Decision No: C35/97(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
Belfast Disability Appeal Tribunal
dated 24 July 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a late application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which held that he was not entitled to either care or mobility component of disability living allowance (DLA) from and including 22 April 1996, although he had been in receipt of the middle rate care component and the lower rate mobility component from 22 April 1992 to 21 April 1996.

2.	The DAT to which he appealed following an Adjudication Officer's refusal of his claim recorded the background to his appeal as follows:-

		Mobility Component

		Background

		"He was allowed low rate mobility 22 April 1992 - 21 April 1996.
		In his 1992 D.L.A.1 he did not claim mobility as such but under
		care said that he had light heads and would fall or stumble as
		he had no control over his movements.  He told an Examining
		Medical Practitioner on 2 April 1993 he could walk 2 miles at a 
		normal pace and would have no difficulties and needed no guidance/
		supervision.  The Examining Medical Practitioner accepted this.
		Despite this, Adjudication Officer decided on review he would
		need supervised walking out of doors due to hypos on 4 August 1992,
		31 January 1993 and 10 February 1993.  In his 1994 renewal he said  
		his mobility had not changed.  One further hypo on 17 August 1993.
		On 16 February 1994 Dr G said he had occasional hypos, usually no warning and he could walk a good distance, there was no reason not to 
		walk far and no help was needed from another person.  On 
		16 February 1993 he had said there usually was a warning and walking 
		ability was fair.  Mobility Component was allowed for another 2 years 
		to 21 April 1996.  Renewal from and including 22 April 1996 was 
		disallowed and this is his appeal."

		Care Component

		Background

		"In 1992 he needed help to inject insulin, 30-45 minutes morning
		and evening.  He had no other attention or supervision needs.
		He told the Examining Medical Practitioner he could get up and
		dress, move indoors, had 2 hypos a year, bathed when someone was
		in the house, manage his own medication and meals and cooking, he
		could undress and go to bed, he had had 4 hospital admissions,
		he could manage alone in bed and at night and no hypos at night.
		On renewal he confirmed no change in this condition.  On latest
		renewal there is no change except he says he needs supervised
		day and night 7 days a week due to hypos."

	and made findings of fact and reasons for decision as follows:-

		Mobility Component

		Findings of fact

		"He can walk 1/2 mile comfortably.  He says when walking 4-6 or
		7 days a week he gets hypos, is confused and disorientated with
		no warning, he does not know where he is or what is happening.
		He says he uses his glucometer before walking but still gets 
		hypo within 10 minutes or 1/2 mile.  We do not accept this.  We
		do not accept his diabetes is so unstable and so poorly controlled.
		If it were he would have been provided with glucagon.  We do not
		believe he has only gone out alone once or twice in 7 years.  We
		do not accept he gets no warning - he carried glucose and 
		carbohydrate with him to take and has had no hospital admission
		from the street.  He did not mention these problems in previous
		claims.  He is not severely depressed."

		Reasons for Decision

		"He is not limited in terms of time, distance, manner, exertion etc.

		He is diabetic and says therefore he requires guidance or supervision
		all the time he is walking out of doors on unfamiliar routes.  We
		do not accept this as a general proposition for diabetics nor in
		his particular case.  We do not accept he gets sudden, out of blue
		hypos with no warning or so little warning he cannot take action such
		as sitting down and taking glucose carbohydrate which he carries with
		him.

		We do not accept he requires guidance or supervision due to his
		depression.

		We feel the earlier awards of the Mobility Component were 
		unjustified."

		Care Component

		Findings

		"He can attend to all his own bodily functions (we accept his
		evidence on this point).

		He can safely be left unsupervised for 3 hours at a time by day
		and so does not receive continual supervision.  We do not accept
		that it is nevertheless reasonably required.

		We accept that he receives no supervision from 11.00/11.30 pm to
		7.00/7.30 am every night.  We do not accept that nevertheless it
		is reasonably required.

		The presence of a neighbour in another flat or at the end of a 
		telephone is not in our opinion continual supervision.

		We do not accept he is unable to prepare a main cooked meal.  This
		is evident from his evidence that he would not starve and from
		the General Practitioner reports."

		Reasons for Decision

		"This man is able to test his own blood and urine and to administer
		his own insulin injections.  It seems to us that by doing so he
		should be able to monitor and control his blood sugars and avoid
		hypos.  We believe he does so.  We do not believe he is having
		4,5,6 or 7 hypos per week because we note his medication has not 
		been changed since 3 March 1994 and his insulin has not been 
		increased and he has not been supplied with glucagon which has 
		been available for 20 years.  Continual supervision is neither
		received nor reasonably required either generally for diabetics
		or in this particular case.  We do not see why he cannot prepare
		a main cooked meal for himself.  He can attend to all his own
		bodily functions day and night."

	The Tribunal recorded the various documents which it considered: namely previous claim papers, written submission from the Citizens Advice Bureau and two letters from Dr W of 20 December 1995 and 5 July 1996.

3.	I accepted the late application for special reasons and arranged an oral hearing of the application for leave to appeal.  Claimant was present and represented by Miss McKenna of Counsel instructed by P O, Solicitor.  The Adjudication Officer was represented by Mrs Gunning.

4.	Miss McKenna made a long and detailed written submission, the kernel of which was that there was a report from a Dr G and two letters from Dr W.  The letters from Dr W contradicted the letters from Dr G.  She said that Dr W's evidence as to the increased frequency of his hypos was completely disregarded by the Tribunal and the Tribunal erred in law in not saying why it disregarded this evidence.   She said in neither its findings or reasons for decision do the Tribunal even mention Dr W's opinion.  She also stated that claimant had been in receipt of the benefit for 4 years.  There was no suggestion that there was any change in his condition and therefore he was entitled to the benefit.

5.	Miss McKenna also referred to the comment in the Tribunal's decision that "he would not starve".  She said that clearly the Tribunal did not take account of the Regulations when it made that comment because there was a wide gap between the meals test and the Regulations and the fact that someone would not starve because he could boil an egg or heat a tin of soup, as was recorded in the evidence.  

6.	Mrs Gunning on behalf of the Adjudication Officer said that the Tribunal was entitled to accept Dr G's evidence.  He said it also considered claimant's evidence but did not accept it.  She accepted that the Tribunal should have given reasons for rejecting claimant's evidence and also the reasons why it preferred the evidence of Dr G to the evidence of Dr W.

7.	I have considered all that has been said and I have considered the written submission on behalf of the claimant.  The Tribunal went back to 1992 and looked at the Examining Medical Practitioner's comments at that time.  It recorded in its background notes what was said by both the claimant and the Medical Practitioner at that time, and at various other times up until 1996.  I find it very odd, therefore, that the Tribunal appeared to completely ignore two letters from Dr W.  In the first he confirmed that the claimant was an insulin dependent diabetic.  He had been having more frequent hypo glyceric episodes over the last few months occurring 5 to 6 times (approximately) per week.  He also gets little or no warning of these hypos.  That report was dated 20 December 1995.  In a further report of 5 July 1996 he confirmed that recently claimant's diabetes has been difficult to control and he has had several hypo glycemic attacks.  He attended Whiteabbey Casualty Department on 12 February 1996 and 19 February 1996 with hypo glyceric attacks and required treatment in Casualty on both occasions.  He attended Whiteabbey Hospital Diabetic Clinic and also the Practice Diabetic Clinic.

8.	If one reads the findings and the reasons for the decision of the Tribunal, one finds no mention whatever of Dr W's reports.  

9.	The Tribunal would seem to lay great store on what the claimant said in his claim form and in previous claim forms, because it records what he said in a claim form of 1992.  In his evidence he expanded upon his condition and what the Tribunal really say is what he wrote we accept, what he says we reject.  If that is its attitude then it should say why.  It should also say why it completely rejected the evidence of Dr Wwho clearly said that he suffered hypo attacks 5 to 6 times per week.  While I accept Mrs Gunning's view, where there is conflicting medical opinions and one is preferred to the other then the Tribunal is obliged to say why it prefers one opinion to another.  The opinion of Dr G is really not an opinion at all but ticking various answers on a form.  If one accepts Dr G's comments, then claimant does not suffer, or ever did suffer, from hypo attacks.

10.	In the submission by the Adjudication Officer to the DAT the following was recorded:-

		"... Mr T states in his self-assessment form for Disability
		Living Allowance that he requires regular/constant supervision
		throughout the day and night because of his unstable condition and
		unpredictability of the onset of an attack.  Mr T stated that
		he had been admitted to hospital following a blackout on 26.06.94,
		27.12.94, 12.04.95, 06.05.95 and 14.06.95.  Mr T states that
		he has blackouts 4 or more times a week during which he becomes
		physically weak, his energy is drained, he is confused and 
		disorientated and he tends to fall.

		As already stated in this submission there is a substantial 
		difference of opinion between 2 general practitioners in the same
		practice, with regards to Mr T's condition.  I would
		respectfully ask the Tribunal to consider these medical reports
		and any GP and/or hospital notes that may be available on the
		day of the Tribunal and to decide on the balance of probabilities
		which of the conflicting medical opinions is correct.  Where
		the Tribunal decides that one of the conflicting medical opinions
		is to be preferred to the other, then it should say why it prefers
		such opinion.  (See unreported decision CM/406/92)."

	It is clear that the Tribunal ignored this submission completely.

11.	I am satisfied that the Tribunal erred in not giving proper reasons for its decision.  At the hearing I granted leave to appeal and both parties having consented I treat the application as the appeal.  

12.	I allow the appeal and set aside the decision of the Tribunal.  I therefore refer the matter back to be reheard by a different DAT.  That Tribunal will take account of the above remarks.

	(Signed):  C C G McNally

	COMMISSIONER

	28 July 1997