Decision No: C47/99-00(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 10 June 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision dated 10th June 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Magherafelt.  I held an oral hearing of the application which was attended by the claimant and by his representative Mr M….  Mr Toner of Central Adjudication Services attended to represent the Adjudication Officer.

2.	I grant leave to appeal and with the consent of both parties treat the application as an appeal and proceed to determine any questions arising thereon as though they arose on appeal.  My decision is that the decision of the Tribunal was not in error of law and is confirmed.

3.	The claimant's grounds of appeal were set out in the OSSC1 form dated 4.8.99 and submission attached thereto.  Mr M… amplified these at hearing.  In essence the grounds were as follows:

	(1)	In light of the medical evidence the Tribunal had not given sufficient reasons as to why it reached the conclusion that it "could find absolutely nothing in the medical records which would lead" it to believe the claimant's walking ability was as limited as he stated i.e. to 15/20 metres without severe discomfort and to less than that on some days.

	(2)	That the Tribunal had preferred the Examining Medical Practitioner's opinion to other medical evidence and had disagreed with a substantially consistent pattern of medical evidence.

	(3)	That the Tribunal had erred in concluding that the medical evidence did not indicate that the exertion of walking would constitute a danger to the claimant's life or be likely to lead to serious deterioration in his health.

	(4)	That the Tribunal failed to cover all relevant issues raised by the medical evidence.  The question of risk from confusion and from falling was mentioned and needs arising from depression.

4.	Mr Toner opposed the appeal.  He stated that the Tribunal's conclusions were sustainable on the evidence and that Dr C…'s report of 1.4.99 (on which the claimant's representative placed some reliance) post-dated the Adjudication Officer's decision and related to circumstances which post-dated that decision.

5.	Mr Toner also submitted that references to a condition being "chronic" referred to its duration not to the degree of severity.  

6.	He further submitted that the Tribunal had given adequate reasons for its decision and that the medical records did not suggest severe mental illness.

7.	With the claimant's consent I viewed his medical records which he brought to the hearing.  I emphasized in so doing and I emphasize again that I was not viewing the records with the view to ascertaining whether or not I would have reached the same decision but simply whether the Tribunal's decision was sustainable on the evidence.  Claimant also consented to Mr Toner seeing the records and he viewed same.

8.	Having viewed those records I consider that the Tribunal was quite entitled to reach the findings and conclusions which it did.  These were certainly sustainable on the evidence.  Specifically the Tribunal was entitled to its view that there was nothing in the medical records which would lead it to believe that walking was restricted to 20 metres or less.  In this connection I should emphasize that the standard for entitlement to the high rate of the mobility component is one of being unable or virtually unable to walk.  The fact that a person may have some complaints of arthritis etc does not mean that that person has reached the standard of being virtually unable to walk.  The standard as set out in the legislative provisions must be met and I consider that the Tribunal was quite entitled to its conclusion that the claimant was not as limited as he contended and also not virtually unable to walk.  These conclusions were certainly sustainable on the evidence.  

9.	I also consider that the Tribunal has set out quite clearly why it reached the decision it did.  It has referred to its reliance on the Examining Medical Practitioner's report and why it preferred it to the claimant's evidence.  It has stated that it considered the claimant's evidence to be somewhat unreliable and it has set out why it preferred the Examining Medical Practitioner's report to the General Practitioner's report.  I should add that I do not think that there is any actual conflict between the Examining Medical Practitioner's report and the letter of 7th October 1998 from the General Practitioner.  It is simply that the report of the Examining Medical Practitioner is more specifically addressed to the statutory criteria.  Nor indeed is there conflict between the preferred evidence and the medical records.  The Tribunal as the fact finding body is quite entitled to prefer any particular piece of evidence either as being more directly related to the criteria in question, or if there is a conflict, as being more reliable.  The Tribunal has clearly set out which evidence it preferred and has clearly set out why.  There is no error of law in this respect.  The medical evidence does not indicate any perversity in the Tribunal's preference, rather the reverse.

10.	I can also ascertain no error on the Tribunal's part in dealing with the question of risk or hazard either in connection with daily life or in connection with walking.  The Tribunal has dealt with the claimant's submissions in this respect.  The claimant himself gave clear evidence that he could avoid falls if he wore his collar and that he wore the collar all the time and the Tribunal has accepted this part of the claimant's evidence.  It is quite entitled to accept those parts which it considers reliable and to reject the parts which it considers unreliable and this it has done.  It was also entitled, on the evidence, to its view that the claimant was mentally competent, aware of changes and that there was no evidence of aggressive/destructive behaviour.  It was also entitled to its view that the claimant did not require supervision throughout the day or somebody to be awake watching over him for a prolonged period of frequent intervals at night to avoid substantial danger.  It was also entitled to its view that the claimant was mentally competent and aware of danger and knew how to avoid falls.  All of these are sustainable on the evidence and they are all part of the reasons for the Tribunal's decision.

11.	With regards to any needs arising out of the claimant's mental health the Tribunal has quite specifically stated that it does not believe that the claimant's depression or otherwise was such as to give rise to a need for encouragement, cajoling, reassurance or otherwise.  Having seen the medical records and other evidence I consider that it was quite entitled to this view.  It should be remembered that the Tribunal was unable to take into account any circumstances not obtaining at the time when the decision appealed against was made.  That decision was dated 1st February 1999.

12.	I can also find no reason why the Tribunal should consider that the claimant was incapable of being aware of his own condition and of taking any necessary precautions to avoid danger.  The confusional episodes mentioned were related to periods of alcohol abuse which is fortunately a thing of the past as regards the claimant and the  Tribunal obviously considered that the claimant was mentally competent throughout the period before it.  It has stated so.  It was entitled to this view on the evidence before it.

13.	It appears to me having read the medical evidence and other evidence that the Tribunal has dealt with all relevant issues either specifically raised or clearly apparent from the evidence.  

14.	I am in agreement with Mr Toner that there is no error of law in the Tribunal's decision either in the manners alleged by the claimant or in any other way and I therefore confirm the decision and dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

18 April 2000