[2006] NISSCSC C2_06_07(DLA) (26 April 2006)

Decision No:  C2/06-07(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 24 June 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application by the claimant for leave to appeal against the decision dated 24 June 2004 of an appeal tribunal sitting at Omagh.  I grant leave and with the consent of both parties treat the application as an appeal and determine the matter accordingly.  The tribunal disallowed the claimant’s appeal against a decision dated 15 August 2003 and decided that the claimant’s previous award of the mobility component of disability living allowance (DLA) should be superseded and terminated from and including 12 August 2003.  The previous award was for the period 30 November 2000 to 29 November 2004.  It decided also that the claimant was not entitled to the care component of DLA from and including 9 June 2003.  Before me the arguments have focused on the aspect of the decision relating to the removal of the mobility component.  I am unable to ascertain any error of law in relation to the care component and I comment  no further thereon.  

2.	The grounds of appeal are set out on an OSSC1 form received in the Commissioners’ Office on 3 August 2005.  The grounds given are that when DLA was removed this was based on the factual report from the claimant’s general practitioner (GP) who was subsequently struck off in March 2005.  The claimant submitted that he had always maintained that his GP could not be trusted and that the report was inaccurate.  In later correspondence – letters received on 5 September 2005 and 21 November 2005 and at hearing the claimant submitted also that the hearing by the tribunal had been unfair in that he was not allowed to get his points across and that the record of the tribunal’s proceedings was not signed until 28 August 2005.  He submitted also that his condition was no better than it had been when he was in receipt of DLA.

3.	I held a hearing of the appeal which the claimant attended accompanied by his sister, Mrs Fyffe and which Mr O’Connor of Decision Making Services Branch attended to represent the Department.  The Department opposed the application in a letter dated 27 October 2005 and at hearing.  I shall deal further with the Department’s observations later.

4.	I did have the tribunal’s record of proceedings.  The record of proceedings in its typed form was dated 24 June 2005.  It was then signed by the legally qualified panel member (and chairman) of the tribunal on 25 August 2005.  I do not think that there is any point to be taken in relation to that.  A record of proceedings is not automatically issued.  It is issued upon request provided that the request is made within the period prescribed in regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999.  That period runs to six months.  There is, therefore, nothing sinister in the fact that a record is signed some considerable time after the actual tribunal decision notice is issued.

5.	Unfortunately the claimant did not seek the full statement of reasons for the decision of the tribunal within the prescribed period of one month (regulation 53 of the said Regulations).  This period can be extended (regulation 54) but not beyond the period of three months after the notice of decision is issued.  In this case the notice of decision was issued on 24 June 2004 and the statement of reasons was not requested within three months of that period.  There is, therefore, no statement of reasons available in this case.

6.	From the record of proceedings I note that the tribunal had before it the scheduled documents attached to the Department’s submission.  These included a GP factual report dated 14 August 2003, GP computer records and an incapacity benefit medical report dated 26 September 2003.  It also had GP notes and records and a hospital appointment letter for a cardiology clinic.  

7.	The Department opposed the application.  In its letter dated 27 October 2005 and at hearing the Department submitted that tribunal had taken on board the fact that the claimant disagreed with his GP’s report.  It recorded the claimant as stating:

“Dr [G …], in Leeds, didn’t have time for me and he had no idea how far I could walk.”

	The tribunal was unable to take into consideration the fact that the GP had been struck off as this matter was not before it.  The Department further submitted that, as the claimant had not obtained a statement of reasons, it was not possible to determine the tribunal’s reasoning in relation to the GP factual report and therefore not possible to identify an error of law in the case.

8.	The Department submitted, however, that there had been an error in determining the effective date of supersession of the previous award of the mobility component as 12 August 2003 when the effective date should have been 15 August 2003.  The Department submitted that I could correct this error under Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 substituting the correct effective date without referring the case back to another tribunal.

9.	The Department is correct in that without the tribunal’s reasoning I am unable to ascertain what, if any, reliance the tribunal placed on the GP report.  Even if it had relied on it it would not necessarily be an error of law in so doing.  The tribunal had before it GP records which may well have been the basis on which the report was prepared and have led the tribunal to conclude that the report was accurate.  Also as Mr O’Connor states the tribunal did not have any information that the GP had been struck off.  In addition it is perhaps worth noting that the tribunal had other evidence in support of its conclusion on the mobility component.  An incapacity benefit medical report which was prepared in 2001 (some two years prior to the date which the tribunal was considering) did indicate a very reasonable walking ability – in the claimant’s own statement some 800 metres to a local shop and 800 metres back.  That was of course well prior to the period that the tribunal was considering.  In addition, at hearing the claimant himself stated that he could walk 100 yards downhill without using his nitro lingual spray.  He stated that he could walk about 100 to 150 yards on the flat at a normal pace and then would have to stop and use the spray because of pain and breathlessness.  He stated that walking back up the hill from the local shop he would have to stop maybe once and use his spray and that he got out of breath going up hill.  He stated that he got chest pain every day.  However, as stated above I am unable, without having seen the tribunal’s statement of reasons, to ascertain what the tribunal’s view of the fact situation was.  I am, unable, therefore to reach any conclusion as to the tribunal’s view of the claimant’s walking ability.  

10.	I do have some concern in this matter in that there does not appear to be any record of the actual factual basis on which the previous award of mobility component of DLA was based.  In light of the incapacity benefit medical report the claimant was, perhaps, somewhat fortunate that it continued for so long as it did though I do fully accept that there was no dishonest intention on the claimant’s part.  However, as I do not have the statement of reasons and therefore the tribunal’s view on the findings of fact I am unable to ascertain what were its conclusions as to the walking ability at the time of the award of the mobility component and its conclusions as to the walking ability at the date of the supersession decision.  I am, unable, therefore, to ascertain any error in the tribunal’s decision in this respect and most certainly on the evidence before it the tribunal was entitled to conclude that the claimant was no longer virtually unable to walk.  As I explained to the claimant at hearing the concept of virtual inability to walk is a very, very high standard.  It means almost or practically unable to walk and on his own evidence alone the tribunal would have been entitled to conclude that the claimant’s walking ability, while limited, was not limited to that extent.  However, I have no means of ascertaining what its conclusions were.

11.	I am unable to ascertain any unfairness in the tribunal’s conduct of the hearing.  It is quite apparent that both parties were given an opportunity to put their respective cases and indeed there is an express recording at the end of the record of the evidence that no one had anything further to add.  In addition I note that the claimant, who was represented at the hearing, did not seek leave to appeal from the chairman within the prescribed period on the basis that the hearing had been unfair.

12.	The claimant tells me that he has now been awarded DLA at the middle rate of the care component but this award did not begin until after the date of the tribunal hearing.  I note also that it does not include an award of the mobility component. 

13.	I do consider that there is a small error in the tribunal’s decision in that the disallowance of the mobility component should have begun from 15 August 2003 as Mr O’Connor submits. However, this error is not such as to vitiate the decision.  I suspect it is a mere slip of the pen and I correct it as such.

14.	The appeal is dismissed for the reasons given above.

(signed): Moya F Brown

Commissioner

26 April 2006