C10/94(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
Newry Disability Appeal Tribunal
dated 16 June 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Disability Appeal Tribunal, sitting at Newry, whereby it was held that he was entitled to the lowest rate of the care component and the lower rate of the mobility component of disability living allowance from 6 April 1992.  The Tribunal's decision in relation to the mobility component was a unanimous one; but the Chairman dissented from the decision on the care component: his view being that the claimant was entitled to the middle rate.

2.	The grounds set out in the claimant's notice of appeal were that the Tribunal "breached the rules of natural justice."  However, the claimant later sought the assistance of Mr O Stockman of the Citizens Advice Bureau, who, by letter dated 29 November 1994, amplified and explained the grounds of appeal.  It was said that the majority of the Tribunal had erred in law in failing to take account of the decision of House of Lords in the case of Mallinson -v- Secretary of State for Social Security, [1994] 2 AER 295, and that adequate reasons for the majority decision had not been recorded as required by regulation 26E(5) of the Social Security (Adjudication) Regulations (Northern Ireland) 1987.

3.	The written observations of Mr Shaw, the Adjudication Officer now concerned with this case, were as follows:-

"The tribunal by a majority, found that Mr Fitzpatrick did not 
require daytime attention, the lowest rate care component being due
solely because the main meal test is satisfied (S72(1)(a)(ii) of
the Contributions and Benefits Act).  In view of the Examining
Medical Practitioner's opinion that Mr F is "virtually
blind" this finding appears to be unsustainable.  Indeed, as the
Chairman pointed out in his dissenting decision, it is clear that
the guidance received by a blind man in order to walk from place 
to place amounts to attention (even where only the spoken word 
is used) - Mallinson V Secretary of State for Social Security.
I would support the dissenting view of the Chairman, with the
proviso that sufficient findings need to be made to show that the 
test in S72(1)(b)(i) ("frequent attention throughout the day") is
satisfied.  To this end perhaps a submission from the AO to 
a new tribunal on the full impact of "Mallinson" might be 
desirable.  (AO's original sub was pre Mallinson).  This should
include reference to the need to consider some of the more 
obvious care needs which might be "reasonably required" by blind
or partially sighted claimants as a result of the lack of the
specific bodily function of sight.  The existing evidence may 
need to be augmented to take account of the Mallinson decision
eg covering the issues now routinely explored in the additional
section of DLA1 - copy attached."

4.	I have considered this matter and accept that the Tribunal's majority decision on the issue of the claimant's entitlement to the care component of disability living allowance is erroneous in law.  It is not altogether clear why the majority were not prepared to award the middle rate; but it would appear that they declined to apply the principles laid down in the Mallinson case.  If that was indeed their approach, they were clearly wrong.  The Tribunal also erred in failing to record sufficiently detailed findings of fact, including in particular a finding directed specifically to the question of the claimant's need for frequent attention throughout the day in connection with his bodily functions; including the bodily function of seeing.  There is no such finding in part 3 of DAT8; but the reasons for decision in part 5 include the following statements:-

"Majority finding that despite the limitations on his lifestyle,
claimant could attend to his own bodily functions unaided and
did not require daytime attention or supervision or repeated
attention at night nor for someone to be awake for a prolonged
period or at frequent intervals to watch over for him."

In other circumstances I might have been prepared to accept that statement as a composite finding of fact sufficient to found a decision that the claimant did not satisfy the conditions of entitlement to the highest or middle rate of disability living allowance, even though it was not included in the proper section of the form.  However, it was a conclusion reached by the majority of the Tribunal on the basis that "seeing" was not in itself a bodily function, and I therefore reject it.

5.	For the reasons given in paragraph 4 above I allow this appeal, set aside the Appeal Tribunal's decision, and refer the case for determination by another Tribunal.  Disability living allowance is a single benefit and it follows therefore that, technically speaking, the decisions relating to both components have been set aside and the entire case has been referred to another Tribunal.  As matters stand, the claimant appears only to dispute the award of the lowest rate of the care component of the allowance, and that may well be the only issue which the new Tribunal will be required to consider.  Mr Shaw has suggested that a submission from the Adjudication Officer to the new Tribunal on the full impact of the decision in the Mallinson case might be desirable, and that it would be helpful to have further evidence of the claimant's care needs resulting from the restriction of the bodily function of seeing.  I agree.  The Tribunal's principal task will be to consider whether, having regard to those care needs, which were evidently left out of account by the majority of the previous Tribunal, the claimant satisfies the conditions of entitlement to the middle rate of the care component of the allowance.  If the claimant is content with the award in relation to the mobility component and the Adjudication Officer does not raise any objection, it will in my opinion be sufficient for the new Tribunal merely to record that that is the position and repeat the award of the previous Tribunal.

6.	The claimant requested an oral hearing of his appeal, but having considered the circumstances of the case and the reasons put forward in the request, I am satisfied that the application can properly be determined without a hearing.   The request has accordingly been refused.

(Signed): R R Chambers

CHIEF COMMISSIONER

18 May 1995