Decision No: C2/95(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of
Belfast Disability Appeal Tribunal
dated 16 November 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant appeals against the decision of the Disability Appeal Tribunal sitting at Belfast, whereby it was held that he was not entitled to attendance allowance.

2.	The claimant, who is now aged 73 years, applied for attendance allowance from 28 October 1993.  The application having been refused by the Adjudication Officer, he requested a review, and following examination by an Examining Medical Practitioner a different Adjudication Officer confirmed the disallowance of the claim.  I have studied the claimant's self-assessment form and the report of the Examining Medical Officer and I have to say that I am not greatly surprised by the claimant's failure to secure an award.  At that stage he had some degree of disability arising from rheumatoid arthritis, pulmonary fibrositis, varicose veins and sinus trouble; but it was not alleged or reported that he required much by way of assistance with his bodily functions.  However, by the time of his appeal to the Disability Appeal Tribunal his eyesight had deteriorated markedly and special emphasis was placed on this aspect of the claim; with particular reference to the decision of the House of Lords in the GB case of Mallinson -v- Secretary of State for Social Security [1994] 1 WLR 630.  The importance of the effect of the reduction in the claimant's vision was acknowledged by the Tribunal to the extent that the record of their findings included the following paragraphs:-

"(3)  Since completion of the claim form Mr H's medical
condition has worsened in relation to his eyes and his main
disabling condition is his eyesight.

(4)  Mr H... has very poor sight out of his left eye and 
reduced sight in his right eye.

(5)  However, we do not find that he has met the 6 months qualifying
period in relation to Attendance Allowance although we accept that
his condition is a deteriorating one and we note that Professor
A wishes to re-examine Mr H... in February 1995."

The claimant's poor eye-sight was also the main feature for the Tribunal's reasons for decision, which were as follows:-

"Mr H... suffers from several medical conditions and the
Tribunal accepts that he is chronically ill.  He has said that 
his care needs have increased since the date of claim due to his
failing sight.  However Professor A... has stated that the sight
in his right eye is relatively good and it is reported to be 6/18.
Whilst we accept that this may have deteriorated since the report
we do not find that Mr H... has shown us that for 6 months
he has required care of sufficient frequency to satisfy the 
entitlement to Attendance Allowance."

3.	The grounds upon which the claimant now relies are stated in his notice of application in the following terms:-

"I wish to appeal on the following point of law to the Social 
Security Commissioner in accordance with Section 21 of the Social
Security (Administration) Act (NI) 1992 given that we believe
that the Tribunal have failed to provide adequate findings of fact.
In making this point we draw your attention to the findings of fact
as contained on the AT3 form which was issued to all parties on
4 January in which Ms O'D, representative for the Appellant,
asked the Tribunal to have regard to the Mallinson -v- Secretary
of State for Social Security [ 1994] 1 WLR 630.  She indicated that
in this case it was clearly stated that seeing was a bodily function.
In drawing their findings however, the Tribunal failed to state it
had indeed taken the impact of the Mallinson decision into account."

4.	In his written observations on the appeal the Adjudication Officer now concerned with the case concedes that "there are Mallinson issues which do not appear to have been given consideration by the tribunal", and he suggests that the record of the appeal may not show that the case put on the claimant's behalf was fully considered.  The Adjudication Officer then goes on to discuss the Tribunal's findings of fact in relation to the 6 month qualifying period.  As he correctly points out, the qualifying period only requires consideration if the disability conditions are satisfied.  It has no other relevance, and, as I understand it, he suggests that the Tribunal's findings imply that they accepted that for some period short of 6 months, the claimant satisfied one or more of the conditions of entitlement to attendance allowance.  Finally, the Adjudication Officer draws attention to the provision in section 65(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 for advance awards where the qualifying period is partly composed of a period during which the conditions of entitlement are likely to be satisfied.

5.	Having considered this matter I accept that the Appeal Tribunal's findings of fact were not sufficiently detailed to support a conclusion that the claimant failed to satisfy any of the conditions of entitlement to attendance allowance.  Moreover, reading the Tribunal's decision as a whole, I am of the opinion that the Adjudication Officer is right in suggesting that the Tribunal based their disallowance of the claim on the non-satisfaction of the qualifying period, while accepting that, following the deterioration of his eye-sight, his care needs might have increased to the extent that the conditions were then satisfied.  If this was the conclusion reached by the Tribunal they failed to take account of the provisions in respect of advance awards of attendance allowance to which the Adjudication Officer has referred.   Equally, if this was not the reasoning underlying the Tribunal's decision they failed to explain the basis upon which it was reached.  Either way, their decision was erroneous in law.  I accordingly allow this appeal, set aside the decision of the Appeal Tribunal and refer the case for determination by another Tribunal.  It will of course be for the claimant to decide how his case should be presented before the new Tribunal; but it looks as if his needs for attention or supervision will be chiefly related to his failing eye-sight, in which event the Tribunal will have to give careful consideration to the decision in the Mallinson case.  The question of the satisfaction of the qualifying period should no longer present any problem; but if it arises, the Tribunal should bear in mind the Adjudication Officer's comments thereon.

(Signed):  R R Chambers

CHIEF COMMISSIONER

13 November 1995