[2007] NISSCSC C16_06_07(DLA) (29 January 2007) 

Decision No:  C16/06-07(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 22 December 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the chairman, against the decision of the appeal tribunal sitting at Newtownards on 22 December 2005 (the “appeal tribunal”).  For the reasons which I give, that decision is erroneous in point of law.  I therefore set it aside and remit the matter to a differently constituted tribunal (the “new tribunal”) for a complete rehearing. 

2.	The issue which the appeal tribunal had to determine was whether the claimant was entitled to either or both components of a disability living allowance.  On 23 May 2005, a decision-maker decided that she was entitled to neither component from and including 7 January 2005 – which was the date on which she claimed benefit.  The claimant appealed against that decision but her appeal was dismissed by all three members of the appeal tribunal.  Leave to appeal to a Commissioner was granted by the chairman.  The grounds of appeal are set out in the claimant’s representative’s letter.  

3.	The claimant was born on 27 October 1986.  She was, accordingly, 18 in May 2005.  She suffers from a number of medical problems.  However, the one which causes her problems, and which led to her making a claim, is her deafness in one ear.  Namely, her right ear.  I proceed on the basis that, in practical terms, she is without hearing in her right ear.  There is, however, nothing wrong with the hearing in her left ear.  In the summer of 2005, the claimant was preparing to go to university to study for a BSc in Animal Behaviour and Welfare.  Sensibly, the claimant took steps to ensure that, when she arrived at university she would make the best use of her time there.  She obtained a report from a disability and special needs support worker at the university as to the ways in which the university might help.  She also obtained, presumably for the purposes of obtaining that report, a letter dated 15 July 2005, from a consultant ear, nose and throat surgeon at the Royal Victoria Hospital.  These documents were lodged as evidence in support of her appeal.  The consultant’s letter summarises her problems with deafness on her right side and I quote it at length:

“Many thanks for referring this 18 year old girl who was born with congenital atresia of her right ear.  Her left ear is normal as is the hearing on the left side.  The hearing on the right side shows a mixed hearing loss averaging 80dB.  This is not amenable to surgery.

She will have 3 problems throughout life:

1)  Difficulty in understanding speech on the bad side, namely the right side.
2)  Difficulty in understanding speech in a group situation.
3)  Difficulty in localisation of sounds.

She is to start her university course in September 2005 at [the city is named] in England where she will study animal behaviour.

An CAT scan of her petrous bones performed at the Royal Victoria Hospital on the 10 March 2005 confirms a normal left ear with atresia of the right ear canal involving the middle ear.

I would be most grateful if her tutors at the university would be aware of the above hearing problem.

She is not a suitable candidate for a hearing aid but would be helped by a (1) a note-taker or (2) if she could receive permission to record lectures.”

	The consultant concludes his letter by saying that he plans to review the claimant annually during her holidays.

4.	It is clear that the claimant suffers from a significant disability.  For present purposes and, as already indicated, I proceed on the basis that she is deaf on her right side.  It is also clear from the consultant’s letter that, notwithstanding normal hearing on her left side, she does have problems with daily living.  However, the issue for the tribunal was whether those problems were of sufficient severity to satisfy the statutory conditions laid down in sections 72(1) and section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  Despite its name the benefit known as disability living allowance does not exist to compensate those who have the misfortune to suffer disability for their disability.  The claimant would be entitled to benefit if that was the case.  Instead, disability living allowance exists for those who are unable to walk, or are virtually unable to do so, or who require assistance when negotiating unfamiliar routes (the mobility component) or who need assistance or supervision of specified kinds (the care component).  In many ways it would avoid much confusion if the latter component were renamed the “home nursing component”.

5.	The claimant attended the hearing on 22 December 2005, and gave evidence.  So did her mother.  The appeal tribunal considered their evidence together with that contained in the papers.  It accepted that the claimant had a hearing problem but decided that she was not entitled to either component.  Save in one respect, that decision is sustainable despite the criticisms that have been made against it in the grounds of appeal.

6.	The ground on which I allow the appeal relates to the care component.  In giving its reasons for dismissing that part of the appeal the appeal tribunal said this: (The words underlined were underlined by the appeal tribunal.)

“On the basis of the evidence before it, Tribunal feels that at the relevant date claimant was not so severely disabled physically or mentally as to require either:  throughout the day frequent attention in connection with bodily functions, or continual supervision to avoid substantial danger, or during the night prolonged or repeated attention in connection with bodily functions, or another person to be awake for a prolonged period or at frequent intervals to watch over her, nor would she be unable to prepare a cooked main meal for herself.  

Tribunal accepts the genuine existence of Claimant’s hearing problem.  However, to qualify for Disability Living Allowance a Claimant must come within the statutory provisions and Tribunal concluded that in the absence of a requirement for frequent attention or continual supervision from another person Claimant did not so qualify.  So far as preparation of a meal for herself is concerned, Tribunal was of the view that Claimant should be able to watch things boiling and that she should be aware of the time which an item would take to prepare.  It could not accept that lack of hearing in one ear should be a barrier to preparation of a meal for one person.”

7.	The claimant’s representative points out that a person may qualify for the lowest rate of the care component if he or she requires in connection with his or her bodily functions attention from another person for a significant portion of the day.  This is something which the appeal tribunal either failed to consider or, if it did, it failed to record the conclusions which it reached.  Indeed, this particular way of qualifying is not referred to in either of the two paragraphs just quoted in contrast to the very specific references to the other conditions for entitlement.

8.	The Department for Social Development has been given the opportunity to comment on the grounds of appeal.  In relation to this particular ground its submission is to the effect that the fact that there is no explicit mention of the need for attention for a significant portion of the day does not mean that the tribunal has failed to consider that issue.  It is submitted that the Department’s submissions to the appeal tribunal outlined the various conditions of entitlement to a disability living allowance and explained why it was submitted that these conditions were not satisfied.  The Department then goes on to submit in relation to the appeal before me “that whilst not explicitly referring to the issue of requiring attention for a significant portion of the day the tribunal has in fact considered it (along with all the other conditions of entitlement) and has not erred as contended.”  Reliance is placed by the Department on a short, general, quotation from Mrs Commissioner Brown at paragraph 32 of decision C48/03-04(DLA).  I entirely accept the good sense of the quotation but I am afraid I do not accept the Department’s submission.  The problem here is that the appeal tribunal has referred in specific terms to all the conditions save one.  The reader of the statement is therefore left in the dark as to whether it forgot to record its conclusions in respect of that condition or whether it forgot to consider the condition at all.  I am unable to find any general, or “sweeping up”, statement that might be interpreted as extending to the otherwise unmentioned condition.  I therefore allow the appeal on this ground.  Perhaps I should say that the appeal tribunal did specifically consider the “cooking test”.  However, it did so in response to evidence which it had heard from the claimant’s mother as to the claimant’s difficulties with cooking.

9.	I am unpersuaded by the other grounds of appeal.  This is so notwithstanding the additional points made by the claimant’s representative’s response to the Department’s submissions. It is said in the grounds that the medical member referred to a consultant who had, at some time, been involved with the claimant’s treatment.  The medical member is said to have told those present at the hearing that he knew the consultant who was of the opinion that “… people with two hearing aids had near normal hearing and no need for attention”.  It is common ground that these remarks, if made, were irrelevant to the present appeal.  The Department point out that they form no part of the appeal tribunal’s reasoning.  I agree and therefore reject this ground.  I add that if something of the sort was said, there must have been a degree of misunderstanding.  Hearing aids may greatly help those with mild hearing loss but it is accepted that they will not fully compensate those with severe hearing difficulties.  In extreme cases they are of very little use.

10.	The next two grounds relate to the fact that the claim was made on 7 January 2005, and the decision was given on 23 March 2005.  The claimant did not go to university until later in 2005.  Notwithstanding this, the appeal tribunal spent much time considering how she coped at university.  In particular, how she coped with lectures, tutorials and social activities.  It is submitted that the appeal tribunal failed to consider the claimant’s situation at the end of March 2005, and took into account matters which occurred after the date of the decision.  I reject this ground.  The appeal tribunal considered the evidence of how the claimant coped at university because she lodged such evidence in support of her appeal.  The claimant never suggested that her hearing had deteriorated, or improved, since the decision under appeal (23 March 2005).  The whole matter has proceeded on the basis that there has been no change.  That being so, it was perfectly proper for the claimant to lodge evidence of her current difficulties and for the appeal tribunal to consider that evidence.  To the extent that the claimant was meeting new, and post‑decision, challenges the way in which she did so, and her success or lack of it was relevant to understanding how her right‑sided deafness affected her in March 2005.  Putting it another way, if there had been no change in the claimant’s deafness, then the problems which she encountered when she went to university towards the end of 2005 were already lying in wait in March. Hence the extremely sensible steps which she took before starting her degree to ensure that she would have the assistance she needed.

11.	I have already allowed the appeal on the claimant’s fourth ground.  Her fifth, and final, ground relates to her claimed attention needs in connection with communication.  With respect, I consider that this ground is an attempt to re‑argue the question of fact which the tribunal decided against her.  The appeal tribunal’s decision is sustainable in relation to her communication needs.

12.	Finally, when granting leave to appeal, the chairman said that the appeal raised points relevant to persons suffering from partial hearing disability and that it was desirable that they should be determined by a Commissioner.  I am, however, unable to perceive anything in this appeal which is special to partially deaf persons.  It is likely that the majority of disability living allowance cases which involve deafness involve those who are partially, rather than totally, deaf.  That being so I do not consider that the appeal either enables me to give general guidance or that the facts indicate what general guidance it might be appropriate to give. What distinguishes this case from many others is that the claimant is deaf in her right ear but has normal hearing in her left. That undoubtedly causes her problems. Nevertheless, the question for the new tribunal is whether those problems satisfy the statutory conditions. I allow the appeal for the reasons I have given and remit the matter to the new tribunal.

(signed):  J P Powell

Deputy Commissioner

29 January 2007