Decision No: C65/96(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
Londonderry Disability Appeal Tribunal
dated 9 May 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which held that claimant was not entitled to any component of disability living allowance (DLA) from and including 7 April 1996.

2.	Both parties, that is the claimant and the Adjudication Officer, have consented to me treating the application as the appeal and to determine any question arising on the application although it were a question arising on appeal.

3.	The facts, which it would be impossible to find from the record of the Tribunal hearing, are that the claimant claimed DLA in April 1994.  She was awarded the lowest rate care component and the higher rate mobility component from 7 April 1994 to 6 April 1996.  She made a renewal claim on 26 October 1995 in which she stated that she suffered from depression, black-outs and chest pains.  In November 1995 the Adjudication Officer disallowed her claim from and including 7 April 1996, in other words he did not renew but took away all her benefits.  Claimant requested a review, was examined by an Examining Medical Practitioner and an Adjudication Officer reviewed the decision to take away her benefit but did not revise it, claimant appealed against that decision.

4.	The DAT which heard claimant's appeal recorded findings of fact in relation to the care component as follows:-

		"Claimant's date of birth is 17 August 1947.  Period in question is
		from and including 7 April 1996.  Claimant suffers from depression,
		blackouts and chest pain.  None of the medical investigations to 
		date have revealed any organic cause for either the chest pain or the
		blackouts.  The claimant accepts she has no night needs.  We find
		the claimant can dress and undress and move about indoors unaided.  We are satisfied she can use the stairs, attend to her own toilet needs and take her own medication.  We do not accept the claimant's evidence in relation to the frequency of falls and note in any event that she has had no significant injury that has required medical attention as a result of same.  We accept the claimant suffers from depression and has recently been referred by her General Practitioner  to the Mental Health Team and we note she is currently on Dothipen 75mgs twice nightly for this condition.  It is the opinion of the claimant's own General Practitioner which we accept that she is 
		able to attend to the functions specified in report dated 
		21 December 1995.  It is the opinion of the claimant's General
		Practitioner which we accept that the claimant can be left
		unsupervised for a significant period of time both by day and at
		night.  We are satisfied that the claimant's neck pain from which
		she suffers as a result of road traffic accident does not give 
		rise to care attention in connection with bodily functions.

		We do not accept that the claimant is unable to prepare and cook
		a main meal for herself due to a shake in her hands.  We note 
		the Examining Medical Practitioner on carrying out his medical
		examination stated that the claimant had no tremor in her hands
		on 5 January 1996.  Moreover it is the opinion of the claimant's
		General Practitioner which we accept that she can peel and chop
		vegetables, use taps and use a cooker."

	and decided that she was not entitled to the care component and gave reasons for its decision as follows:-

		"We are satisfied having regard to all the evidence in this case
		that the claimant does not satisfy the criteria for the award of
		the care component of Disability Living Allowance at any level
		from and including 7 April 1996.  The claimant conceded she had
		no night needs.  We find that the claimant is no so severely
		disabled physically or mentally that she requires either throughout
		the day or for a significant part of the day frequent attention
		from another person in connection with her bodily functions, nor 
		does she require throughout the day continual supervision from 
		another person to prevent substantial danger to herself or others.
		We are satisfied the claimant should be able to prepare a cooked
		main meal for herself if she had the ingredients."

	As far as the mobility component was concerned the Tribunal made findings of fact as follows:-

		"Claimant's date of birth is 17 August 1947.  Period in question is
		from and including 7 April 1996.  Claimant suffers from depression,
		blackouts and chest pains.  The claimant can walk.  We are satisfied
		she can walk at least a distance of ½ a mile before the onset of 
		severe discomfort.  We do not accept that the claimant has to use a
		walking stick while walking and indeed note that in or about June
		1995 the claimant's General Practitioner advised her against using
		a walking stick.  It is the opinion of the claimant's General
		Practitioner which we accept that she has no obvious walking 
		problems.  The claimant has normal gait and normal balance.  We
		find the claimant has had investigations for chest pain and we
		find that none of the medical investigations carried out to date
		have revealed any organic cause for her chest pain.  She performed
		a good treadmill in or about September 1995 achieving 75% of her
		predicated heart rate without ECG changes.  We find the claimant
		is aware of common dangers.  She can and does go out walking on
		her own.  We accept she suffers from panic attacks outdoors which
		result in her collapsing and she has sustained no significant
		injury which has required medical attention as a result of these
		attacks.  It is the claimant's own evidence that she can pick
		herself up after these attacks and go home.  We note that medical
		investigations to date have not revealed any organic cause for the 
		blackouts.  We accept that the claimant may like to have someone
		with her for reassurance when walking outdoors but we are satisfied
		that the claimant does not require guidance or supervision when
		walking outdoors most of time on unfamiliar routes."

	and having decided that claimant was not entitled to the mobility component gave reasons for its decision as follows:-

		"We find the claimant does not satisfy the criteria for the award
		of the mobility component of Disability Living Allowance at either
		level.  The claimant can walk.  We are satisfied she is not virtually
		unable to walk.  We find she can walk a reasonable distance, at
		reasonable speed, in reasonable time and manner before the onset
		of severe discomfort.  We are satisfied that the claimant's physical
		condition is not such that the exertion required to walk would
		constitute a danger to her life, nor would it be likely to lead to
		a serious deterioration of her health.

		We are satisfied the claimant is no so severely disabled physically
		or mentally that she requires guidance or supervision when walking
		outdoors most of the time on unfamiliar routes."

5.	No mention was made of the fact that up until 7 April 1996 claimant was in receipt of the higher rate mobility component.

6.	Claimant sought leave to appeal on the grounds that the Tribunal erred in law in that "I could not take a representative and I and my pregnant daughter were abused and left very upset and were told to shut up.  I felt very nervous and was unable to explain that I was disabled in another way.  I cannot afford £15 for someone.  I was wrongly treated and feel I do need help as black-outs and panic attacks are really frightening and I feel I will hurt myself if left alone."

7.	When the Adjudication Officer received a copy of the application for leave containing the grounds of appeal he commented as follows:-

		"1.	The tribunal may have incorrectly applied the test in S73(1)(d)
			(lower rate mobility: guidance and supervision).  The test for
			supervision is broader than that for supervision in the care
			component, not being limited to the avoidance of risk or injury.
			(See CDLA/042/94, approved by the NI Chief Commissioner in C44/95(DLA), and also CDLA/1414/1995).  The possibility of panic attacks may give rise to a need for reassurance amounting to supervision for the purposes of the lower rate mobility component (CDLA/757/1994).  The Commissioner may wish to consider whether the tribunal may have erred in this respect.

		 2.	It has been held that reassurance may amount to attention for
			the purposes of the care component (CDLA/494/94).  The 
			Commissioner may wish to consider whether the tribunal should have taken account of any requirement for reassurance in arriving at their decision on the care component.  In the
			findings recorded by the chairman the tribunal appear to 
			have contrasted "may like reassurance" with "require guidance
			or supervision", thus betraying a lack of appreciation that
			a requirement for reassurance would be relevant.

		Should the Commissioner decide to grant leave, I consent to the 
		Commissioner treating the application as an appeal and determining
		any question on the application as if it arose on appeal."

8.	I have considered the Adjudication Officer's comments.  I accept that the Tribunal incorrectly applied the test relating to guidance and supervision in respect of mobility and that the Tribunal did not take proper account of panic attacks and the requirement for reassurance amounting to supervision.

9.	I am also satisfied in respect of the care component that the Tribunal did not take account of the requirements for reassurance and I agree with the Adjudication Officer's comments in that regard.  

10.	Consequently I am satisfied that the Tribunal erred in law in not taking account of the supervision contained in the evidence.  At the hearing I granted leave to appeal and for the reasons set out above I allow the appeal and set aside the Tribunal's decision.  I am satisfied that this is a case in which I should exercise the power vested in me to give the decision which the Tribunal should have given.   I am satisfied on the evidence and on the submission of the Adjudication Officer that claimant is entitled to the lower rate mobility component from 7 April 1996 and to the lowest rate care component from the same date, both these awards are for life.  

(Signed):  C C G McNally

COMMISSIONER

20 November 1996