Decision No: C29/96(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

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Newry Disability Appeal Tribunal
	dated 9 June 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which refused her either component of disability living allowance (DLA).

2.	I arranged an oral hearing of the application at which claimant appeared but was not represented.  The Adjudication Officer was represented by Mr Shaw.  At that hearing I granted leave to appeal and with the consent of both parties I treated the application as the appeal.

3.	Briefly the facts are - this is a 38 year old lady who suffers greatly from bladder complaints to such an extent that she recently had her bladder removed.

4.	The Tribunal which refused her appeal made findings of fact in relation to her application for the mobility component as:-

		"We accept appellant's evidence that she can without severe 
		discomfort walk the ½ mile or so into Dromore, stopping 3 or 4
		times briefly.  She can do this unaccompanied, with no stick or
		crutches or other physical support, with normal balance and 
		normal gait."

	and gave reasons for that decision as:-

		"She is not virtually unable to walk.  She can walk ½ mile into
		Dromore and back without physical support and aids, stopping 3
		or 4 times and carrying on for 5-10 minutes, with normal balance
		and gait.  

		She can do this without guidance or supervision.  Inability to
		carry shopping is legally irrelevant."

5.	In relation to the care component the Tribunal made findings of fact as follows:-

		"Cooking:  appellant could sit to cook and is not reasonably speaking
		unable to prepare a cooked main meal.  She needs occupational
		therapist assessment.

		Attention:  Daughter V… helps her up in bed in the morning
		and during the night.  This is not reasonably required as there
		are artificial aids available.  Occupational therapist referral
		desirable.

		Appellant can self catheterize most of the time and most of the
		time does not require help from another person.

		When she has backache or infections she requires more help but
		this is not most of the time.

		Continual supervision is not required."

	and gave reasons for its decision as:-

		"She does not reasonably require help with cooking or frequent
		attention throughout the day, or prolonged or repeated attention
		at night, or continual supervision.

		With proper occupational therapist assistance and advice her
		reasonable care needs could be catered for.  She does have chronic
		cystitis with acute exacerbations but most of the time she does 
		not satisfy the statutory requirements."

6.	At the hearing before me claimant said that the Tribunal did not properly take into consideration her daughter's evidence and said that her condition was such that she clearly could not do any cooking; her situation had got much worse since the hearing. 

7.	Mr Shaw argued that the Tribunal had conceded that she needed attention but that an occupational therapist referral was desirable and that artificial aids were available.  He said that that was a weakness in the decision because it made no findings in relation to a significant portion of the day or in connection with the speed at which claimant could walk; nor did it take into account the reassurance which claimant would require.

8.	I have considered all that has been said and I have considered all documents in this case.  

9.	As far as the findings relating to the care component are concerned - what the Tribunal should have done was to consider the attention which claimant was receiving and it is of no assistance to say that there are artificial aids available.  Until she got whatever these artificial aids may be and there was no evidence before the Tribunal as to what they might be she clearly would need assistance.  So the Tribunal made no finding in relation to that.

10.	It also said with proper occupational therapeutic assistance and advice her reasonable care needs could be catered for.  That is an implied admission that she had care needs but that a situation could well arise where they could be catered for.  I have considered all the documents, in particular I have read a report dated 30 June 1994 from a Senior Occupational Therapist in the Craigavon and Banbridge Community Trust.  In that report claimant's difficulties with her bladder are outlined at length and clearly this Senior Occupational Therapist is well aware of all her complaints and the fact that she had been admitted to hospital 3 times between May and October 1993 and that she suffered at that time deep venous thrombosis.  The Senior Occupational Therapist recorded "In view of Mrs C…'s pain and her need to bath frequently I have written to the Housing Executive asking for her bath to be replaced with a shallow shower tray.  This is the only adaptation I am recommending at present."  This is the only suggestion the Therapist made to cater for claimant's needs.

11.	So while the Tribunal acknowledged that she needed care it placed, in my opinion, too great an emphasis on what might happen in the future, but if one is to judge by the past it will not happen.

12.	I am satisfied that the Tribunal erred in law in not considering the situation as it was, not as it might be in the future.  I therefore allow the appeal and set the decision aside.  

13.	I refer the matter back to be reheard by a differently constituted Disability Appeal Tribunal and that Tribunal shall consider what her needs are and not speculate on what might or might not happen in the future.

(Signed): C C G McNally

COMMISSIONER

13 June 1996