Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2009] NISSCSC C36_09_10(DLA) (4 November 2009)

Decision No: C36/09-10(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 10 September 2008
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This case in the first instance is an application for leave to appeal but as the representatives of both parties have agreed, the application is being treated and determined by me as an appeal in accordance with regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.
2. 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.
3. The claimant, through his representative Mrs Carty, has submitted that the tribunal erred in law by failing to give adequate reasons for its decision and, in particular, failing to explain why, having accepted that the claimant had problems with depression and motivation, it did not accept he required further prompting and encouragement throughout the day.
4. The Department, through Mr Collins of Decision Making Services, has also submitted that the tribunal's decision was erroneous in law as the tribunal has not appeared to consider to what extent the claimant might have required encouragement with, for example, washing and dressing, or whether such attention would have reasonably been required. In addition, he submitted that the tribunal erred in law by not elaborating on why, having accepted there were care needs, they were insufficient, in addition to his inability to prepare a main meal, to bring him within the range of an award of middle rate care. He further submitted that the tribunal erred in law by not explaining how it reached the conclusion that the claimant "did not require frequent attention or constant supervision by day".
5. Therefore it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.
6. Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

(signed): J A H Martin QC

Chief Commissioner

4 November 2009