[2009] NISSCSC C26_08_09(DLA) (10 June 2009) 

Decision No: C26/08-09(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 5 August 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant, with the leave of the legally qualified member (LQM) against the decision of an appeal tribunal. The tribunal had disallowed the claimant’s appeal against the tribunal’s decision to the effect that the claimant was not entitled to either the mobility or the care component of disability living allowance (DLA) from and including 23 August 2008. 

2. The claimant had been awarded the middle rate of the care component from 23 August 2006 until 22 August 2008. He made a further claim from 23 August 2008 listing his disabilities as depression, anxiety and alcoholism. On 31 March 2008 the decision-maker disallowed the claim from and including 23 August 2008. The claimant then appealed against that decision and the tribunal, on 5 August 208, disallowed the appeal at a paper hearing. The claimant then sought leave to appeal to a Commissioner, leave was granted by the LQM on 9 December 2008. The LQM identified the following point of law:

 “Appellant says that underlying factors of depression/anxiety not considered. For the purpose of the appeal, in the absence of the applicant, the Tribunal recorded that it accepted what the appellant said in his application pack. The decision of the Tribunal was based therefore on what the appellant recorded himself. This included depression and anxiety. In the absence of direct evidence however the Tribunal were entitled to come to the decision that most of the applicant’s problems were related to alcohol and this was properly recorded. The Tribunal feel however that this is a matter which should be decided by a Commissioner.”

3. The claimant’s appeal was received at the Commissioners’ Office on 23 December 2008 and it set out the following grounds:

 “The tribunal based their decision purely on the alcohol (incurable disease) issue and not on the underlying conditions that inevitably lead to the abuse. Suffering from depression/anxiety mean that I have days of low and high moods. When low there are often sucisidal [sic] thoughts, inability to do virtually nothing at all. When seizures happen it takes hours to come round and need help.”

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

5. The claimant has conducted his own appeal while Mr S Toner of Decision Making Services has represented the Department. 

6. Mr Toner has set out in his written submissions dated 6 March 2009 a reasoned support of the claimant’s case. In particular he has pointed out that the LQM, although granting leave to appeal, nevertheless pointed out that the tribunal accepted what the claimant said in his application pack and that that included the medical conditions of depression and anxiety.

7. He also pointed out that the claimant had stated the following at page 39 of his claim form:

 “When I fall into depression I tend to abuse alcohol (binge drinking) and during withdrawal I have physo ? episodes followed by a seizure which I know what is coming on, (I see swirling colors). During a seizure I soil myself which is realised when I come to. In a depressive mood I have the inability to sleep or eat or have any positive thinking. And tend to use alcohol to escape. I have a councilor [sic] who I can see at very short notice but often do not avail of this. Unfortunately alcoholism is an incurable disease which I battle daily against.

I do however not abuse ever day but occurs twice a month, normal 3 binge drinking days followed by 3 in withdrawal (never planned).

During withdrawal I have the inability to walk very far because of weariness in the legs, and try to remain still for long periods. During this period I also get paronoid [sic] waiting for a seizure to come on –”

8. Mr Toner has also pointed out that in the tribunal’s reasons for decision in relation to the care component, it is recorded that the tribunal accepted what the claimant said in his application form. In addition, in the reasons for decision in relation to both components the tribunal only refers to needs the claimant may have during periods when he is drinking and in withdrawal (ie 12 days per month) and the tribunal has reasoned that, even if such needs were acceptable, the claim would still fail because those needs would be infrequent, would not be required throughout the day and would not be there for most of the time. 

9. However, on page 4 of the claimant’s claim form, he has described his illnesses or disabilities as depression, anxiety and alcoholism and, as stated above in the quotation from the claim form at page 39, he has described these problems. The problems appear to follow a cycle, namely an unspecified period of depression, followed by a three-day period of binge drinking, culminating in a three-day period when he is in withdrawal.

10. Mr Toner has noted that the tribunal, in its reasons for its decision, notwithstanding that it recorded that it accepted what the claimant said in his application pack, did not address the medical conditions of depression and anxiety and did not deal with the potential issue that the claimant had care and/or mobility requirements arising out of these medical conditions. 

11. In my view the claimant and Mr Toner are correct in submitting that the tribunal has erred in law by not addressing the medical conditions of depression and anxiety and dealing with the issue of care and/or mobility requirements arising out of such conditions. In not dealing with these matters, I conclude that the tribunal has erred in law. 

12. As I have found that the tribunal has erred in law as the claimant and Mr Toner have submitted, I hold that the decision appealed against was erroneous in point of law. I allow the appeal and, in the circumstances, set aside the tribunal’s decision. I refer the case back to be reheard by a differently constituted tribunal. I note that the proceedings before the earlier tribunal were by way of “a paper” hearing. Sometimes such hearings are not always entirely satisfactory. Although it is entirely a matter for the claimant, there is no doubt that the new tribunal would be in a better position to deal with the issues in the case if the claimant asked for an oral hearing. Also, the allowance of this appeal should not be taken as an indication that the claimant will ultimately be successful in his appeal to the tribunal.

 (Signed): J A H Martin QC

 CHIEF COMMISSIONER

 10 June 2009