Decision No:  C6/01-02(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 1 December 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 1st December 2000 of an Appeal Tribunal sitting at Belfast.  That Tribunal had allowed the claimant’s appeal (which related to the care component only of Disability Living Allowance) and awarded the lowest rate of that component from 6th May 1999.

2.	The claimant’s grounds of appeal were set out in a letter dated 6th April 2001 attached to an OSSC1 form received in the Commissioners office on 18th June 2001.  The first ground was that the Tribunal had erred in law in that it misinterpreted the evidence of the claimant’s wife as at no point did that evidence suggest that attention was only required for a significant portion of the day.  The second ground was that the Tribunal had erred in law in failing to consider entitlement to the middle rate of the care component of Disability Living Allowance on the evidence available to it.  The claimant was represented by Mr McVeigh of the Citizens Advice Bureau.

3.	The appeal was supported by the Department by letter dated 3rd September 2001 from Mr Toner of the Decision Making and Appeals Unit (DMAU).  Mr Toner submitted that the Tribunal decided that the claimant required greater attention when on Interferon treatment than when off it.  He submitted further that the Tribunal had accepted that for most of the period before it (which he stated to be 6th May 1999 to 8th January 2000) the claimant was on Interferon.  On that basis Mr Toner considered that the Tribunal decision was erroneous in law that it did not explain why the greater attention required during the period on Interferon did not warrant an award on higher rate.

4.	I do think that the decision was in error of law but not for the reasons given by Mr Toner.  It is, in my view, relatively clear from the Tribunal’s decision that the Tribunal’s findings as to the attention required by the claimant were on the basis of the attention required while the claimant was on Interferon.

5.	I do, however, consider that the Tribunal erred in that it did not appear to give any consideration to the possible entitlement to middle rate care for night attention though this was raised by the evidence of the claimant’s wife.  There appears to have been inadequate exploration of the frequency, duration and periods for which such attention was required.

6.	I also consider that the decision erred in that it did not give consideration to the satisfaction of the qualifying periods or to the matter of whether or not, at the time of the decision under appeal a fixed term award was appropriate.  These questions were raised by the medical evidence as to periods of Interferon treatment.

7.	I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore, remit this matter to a differently constituted Tribunal for re-hearing and re-determination.  That Tribunal should bear in mind the views expressed above.  The Tribunal should ascertain and record its findings on:

(a)	the claimant’s needs when on Interferon treatment.

(b)	his needs when off that treatment.

(c)	the periods when he was on the treatment and if relevant the likely time of his remaining on same at the date of the decision under appeal.

8.	The Tribunal should also bear in mind the strictures of Article 12(8)(b) of the Social Security (Northern Ireland) Order 1998.

(Signed):  M F Brown

COMMISSIONER

26 November 2001