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	Northern Ireland - Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [1997] NISSCSC C68/97(DLA) (13 January 1998) URL: http://www.bailii.org/nie/cases/NISSCSC/1997/C68_97(DLA).html Cite as: [1997] NISSCSC C68/97(DLA)

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[1997] NISSCSC C68/97(DLA) (13 January 1998)

 


Decision No: C68/97(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Newry Disability Appeal Tribunal

dated 19 March 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which held that she was not entitled to either component of disability living allowance (DLA).
2. Claimant is a 61 year old lady who suffers from rheumatoid arthritis in her wrists and in her feet. Her claim for DLA was rejected by the Adjudication Officer. She appealed to a DAT and that Tribunal found as a fact that she suffers multiple pain in her feet, ankles, knees, legs, hands and wrists. It went on to say that there were no specialist or psychotherapy referral but that on her own evidence she could walk 40 to 50 yards and that she could walk round the shops at Warrenpoint for 20 to 30 minutes. The Tribunal also recorded "Her General Practitioner also indicates she can walk 150 yards with a slight limp but no other restrictions. No restriction in pace is noted." The Tribunal decided on the evidence that claimant was not entitled to the mobility component and as far as the care component is concerned recorded that she has no significant care needs and that she can cook a meal for herself as it would not involve heavy lifting.
3. Claimant now seeks leave to appeal against that decision on the grounds that the Tribunal failed to give an adequate statement of its reasons for its decision and the findings of fact on which it was based. That it made a decision based on insufficient evidence. On reading the decision she did not know why she was disallowed. The Chairman of the Tribunal refused her leave to appeal. However, I arranged an oral hearing of her application and at that hearing claimant was not present but she was represented by Mr Brady. The Adjudication Officer was represented by Mr Shaw. Mr Brady argued that the care component should have been allowed. He said the Tribunal found she would have no difficulty cooking for herself as it would not involve heavy lifting, but Mr Brady argued that manual dexterity would be an issue in this case and that the claimant now wears splints on her hands because of the arthritis. He said as far as the mobility was concerned, the Tribunal said she could walk 40 to 50 yards that would depend on whether she was having a good day or a bad day.
4. Mr Shaw referred first of all to the mobility component. He said that the 40 yards seemed to be a borderline but there was no mention of discomfort and that there is no record in the proceedings before the Tribunal or any record that the Tribunal even considered discomfort as it would be obliged to do. Mr Shaw accepted the argument of Mr Brady that claimant would be entitled to the low rate care in respect of her inability to deal with hot pots and pans and this is understandable in view of the arthritis. So far as the mobility is concerned Mr Brady had argued that claimant was entitled to the higher rate mobility because she was in constant pain walking and took issue with the findings of fact by the Tribunal that her GP indicated that she could walk 150 yards with a slight limp but with no other restriction and there was no restriction in pace. He said the medical evidence did not support that finding. Mr Shaw accepted the evidence would indicate her entitlement to the higher rate mobility.
5. I have considered all that has been said and I have very carefully read all the documents in this case. The first matter which concerns me is page 8 of the Adjudication Officer's submission to the Tribunal were it records that the claimant's GP certifies that claimant suffers from rheumatoid arthritis of the wrists and feet. The Adjudication Officer then goes on to submit - "He indicated that her walking in not limited in distance but her feet are painful after 100 yards. He recorded that she limps slightly due to painful metatarsal and tarsal joints." In his next paragraph he says - "As the medical evidence shows that Mrs McG(can walk 100 yards before her feet get painful and an unlimited distance before the onset of severe discomfort. I would state that Mrs McG( is not unable or virtually unable to walk." If one looks at the only medical evidence there is, it is a very scant reply by the GP to set questions and his reply in respect of walking is in answer to the question "How far can the patient walk on level ground whilst using appropriate aids?" He replied, "Not limited in distance but feet are painful - 100 yards." In reply to the question, "Is there any impairment of gait, balance or frequent falls?" He answered "Yes", "Limps slightly due to painful metatarsal and tarsal joints." I find it impossible to reconcile those opinions with the assertion by the Adjudication Officer in his submission that her feet only got painful after 100 yards or in the conclusion that she could walk an unlimited distance before the onset of severe discomfort; severe discomfort is not mentioned in the questions to the doctor or in any replies. If the Tribunal was influenced by the submission by the Adjudication Officer then it was mislead because that submission in my view does not accord with the facts. The error was compounded by the Tribunal in its findings of fact. "No restriction in pace is noted." It found she was able to walk 150 yards with a slight limp but no other restriction. Whereas as I have quoted above the doctor said that "not limited in distance but feet are painful".
6. If one then goes to the Regulations regarding the entitlement to mobility, the Regulations refer in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 to the limitation on a person walking in relation to speed, time and distance and whether a person can make progress on foot without severe discomfort. Nowhere in the medical report and nowhere in the findings of the Tribunal is severe discomfort either considered or mentioned.
7. I am satisfied that the Tribunal erred in not properly considering the evidence, partly due by the poor quality of the Adjudication Officer's submission. In any event I am satisfied that it did not properly consider the mobility component and it erred in law in that regard. At the Tribunal I granted leave to appeal and with the consent of both parties I treat the application as the appeal.
8. For the reasons set out above I find that the Tribunal erred in law. I therefore allow the appeal and set aside the decision of the Tribunal. I have considered what then I should do and I think it would be unfair to send the matter back to another Tribunal. I am satisfied that there is ample evidence because of the arthritis in claimant's wrists and the fact she has to wear splints in her wrist and that her doctor says that she cannot cope with hot pans that she is entitled to the lowest rate care component in respect of cooking. As far as the mobility is concerned Mr Shaw the Adjudication Officer was sympathetic to the view that claimant would be entitled to the higher rate mobility component. I am quite satisfied that because of her painful feet that she would be in severe discomfort walking any distance.
9. I therefore award her the higher rate mobility component and the low rate care component as and from the date of claim, 12 April 1996.

(Signed): C C G McNally

COMMISSIONER

13 January 1998