Decision No: C65/97(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

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Belfast Disability Appeal Tribunal
	dated 28 April 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant with leave of the Commissioner against the decision of a Disability Appeal Tribunal (DAT), where decision was that the claimant was not entitled to the mobility component or the care component of Disability Living Allowance (DLA) from and including 23 June 1995.

2.	It is very difficult to understand the Tribunal's method of handling this case because in fact it related to two separate appeals.  One in respect of a claim which was lodged on 23 June 1995 and as a result of which the Adjudication Officer awarded claimant the lower rate care component from 23 June 1995 to 22 June 1996.  The second claim was made on 5 July 1996 and as a result of that claim no benefit was awarded.

3.	For some reason the Tribunal ran the two appeals into one and although it recorded that there was an entitlement to the care component purported to withdraw the benefit which had been awarded in August 1996.

4.	I arranged an oral hearing at which claimant appeared but was not represented and the Adjudication Officer was represented by Mr Shaw. 

5.	Claimant drew attention to the fact that there were in fact two appeals but did not intend to proceed with the second appeal which was in respect of the period from 23 June 1996.  He then detailed his medical history where he first had a diagnosis of an obstructive bowel and that he suffered from that complaint from December 1994 until it was properly diagnosed as cancer in 1995.  This resulted in the operation referred to in the report of 30 July 1996 from Mr S McA MB, MRCP, FRCR, Consultant in Clinical Oncology.  This report referred to the fact that a large tumour was discovered in the large bowel in June 1995 and claimant had an extended hemicolectomy in June 1995 followed by post operative chemotherapy, the final session being in January 1996.  Mr McA drew attention to the fact that chemotherapy was offered initially as an in-patient but he then became a day-patient because as the Consultant reports:-

		"... this was only possible in view of the significant input from 
		his wife in helping him to cope with fairly distressing and 
		debilitating side effects.  It is my opinion that this should be
		taken into account when assessing his entitlement to benefits 
		over that time period."

	Mr McA also recorded that during the chemotherapy he had mouth ulcers etc and that during the cycle of the chemotherapy his energy was reduced.

6.	Claimant then drew attention to the fact that between December 1994 and the proper diagnosis of the cancer in July 1995 he was bedbound with a blocked bowel.  After the operation, his wound partially opened and he then suffered a chest infection.

7.	Mr Shaw said it was most unusual for the Tribunal to run two appeals together.  He also drew attention to the fact that the Examining Medical Practitioner recorded in his report that the care needs began in December 1994.  The claimant had nil energy and his wife had help with the toilet and bath.  He also reported that subsequent to claimant's operation, he had chemotherapy until January 1996.  During that time he was sick and lethargic and walking would have been difficult and he would have needed help.  Even after January 1996 the outlook must be guarded.  

8.	Mr Shaw then drew attention to the fact that the Tribunal talked about not satisfying the qualifying period and that it made no proper finding of fact in relation to this.

9.	I have considered all that has been said and I have considered the findings of fact made by this Tribunal.  It records that claimant had chemotherapy until January 1996, after which he was "fairly well recovered", and that his General Practitioner recorded in August 1996 "he was well".  I consider these two remarks to be in the context of claimant's complaints and treatment.  One who has come through a serious bowel operation for the removal of cancer growth and who has been subjected to a period of chemotherapy could be described as "fairly well recovered" if he was still alive, so I find that phrase meaningless.  I am satisfied that no proper finding was made in relation to the qualifying periods and I therefore allow the appeal and set aside the decision of the Tribunal.

10.	In view of the fact that this matter has been in abeyance for so long, both parties consented to me hearing further evidence and making findings of fact.  Claimant then told me how he suffered from what was thought to be a bowel obstruction from December 1994 when he could hardly get out of bed and his wife had to do everything for him.  He certainly was not able to walk and it was only when it was discovered that he had a cancer growth that he was immediately operated upon.  The chemotherapy then lasted until January 1996.  He then detailed the problems which he had after the chemotherapy and even for a long period after chemotherapy he had difficulty walking to the toilet and did not have any energy when he got up.  He said the wound was infected and it was painful for him to walk.   Things began to improve about April but he still needed encouragement to keep going from his wife.

11.	I am satisfied that I should make the decision which the Tribunal should have given.  I accept claimant's withdrawal of his appeal in respect of appeal number 2 which is the period after 22 June 1996.  I find that he satisfied the disability conditions for the middle rate of the care component in respect of the attention he received from his wife from December 1994 until 22 June 1996.  I also find that he satisfied the disability conditions for the low rate of the mobility component at this time.  Since there can be no entitlement before the date of claim, he is entitled to the middle rate of the care component and the low rate of the mobility component from 23 June 1995 to 22 June 1996.

	(Signed):  C C G McNally
								
	COMMISSIONER

	17 December 1998