DTD-v-Department for Social Development (DLA) [2010] NICom 49

Decision No:  C1/10-11(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 15 September 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a tribunal, affirming a decision of the decision-maker, to the effect that the claimant satisfied the conditions of entitlement to an award of the higher rate of the mobility component and the lowest rate of the care component of disability living allowance (DLA) from 23 January 2009 to 22 January 2012.

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

3.	A renewal claim in respect of the period from 23 January 2009 was received in the Department on 28 August 2008 indicating that the claimant had fibromyalgia, osteoarthritis and recurring bladder infections.  A report was completed by the claimant’s general practitioner (GP) and on 14 August 2008 the claimant was examined by an examining medical practitioner (EMP).  In light of the available evidence, on 28 October 2008, it was decided that the claimant satisfied the conditions of entitlement for an award of the higher rate of the mobility component and the lowest rate of the care component from 23 January 2009 to 22 January 2012.  Thereupon, on 24 November 2008, the claimant appealed.

4.	On appeal the decision of the decision-maker was affirmed by a tribunal at a paper hearing conducted on 15 September 2009.

5.	The claimant then sought leave to appeal from the legally qualified member (LQM) to appeal to a Commissioner.  On 1 December 2009 the LQM granted leave to appeal on the following point of law:

“Whether the Tribunal has erred in law by not adequately stating its reasons in relation to night care needs.”

6.	The appellant has conducted her own appeal while Mr John Kirk, of Decision Making Services has acted on behalf of the Department.

7.	The claimant has submitted that the tribunal erred in law by not considering additional documentary evidence that she had submitted and, accordingly, it did not adequately consider her night-time care needs.

8.	It is clear that the claimant submitted a bundle of evidence to the Appeals Service, the administrative support to the tribunal, on 13 February 2009.  The claimant has submitted that this evidence was ignored or not taken into account.  Mr Kirk, in essence, supports this basic submission.

9.	Amongst the bundle of evidence was a letter from the claimant in which she outlined her needs and, in addition, stated why she believed that the EMP report relating to her case was inaccurate.  In particular, at page two of that letter, the claimant stated that the EMP had failed to take the effects of her medication into account when considering her night-time needs.  The claimant also stated that she had had bladder problems and incontinence at night, although this had not occurred for a while.  Furthermore, she also stated that the EMP had observed her on her “day bed” as opposed to the one she actually slept in at night.  She made the point that her night-time bed was lower and more difficult to get out of.  The claimant also stated that her GP was not that familiar with her and that a report should have been obtained from her hospital specialist.

10.	The rest of the bundle of evidence consisted of a sheet detailing the effects lyrica medication, a copy of the Departmental GP report which had stated that she suffered from incontinence, a letter dated 1 March 2006 from Dr Mann, consultant neurologist, which also indicated that she had urinary difficulties and, finally, some information about fibromyalgia from Wikipedia.

11.	It is relevant that the hearing of 15 September 2009 was a paper hearing.  The documents considered by the tribunal were listed in the record of proceedings.  This record states that they consisted of the appeal submission and the GP notes and records.  There is neither a reference nor an indication that the tribunal considered the additional evidence referred to in the previous paragraphs.  The claimant clearly expected the tribunal to consider it.

12.	Mr Kirk very properly accepts that the tribunal erred in not so doing.  I have no hesitation in agreeing.  I come to the same conclusion, namely, that the tribunal erred in law by (i) failing to consider the further evidence submitted by the claimant – and in failing to do so it could not have assessed fully the claimant’s night-time needs, or, alternatively, (ii) if it did in fact consider this evidence, by failing to properly assess it and give reasons for rejecting it.

13.	For the reasons stated I am satisfied that the tribunal’s decision is erroneous in law.  Accordingly, I allow the appeal and set aside the decision of the tribunal.  Consequently, I refer the matter back to a differently constituted tribunal for a rehearing and re-determination.  However, 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.

14.	I note that the claimant felt unable to attend the hearing before the original tribunal.  Accordingly the hearing was by way of a “paper” hearing.  While the claimant has given a good reason why she felt unable to attend, it might be appropriate for her to reconsider that decision and, therefore, I direct that arrangements are made by the Tribunal Service to enable her to make a fresh decision whether or not to attend any such hearing.

(signed)  J A H Martin QC

Chief Commissioner

28 April 2010