.Decision No: C38/97(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 4 June 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal against the decision of a Disability Appeal Tribunal which concerns a child, Wnow aged 11.  The middle rate care component was awarded in respect of W's night needs from 25 March 1994 to 4 February 1996.  When a renewal claim was lodged the Adjudication Officer disallowed the claim from 5 February 1996, that decision was upheld following an application for a review.  Claimant now seeks leave to appeal against that decision.

2.	I arranged an oral hearing at which neither W... nor his mother appeared nor were they represented.  The Adjudication Officer was represented by Mrs Gunning.

3.	Mrs Gunning argued that the Tribunal had the benefit of the GP notes but that the findings of the Tribunal related, not the frequency of claimant's attacks, but put their emphasis on what the child could do.  She said it did not properly consider his needs when he does have an attack.  She said that it was difficult to know why the claim was disallowed and that the only medical evidence the Tribunal had were two medical reports which were almost identical.  Despite this, claimant was awarded the middle rate care component for his night needs on the basis of the first report, yet the second report was used to reject the claim.

4.	I have considered the Adjudication Officer's attitude to this decision.  It would appear from the evidence and from the medical report that claimant's night needs have now increased from the time he was awarded the middle rate care component for night needs in May 1994.  I am satisfied the Adjudication Officer is correct in conceding the Tribunal did not consider the needs when he had an attack, nor did it consider his night needs.  I am satisfied that the Tribunal erred in that regard.  Having considered the matter I granted leave to appeal and treat the application as the appeal.  

5.	I have considered all the documents and I have considered the concessions by Mrs Gunning.  I am satisfied that the appeal must succeed.  I therefore allow the appeal and set aside the decision of the Tribunal.  I think it is a proper case in which I should give the decision which the Tribunal should have given.  I am satisfied on the evidence before the Tribunal that the claimant is entitled to the middle rate care component from 5 February 1996 to 4 February 1998.

(Signed):  C C G McNally

COMMISSIONER

4 August 1997