Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2005] NISSCSC C35_04_05(DLA) (28 June 2005)

Decision No: C35/04-05(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 3 November 2004
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the legally qualified member, by the claimant against the unanimous decision of the Tribunal, affirming the decision of the Decision Maker, to the effect that the claimant was entitled to no rate of the care component and neither rate of the mobility component of disability living allowance (DLA) from and including 11 May 2003.
2. Having considered the circumstances of the case and the reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
3. On 3 April 2003 the claimant made a renewal claim in respect of the period from 11 May 2003 indicating that the claimant suffered from cancer of the mouth and arthritis. On 6 May 2003 it was decided that the claimant's claim should be disallowed from and including 11 May 2003. As a result of Commissioner's decision C12/03-04(DLA) the decision dated 6 May 2003 was considered ultra vires. It was therefore replaced by a decision made on 5 October 2003 which also disallowed the claimant's claim from and including 11 May 2003. The original appeal letter received on 27 May 2003 was accepted by the Department as an appeal, even though a prospective appeal, against the new decision dated 5 October 2003.
4. On appeal the Tribunal gave the decision as set out in paragraph one herein. In addition the statement of reasons in relation to the care component was issued on 10 January 2005. It was in the following form:-

"Appellant can walk at least 100 yards on his own out of doors. He can attend to his bodily functions unaided and supervised day and night. He is capable of cooking a main meal for himself. We accept that he may need help in and out of the bath. He can mash his own food and self-medicate".

[A further statement of reasons was issued on 6 June 2005 in relation to the mobility component, in identical form to that of the care component, after an enquiry from the Office of the Social Security Commissioners to the Tribunal Service. It appears to have been a clerical error that only one statement of reasons was issued but as the second statement was an identical form, it is not an error of substance in the present proceedings.]

5. Leave to appeal was granted by the legally qualified member on 15 February 2005 on the following point of law:

"Tribunal failed to give reasons why it rejected evidence given by appellant."

6. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.
7. The appellant is represented by Mr Gerard O'Neill, Newry and Mourne Citizens Advice Bureau while the Department is represented by Mr John Kirk of Decision Making Services.
8. Mr O'Neill submitted as follows:

(i) the Tribunal erred in misinterpreting the statutory test in relation to the mobility component as set out in section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 (DLA Regs); and

(ii) the Tribunal failed to give adequate reasons for its decision.

9. Mr Kirk submitted as follows:

(i) that the Tribunal erred in law in the following respect – Whilst there was evidence before the Tribunal as to the time, manner and speed in which the claimant could walk, there was nothing to indicate whether the Tribunal had considered these issues;

(ii) that it was incumbent upon the evidence to give reasons as to why it rejected the evidence of the claimant and his carer, as was the evidence of the Independent Medical Assessor – and by not dealing with this matter, the Tribunal erred in law; and

(iii) that there is nothing to indicate that the Tribunal considered that lower rate of the mobility component in circumstances where the evidence presented regarding a possible need for guidance and/or supervision raised an issue as to whether the lower rate of the mobility component was appropriate – and by not so doing, the Tribunal erred in law.

10. Accordingly, there is no real issue between the parties. I accept that Mr O'Neill's submissions, in relation to the two issues that he raised, are substantially correct. I also accept that the third point raised by Mr Kirk is also correct.
11. Therefore, for these reasons, I allow the claimant's appeal, set aside the Tribunal's decision and refer the case back to be re-decided by a differently constituted tribunal.

(Signed): John A H Martin QC

Chief Commissioner

28 June 2005