Northern Ireland - Social Security and Child Support Commissioners' Decisions

AM-v-Department for Social Development (DLA) [2010] NICom 14

 

Decision No: C40/09-10(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 4 December 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal by the claimant against the unanimous decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant was not entitled to either rate of the mobility component of disability living allowance (DLA) from and including 22 January 2008 and was not entitled to any rate of the care component of DLA from and including 22 January 2008.

 

2.     Leave to appeal was granted by a Commissioner on 20 November 2009 for the following reasons:

 

“It is arguable that the decision was wrong in law, because, when considering whether or not the claimant was entitled to an award of the lower rate of mobility component of disability living allowance, it did not apply the correct statutory test.”

 

3.     Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

 

4.     The claimant is represented by Mr Owen McCloskey, Citizens Advice Bureau, Craigavon while Mrs Claire Hulbert, of Decision Making Services represents the Department.

 

5.     On 22 January 2008 the claimant made a claim for DLA stating that she had depression, agoraphobia and alcohol dependency.  On 4 April 2008 it was decided that the claimant’s claim should be disallowed from and including 22 January 2008.  Thereupon the claimant appealed.  As stated in paragraph 1 herein, on 4 December 2008 the appeal tribunal dismissed the appeal and affirmed the decision of the decision-maker.  Leave to appeal was granted by a Commissioner on 20 November 2009.

 

6.     Many grounds of appeal were set out on behalf of the claimant.  However, only one point of substance, in my view requires to be addressed.  Mr McCloskey has specifically argued on behalf of the claimant that the tribunal did not deal correctly with the issue of the claimant going out of doors unaccompanied.  In particular it was argued that the tribunal failed to make the necessary findings of fact required to apply the law correctly.  In addition it was submitted that the tribunal failed to apply the legislation correctly in so far as it requires the tribunal to consider the claimant’s ability to cope with unfamiliar places as opposed to familiar places.

 

7.     Mrs Hulbert supports Mr McCloskey in respect of this particular issue.

 

8.     The relevant legislation is set out in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which states:

 

“73(1)  Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which –

 

… (d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.”

 

9.     It has been pointed out to me that the claimant’s self-assessment form of 22 January 2008 discloses that the claimant gets anxious and panicky and therefore does not go out much.  A medical doctor’s report, completed by Dr MacDonald and dated 22 September 2008, states that the claimant’s “anxiety may keep her from going out of doors at times.”  In addition at the hearing on 4 December 2008 the tribunal questioned the claimant about going outside and noted the following in the record:

 

         “When do you go out?

         To get drink.  I physically can walk.  Problems with sciatica aren’t the issue.

         Why do you not go out?

         So much on a low.  I don’t do shopping.  Then said I go to local shop just around the corner.

         I go out if it’s a necessity.

         Could you stop and ask for directions?

         Yes.

         Could you follow them?

         Not really, no.

         I lack concentration.”

 

10.   In the relevant portion of the tribunal’s reasons for decision, the tribunal stated as follows:

 

“… The report from the Appellant’s General Practitioner Dr Greer dated 14 February 2008 states that there is no information in the notes regarding the Appellant’s ability to get around.  The undated report from Dr McDonald states that the Appellant’s anxiety may keep her from going out doors at times.  We not [sic] that the legislation refers to a requirement most of the time.

 

We also noted that the Appellant when pressed, confirmed that she can go to her local shop on her own to get necessities and to top up her power card.

 

All of this information leads the Tribunal to conclude that the Appellant is able to get out and about on her own most of the time.

 

…”

 

11.   It is clear that the tribunal has referred to the claimant being able to walk on familiar routes.  However, when considering an award of the lower rate of the mobility component of DLA, the claimant’s ability on familiar routes must be disregarded.  This is because of the provisions of section 73(1)(d) where the assessment of the ability to walk must be made “disregarding any ability he may have to use routes which are familiar to him on his own”.  It is the ability to walk on unfamiliar routes and also the need for accompaniment or supervision from another person that should be considered.

 

12.   The tribunal, as both parties submit, has not considered the relevant statutory test for an award of the lower rate of mobility component of DLA.  In my view both parties are correct in their submissions.  Therefore, I conclude that the tribunal has erred in this respect.

 

13.   In the circumstances I do not consider it constructive to deal with other matters raised on behalf of the claimant.  Suffice to say, I am far from convinced that the points have any merit.

 

14.   Accordingly, I conclude that the tribunal’s decision in this case is erroneous in point of law.  Therefore, I allow the appeal and set aside the tribunal’s decision.  The only appropriate course for me to take is refer the matter back to a differently constituted tribunal for a rehearing.  However, the fact that this appeal has been allowed should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.

 

 

(signed)  J A H Martin QC

 

Chief Commissioner

 

 

 

15 February 2010