Application No: A29/98(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 above-named claimant for
leave to appeal to the Social Security Commissioner
on a question of law from the decision of the
Strabane Disability Living Allowance
dated 11 August 1997

	DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by Mr G... for leave to appeal against a decision dated 11 August 1997 of a Disability Appeal Tribunal sitting at Strabane.  I hereby refuse leave to appeal.  Mr G...'s grounds for seeking leave were contained in letters dated 7 December 1997, 26 January 1998, 5 February 1998 and 23 March 1998.  Central Adjudication Services made observations thereon by letter dated 27 July 1998.  Mr G...'s grounds for appealing in essence were:-

	(1)	that the Tribunal did not consider the attention which it found
		to be required - dressing and undressing lower garments and washing
		lower body amounted to attention for a significant portion of the
		day;

	(2)	that the Tribunal did not accept that he needed help with cooking
		despite the GP's report that he had difficulty with standing;

	(3)	that the Tribunal did not accept there was any deterioration in
		his health.

2.	My reason for refusing leave is that I am unable to ascertain any error of law in the Tribunal's decision.  In my view the Tribunal explained clearly its views on the  evidence and the legal requirements and this included the issues raised in the last 2 grounds of appeal.  It was entitled on the evidence to reach the conclusions that it did.  It was also entitled to reach the conclusion that attention to wash the lower body and some help with lower garments was not attention for a significant portion of the day.  It set out its views clearly and same were sustainable on the evidence.  

3.	As regards the cooking test, it is quite clear that the Tribunal considered the claimant's evidence and that of his General Practitioner.  In particular the Tribunal noted that the General Practitioner had stated "prolonged standing not advisable".  The Tribunal reasoned that the claimant could sit to carry out certain functions associated with the main meal test and that the standing involved would not be beyond his capacity.  I can see no error in law in the Tribunal's reasoning in this respect and the recording is extremely clear.

4.	As regards the question of deterioration it is again quite clear why the Tribunal reached the conclusion it did and it has carefully set out the evidence which it considered.  The conclusion is again sustainable on the evidence.

5.	The Adjudication Officer's observations of 27 July 1998 asked me to consider whether the Tribunal was wrong in considering the GP's evidence about the claimant's walking as in conflict with the claimant's own evidence and whether the Tribunal consequently made incorrect findings of fact.  What the Adjudication Officer was referring to was the fact that the enquiry to the GP related to the claimant's walking distance not the walking distance without severe discomfort, and it is of course the walking ability without severe discomfort which the Tribunal has to consider.  

6.	The General Practitioner was not asked to answer exactly the same questions as the claimant had done in the claim form.  The factor of severe discomfort was omitted from the questions addressed to the General Practitioner.  Mr G... in his claim form had said he could walk 25 - 30 yards without severe discomfort and that this would take him 5 minutes.  He stated he could only walk if someone supported his weight and that he frequently fell.  The questions to the General Practitioner and his replies were as follows:-

				Questions					Answers

		"How far can the patient walk on level	   -	About 100 yards at most
		ground using appropriate aids? 
		(approximate distance in yards)

		Approximate time taken to walk this	   -	3 - 4 minutes
		distance?

		Is there any impairment of gait,		   -	
		balance or frequent falls?
				No   [ ]
		Yes  [ ] Please give details		["Yes" box was ticked]
		 Walks with limp

		IF ABLE TO WALK - 
		Is assistance or help	needed from someone 
		else to enable him to get around in known 
		or unknown surroundings?

		No  [ ]					["No" box was
		Yes [ ]"					ticked]

	In a further section the doctor was asked to give further details which might help his patient's claim.  He replied that "investigations confirmed intervertebral disc degeneration and prolapse which explains severity of symptoms and degree of incapacity".

7.	At hearing the appellant told the Tribunal he was in constant severe discomfort and had a lot of pain walking all the time and that this had been so for about one year prior to the date of hearing (on 11 August 1997).

8.	In its reasons for decision the Tribunal recorded "Appellant claimed he was in constant severe discomfort.  His self assessment form (the claim form) referred to 25-30 yards yet the General Practitioner referred to 100 yards in 3-4 minutes, limp, no impairment of balance or frequent falls and help of another not required outdoors." While the General Practitioner was not asked specifically to comment about severe discomfort, I cannot imagine that as the claimant's doctor he would have ignored the effects of severe discomfort on the claimant's walking ability and when his replies are read as a whole it is indeed evident that he did not.  Indeed it is difficult to see to what other factor the General Practitioner would attribute limits on the claimant's walking distance in light of his replies and the claimant's complaints.

9.	I do not consider that the Tribunal was wrong in its view that there was a discrepancy in the General Practitioner's view of the claimant's walking ability and the claimant's evidence regarding same.  If I thought the Tribunal had ignored the effects of severe discomfort I would certainly have found that it erred in law.  It is, however, quite evident from the findings of fact that it did not do so.  While it referred to the General Practitioner's opinion and concurred with it, it gave other reasons for its conclusion that the claimant was not virtually unable to walk and referred specifically to the MRI scan and the fact that it showed mild disc bulging not affecting nerve roots.  The GP's report does not establish virtual inability to walk and the Tribunal's concurring with that opinion does not indicate that the Tribunal ignored severe discomfort in its assessment.
10.	Mr G... has made mention of his condition having further deteriorated since the Tribunal hearing.  I am unable to take on board any deterioration which post dated the Tribunal's decision.  If Mr G... considers that he now merits an award of Disability Living Allowance, he is of course at liberty to reapply.

11.	I am unable to ascertain any error of law in the Tribunal's decision in this case and I therefore refuse leave to appeal.

	(Signed):  M F Brown

	COMMISSIONER

	20 November 1998