[2006] NISSCSC C14_06_07(DLA) (17 November 2006) 

Decision No:  C14/06-07(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 18 August 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the Chief Commissioner, against a decision of the appeal tribunal sitting at Ballymena on 18 August 2005 (“the appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and refer the case to a differently constituted tribunal (“the new tribunal”) for a complete rehearing.

2.	The question for determination by the appeal tribunal was whether the claimant was entitled to either or both components of a disability living allowance.  On 10 March 2005, a decision-maker decided that she was entitled to neither.  On 18 August 2005, the appeal tribunal unanimously dismissed her appeal against that decision.

3.	The background is as follows.  The claimant was born on 12 November 1960.  She is married and lives with her husband.  About 11 or 12 years ago she fell and broke her left knee.  She now requires a hinged knee brace and a stick.  Some of the muscle on her left leg has wasted.  See the section of her claim form which is headed “Walking outdoors”.  More recently she has developed fibromyalgia.  In December 2004, she made a claim for a disability living allowance.  As already indicated, the claim was unsuccessful and her appeal was dismissed.  Permission to appeal was refused by the chairman but was granted by the Chief Commissioner.

4.	The claimant’s grounds of appeal are set out in her application for leave.  First, in relation to the mobility component, attention is drawn to the following passage in the reasons given by the appeal tribunal:

	“Whilst the Tribunal believe that [the claimant] has walking difficulties we are not convinced that she is virtually unable to walk.  We believe she remains capable of walking a reasonable distance in a reasonable time in a reasonable manner before the onset of severe discomfort.  We note a stated walking ability of 5 minutes – we view this not to equate to a virtual inability to walk.”

5.	It is submitted that these observations do not amount to adequate reasons for dismissing this part of the appeal.  The Department has lodged submissions which support this ground of appeal.  I accept those submissions.  The passage quoted really amounts to a conclusion.  What is lacking are the findings necessary to justify that conclusion.  Particularly given that the claimant undoubtedly has problems with walking. I add that the comment “We note a stated walking ability of 5 minutes” appears to derive from the answer recorded in the chairman’s note: “Says about 5 minutes walking”.  However, what the claimant meant by this expression does not appear to have been explored.  The appeal tribunal may well have attached too much weight to this answer.  I note that the next recorded answer is “Probably could go out if she had to.  Pain levels very great.”

6.	The second ground of appeal relates to the cooking test.  The appeal tribunal said:

	“[The claimant] confirms that she can and still does drive, though less frequently than usual.  We cannot equate this with an inability to cook specifically handling pots or pans or chopping and peeling vegetables for one person only....”

	The claimant submits that her ability to drive is irrelevant to the consideration of her ability to cook.

7.	The Department does not support this ground of appeal and I do not accept it as formulated.  A tribunal is entitled to look at all the evidence.  Evidence of an ability to carry out certain activities, which do not involve the statutory criteria, may well be inconsistent with, or throw light on, evidence of inabilities which do relate to those criteria.  Nevertheless, I think the appeal tribunal did err in this respect.  It has not given a sufficient explanation as to why it considered that the claimant’s ability to drive was evidence that she could cook.  The appeal tribunal stated that she drove less frequently than usual.  Neither the statement of reasons nor the record say how often she drove, nor in what circumstances nor what sort of a car.  Clearly, someone who drives frequently, for long distances and in changing conditions may face difficulties when trying to persuade a tribunal that he or she cannot prepare a meal.  The same may not be true of someone who only drives very occasionally and then for short distances within the immediate vicinity of their home.  All the more so if they drive a manual car or one with power assisted steering.

8.	When granting leave, the Chief Commissioner raised the issue whether “…the tribunal failed to consider, adequately or at all, the variable nature of the claimant’s condition when it was considering her ability to cook a main meal”.  There was evidence before the appeal tribunal to the effect that the claimant suffered variations in her condition – and not just in relation to cooking.  The new tribunal should consider the matter and should record its findings.  If it concludes that there are no, or no significant, variations in the claimant’s condition then it should record the fact.

9.	For these reasons I allow the appeal and remit the matter to the new tribunal.  That body should have regard to the Department’s submissions in relation to the mobility component.  These are set out in its letter of 5 May 2006.

(signed):  J P Powell

Deputy Commissioner

17 November 2006