Northern Ireland - Social Security and Child Support Commissioners' Decisions

DT-v-Department for Social Development (DLA) [2010] NICom 10

Decision No:  C50/09-10(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 20 November 2008

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is an appeal, leave having been granted by a Commissioner on 17 December 2009, against the decision of the tribunal affirming a decision-maker’s decision to the effect that the claimant is not entitled to either component of disability living allowance (DLA) from and including 26 March 2008.

 

2.     On 26 March 2008 the claimant made a claim for DLA stating that she had epilepsy, depression, arthritis and back pain.  On 4 April 2008 it was decided that the claimant’s claim should be disallowed from and including 26 March 2008.  Thereupon the claimant appealed.  On 20 November 2008 the tribunal unanimously affirmed the original decision.

 

3.     The claimant then sought leave to appeal to a Commissioner.  Leave was refused by the legally qualified member on 26 June 2009.  However, as stated at paragraph 1 herein, leave to appeal was granted by a Commissioner on 17 December 2009 on the following grounds:

 

“The decision might be wrong in law, because, the claimant having raised the issue of her inability to prepare a main meal (both in her claim form and in oral evidence), the tribunal failed to make an explicit reference to the cooking (or main meal) test and, in particular, failed to explain why it was or was not making an award of the lowest rate of the care component of disability living allowance in accordance with the test.”

 

4.     Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

 

5.     The claimant is represented by Ms Louise Kyne, Legal Support Officer, Citizens Advice Bureau, while Mr Michael Collins of Decision Making Services represents the Department.

 

6.     Ms Kyne has submitted that while the tribunal recorded evidence in relation to the claimant’s capability to cook a main meal, it failed to consider the issue in its reasons for decision.  She relied on Great Britain decision CDLA/2997/2008 as authority for the proposition that a tribunal must explain the merits of the evidence rather than merely recite the evidence.

 

7.     In the circumstances I do not think it necessary to set out the record of proceedings or the reasons for decision as Mr Collins substantially takes a similar view to that taken by Ms Kyne.  Nevertheless it is clear that the record of proceedings shows that the claimant gave evidence to the tribunal in relation to the illnesses, her treatment and medication and, in particular, how her illnesses affected her care and mobility needs.  In the tribunal’s reasons it also noted that it had access to the claimant’s previous papers as well as to her medical records.  Mr Collins has also drawn my attention to relevant portions of the oral evidence which is set out in comminuted form, as follows:

 

“Forgets has cooker on …

Her back stops her standing so family cook for her – she’d completely forget …

Don’t see point in cooking for one …

Let kettle boil away …

Can make peanut butter sandwiches …

Nephew says he made gravy, mince, spuds and peas yesterday at her house.  Says only makes for me …

Can sit to prepare meal but says cooker/standing is a problem.”

 

         Mr Collins has pointed out that this evidence is consistent with the contents of her claim form. 

 

8.     The tribunal then considered this evidence along with the medical evidence and concluded that the claimant had no care or mobility needs and went on to give its detailed assessment of the evidence in the context of each of the disabilities claimed by the claimant.  In its conclusion, the tribunal concluded that her care and mobility needs were not as significant as she alleged by specifically stating:

 

“Taking all the above into account the tribunal does not accept that the Appellant’s physical and mental conditions are not so bad as to necessitate the degree of care and attention alleged by her.”

 

9.     As mentioned at paragraph 6 herein, Ms Kyne relied on the Great Britain Upper Tribunal case CDLA/2997/2008 where Judge Lane stated as follows:

 

“10.     … the tribunal must find sufficient facts to support its decision and in doing so, show how it resolved factual disputes.  This requires an explanation of the merits of the evidence so that the parties can understand why the evidence was accepted or rejected.

 

11.       Establishing the facts is not the same as reciting the evidence.  What is necessary is an indication, express or by necessary implication, of what the tribunal accepted as fact. …”

 

10.   Mr Collins also drew my attention to decision C16/08-09(DLA) where Mr Commissioner Mullan stated at paragraph 54:

 

“… there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.”

 

11.   Applying these legal principles to the present case and in light of the fact that the claimant raised the issue of her inability to prepare a main meal both in her initial claim form and in oral evidence to the tribunal, I conclude that the tribunal has erred by failing to make an explicit reference to the main meal test and, in particular, by failing to explain why it was not making an award.  I therefore conclude that the tribunal has erred in law in this respect.

 

12.   In light of my findings I conclude that the tribunal’s decision is erroneous in point of law.  Accordingly I allow the appeal.  In the circumstances I set aside the tribunal’s decision and refer the case to a differently constituted tribunal for a rehearing on the merits.  While the error of law set out above concerns the cooking (or main meal) test and whether or not an award of the lowest rate of the care component of DLA should have been made, I direct the tribunal to deal with all relevant issues de novo, bearing in mind what I have set out in this decision in relation to the main meal test.

 

 

(signed)  J A H Martin QC

 

Chief Commissioner

 

 

 

4 February 2010