Decision No: C20/96(DLA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	DISABILITY LIVING ALLOWANCE

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Limavady Disability Appeal Tribunal
	dated 7 July 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal (DAT) which awarded claimant the lower rate care component but refused him the mobility component of disability living allowance (DLA).

2.	Claimant was in receipt of the lower rate care component and the lower rate mobility component up until January 1995 and a renewed claim was awarded lower rate mobility and lower rate care up until January 1996.  On 16 November 1994 claimant wrote a letter asking the Adjudication Officer to take another look at his claim because his condition had not changed for the better and he still had the weakness and numbness in his left side.  The Adjudication Officer took this as an application for review, reviewed the allowance and withdrew both the mobility and the care component.  Against that decision claimant appealed to a DAT.

3.	That Tribunal awarded claimant the lower rate care component but refused him the mobility component and in doing so made findings of fact as follows:-

		"He can walk 200 yards slowly without severe discomfort with a normal
		gait.  He falls 1 or 2 times a week but has never been hurt and so
		would require a walking stick rather than support from another person.
		We cannot accept he has a serious balance problem in the light of the
		Examining Medical Practitioners report and he does get a warning. 
		His vision is clearing up and is not so bad as it was and was never
		so bad he needed guidance or supervision.

		He can do 200 yards on level ground in 2½ minutes with no halts,
		slight limp left leg, no physical support from another person and no
		guidance and supervision."

	and gave reasons for its decision as:-

		"Using a walking stick he should be able to walk 200 yards without
		severe discomfort.  We do not accept the weakness he feels amounts
		to severe discomfort earlier than this distance.  Using a stick he
		would not fall and would not need physical support.  He feels more
		sure having someone with him but we do not accept that in this case
		that amounts to guidance or supervision.  He can see to walk."

4.	Claimant now seeks leave to appeal against that decision on the grounds that the Tribunal erred in law in that:-

		"My condition is such that I need the help and supervision of another
		person both day and night.  I need help with bodily functions ie
		due to a lack of bowel and bladder control, I am doubly incontinent.
		I drop things and fall frequently, so I am unable to prepare meals
		without causing danger to myself, and possibly to others.

		I am unable to walk long distances or be out of my home surroundings
		for any length of time.

		I am unable to return to work because of my condition.

		All of the above, place severe restrictions on my life style and I
		believe that this should mean that I should fulfil the qualifying
		conditions for DLA."

5.	Leave to appeal was refused by the Chairman of the Tribunal.  I arranged an oral hearing of the application for leave.  The claimant appeared but was not represented and the Adjudication Officer was represented by Mr Shaw.  

6.	Mr M... told me about his medical problems and that he was very surprised when he asked the Adjudication Officer to look again at the award of the lower rate of both components only to have them withdrawn.  He then told me that after he lodged his application for leave to appeal he got a telephone call from an official at Castle Court offering him the lower rate mobility and the middle rate care component if he would be prepared to accept that offer and not proceed with his appeal.  If he accepted the offer then the benefit would be reinstated from that day.  He said that he did not accept the offer because he considered that he was entitled to a higher rate of benefit.  He said that when he walks for any length of time his leg vibrates uncontrollably after he starts to walk which throws him off balance and would cause him to fall and that sometimes when his leg begins to vibrate he has to stop and the vibration would last from half an hour to an hour.  He said that whenever the doctor carried out a walking test after he had walked a short distance his leg began to vibrate violently and that lasted for a long time.  He said that when he was out walking and the vibration started he would have to stop.  Mr Shaw said it would appear that the Tribunal was confusing the guidance and the supervision tests in relation to the walking, particularly on unfamiliar ground and made no findings relating to same.

7.	I have considered all that has been said and I have read all the documents in the case.  The only point which I can see of any validity is the walking test which was carried out by the Examining Medical Practitioner and I think that the Tribunal missed a very essential part of the clinical findings in that report when the doctor reports, "a walking test was performed.  He was able to walk 200 yards in 2½ minutes, but on arriving back home he had sustained clonus of left leg".  When one looks at the decision of the Tribunal it merely records he can walk 200 yards slowly without severe discomfort with a normal gait but ignores completely the fact that after 200 yards, as the doctor said, his leg had sustained clonus and the evidence from the claimant to me was that that clonus or vibration he called it would last between half an hour and an hour.  So one is dealing with is a situation where a person can walk 200 yards in 2½ minutes, but if you take into account the fact that after walking 200 yards he has to stop for at least half an hour then it takes him half an hour plus 2½ minutes to walk 200 yards.  I would refer then to a Great Britain Commissioner's decision DLA 71/95 in which the question is discussed at length relating to a person who can walk in that instance 400 yards but then had to stop for a considerable time and the Commissioner there said that that was not inconsistent with the Tribunal coming to the conclusion that that person was virtually unable to walk; and said "as speed is a function of distance and time it is to be presumed that the purpose of including all three factors in that consideration of the length of time for which a person is able to walk requires an adjudicating authority to take account of limitations as to time beyond the limits necessarily implied by the fact that it would take a certain length of time to walk the distance the claimant can manage at a speed he can manage.  Accordingly, I accept that the Tribunal's decision is erroneous in point of law because the Chairman failed to record any finding on the claimant's assertion that there were periods when he was unable to walk at all after he had walked a moderate distance."  I think that remark is very relevant to the present case.  I am satisfied that the Tribunal missed the point in the medical report of the clonus of the left leg which would have prevented claimant from walking any further and I am satisfied that that was an error of law.

8.	At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal.  For the reasons set out above I allow the appeal and set aside the decision of the Tribunal.  I have considered whether or not it would be proper to give the decision which the Tribunal should have given and I am satisfied that this is a proper case in which I should do so.  If one accepts claimant's evidence that after 200 yards he has to wait from half an hour to an hour then I am satisfied that that would qualify claimant for the higher rate mobility as in those circumstances a Tribunal would be entitled to find that he was unable or virtually unable to walk and I now so find.  As far as the care component is concerned I am satisfied that the Tribunal took into consideration all the necessary factors, it came to a conclusion which it was entitled to come to and that no error of law is found in that decision.  He has been awarded the care component at the lowest rate from 17 January 1995 for life and I endorse and accept that decision.  

9.	My decision therefore is that claimant is entitled to the lower rate care component from and including 17 January 1995 and the higher rate mobility component from 17 January 1995 both components for life.

(Signed): C C G McNally

COMMISSIONER

1 May 1996