Decision No: C3/93(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

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Londonderry Disability Appeal Tribunal
dated 5 July 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Disability Appeal Tribunal which upheld the decision of an Adjudication Officer that she was not entitled to mobility allowance.  I held an oral hearing at which claimant was represented by Mr O... and the Adjudication Officer was represented by Mrs Fitzpatrick, Solicitor of the Department of Health & Social Services.

2.	Briefly the facts are that the claimant, now a lady of 64 years of age, suffered from pain in her hip and in her knee, she also suffers from angina.  She had a hip replacement in October 1991, she claimed mobility allowance on 8 November 1991.  On 31 January 1992 the Adjudication Officer decided that she was not entitled to mobility allowance because "the inability or virtual inability of the claimant to walk is not likely to persist for at least 12 months from 8 November 1991".  That decision was reviewed on 25 September 1992 at the claimant's request, and the reviewed decision read:-

"Although I have reviewed the decision I have decided I cannot revise
it to award Mobility Allowance.  This is because having regard to all
available medical evidence I am satisfied that although at present
Mrs C... W... is virtually unable to walk her condition is 
such that it is expected to improve within 12 months from the date
of the hip replacement and to qualify for Mobility Allowance the
customer must be unable or virtually unable to walk for at least
12 months from the date of claim."

3.	One would clearly see from that reviewed decision which was dated 25 September 1992 that the Adjudication Officer considered that the claimant was virtually unable to walk at that time but that that condition would not last until 7 November 1992, in other words a period of 6 weeks.

4.	Claimant appealed against that decision to a Disability Appeal Tribunal which adjourned with the consent of both parties to enable the Tribunal to see notes from Altnagelvin Hospital, especially notes of the examination of the claimant by Mr W… on 10 March 1993.  Having received the hospital notes and X-rays the Tribunal rejected her claim and recorded its findings as:-

"Mrs W... aged 63.  Had right hip replacement October 1991.  Has
osteoarthritis of left knee.  Reasonable recovery from hip 
replacement.  Can do her own shopping."

It then recorded its decision that she was not virtually unable to walk
since 8 November 1991 and gave reasons for that decision as:-

"The Tribunal considered the available evidence including notes of
attendance at Altnagelvin Hospital on 10 March 1993.  We are
satisfied that although Mrs W... does have arthritis in her
left knee she has made good recovery from her hip replacement
and while she does have problems walking she is not virtually
unable to walk by reason of severe discomfort."

5.	Mr O... drew attention to the ambiguity in the Adjudication Officer's decision in that while claimant was unable to walk at the end of September he took the view that she would be able to walk on 7 November.  He also said that there was no evidence as to how claimant was able to do her own shopping or the time which it took.  The Tribunal made no reference to the fact that she suffered from angina, nor was there any evidence that she had made a reasonable recovery from her hip replacement.  He objected to the fact that the Tribunal had based its decision on the notes from Altnagelvin Hospital which were not seen by the claimant.  He said that it was impossible to know upon what medical evidence the claim was rejected and commented that the Tribunal had before it a letter from claimant's own doctor which said that claimant's walking was painful and slow and that she required a rest after 30 yards, and the Tribunal merely made a statement as to her walking ability.  He said it did not make any findings in relation to the osteoarthritis and her ability to walk but merely commented on the osteoarthritis in her left knee.

6.	Mrs Fitzpatrick accepted that the claimant and herself were at a disadvantage because neither party knew what evidence the Tribunal took into account from the notes from Altnagelvin Hospital in coming to its decision.  She also conceded that there was an ambiguity in the Adjudication Officer's decision.

7.	I have considered all that has been said and I am satisfied that the Tribunal erred in law in not making sufficient findings of fact relating to claimant's osteoarthritis in her knee or why it rejected her evidence which it recorded at the first hearing that she could only walk 30 yards in a slow manner with severe discomfort and that her knee was her main problem.  Claimant's evidence was that she tried to walk but had to hold on to walk 20 to 30 yards and it took a good minute to do that.  Also her own doctor said that her walking is painful and slow and requires to rest after the 30 yards and that she also has a hiatus hernia and severe chest pains.  In his precis to the Tribunal he expresses the opinion that her knee is restricting her mobility due to pain and instability of Ch joint and also by placing an unfair strain on her T.H.R.

8.	As far as the question of a Disability Appeal Tribunal seeing hospital notes is concerned, as I have said previously this matter will have to be gone into at length, but in this particular instance I do not think that either party can complain of not seeing the notes because the first hearing was adjourned to enable the Tribunal to get the hospital notes and both parties consented to that.  They would have known that the notes from the hospital would not have been made available to the parties.  I think the Tribunal was ill advised in the course it adopted.  It clearly wanted to know and have a report from Mr W... as the result of an examination on 10 March 1993 and I can see no reason why the Tribunal did not ask Mr W... for such a report or instruct the Department to ask Mr W... for such a report which it would then have made available to everybody, only then would all parties know what evidence the Tribunal used to make its finding.

9.	In any event I am satisfied that there was not sufficient findings of fact relating to claimant's ability to walk and when one considers that the test is either that the person is unable to walk or "her ability to walk out of doors is so limited as regards the distance over which or the speed at which or the length of time for which or the manner in which she can make progress on foot without severe discomfort, that she is virtually unable to walk", the Tribunal should have made proper findings on those matters because the point was made that she could only walk a very limited distance, and had to stop and take a rest.  The medical evidence from her own doctor was that her walking ability was severely restricted, and if the Tribunal was rejecting all this evidence then it should not only have said so; but have said why it was rejecting the evidence.

10.	For that reason I allow the appeal and refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal.

	(Signed):  C C G McNally

	COMMISSIONER

	15 June 1994