Decision No: C7/98(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

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Belfast Disability Appeal Tribunal
dated 27 May 1997

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Chairman, by the claimant against a decision dated 27 May 1997 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast.  That Tribunal disallowed Mrs C... a claim for Disability Living Allowance from 16 February 1996.  The grounds for appeal were set out in an OSSC1 form dated 23 September 1997.  Mrs Gunning of Central Adjudication Services made observations on the appeal by letter dated 1 May 1998.  In essence Mrs Gunning supported the appeal.

2.	My decision is that the decision of the Tribunal is set aside as in error of law.  The matter is remitted to a differently constituted Appeal Tribunal for rehearing.

3.	I am unable to ascertain any error in the Tribunal's decision in relation to the high rate of the mobility component.  With regard to the low rate, however, I am of the view that the Tribunal erred in not dealing with Mrs C...'s contention in relation to falling.  This was specifically put before them and should have been considered.  I have dealt with this matter in more detail in decision C34/98(DLA) and the new Tribunal dealing with the matter should refer to that decision.

4.	As regards the care component, I consider that the Tribunal erred in law in that it did not deal with Mrs C...'s contention that she was unable to cook a main meal for herself, nor does it deal with her contention in relation to night attention.  The Tribunal's reasons for its decision in relation to the night-time needs are really nothing more than a recital of the statutory conditions.  They do not deal with the evidence.  

5.	In relation to this and while I do consider that the Tribunal in this instance was in error of law I would wish to correct a misconception which is apparent from the claimant's application for leave to appeal.  The claimant states that the Tribunal have not "identified upon what evidence they relied to conclude that I was not entitled to any rate of the care component."  This to me reveals an error in thinking which has occurred previously and I think it appropriate to comment on it here.  The onus of proof in any claim to entitlement to benefit is on the claimant (review cases are of course dealt with differently).  It is a matter for the claimant to produce sufficient evidence to support the claim.  This can of course be the claimant's own evidence or medical or other corroborative evidence.  It is a matter for the Tribunal what evidence it finds acceptable and what evidence it rejects and provided it is not perverse and provided that it gives reasons or that reasons are apparent for the acceptance or rejection of any piece of evidence the Tribunal is within the proper exercise of its powers.  

6.	It therefore follows that the Tribunal does not have to produce evidence for its conclusions.  The Tribunal has to record reasons for its decision or reasons have to be very apparent on the face of the decision, but it does not have to produce evidence.  To give an example, and I am not of course stating that this example is relevant to the present case, a claimant may give evidence of certain care or mobility needs.  The Tribunal may disbelieve this evidence.  It is perfectly entitled to do so.  It can reject the evidence without any need to produce other evidence to the contrary.  If it does so it will obviously reach the conclusion that a claimant is not entitled to the benefit.  This is perfectly within the Tribunal's remit and it is not in error of law in so doing.

7.	To return to this present case, I am not of the view that this is a case where I can appropriately give the decision which the Tribunal should have given.  There are obviously considerable factual issues in the case, it may be that medical evidence is needed or that further records could now be produced and I do not consider that these matters are proper to be explored by me.  I therefore remit 

	the matter for rehearing.  The new Tribunal should bear in mind the views expressed above.

(Signed):  M F Brown

COMMISSIONER

14 September 1998