Decision No: C19/01-02(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 29 March 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Tribunal to the effect that she is not entitled to either the care or the mobility component of Disability Living Allowance from and including 14 June 1999.  Leave to appeal was granted by a Commissioner on 6 February 2002.  Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

2.	On 14 June 1999 the claimant made a claim for Disability Living Allowance stating that she suffered from myocardial infarction, ischaemic heart disease and fibrositis.  She was examined by an Examining Medical Practitioner on 14 July 1999.  On 13 August 1999 an Adjudication Officer disallowed the claim from and including 14 June 1999.  On 8 November 1999 a Decision Maker (superseding the role of the Adjudication Officer as a result of a change in the law) reconsidered this decision of 13 August 1999 but did not revise it.  The claimant then appealed on 30 November 1999.

3.	The Tribunal unanimously disallowed the appeal and decided that the claimant was not entitled to either component of Disability Living Allowance from and including 14 June 1999.

4.	The Tribunal gave the following reasons for its decision in relation to the mobility component:
“The Tribunal having accepted the evidence of the Examining Medical Practitioner in this connection and particularly [the claimant’s] General Practitioner Dr G... that she could walk a few hundred yards on level ground before experiencing pain.  We do not find that she is unable to walk or virtually unable to walk nor that doing so would be a danger to her health and that she does not require guidance or supervision from another person while doing so.”
 
5.	The Tribunal gave the following reasons for its decision in relation to the care component:
“On the basis of the clinical findings of the Examining Medical Practitioner as set out above, the small impairment on [the claimant] being able to use her muscles and limbs and the findings that she can carry out the household tasks as set out in part 6 of the Examining Medical Practitioner report, the Tribunal find that [the claimant] is not so severely disabled physically or mentally that she requires in connection with her bodily functions attention from another person for a significant portion of the day or that she cannot prepare a main meal for herself if she had the ingredients to do so.  She does not require continuous supervision throughout the day in order to avoid substantial danger to herself and others.  No medical evidence was given to support the suggestion that [the claimant] would require someone to be awake for over one and a half hours each night to reassure her in relation to her depression.  It had been noted that there were no psychiatric reports that there was no reference to the condition which would require this attention in the General Practitioner notes and she had not received the care of a Community Psychiatric Nurse.  It is also noted that there was no reference to this in the original application.  The Tribunal therefore found that [the claimant] was not severely disabled physically or mentally that at night she requires from another person prolonged or repeated attention in connection with her bodily functions or to be awake to avoid substantial danger to herself or others or for another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over her.”

6.	The claimant, who is represented by her husband, sought leave to appeal on the grounds:
		(i)	that the Tribunal had wrongly interpreted the law;
		(ii)	that the Tribunal did not observe the rules of natural justice;
		(iii)	that the Tribunal did not consider the evidence fully;
(iv)	that the Tribunal did not give adequate reasons for its decision.

7.	A Legally Qualified Panel Member refused leave to appeal on 25 August 2000.  However, as already stated at paragraph 1, leave to appeal was granted by a Commissioner on 6 February 2002.

8.	No Record of Proceedings of the Tribunal hearing is available in this case.  The reason for this is that, whilst the Tribunal decision was issued to the claimant on 30 March 2000, the Record of Proceedings was not requested until 9 October 2000.  Under Regulation 55(2) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 an application must be received by the clerk to the Tribunal within 6 months of the date of the Tribunal decision.  Accordingly the Legally Qualified Member on 12 October 2000 did not accept the application for the Record of Proceedings of the Appeal Tribunal as it was received outside the absolute time limit.  I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as the lack of a record is due to the claimant failing to comply with the statutory time limit.

9.	In a written submission dated 4 March 2002, Mrs Gunning, on behalf of the Decision Making and Appeals Unit of the Department for Social Development, made the following very relevant submission, which, in substance, supports the claimant’s submission that the Tribunal did not give adequate reasons for its decision:

“On behalf of [the claimant] it is contended the tribunal erred in a number of areas, one of which is that it did not give adequate reasons for its decision.  In support of her appeal [the claimant] submitted reports from Dr C W..., FRCP, FACC, Consultant Cardiologist and Dr T G T..., BSc, MD, FRCO, Consultant Physician (Cardiology) dated 18 November 1999 and 24 March 2000 respectively.  Dr W... states that [the claimant] came under this care on 13 June 1999 and initially she responded well to treatment.  However he went on to state that in the ensuing month or so she developed recurrent tight chest pain radiating to her throat and left arm on relatively mild exertion and that she was markedly limited by her angina despite maximal anti-anginal treatment.  Dr T... supplied details of the cardiac catheterisation studies, stated he was assessing the feasibility of surgery, that [the claimant’s] exercise capacity was restricted and that she was significantly disabled by symptoms of angina.  However the tribunal made no mention of these reports in the reasons for decision.  The tribunal did refer to the report of the Examining Medical Practitioner (EMP) who examined [the claimant] on 14 July 1999, a month after her heart attack.  He had difficult accepting her stated restriction in her walking ability in view of her medication and expressed the opinion that there was no obvious physical reason why she would be unable to manage her own care needs unaided.

Under the provisions of Article 13(8) of the Social Security (Northern Ireland) Order 1998 the tribunal could only consider [the claimant’s] condition at the date of the decision under appeal i.e. 13 August 1999.  Although the reports from Dr W... and Dr T... were written after that date they detail tests carried out after the EMP examination and may be relevant to the determination of her condition at 13 August 1999.  While the tribunal was entitled to accept the findings of the EMP it was required to explain its decision.  As the case stands at present [the claimant] submitted evidence from two cardiac specialists, the tribunal rejected that evidence but did not explain why.  By not doing so the tribunal erred and accordingly I support the application.”

10.	I conclude that Mrs Gunning is correct in her specific submissions and also, in the circumstances, I conclude that the basic submission made by the claimant’s husband that the Tribunal has failed to give adequate reasons for its decision is correct.  It is important to remember that whilst Dr W...’s and Dr T...’s reports came into existence after the date of the decision under appeal, 13 August 1999, the contents of the reports relate to matters that are relevant to the claimant’s condition on that date.  The Tribunal may have had reasons for rejecting the evidence of Dr W... and Dr T... but it has failed to set it out in its reasoning.  Accordingly, I conclude that the Tribunal has erred in law in this respect.

11.	For the reasons stated I am satisfied that the Tribunal’s decision is erroneous in law.  Accordingly, I allow the appeal and set aside the Tribunal’s decision consequently.  I therefore refer the matter back to a differently constituted Tribunal for a rehearing.  The Tribunal when rehearing the case ought to consider a point raised by Mrs Gunning in the last paragraph of her written submissions dated 4 March 2002 in relation to whether or not the claimant satisfies the qualifying period set out by Sections 72(2)(a) and 73(9)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, bearing in mind the additional provisions set out in Regulation 13A of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987.  In the circumstances the Tribunal should be referred to the last paragraph of Mrs Gunning’s submission of 4 March 2002 to the Office of the Social Security Commissioners.

(Signed):  J A H MARTIN QC

CHIEF COMMISSIONER

30 APRIL 2002