Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: C10/07-08(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 1 February 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I granted leave to appeal on 19 October 2007. Observations were received from the Department on 9 November 2007. The appellant's mother made comments on that submission on 27 November 2007. There has been no request for an oral hearing and I am satisfied that I can determine this appeal without a hearing.
   
2. This is an appeal against the decision of the appeal tribunal sitting in Omagh on 1 February 2007. The decision of the tribunal is erroneous in law and it is set aside. The tribunal failed to consider the evidence and arguments in relation to higher rate mobility component on the basis that the child for whom benefit is claimed may be severely mentally impaired as provided in Section 73(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1972. The issue was raised by the claimant's appointee and addressed on pages 7 and 8 of the submission to the tribunal. However, in the record of the proceedings there is no reference to the severe mental impairment test and the issue is not considered in the reasons for the decision.
   
3. The appeal is remitted to a differently constituted tribunal to conduct a complete rehearing. The appellant should be aware that although the award made by the decision-maker was upheld by the tribunal, all aspects of entitlement will be reconsidered by the new tribunal which could either increase or decrease the award under appeal.

(signed): C MacLynn

Deputy Commissioner

9 January 2008