Decision No:  C10/00-01(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal 
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 10 January 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application, by the claimant, for leave to appeal against a decision dated 10th January 2000 of a Disability Appeal Tribunal (hereinafter called “the Tribunal”) sitting at Londonderry.  That Tribunal had allowed the claimant’s appeal against an earlier decision of an Adjudication Officer and had decided that the claimant was entitled to the lower rate of the mobility component of Disability Living Allowance and the lowest rate of the care component of that allowance from and including 6th April 1998.

2.	The claimant was represented by Mr McVeigh of the Citizens Advice Bureau and the Adjudication Officer (now known as the decision maker) by Mrs Gunning of the Decision Making and Appeals Unit.  I am grateful to both for their assistance.  I grant leave to appeal and with the consent of both parties treat the application as an appeal and proceed to determine any question arising thereon as though it was a question arising on appeal.  My decision is at paragraph 6 hereof.

3.	The claimant’s ground of appeal was that the Tribunal had found that the claimant’s depression was such that she “requires assistance on a daily basis from various family members in connection with all activities, albeit that claimant can physically undertake many bodily functions unaided, apart from bathing.  Her depression is such that she regularly (if not always) requires encouragement to do most things.  We believe this encouragement to be reasonably based on the circumstances of this particular case.”

4.	Despite that the Tribunal had not raised the award of the care component above the lowest rate.

5.	Mrs Gunning supported the application on the ground of appeal raised but put forward an additional ground.  This was that in her submission the Tribunal had erred in awarding the mobility component without first deciding whether the deterioration in the claimant’s condition, which it appeared formed the basis of the award of the lowest rate mobility component, had taken place before the claimant was 65.  The significance of this was that if the deterioration took place after 65 then the claimant could not be entitled to the lower rate of the mobility component.

6.	I agree that the Tribunal has erred in law in both the ways set out above.  I set the Tribunal’s decision aside for those reasons and direct that the matter be remitted to a new Tribunal which should consider any physical or mental disablement from which the claimant suffered at the relevant time and the extent of any attention which the claimant reasonably required in connection with bodily functions as a result of that disablement.  In this connection the Tribunal should pay particular attention to decision C46/96(DLA), a decision of the former Northern Ireland Chief Commissioner.  It is only attention in connection with bodily functions which can qualify.  General unfocused encouragement in the form of “pep talks” etc. is unlikely to fall within this category.  As the Chief Commissioner said encouragement may constitute attention of the relevant type but it does not necessarily do so.  It depends on the question of whether or not the encouragement is attention in connection with bodily functions and whether it is reasonably required.  What is involved in the encouragement is, therefore, likely to need detailed exploration to establish if it does constitute attention in connection with bodily functions.

7.	As regards the second ground of appeal – the question of whether or not the claimant satisfied the conditions for the lower rate of the mobility component before she attained the age of 65, the Tribunal must decide whether these conditions were satisfied immediately before the claimant attained the age of 65.  It appears that the instant Tribunal was of the view that the claimant’s condition had deteriorated since she attained age 60.  In this case the allowance had not been claimed until the claimant became 63 so it is obvious deterioration before that age could not constitute a relevant change of circumstances so as to merit the review of the original Adjudication Officer’s decision.

8.	The new Tribunal should decide whether the decision of 3rd March 1999 (reviewing but refusing to revise an earlier Adjudication Officer’s decision dated 16th October 1998 which in turn had refused to review the original decision dated 4th November 1996) was correct.  In essence this will involve the Tribunal deciding whether there were any grounds for an “out of time” review of the decision of 4th November 1996.

9.	The Tribunal should also bear in mind that a need for accompaniment does not per se establish a need for supervision.  It will have to consider whether the relevant level of supervision or guidance while walking was required to enable the claimant to exercise her faculty of walking out of doors with the usual disregard in relation to walking on familiar routes.  Any grounds for review on relevant change of circumstances which arose after the claimant attained age 65 could not lead to her becoming entitled to the lower rate of the mobility component.  If grounds arose prior to that date and the conditions were satisfied immediately prior to age 65 then she could establish entitlement to it.

(Signed):  M F Brown

COMMISSIONER

11 October 2000