[2009] NISSCSC C24_09_10(DLA) (29 July 2009) 

Decision No:  C24/09-10(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 7 August 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 7 August 2008, to the effect that the applicant did not satisfy the conditions of entitlement for an award of disability living allowance (DLA) from and including 22 December 2006.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

3.	Leave to appeal is granted.

4.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

5.	The applicant has submitted that the appeal tribunal erred in law in that:

(i)	the appeal tribunal acted in breach of the rules of natural justice; and

(ii)	the appeal tribunal failed to give an adequate statement of reasons for its decision.

6.	The Department, through Mr Kirk of Decision Making Services, has submitted that the tribunal erred in law on the basis that:

(i)	the appeal tribunal failed to make reference to a medical report which was relevant to the issues arising in the appeal as part of its assessment of the evidence available to it.  Accordingly, the appeal tribunal had not undertaken a sufficiently rigorous assessment of the evidence in line with the principles set out in C8/08-09(DLA);

(ii)	the appeal tribunal failed to explain its rejection of evidence contained in a report of an examining medical practitioner relating to the appellant’s requirement for assistance in the preparation of a cooked main meal.  Again, therefore, the appeal tribunal had not undertaken a sufficiently rigorous assessment of the evidence in line with the principles set out in C8/08-09(DLA); and

(iii)	there is no record of the appellant having intimated that his condition had improved as a result of corrective surgery as submitted by the appeal tribunal in its statement of reasons.

7.	Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.

8.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

9.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to DLA, for a particular period, remains to be determined by another appeal tribunal.

10.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 30 October 2007, which decided that the applicant was not entitled to DLA from and including 22 December 2006;

(ii)	the appellant’s representative has provided evidence that the appellant was awarded an entitlement to the higher rate of the mobility component and the lowest rate of the care component of DLA from and including 10 November 2008, on a subsequent claim.  The appeal tribunal is directed to take evidence of this subsequent claim into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Commissioner

29 July 2009