[2007] NISSCSC C24_06_07(DLA) (9 May 2007) 
Decision No: C24/06-07(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 15 August 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified panel member, by the claimant against a decision dated 15 August 2006 of an appeal tribunal sitting at Newry.  The claimant is represented by Mr O’Neill of Newry Citizens Advice Bureau and the Department by Mr Sloan by its Decision Making Services Branch.  I am grateful to both representatives for their assistance.

2.	The grounds of appeal are contained in an OSSC1 form received in the Commissioners’ Office on 17 November 2006.  The Department made observations on the appeal by letter dated 19 February 2007 and further comment was made by Mr O’Neill in a letter dated 1 March 2007.

3.	The tribunal disallowed the claimant’s appeal against a departmental decision dated 20 October 2005 refusing disability living allowance (DLA) from and including 26 April 2005.  It was common case that only the mobility component of DLA was in issue.	

4.	The grounds of appeal were essentially five fold:

(1)	That the tribunal had misinterpreted the report of the examining medical practitioner (EMP) in that it had referred to the EMP report as indicating that the claimant could walk 100 yards on the flat before stopping whereas the EMP report, while it indicated he could walk 100 yards on the flat also indicated that he would stop to rest after 50 yards.	

(2)	The tribunal had ignored the factor of distance in considering the claimant’s walking ability.	

(3)	That the reasoning was inadequate to explain the decision in that the tribunal accepted that the claimant suffered from severe pain but rejected the claimant’s evidence as to how this affected his ability to walk out of doors without adequately explaining the reasons for this rejection.	

(4)	That the tribunal had erred by considering that the use of painkillers equated to the walking test.	

(5)	That the tribunal had found that the claimant would be capable of walking 100 yards on the flat and that he would stop to rest after 50 minutes whereas there was no evidence that the claimant could walk for 50 minutes.

5.	The Department opposed the appeal.  It submitted, with regard to the grounds put forward: -

(1)	The tribunal had not misinterpreted the evidence of the EMP having recorded that the opinion of the EMP was that the claimant was capable of walking 100 yards on the flat stopping to rest after 50 yards.

(2)	That the tribunal had considered distance when considering the claimant’s ability to walk, having considered the evidence of the EMP with relation thereto and having taken account of speed and time of walking which implicitly entailed consideration of distance.

(3)	That the tribunal was under no obligation to explain its assessment of credibility (per R3/01(IB)(T)).  Its reasons were adequate to indicate why it reached the conclusions it did on walking ability.

(4)	The tribunal was entitled to take into consideration evidence as to use of painkillers in making its assessment of credibility (per C29/05-06(DLA)).  It had not considered that the use of painkillers was a part of the statutory conditions.

(5)	That the mention of “50 minutes” was simply a slip of the pen for 50 yards and was not indicative of any error of law.

6.	In his further comments of 1 March 2007 Mr O’Neill reiterated all five grounds and submitted that the tribunal had not adequately explored the issue of medication nor why the claimant would stop to rest after walking 50 yards, that there was no indication that the claimant overstated his walking ability.

7.	As regards ground one, I consider this ground to be factually incorrect.  The tribunal has clearly recorded that the EMP was of the opinion that the claimant could walk 100 yards but would need to “stop to rest after 50 minutes.”   This raises ground five.  I agree with the Department that 50 minutes is a slip of the pen for 50 yards.  This is, in my view, quite apparent from the tribunal’s earlier mention of the claimant’s statement to the EMP of walking 100 yards stopping to rest after 50 yards.  It is clear, reading the reasoning as a whole, that the tribunal did take into consideration the EMP’s opinion that a stop to rest after 50 yards was needed and that the “50 minutes” is a slip of the pen for 50 yards.  I consider there is no merit in grounds one and five.

8.	As regards ground two, it is quite apparent that the tribunal did consider walking distance.  It refers specifically to the EMP’s report of the distance the claimant said he could walk and to the EMP’s opinion thereon.  It is quite obvious that the tribunal relied on this opinion.  In addition, as Mr Sloan submits, distance is a product of time and speed of walking.  I consider there to be no merit in this ground.

9.	As regards ground three, Mr O’Neill is correct that the tribunal has acknowledged that the claimant suffers from knee pain.  It then had to reach its evidence based judgment on his walking ability.  It alludes specifically to the EMP’s record (which the claimant admits was read back to him and which he signed) of the claimant’s statement to him of his walking ability and to the claimant’s denial of having made this statement.  It also alludes to the EMP’s opinion on walking ability and to the medication.  I would have preferred an explicit reference to the preference for the medical evidence.  It is, however, apparent that the tribunal preferred the medical evidence and, in light of the above, why it did so.  The reasons are in my view adequate to explain the decision and I find no merit in ground three.

10.	As regards ground four, I consider this to be factually inaccurate.  There is no implied or express reference to use of painkillers being part of the conditions for the mobility component.  It is obvious that in mentioning the frequency of painkillers the tribunal was merely considering whether the medical evidence and the claimant’s evidence were consistent.  This, as Mr Sloan submits, it was entitled to do.

11.	The tribunal records exploration of the inconsistencies in the claimant’s and EMP’s evidence and the use of painkillers and it had medical records before it.  The decision was, in my view, sustainable on the accepted evidence, the assessment of evidence was not perverse and the reasons, though I would have preferred them to be fuller, were adequate to explain the decision.  Reasons must be read as a whole and against the background of the evidence.  I dismiss the appeal.

M F Brown
Commissioner

9 May 2007