statement.
29. With relation to the points on the care component I consider that the Tribunal was quite entitled to consider that the claimant had not shown that the award in relation thereto should be superseded. The burden was on her in that respect as it was on the Department in relation to the mobility component. The Tribunal has clearly not found the claimant's evidence altogether reliable. It has specifically rejected certain parts of her evidence. The claimant's evidence in the form dated 21 August 2001 wherein she sought supersession was that she needed assistance in relation to various matters in part because of rheumatism and in part because of cardiac problems causing reduced power in her right arm. I have been unable to ascertain any medical evidence of reduced power in the right arm. It is quite possible the claimant merely meant some anginal pains in that arm and if so it is quite obvious that Dr R...'s report covers this matter. There was a contention made to the Tribunal by the claimant's representative that it was: -

"… unreasonable to expect [the claimant] to take such a length of time to dress, shower etc."

The representative states in that submission that the claimant told her that it would take her 25-30 minutes to dress or undress and 45 minutes to get washed and dried. There is no oral evidence from the claimant that, if performing these tasks unassisted, it would take her this long. The Tribunal did not find the claimant's evidence reliable. Her claim form indicates that she received assistance from her niece and overall it appears that, the evidence of the claimant was that even with assistance, the length of time required to dress was as indicated by the representative. The Tribunal was in my view entitled, on the evidence, to its conclusion that the grounds to supersede an award of the lower rate of the care component had not been shown. If assistance, would not shorten the time taken to dress, then the point being made by the claimant's representative does not appear relevant.

30. As regards its reasons the Tribunal has clearly indicated that it does not consider the claimant's evidence to be altogether reliable. In light of the medical evidence I consider that it was entitled to this view. It obviously preferred the medical evidence and it also obviously did not find, in light of the exercise stress test, that the claimant's statements as to her limitations were reliable. That is clearly apparent from the decision. As Mrs Gunning submits the claimant gave various details relating to her night needs as did the claimant's daughter. I have to ask myself whether the reasons for the decision were adequate to explain it to a reasonable person. As the Tribunal of Commissioners stated in decision C38/03-04(DLA)(T): -

"However, a tribunal should give adequate reasons for its decision. Where material medical evidence is being rejected or where little weight is being placed on medical evidence which a claimant has put forward as a central part of his or her appeal, the provision of adequate reasons will usually involve indicating the tribunal's assessment of that evidence. This need not be lengthy – just sufficient to indicate to a reasonable person why the tribunal did not rely on that evidence. To be adequate, reasons should be of a standard such that a reasonable person, reading them, could understand why the tribunal decided as it did."

Both Mrs Gunning and Mr Brennan submit that the reasons were not adequate.

31. In its reasons the Tribunal includes the following paragraphs: -

"We were asked by [the claimant] to consider an award of the Highest Rate Care Component. Detailed written submissions were handed in by her representative. We asked Dr R... to comment on (sic) specific areas of activity. Dr R... reported that "she should be able to dress, undress, wash and shower herself provided she takes her time and follows the advice which she has been given.

We accept Dr R...'s conclusions in relation to the Care Component. It is important to note that Dr R... had been treating [the claimant] since June 2001 and is well placed to comment on her level of ability. Neither the Middle Rate Care Component nor the Highest Rate Care Component are appropriate. On balance, however, we accept that [the claimant's] condition causes her to have difficulties with the preparation of a cooked main meal. Accordingly the Lower Rate Care Component shall continue."

Mr Brennan submits that the Tribunal made no mention of the problems the claimant experienced at night. He submits she was clearly arguing that she needed help settling to sleep and he referred to CDLA/12912/96 (paragraph 12) in support of his argument. Mrs Gunning submits, relying on C38/03-04(DLA)(T) (paras 20(8) and 12) and C50/98(DLA) (para 9) that the Tribunal did not adequately explain why it rejected the claimant's evidence as to her night needs.

32. I have found this a very finely balanced decision. It is quite apparent that the Tribunal did not accept the entirety of the claimant's evidence in relation to her day time care needs and it was entitled to reject same. I can find no error in the Tribunal's conclusions in relation to day-time needs. It has obviously relied on Dr R...'s report. The matter of night time needs is more problematic. Mrs Gunning is correct that no evidential assessment was made in respect of same. It is not a legal rule that a Tribunal must make a separate evidential assessment for each component or rate of a component. All that is required is that the reasons be adequate to explain the decision. Had there been no evidence other than the claimant's in relation to her night needs I might have considered the reasons to be adequate, the claimant's evidence obviously not being considered completely reliable. However, there was also some evidence from her daughter and Dr R... (in his report) described her as being anxious and nervous though he made no mention of any requirements for attention or supervision needs.
33. As regards the evidence of the claimant's daughter, there is no specific assessment of that evidence. The evidence was to the effect that the claimant's daughter was up at least once per night (the times varied) and that it could be for 15 minutes. This was stated to be because the claimant was anxious and needed to be settled. The Tribunal could have rejected this evidence as being insufficient, even if accepted, to satisfy the requirements for DLA. Equally, however, it could have accepted the relevant evidence and found it would have been sufficient to satisfy the conditions for an award of the middle rate of the care component. Even at its height and accepting the daughter's evidence the Tribunal could have decided either way. Alternatively it could have rejected the claimant's daughter's evidence. It could have accepted that the daughter did give this attention but not found it to be reasonably required. The aforementioned are examples of the Tribunal's freedom in relation to assessment of evidence. However no assessment was made. There being some support for the claimant's contention that she required attention at night, I consider on balance, that in the absence of such an assessment the reasons were inadequate to explain the decision. I set the decision aside for that reason.
34. I come then to consider whether I should give the decision which the Tribunal should have given. Mrs Gunning has asked that I do so and Mr Brennan has asked that I remit the case to a differently constituted Tribunal. I do not agree with Mr Brennan's reasons for requesting remittal as in my view the Tribunal's findings in relation to the mobility component are adequate and it did fully consider all the aspects of the claimant's walking ability. I could deal with that matter without exploring any evidential issues relating to the mobility component. However evidential issues may arise with relation to the night needs. I consider that the Tribunal, with its wider expertise, is the appropriate body to deal with that matter. I therefore remit the matter to a differently constituted Tribunal for rehearing and redetermination. It may be helpful to that Tribunal to have available to it the claimant's medical records. It is a matter for the claimant whether or not she consents to production of same. However, the records may be of assistance to the Tribunal. The parties are of course, aware that the Tribunal will be considering whether or not the award of the higher rate of the mobility component should continue and whether to supersede (whether favourably or adversely to the claimant) the award of the care component. If it supersedes on change of circumstances grounds favourably to the claimant the effective date of its supersession decision will have to be determined under Regulation 7(2)(a) or (b) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999. If it supersedes on those grounds adversely the effective date of the decision will be determined under Regulation 7(2)(c) thereof and any such adverse decision should include a refusal to supersede on foot of the claimant's application.
35. I have found the evidence in this case confusing and difficult. It may be that the legally qualified panel member who will chair the new Tribunal would wish to issue directions for a written submission to be made by the claimant indicating precisely what functional limitations the claimant considers were relevant to her entitlement at the relevant time and the precise bases on which she considers herself to be limited at that time. For example, if she contends that she was unable to dress herself she should clearly state why. There appears to be some lack of clarity in relation to what precisely are the claimed limitations and what are the claimed causes thereof. That, however is a matter for the legally qualified panel member.
36. The new Tribunal will make its own assessment of the evidence before it. The fact that I have set the Tribunal's decision aside should not be taken as an indication of the likely eventual outcome of the appeal.

(signed): M F Brown

Commissioner

14 September 2004