CF-v-Department for Social Development (DLA) [2012] NICom 281
Decision No: C42/11-12(DLA)
REASONS
Background circumstances
Grounds of application for leave to appeal
The Department's observations
"Sister
Questions some of the comments recorded by EMP.
Dr Elwood
Reads from EMP report
Sister
Brother had been up all the night before and therefore was hyper –vigilant. Can deceive doctors."
The applicant's response
The tribunal's decision and its reasons
The Hearing
The reasons for refusal of leave to appeal
Assessment of the submissions
'17. We are in agreement with both representatives that the reasoning is inadequate in this case. The claimant set out a very detailed submission in the appeal letter which was referred to again at the Tribunal hearing as to claimed inaccuracies in the Examining Doctor's report. This was obviously a live issue in the case. It was equally obvious that the Tribunal did not accept the Examining Doctor's report in full. However, it was a substantial and particularised part of the claimant's argument that the observations of the Examining Doctor and indeed his clinical findings were inaccurate. The Tribunal has not commented in any way on these contentions made by the claimant and, in a situation where it may well be (though the reasoning is not clear in that respect) that the Tribunal relied to some extent at least on the Examining Doctor's observations and report, it has not adequately addressed the claimant's contentions.
18. We consider that in this particular decision a reasonable person reading the decision would not find the reasons sufficient to explain it. A very substantial part of the claimant's submission was not addressed.
19. In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter. Often there will be no specific issues raised other than that the claimant disagrees with the decision or considers it to be wrong with no reasons given. In other cases grounds of complaint will be put forward but will be worded in vague or very general terms. For example, that the time allowed was insufficient or that the doctor concerned lacked competence. In all such cases the Tribunal by hearing the case will adequately deal with the appeal. That was not so in this case. Here very specific issues were raised.'
Legislative provisions relating to the low rate of the mobility component
Social Security (Contributions and Benefits) Act (Northern Ireland) 1992
'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.'
Disability Living Allowance Regulations (Northern Ireland) 1992
Regulation 12—
'(7) For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.
(8) Paragraph (7) shall not apply where the fear or anxiety is—
(a) a symptom of a mental disability; and
(b) so severe as to prevent the person from taking advantage of the faculty in such circumstances.'
Was the error of law a material error?
"the fact that the claimant derives reassurance from the presence of the other person does not prevent action … from being guidance or supervision" (CLDA/42/94, paragraph 22(l)).
Evidence of the claimant's sister
Findings
Conclusion
(signed): O Stockman
Commissioner
21 May 2012