Decision No: C3/00-01(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 18 May 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision dated 18th May 1999 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Dungannon.  That Tribunal had disallowed the claimant's appeal in connection with Disability Living Allowance.  The claimant's ground of appeal was that the decision was not in keeping with the rules of natural justice, that the oral evidence of the claimant should have been accepted and that it appeared that it was to a large degree ignored.  I granted leave and with the consent of both parties treat the application as an appeal and proceed to determine any issues arising thereon as though they arose on appeal.

2.	The appeal was supported by Mr Fletcher of the Decision Making and Appeals Unit by letter dated 29th February 2000.  The ground on which the appeal was supported was that the Tribunal did not fully investigate the help and support which the claimant received from her sister, friends and staff at her school.  In the view of the Adjudication Officer this was necessary in order to make adequate findings in relation to the overall care required and to address issues raised in relation to breathlessness and a propensity to fall.

3.	Mr Fletcher also submitted that while there was no rule that a Tribunal must accept an appellant's evidence it had a duty to carry out an evidential assessment and to explain why particular evidence was rejected.  With regard to the mobility component in this case the Tribunal had carried out no such evidential assessment and there was evidence before it which, if accepted, could have led to an award of the component.  In the absence of an evidential assessment and an explanation for the rejection of any particular evidence the reasons were, Mr Fletcher submitted, inadequate to meet the requirements of regulation 23(3A) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995.

4.	I set the decision aside for the second ground set out by Mr Fletcher.  I do consider that there was evidence before the Tribunal which, if accepted, might have led to an award of the mobility component.  I do not consider that the Tribunal was obliged to accept this evidence.  As Mr Fletcher said it is a matter for the Tribunal what evidence it accepts.  If the Tribunal considered that either the claimant's evidence or that of the doctor was unreliable it was perfectly entitled to take this view but it should have explained why it did so.  I set the decision aside as in error of law because the reasons were inadequate.  Crucial evidence was obviously rejected without a reason being given.

5.	Reasons in such circumstances need not be lengthy.  If the evidence is considered unreliable as being incredible or improbable or as being based on evidence which is incredible or improbable that is all that is needed.  Some reasons are, however, necessary and none were supplied in this case.  In the absence of them the claimant could not understand why his appeal was rejected.

6.	As regards the first ground I do not consider that the Tribunal erred in law in this respect.  The onus of proving his case lies on the claimant.  A previous Tribunal in this case had adjourned to have further clarification of the evidence from the child's school.  Against the background of that adjournment the evidence from the school did not appear to indicate any greater assistance than assistance with inhalers.  The term "constant support and help" used by the school goes far short of establishing that there was any reasonable requirement for assistance with bodily functions arising from a disablement.  In light of that and of other evidence in the case it does not appear to me that there was any breach of the Tribunal's inquisitorial role in not investigating the evidence from the school further.  However as I am setting the decision aside for the reasons given above this is not essential to my decision.

7.	It is worth noting, however, that the Tribunal concluded that the assistance with bodily functions which the child received at school amounted to assistance with medication and with carrying books etc.  That, on the evidence from the school, appears to be a conclusion which the Tribunal was entitled to reach.

8.	If any contention is made that the child requires other attention in connection with bodily functions while she is at school that matter can be dealt with at a future Tribunal.

9.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore remit the matter to a differently constituted Tribunal which should, if it is not accepting crucial evidence clearly so state and indicate, however briefly, its reasons.  The matter is, however, for that Tribunal to decide afresh.

	(Signed):  M F Brown

	COMMISSIONER

	18 April 2000