[2009] NISSCSC C33_08_09(DLA) (4 November 2009)

Decision No:  C33/08-09(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 29 October 2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

2.	Leave to appeal was granted by the legally qualified member on 25 February 2009.

3.	The claimant, through his representative Ms Kyne of Citizens Advice Bureau, has submitted that the tribunal erred in law as:

(i)	it did not adequately explore the frequency and duration of the claimant’s low moods or how frequently he would be motivated to prepare a cooked main meal for himself;

(ii)	it failed to resolve the conflict between evidence from the claimant’s general practitioner which indicated that the claimant would be at risk of self-neglect with the evidence from the consultant psychiatrist that there was no history of self-neglect.

4.	The Department, through Mr Kirk of Decision Making Services, have submitted that the tribunal failed to consider any exacerbations/fluctuations in the claimant’s condition and, in not so doing the tribunal erred in law.  In addition, Mr Kirk submitted that the tribunal erred in law by not dealing with a clear conflict in evidence between that supplied by the general practitioner and the consultant psychiatrist in relation to the history of self-neglect.

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

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

(signed):  J A H Martin QC

Chief Commissioner

4 November 2009