Application No: A87/98(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 above-named claimant for
leave to appeal to the Social Security Commissioner
on a question of law from the decision of the
Cookstown Disability Appeal Tribunal
dated 23 June 1998

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by Mrs P... for leave to appeal against a decision dated 23 June 1998 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Cookstown.  That Tribunal had allowed Mrs P...' appeal (made on behalf of her son I..) and awarded I... the middle rate of the care component of Disability Living Allowance but had not awarded any rate of the mobility component of that allowance.

2.	I held an oral hearing of the application which Mrs P... attended and at which she was represented by Mr T... of Messrs McN… & Co solicitors.  Mrs Swann of Central Adjudication Services attended to represent the Adjudication Officer.  At hearing and in correspondence Mrs P...' appeal was based on the submission that the Tribunal had not taken proper account of the medical evidence.  In correspondence and initially at hearing Mr T... referred particularly to reports of Drs G... and L... and Mr La... (all Consultants) but later at hearing said that there was no indication that the Tribunal had not taken proper account of the reports of Drs G... and L....  At hearing he stated that he was pursuing the matter not with relation to the care component but with relation to the mobility component and contending that the Tribunal had not taken proper account of the reports of Mr La....  In this connection Mr T... particularly alluded to an undated letter addressed "To whom it may concern" and signed by Mr La... which it appeared had been part of the Tribunal papers.  Mr T... contended also that the General Practitioner records which were before the Tribunal had also  contained reports from Mr La... but no specific report was referred to in this connection by Mr T....

3.	Mrs Swann opposed the application.  She referred to the General Practitioner's factual report and to the Examining Medical Practitioner's report as evidence on which the Tribunal was entitled to conclude that I.. P... was not virtually unable to walk.  She also stated that the undated letter from Mr La... referred to did not indicate the extent of I…'s walking limitations and it was the walking limitations rather than the actual physical disablement which was relevant to satisfaction or otherwise of the mobility conditions for the high rate of the mobility component.  Mrs Swann submitted also that in the absence of findings of fact and reasons it was impossible to know what weight the Tribunal had given to different pieces of evidence and why.  

4.	I dismiss the application for leave to appeal.  I am unable to ascertain any error of law in the Tribunal's decision.

5.	Mrs P... had not sought a copy of the full statement of the Tribunal's decision (which would have included findings of fact and reasons) within the 21 day time limit it set out in Regulation 23(3C) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 and the Tribunal Chairman had refused to supply same, as she had a discretion to do, outside the time limit.  Accordingly the application to me for leave to appeal had no full statement of the Tribunal's decision attached.  I consider that I have jurisdiction to consider that application under Regulation 3(2) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987.  The application to the Chairman for leave to appeal could not be made within the specified time referred to in that Regulation as that time does not begin to run until the full statement of the Tribunal's decision is issued and in this case it has not been issued.  The Chairman had no power to accept an application made out of time so his refusal of leave is strictly a nulity.  However there is nothing in Regulation 3(2) that confines it to late applications and I consider it applicable to applications where the time for applying for leave to a Chairman has not begun to run.  I therefore proceed to consider this application under Regulation 3(2).  In light of the recent changes in the Rules for applying to a Chairman for leave to appeal and the obvious confusion which has arisen, I am prepared to accept the application to me for leave to appeal for those special reasons.

6.	While I am prepared to accept the application however, its chances of success are obviously considerably diminished by the absence of full facts and reasons (the full statement of the Tribunal's decision).  Before I could overturn a Tribunal's decision I must be satisfied that that decision is in error of law.  It is much more difficult to establish such an error if the full statement of the Tribunal's decision is not present.  This will be particularly so in cases where the Tribunal's assessment of the evidence is being questioned.  In the present case that is the situation and I have absolutely no idea of how the Tribunal viewed any specific piece of evidence.  The assessment of evidence is a matter for the Tribunal and is only to be upset if the rules of natural justice are violated or if the Tribunal conclusion is not based on the evidence or is perverse.  In this present case I have no indication whatsoever that that was the case, rather the reverse.  I similarly have no indication that the Tribunal ignored any part of the medical evidence.  Even if there had been a report from Mr La... indicating the extent of I.. P...' walking limitations (and the report which was produced to me does not so indicate) the Tribunal could reject that report without being in error of law provided its reasons explained this.  The fact that a piece of evidence is not accepted does not mean that it has been ignored.

	As I do not have the reasons I have absolutely no idea as to how the Tribunal dealt with any information from Mr La....  There is certainly, in light of the medical evidence that I am aware was before the Tribunal as to the walking limitations, no indication that there was any perversity in its decision.

	After the oral hearing but before the decision was issued I received a copy letter dated 10 February 1999 from Mr La....  As same does not affect my decision in this case I have not considered it necessary to conduct a further hearing.  As that letter was not before the Tribunal its relevance to whether or not the Tribunal erred in law is very dubious.

7.	Although Mr T... indicated that he was pursuing the appeal only in relation to the mobility component I have also considered whether there may have been any error in relation to the care component.  I can ascertain no error in relation to the care component.  I can ascertain no error in either the care or the mobility component elements of the decision.

8.	I therefore dismiss the application.

	(Signed): M F Brown 
	
	COMMISSIONER

	11 March 1999