[2007] NISSCSC C25_06_07(DLA) (12 June 2007) 

Decision No:  C25/06-07(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 24 March 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with my leave, against a decision of the appeal tribunal sitting at Newtownards on 24 March 2006 (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 the appeal tribunal to determine was whether the claimant was entitled to either or both components of a disability living allowance.  On 4 February 2005, the claimant made a claim for that benefit.  On 21 June 2005, a decision-maker decided that she was entitled to neither component from and including the date of claim (4 February 2005).  The claimant appealed but her appeal was dismissed unanimously by the appeal tribunal.  Permission to appeal was refused by the chairman but was subsequently granted by me.

3.	The background facts are as follows.  The claimant, a woman, was born on 11 January 1958.  She was, accordingly, 47 at the date of the decision under appeal.  She lives with her partner.  She was previously married and says that her husband was abusive towards her and that she received severe beatings from him.  As a result, her health has suffered.  One beating, when she was about 28, was so severe that part of her pancreas had to be removed.  In February 2005, when she made her claim, she was suffering from the continuing effects of the damage to her pancreas, depression, chest and leg pains and from the effects of a painful rash at the tops of her legs which was proving difficult to treat.  She was also suffering from breathing problems which were described either as “asthma/OPD” or as congested obstructive pulmonary disease.

4.	The claim was investigated and, on 16 June 2005, the claimant was medically examined.  On page 13 and again on page 31 of his report, the examining medical practitioner said she was “dyspnoeic at rest” while on page 16 he said that “she was SOB even at rest”.  At page 25, the examining medical practitioner expressed the opinion that the claimant had night time needs.  He thought that she had problems with her hands and would have difficulties coping with hot pans.  He commented that she had lived in an abusive relationship for 18 years and that this had taken a physical and psychological toll.

5.	The matter came before the appeal tribunal on 24 March 2006.  The claimant, who was at that stage unrepresented, appeared and gave evidence.  The appeal tribunal’s unanimous decision was, however, to dismiss the appeal.  Since I am going to remit the matter for rehearing I shall deal with the matter shortly.  When the claimant’s application for leave came before me I said that I granted leave for the following reasons – which related to the first of her grounds of appeal:

“...The tribunal, in its statement of reasons, said:

“...It found that the General Practitioner’s factual report and Examining Medical Practitioner’s report consistently referred to chronic obstructive pulmonary disease, but that the evidence from a spirometry test in the General Practitioner’s records was consistent with asthma and not chronic obstructive pulmonary disease.  Her treatment was consistent with this. ...”

The tribunal, after referring to the treatment she had received, went on to say that it:
	
“...found that the balance of this evidence was that the claimant’s breathlessness was not so severe that it impaired her mobility to any significant degree.  It found that her account was disproportionate to the diagnosis and level of medical intervention.”

It is arguable that an important part of the “evidence” was the fact that, in the tribunal’s view, the claimant was not suffering from chronic obstructive pulmonary disease.  However, no one had previously suggested that the claimant was not such a sufferer.  In the circumstances it is arguable that the tribunal should have offered her an adjournment so as to enable her to obtain advice or further medical evidence.  It is further arguable that the tribunal’s failure to do so amounted to an error of law.”

6.	The Department has lodged submissions which do not support the appeal.  It submits that the appeal tribunal considered the entirety of the evidence and reached a conclusion that it was entitled to reach.  However, the thrust of my reasons for granting leave was that the appeal tribunal should in all the circumstances have considered adjourning to allow the claimant a chance to take advice and, if appropriate, obtain a letter from her doctor, or something of that nature, clarifying the reason for her breathing difficulties.  Difficulties which, according to the examining medical practitioner’s observations, were of some seriousness.  The Department very rightly points out that, with disability living allowance, the specific condition from which a person may be suffering is not usually the real issue.  It is the problems with daily living that the relevant condition gives rise to that are important.  Or, as Mrs Commissioner Brown succinctly put it in paragraph 11 of decision C19/99(DLA) “It is not the label attached to the persons condition which is important, it is the care and mobility needs coming therefrom”.  I entirely accept what the Department says on the point as a general rule.  Nevertheless, the specific condition is not always without some importance.  Where a tribunal rejects a more serious diagnosis for one of, perhaps, lesser seriousness it is possible that such a finding will colour its approach to the evidence about the care and mobility needs coming from the condition.  In the end, I conclude that this is a case where the tribunal should have considered adjourning to clarify the diagnosis and that its failure to do so was an error of law.

7.	The claimant’s second ground relates to the fact that the general practitioner who completed a factual report about her was not the doctor who normally saw her.  I agree with the Department that this was a matter which was raised at the hearing and which was properly investigated by the appeal tribunal.

8.	The result is that I allow the appeal and remit the matter to the new tribunal for a complete rehearing.  The claimant, who was unrepresented in March 2006, now has a representative.  Clearly, and notwithstanding Mrs Commissioner Brown’s comment, with which I agree, the nature of the claimant’s breathing problems is relevant.  The claimant should attend the rehearing so that she can tell the new tribunal about her care and mobility needs and answer any questions which the members may wish to ask her.  For completeness I add the obvious – namely, that the decision is entirely a matter for the new tribunal which must reach its conclusions on the basis of the evidence before it.  Nothing that I have said is intended to affect the new tribunal’s powers or its decision.

(signed):  J P Powell

Deputy Commissioner

12 June 2007