UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the domiciliary appeal tribunal, held on 3^rd August 2001 under reference U/42/132/2000/01732, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of Mr Commissioner Lloyd-Davies.
3. An oral hearing was directed to be held before Mr Commissioner Goodman. The hearing was transferred to me in view of Mr Goodman's impending retirement. It was held in London on 12^th September 2002. Neither the claimant nor her representative attended. The Secretary of State was represented by Mr V Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to him for his succinct submissions.

The history of the case

4. This case concerns a claim for disability living allowance that was made on 13^th May 1997. The claim was refused and the refusal was confirmed on review under section 30(1) of the Social Security Administration Act 1992. On appeal the claimant was partially successful in obtaining an award of the mobility component at the lower rate and the care component at the lowest rate. However, that decision was set aside by Mr Commissioner Heald in CDLA/1052/2000. At the rehearing, the same award was made. It ran from the date of claim until 31^st October 2001. The claimant's appeal against that decision is before me.

The grounds of appeal

5. The claimant's grounds of appeal consist of detail criticisms of the tribunal's decision. I reject all those criticisms. In sum, they represent an attempt to persuade me to undertake afresh the tasks that are properly within the preserve of the appeal tribunal. By that I mean the analysis of evidence and the finding of facts.
6. The tribunal had before it a considerable amount of evidence. It considered all that evidence. It analysed it in detail. Its analysis is set out in the full statement of the tribunal's decision. It is careful and rational. It is sympathetic to the claimant's difficulties in producing objective evidence of the disabling effects of ME. It is also realistic of what the claimant could and could not manage without assistance. It is seldom that I read so thorough and careful an analysis of evidence in an ME case. It made clear findings of fact on all matters material to its decision. All of those findings are supported by its analysis of the evidence. The tribunal explained its application of the law to the facts in a structured manner. It is clear from its explanation that it did not misdirect itself in law. As to the application itself, that followed ineluctably from its findings. The claimant was entitled to the award made by the tribunal and to no more favourable award.

The Secretary of State's arguments on the appeal

7. Mr Lewis argued that the tribunal had investigated the case fully and assessed the evidence reasonably. I agree.
8. Mr Lewis drew my attention to the fact that the tribunal had on a couple of occasions used the word 'essential'. That was inappropriate, because the legal test is not one of necessity, but of reasonable need. However, he argued that in the context this was merely a poor choice of vocabulary rather than an indication that the tribunal had misdirected itself wrongly in law. I agree. Tribunals are well aware of the legal test. There is nothing to suggest that it misunderstood or misapplied it.
9. Next, Mr Lewis drew my attention to the evidence that the claimant used an incontinence pad for occasional leakage. That, he argued, might suggest a need for a daily bath, but the attention would not, alone or together with the other reasonable needs identified by the tribunal, amount to frequent attention throughout the day. I agree.
10. Finally, Mr Lewis argued that the tribunal was entitled to take account of aids that the claimant could use to alleviate her need for attention. That is correct in law.

Conclusion

11. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 12th September 2002