Decision No: C3/98(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 claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Newry Disability Appeal Tribunal
	dated 24 February 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which held that there was sufficient grounds to review the decision of an Adjudication Officer which had awarded claimant the lower rate mobility and the lower rate care component of Disability Living Allowance (DLA) for life.

2.	The circumstances are that claimant was originally awarded the low rate care component from 30 October 1995.  After he sought a review the Adjudication Officer reviewed and revised that award by confirming the lower rate care component and also awarding the lower rate mobility component from 30 October 1995.   Claimant sought a further review on 16 November 1995 but a different Adjudication Officer refused the review on the grounds that there was no proper grounds for review.  Claimant again sought a review on 19 March 1996 and on 3 May 1996 a different Adjudication Officer reviewed the decision but did not revise it.  Claimant then appealed to a DAT, that Tribunal held that there was grounds to review the decision of 16 November 1995 because the award of the lower rate care component was against the weight of evidence and there was also grounds to review the mobility award because the Tribunal accepted that he is in severe discomfort all the time and it is not brought on by walking.

3.	Claimant now seeks leave to appeal to the Commissioner on the grounds that the Tribunal erred in law.

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

5.	Claimant drew attention to the evidence before the Tribunal, that he was in severe discomfort, that he could only walk a short distance because of severe pain and the mobility was much worse due to his joint pains.  He also said that he needed someone with him all the time because of his arthritis and his depression.  He needed someone with him when he was out walking and that when he walked any short distance the pain in his feet got worse.  

6.	Mr Shaw said that there had been an existing award and that the doctor certified that claimant had an anxiety state of many years standing and that the Examining Medical Practitioner confirmed this.  He also had developed chest pains which got worse on exertion and that he would not go out unattended.  Mr Shaw thought that the original award was wrong because it should have been more, he said the mobility should have been at least the lower rate bearing in mind the pain in his knee and the pain in his chest and he felt that because of claimant's disabilities and of the rheumatoid arthritis claimant was entitled to the middle rate care.

7.	I have considered all that has been said and I have examined the various medical reports, some of which I find baffling.  For example, claimant's General Practitioner certifies that he suffers from agitated depression, from hypochondrosis (palpitations) and that he now suffers from multiple joint pains and has been examined in the Eneumatology Department in the Belfast City Hospital.  I note that the Adjudication Officer in his submission to the Tribunal confirmed that there was a conflict in the available evidence and then went to refer to the opinion of a Medical Officer of the Department which stated that claimant's walking problems have a non-physical basis.

8.	Stopping at this point and looking at the Medical Officer of the Department's opinion that the GP's report based on an examination did not confirm the EMP's opinion that there was a physical cause for the chest pains and went on to express the view that it was likely that his walking problem had a non-physical basis.  I am at a complete loss to understand what this means, but it does not say what the Adjudication Officer in his submission alleges that it said that his walking problem was a non-physical basis, that is not what was said by the Medical Officer for the Department.  In any event I discount completely the Medical Officer for the Department's opinion as it is based on only some medical evidence as she merely has seen two medical reports, one from claimant's General Practitioner which is merely answers to various questions and the other report is the report from the Examining Medical Practitioner who records that although claimant has had an anxiety state for many years that this complaint is compounded recently because he has developed chest pains on exertion, and went on to say he can cope with personal needs but needs support and reassurance both night and day.  His own doctor in a further report confirms he suffers from chronic anxiety and depression, he has osteoarthritis in his hands and in his right knee and finishes his report by saying "he needs someone with him all the time especially during panic attacks".  In a further medical report he confirms that he has had 4 cortisone injections for his rheumatoid arthritis in his right knee.  In the second request for a review the claimant drew attention to the fact that he now had fluid on the right knee.

9.	Without going into the matter at any great length I am satisfied that the concession made by Mr Shaw at the hearing that the Tribunal erred, not in saying that there was grounds for review because he accepted that there was, but in saying that the evidence supported the withdrawal of all benefit from the claimant.  Mr Shaw concedes that there was sufficient evidence to warrant a review and that the evidence now supported an award of the middle rate care component and the low rate mobility component of DLA, both from 30 October 1995 for life.

10.	At the hearing I granted leave to appeal and both parties having consented I treated the application as the appeal.  For the reasons set out above I allow the appeal, set aside the decision of the Tribunal and exercising the powers vested in me I give the decision which the Tribunal should have given, namely that claimant is entitled to the middle rate care component and the low rate mobility component from 30 October 1995 for life.

	(Signed):  C C G  McNally

	COMMISSIONER

	26 January 1998