Decision No: C23/96(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
	Ballymena Disability Appeal Tribunal
	dated 29 February 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which comes with leave of the Chairman.

2.	Briefly the facts are that the claimant is a lady of 55 years of age, claimed disability living allowance (DLA) in May 1995.  She was awarded the higher rate mobility component and the lowest rate care component from 17 May 1995 to 16 May 1996.  She sought a review of that decision in relation to the care component but the Adjudication Officer reviewed the decision but did not revise it.  On 10 November 1995 claimant lodged Notice of Appeal to a Disability Appeal Tribunal (DAT).  That Tribunal withdrew all benefit from the claimant even though the review which she had sought related to the care component only. 

3.	The Tribunal made findings of fact in relation to the care component as follows:-

		"In her original claim (DLA1 17 May 1995) she said she needed help
		to get out of bed, wash, bath, dress, toilet, move indoors, take
		medication, cook, eat, undress, get into bed, toilet at night.
		To the Examining Medical Practitioner she mentioned bathing and
		cooking only.  Her General Practitioner said she had a good
		prognosis, should be able to wash, would be of no risk from
		the exertion of walking and had had no falls.  The Examining
		Medical Practitioner felt she needed help to bath and cook
		(17 July 1995) but should slowly recover.
		
		Today she said she needed help out of bed, to move in bed, to
		move indoors, to use the toilet, to wash, to dress, to get 
		upstairs, to cook, to bath (she has not had a bath in 2 months).
		She said that she was getting better after her operation but
		now had developed back pain 3 months ago and was disabled by it.
		To support her case she handed in a report from a radiologist,
		Dr H… dated 2 February 1996, stating "There are changes of
		early sacro-ileitis affecting the lower aspect of both sacro-iliac
		joints, a little more marked on the right side than on the left."
		This would not account for her alleged severe degree of disablement.
		Problems with the sacro-iliac joints in people with a history of 
		ulcerative colitis are not unusual but normally the sacro-ileitis is asymptomatic."

4.	The Tribunal decided she was not entitled to any award in respect of the care component from and including 28 February 1996 and gave reasons for that decision as follows:-

		"We believe she made a good recovery from her ileostomy in 
		February 1995 and has no care needs arising from that.

		She appears to have had a flare-up of back pain due to 
		sacro-ileitis about 3 months ago but we are doubtful if this
		justifies her present level of alleged attention and we do not
		accept it will persist for a further 6 months as the condition
		is usually symptom free."

5.	In respect of the mobility component the Tribunal found the following findings of fact:-

		"We accept the evidence of the Examining Medical Practitioner
		that she can walk 800-1000 yards in 15 minutes with one stop,
		a normal gait, slight unsteadiness and no physical support.
		We accept that at that time following major surgery she was
		restricted by unsteadiness, weakness and frailty.  However
		she has got over that.  She now says she cannot walk due to 
		back pain but we dot not accept this as the radiological 
		evidence is not supportive.  There is no reason now why she
		would require guidance or supervision.

		She appeared rather weepy and in bad form today but she does
		not due to this require continual supervision."

	and decided that she was not entitled to any mobility component from and including 28 February 1996 and gave reasons for that decision as follows:-

		"We think she has made a good recovery from her ileostomy and is not
		virtually unable to walk.  We doubt if her sacro-ileitis flare up is
		bad enough to render her unable to walk but if so it only happened
		3 months ago and we do not think it will continue for a further 
		6 months.  We do not think there is any connection with her 
		steroidal treatment.  We note her surgeon has decided against
		surgery and has suggested treatment for her depression instead."

6.	Being dissatisfied with that decision she sought leave to appeal.  Claimant's grounds of appeal were as follows:-

		"It is Mrs R…s contention that the Tribunal erred in law by 
		making an inadequate and indeed a mistaken finding of fact which
		could not be supported by the evidence - namely the Tribunal
		found that she could walk 800-1000 yards as detailed in the 
		report of the Examining Medical Practitioner on Form DLA 140
		dated 5 July 1995.

		The EMP on that date actually stated she could walk 80-100 yards
		at a very slow pace and further estimated it would take her 15 
		minutes to walk such a distance and that she might have had to stop
		once due to weakness.  It was on the claims of this report that the
		Adjudication Officer actually awarded higher rate mobility component
		and lower rate care component for a 1 year period from 17 May 1995 -
		16 May 1996.

		Had the Tribunal correctly read the EMPs report they would have 
		realised that at the time of assessment by the EMP there was
		a significant limitation in the claimant's walking ability.
		
		Notwithstanding that the Tribunal found that the claimant was 
		restricted by unsteadiness, weakness and frailty following
		major surgery, we believe that their mistaken acceptance of a 
		walking ability of 800-1000 yards would have tainted their
		view of the claimant's disability as a whole and has made their
		decision unsafe and unsatisfactory in the circumstances."

7.	Having received notification of the grounds of appeal the Adjudication Officer made the following written comments:-

		"I would like to support this appeal.  It appears that the tribunal
		misread or were mistaken regarding the opinion expressed by the
		EMP on 5 July 1995.  The opinion expressed by the EMP was that
		Mrs R… could walk 80-100 yards not 800-1000 yards as found by
		the DAT.  I agree that this finding could have tainted the
		tribunal's view of Mrs R…'s disability and has made their decision
		unsatisfactory.  (It is interesting to note that the tribunal
		chairman has granted leave to appeal).

		I also note that in the reasons for decision in respect of both
		components, reference is made to the 6 month prospective test.
		That test however has no application during the currency of an 
		award - it applies at the beginning of an award only.  Such a 
		mistaken belief on the part of the DAT may have caused them 
		to select a wrong effective date for disallowing, in this
		case the date of the hearing, 28 February 1996."

8.	It is quite clear that the Tribunal erred as the Adjudication Officer now concedes, in relation to the walking ability of the claimant and also wrongly applied the prospective test.  In respect of the care component the Tribunal made the following finding when referring to the medical report that, "There are changes of early sacro-ileitis affecting the lower aspect of both sacro-iliac joints, a little more marked on the right side than the left".  Went on to record as a finding that that would not account for her alleged severe degree of disability because "Problems with the sacro-iliac joints in people with a history of ulcerative colitis are not unusual but normally the sacro-ileitis is asymptomatic."  That is a generalisation and the Tribunal erred in applying that generalisation to this particular case and rejecting the evidence which was given by the claimant of her particular circumstances.

9.	I therefore allow the appeal and set aside the decision of the Tribunal.  I am satisfied that I should exercise the power vested in me to give the decision which the Tribunal should have given.   I have considered the evidence which claimant gave to the Tribunal and I have considered the report of the Examining Medical Practitioner who records that she can walk 80-100 yards which is an estimate, she does so very slowly and it would take her 15 minutes.  She would have to stop because of weakness and that her balance was slightly unsteady due to weakness and frailty and that her husband accompanies her because of her weakness and frailty.  Claimant had major surgery in 1995 was in hospital for 4 months and was readmitted after 4 weeks, although it is very difficult to read the writing in the medical report and no typed copy has been supplied to me, but doing the best I can I think the report says she cannot make a meal, however her strength will slowly return although it will be 6 months to a year before she is fully recovered.

10.	In the light of that I am satisfied that the original decision of the Adjudication Officer that she was entitled to the higher rate mobility component and the lower rate care component was correct and I find that she was entitled to the higher rate mobility and the low rate care from 17 May 1996 to 16 May 1997 and I confirm that the previous award from 17 May 1995 to 16 May 1996 still subsists.

(Signed): C C G McNally

COMMISSIONER

19 November 1996