Decision No: C21/07-08(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 30 March 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the unanimous decision of the tribunal, affirming the decision of the decision-maker, to the effect that the claimant was not entitled to either rate of the mobility component of disability living allowance (DLA) from and including 31 March 2006 and was not entitled to any rate of the care component of DLA from and including 31 March 2006.

2.	Leave to appeal was granted by a Commissioner on 28 January 2008.

3.	Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.  

4.	The claimant has presented her own case while Mr Sloan, of Decision Making Services, has made submissions on behalf of the Department.  

5.	On 31 March 2006 the claimant made a claim for DLA stating that she has sarcoidosis and floaters in her right eye resulting in poor vision.  On 1 August 2006 it was decided that the claimant’s claim should be disallowed from and including 31 March 2006.  On 9 November 2006 the decision of 1 August 2006 was reconsidered.  However, it was not changed.  On 19 December 2006 the claimant’s appeal was received.  As it was outside the prescribed time limit, the case was referred to a decision-maker who decided to admit the appeal.

6.	The tribunal gave the following reasons for its decision in relation to the mobility component:

“The Tribunal considered all the evidence in the case.  The Tribunal noted the contents of DLA 1, wherein the Appellant indicated that she got out of breath very easily and could only walk 20-30 metres in 5-10 minutes.  In addition out of doors when she walks she gets out of breath and her heart starts to race and she feels that she may collapse.  She needs someone with her for reassurance and to help with her inhaler.  She indicated that she sometimes has falls or stumbles.  She sometimes gets dizzy, because of the dizzy spells she feels that she may fall.  She needs someone to hold onto when she walks for reassurance.  A medical report at Tab 3 of the submission was completed by Dr McConaghy on 12 June 2006.  He indicated therein the maximum distance that the Appellant could walk before the onset of any severe discomfort.  In remission she could walk 100 metres, during an exacerbation she could walk 50 metres but has shortness of breath at rest.  The distances walked would take 2-3 minutes in remission and 5 minutes during exacerbation.  There was no impairment of gait or balance nor any aides used or physical support needed whilst in remission, nor during an exacerbation.  The Appellant disputed the contents of the report as evidence in the record of proceedings.  The Tribunal also noted the contents of Dr O’Dochartaigh’s medical report at Tab 6 in the submission indicating that she suffered from sarcoidosis.  The doctor indicated that she gets short of breath climbing stairs and walking about the shops.  She has to stop at less than 30 yards exertion, taking a rest and start again.  The Tribunal also noted the contents of the medical report from Dr Brian Good of 20 December 2006, where he indicated that she had difficulty walking due to breathlessness and joint pains in her knees.  She was unsure about the distances but reported a stop/start motion when she tried to walk and feels she is unable to go more than about 30 yards between stops.  She also complains of dizziness and palpitations and she is unable to go out unaccompanied in case she might fall, she indicated that the symptoms were still under investigation.  The Tribunal had access to the General Practitioner records and they are recorded in the records of proceedings included in the papers.  In February 2006 it was indicated that the Appellant was the carer for her sister in law who had cancer.  On 20 January 2006 she felt well improved.  In December 2006, upon attendance at Craigavon Area Hospital her pulmonary function test showed significant improvement.  In August 2006 the Consultant indicated that she could walk 30 yards on the flat before stopping for a rest and then moves again.  Her lungs had objectively improved considerably since using steroids.  In June 2006 it was recorded that her chest symptoms had improved greatly.  In December 2005 her exercise tolerance was limited to 10 minutes on the flat, limited by breathlessness and coughing.  She gets shortness of breath walking upstairs.  The Tribunal considered the criteria for the award of the mobility components of Disability Living Allowance.

Having considered the totality of the evidence, and in particular the medical evidence, the Tribunal was not satisfied that she was unable to walk or virtually unable to walk or that the exertion required to walk would constitute a danger to her life or likely to lead to serious deterioration in her health.  In addition the Tribunal considered that the evidence did not indicate that she required guidance or supervision from another person for most of the time when walking outdoors on unfamiliar routes.”

7.	The tribunal gave the following reasons for its decision in relation to the care component:

“The Tribunal considered the evidence in its totality and in particular considered the evidence in the DLA 1 completed by the Appellant which was included in the submission.  Therein she indicated that she had a problem with the stairs but had no problem getting in and out of bed.  She had a problem getting to sleep.  She had no problem with toileting nor washing, bathing or looking after herself.  She had no problem with getting dressed or undressed or preparing a cooked meal for herself.  She needed medical treatment sometimes when she gets out of breath.  She indicated that she needs someone to keep an eye on her for reassurance, as she gets afraid.  She sometimes had dizzy spells.  She had no problems because of her mental health and no problems with communicating.  In her evidence to the Tribunal the Appellant indicated that essentially she had no problems with managing her bodily functions, which corroborated the evidence in DLA 1.  The Tribunal had also access to her General Practitioner records and the evidence recorded in relation to the General Practitioner records is contained in the records of proceedings herewith.  The Tribunal considered the entitlement to the Care Component based on the criteria and generally the Tribunal was not satisfied that the Appellant was so severely disabled physically or mentally that throughout the day she required frequent attention from another person in connection with her body [sic] functions, nor did she require continuous supervision from another person to prevent substantial danger to herself or others, nor did she require prolonged or repeated attention from another person at night in connection with her bodily functions, nor did she require another person to be awake for prolonged period or at frequent intervals to watch over her to avoid danger to herself or others.  In addition the Tribunal did not consider that she was so severely disabled physically or mentally that she required attention from another person for a significant portion of the day in connection with her bodily functions, nor was she unable to prepare a cooked main meal for herself if she had the ingredients.  In view of the totality of the evidence, the criteria, for any award of the Care Component had not been satisfied.”

8.	The claimant has submitted that the tribunal erred in law in its reasoning regarding her entitlement to the high rate of the mobility component.  Specifically it failed to consider the length of time taken to rest when walking.  

9.	Mr Sloan, on behalf of the Department, supported the claimant’s appeal and, in addition, submitted that the tribunal failed to provide adequate reasons for its decision.  The point made by Mr Sloan was that the tribunal’s reasons do not explain which evidence it accepted which led it to the conclusion to which it came.  

10.	There was conflicting evidence regarding the speed and distance which the claimant could walk before stopping, ranging from 100 metres in 2-3 minutes to 30 yards in 5-10 minutes.  While the tribunal’s statement of reasons contains a comprehensive summary of relevant evidence, it is not clear on what basis the tribunal formed the view that the claimant was not entitled, in particular, to the mobility component.  Perhaps the tribunal had preferred General Practitioner’s notes showing that there was an improvement in December 2006.  However, the tribunal has failed to make this point in its reasoning.  

11.	Accordingly, I come to the conclusion that the tribunal erred in law by not making clear why the mobility component was refused, which medical evidence was preferred and, in addition, the tribunal has failed to account for the effect of the claimant having to take rests.  It is probable that one more sentence would have clarified these issues but, in the circumstances, I conclude that too many assumptions have to be imported into the reasoning for the tribunal’s reasoning to be sustainable.

12.	In the circumstances, for the reasons stated herein, I conclude that the tribunal’s decision was erroneous in point of law.  Accordingly, I set the tribunal’s decision aside and refer the case to a differently constituted tribunal for a rehearing on the merits in relation to both components.  The fact that this appeal has been allowed should not be taken as an indication as to the ultimate success of the claimant’s appeal to a tribunal.

(signed): J A H Martin QC

Chief Commissioner

2 April 2008