[2003] NISSCSC C28/03-04(DLA) (28 April 2004)


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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 >> [2003] NISSCSC C28/03-04(DLA) (28 April 2004)
URL: http://www.bailii.org/nie/cases/NISSCSC/2003/C28_03-04(DLA).html
Cite as: [2003] NISSCSC C28/3-4(DLA), [2003] NISSCSC C28/03-04(DLA)

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    [2003] NISSCSC C28/03-04(DLA) (28 April 2004)


     

    Decision No: C28/03-04(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 10 June 2003

    DECISION OF THE SOCIAL SECURITY COMMISSIONER

  1. This is an appeal by the claimant against the majority decision of a Tribunal affirming in part the decision of a decision maker, to the effect that the claimant was not entitled to any rate of the mobility or the care component of Disability Living Allowance (DLA) from 15 May 2002. Leave to appeal was granted by the Legally Qualified Member on 25 September 2003 on the grounds that the Tribunal had insufficient evidence to justify removal of the existing awards. The Legally Qualified Member was in the minority in the decision of the Tribunal.

  2. The claimant has a history of DLA awards from 20 July 1993. From 15 May 2000 until 14 May 2002 the claimant was in receipt of middle rate care component and higher rate mobility component of DLA. A renewal claim in respect of the period from 15 May 2002 was received on 20 December 2001. On 17 February 2002 it was decided that the claimant satisfied the conditions of entitlement for the middle rate care component and the lower rate mobility component from and including 15 May 2002. The claimant disputed this decision. On 11 April 2002 the decision of 17 February 2002 was reconsidered but it was not changed. Thereupon the claimant appealed.

  3. The Tribunal came to the decision as set out in paragraph one herein and gave the following reasons, including both the reasons of the majority and the minority, for its decision as follows:

    4. "Much of this appellant's evidence at hearing was unconvincing. To take one example, the appellant told us that her walking was limited mostly by shortness of breath. Nonetheless [the claimant] attended the hearing without bringing her inhaler and explained this by saying she had not expected the hearing to take so long.
    The appellant was alert, orientated, coherent and answered all questions put very extensively. The notes from her General Practitioner's surgery disclosed only physical problems but at one point [the claimant] told us she could not walk around Belfast city centre unaccompanied because she tended to get lost. [The claimant] is a native of the city, lives adjacent to the … Road and we found this remark so self serving in terms of the test for low rate mobility as to be literally incredible.
    Further, we would have expected someone suffering from the frequency and severity of epileptic seizures experienced by [the claimant] to have been referred for neurological investigation long before the investigation recently arranged.
    Regarding, the complaint of lower back pain [the claimant], who is of normal height and weight, sat throughout the hearing lasting more than 30 minutes without any apparent discomfort. At the beginning and end of the hearing she walked in and out without any apparent pain or difficulty and at a normal pace. She uses no walking aids. The appellant told us how she is taken by taxi or in her son-in law's car to Connswater Shopping Centre about twice a week. She denied doing any shopping explaining that she sits on one of the benches in the centre aisle while other family members went shopping. All members of the Tribunal found this very difficult to believe.
    Despite the references in correspondence on the doctor's file to limited exercise tolerance, and although [the claimant] has well documented breathing difficulties, her shortness of breath is not so acute as to render her virtually unable to walk.
    The medical members considered [the claimant's] oral evidence to be so exaggerated and unreliable that not only should the appeal seeking high rate mobility be rejected but the existing award of low rate mobility should be removed. In his introductions the Legally Qualified Member had warned the appellant that the Tribunal had jurisdiction to reduce as well as to increase or maintain the existing award and the appellant had understood this.
    The Legally Qualified Member dissented from the decision to remove the existing awards of low rate mobility and middle rate care, pointing to: -

  4. The claimant, who is represented by McL…. & Co, Solicitors, then sought leave to appeal to a Commissioner. As stated at paragraph one herein leave was granted.

  5. It is the contention of the claimant that the Tribunal erred in law: -

    6. (i) by failing to consider the claimant's mental pressure;

    (ii) by disregarding the claimant's evidence as self serving and unreliable;

    (iii) by failing to explain adequately why the claimant's oral evidence was disbelieved;

    (iv) by dismissing the claimant's evidence concerning shopping without any evidence to the contrary being available.

  6. Miss Fleming, of the Decision Making and Appeal Unit, represents the Department and has made a most helpful written submission dated 5 February 2004 commenting on the claimant's appeal. This submission can be summarised as support of the claimant's appeal but not for the reasons set out on behalf of the claimant.

  7. As I intend allowing this appeal it is not necessary for me to deal with the claimant's grounds of appeal in detail, save to state that I do not consider that there is any legal merit in them. However, Miss Fleming has set out, most succinctly and effectively, her reasons for supporting the claimant's appeal in her letter of 5 February 2004 and, in the circumstances, I consider it appropriate for me to quote the relevant part in full: -

    8. "While I would submit that the appellant's grounds of appeal have not identified an error in law I would be of an opinion that the Tribunal's decision is erroneous due to a failure to record adequate reasons in respect of the care component.
    The statement of reasons in relation to the care component provides reasons for the decision not to make an award in respect of night care needs. It then reads, "The reasons for the decision of the majority to remove the existing award of middle rate care and the reasons of the dissenting member are recorded in the mobility component reasons."
    On turning to the reasons regarding the mobility component there are no reasons provided there in respect of the decision not to make an award for day attention/supervision needs nor for the main meal test.
    The evidence before the Tribunal from [the claimant] claimed significant daytime attention/supervision needs and an inability to prepare a main meal. This evidence was contained in the claim form, the reconsideration request and indeed in [the claimant's] grounds of appeal to the Tribunal (see Tab No 6 of the Department's submission). The Tribunal took no oral evidence from [the claimant] on the day of the hearing regarding her day time needs or her ability to cook a meal.
    The Tribunal also had before it a report from [the claimant's] GP Dr W….. dated 05.02.02 (contained in the Department's submission) which indicated an inability to use a cooker and pots and pans as well as problems with care needs during exacerbations and grand mal and petit mal epilepsy. As such I would submit that the evidence before the Tribunal would, if accepted, have justified an award of at least the lowest rate of the care component in respect of the main meal test.
    The reasons for the decision make no assessment of this evidence nor give any explanation of the rejection of Dr W…..'s evidence.
    In decision C3/00-01(DLA) Commissioner Brown held,

    "I do consider that there was evidence before the Tribunal which, if accepted, might have led to an award of the mobility component. I do not consider that the Tribunal was obliged to accept this evidence. As Mr Fletcher said it is a matter for the Tribunal what evidence it accepts. If the Tribunal considered that either the claimant's evidence or that of the doctor was unreliable it was perfectly entitled to take this view but it should have explained why it did so. I set the decision aside as in error of law because the reasons were inadequate. Crucial evidence was obviously rejected without a reason being given."

    I would submit that the Tribunal in this case rejected crucial medical evidence in respect of the care component without giving a reason for doing so and as such I would submit that the reasons are inadequate.

    A Tribunal can reduce or remove an existing award, even if not asked to consider such action by the Department, provided it gives adequate reasons for it's (sic) decision, in this case I would submit that the Tribunal did not do so."

  8. I am satisfied that Miss Fleming has set out the legal position properly and I agree with and approve of what she has stated.

  9. Accordingly I conclude that the Tribunal's decision is erroneous in law. Therefore I allow the appeal, set aside the decision of the Tribunal and refer the matter back to a differently constituted tribunal for a rehearing.

    10. (signed): J A H Martin QC

    Chief Commissioner

    28 April 2004

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