Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2009] NISSCSC C10_09_10(DLA) (05 June 2009)

Decision No: C10/09-10(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 27 August 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 27 August 2008, to the effect that the applicant satisfied the conditions of entitlement for an award of the higher rate of the mobility component of disability living allowance (DLA) from 31 March 2006 to 2 October 2007.
2. Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.
3. Leave to appeal is granted.
4. By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.
5. The applicant, who is represented by Mr McCloskey of the Citizens Advice Bureau, has submitted that the appeal tribunal erred in law in that:

(i) the statement of reasons for the appeal tribunal's decision is inadequate to explain why it accepted that, by the end date of the fixed period of award, she could walk for ¼ mile, on level ground, without stopping, before the onset of severe discomfort; and

(ii) the appeal tribunal breached the rules of natural justice in that it failed to adjourn to permit the adducing of further evidence to clarify walking distances and the basis upon which these were recorded in medical records and reports.

6. The Department, through Mr Collins of Decision Making Services, has submitted that the tribunal erred in law on both of the grounds cited by the applicant's representative.
7. Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.
8. Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.
9. It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to DLA, for a particular period, remains to be determined by another appeal tribunal.
10. I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i) the decision under appeal is a decision of the Department, dated 1 August 2006, which decided that the applicant was not entitled to DLA from and including 31 March 2006;

(ii) the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA).

(signed) K Mullan

Commissioner

5 June 2009