UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CDLA_144_2008 (18 March 2008)

CDLA 144 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I replace the tribunal decision with the decision it should have taken. This is:

Appeal allowed. The appellant is entitled to the lowest rate of the care component

(but no other level or component) of disability living allowance for help with preparing a cooked main meal from 1 11 2006 to 31 10 2008 inclusive.

The claimant is appealing with my permission against the decision of the Nottingham

tribunal on 27 07 2007 under reference 045 07 01151.

REASONS FOR THE DECISION

The parties have agreed that I should set aside the tribunal decision. They also agreed that I should replace the decision with that set out above. In granting permission to appeal, and suggesting this decision on a consent basis, I set out at length my views on the application and appeal. I did so because, in order to deal with the lengthy grounds of appeal, I had to listen to much of the CD record of the hearing and to parts of it more than once. That was in part because the chairman made no separate full note of proceedings and in part because the representative clearly based the grounds of appeal on a detailed analysis of the hearing record combined with further comments. That analysis included what was not said as well as what was said. As a result I spent considerably longer on the application and appeal here than did the tribunal, so it is expedient that I deal with the matter fully here.

I am concerned that the tribunal appears to have taken the view that the fact that the whole proceedings were being recorded excused the chairman from taking any meaningful note of proceedings. The note kept largely took the form of a timed contents list of the hearing rather than any separate record of what was taking place. That was useful in helping me listen to the CD, but made no sense without it. Initially, the CD went missing. Had it remained missing I would probably have had to allow the appeal for that reason as the record was clearly material to the decision and grounds of appeal. A Tribunal of Commissioners recently gave its views about the requirements in regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for records of proceedings. See CSDLA 500 2007 and CSDLA 524 2007. Thought needs to be given about how that decision is to be applied in cases such as this. But I did not hear argument on this so take the general matter no further.

I do not need to repeat in full my earlier analyses of the disablement issues in the case as the decision is now agreed by both parties. No general point of law was raised. I am satisfied that the tribunal dealt adequately with the issue of mobility. I also rejected the grounds of appeal that related to the procedure of the tribunal. But I agreed that the decision of the tribunal on the issue of daytime care was inadequate given the points

expressly put to it before and at the tribunal. In particular, there was inadequate consideration of the issue of the lowest rate of the care component. I considered the available evidence (including that on the CD) in granting permission and suggested, with reasons, the decision to which both parties have agreed.

David Williams

Commissioner

18 03 2008

[signed on the original on the date shown]

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