Decision No: C46/03-04(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 16 May 2003

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 16 May 2003 of an Appeal Tribunal sitting at Ballymena.  That Tribunal was dealing with a renewal claim by the claimant in relation to disability living allowance (DLA).  It disallowed the claimant’s appeal against a Departmental decision dated 6 September 2002 on that renewal claim.  The Department had decided that the claimant was entitled to an award of the lowest rate of the care component of DLA on the basis of inability to prepare a cooked main meal from and including July 2002 but was not entitled to an award of either rate of the mobility component of that benefit.  The claimant having appealed to the Tribunal, the Tribunal confirmed the Departmental decision.  The claimant is represented by Mr Gibson of Antrim Citizens Advice Bureau and the Department by Mr Fletcher of the Decision Making and Appeals Unit.  I am obliged to both for their assistance.

2.	The grounds of the claimant’s appeal to me were contained in an OSSC1 form received in the Commissioners’ Office on 24 October 2003 and were as follows: -

(1)	The facts were such that no tribunal acting judicially and properly instructed as to the relevant law could come to the determination in question.

(2)	The Tribunal had reached certain conclusions which were not sustainable on the evidence as follows: -

(i)	there was no evidence in the record to support the Tribunal’s conclusion that a trip to Tesco (which the claimant had stated she made) could not conceivably have involved her walking less than some hundreds of yards.

The appellant in her own evidence had stated that she used a disabled shopping space at Tescos and would lean on a trolley.  Leaning on a trolley could not be considered walking in a normal sense.  The Tribunal had not considered the claimant’s walking ability at Tescos with regard to distance, speed, time of walking and these were all factors which had to be considered by reason of regulation 12(1)(a)(ii) of the Social Security Disability Living Allowance Regulations (Northern Ireland) 1992.

(ii)	the Tribunal had made findings as to the claimant’s ability to walk up and down stairs in her home and these were not the correct application of the walking test under the above Regulations.

(iii)	the Tribunal had used its observation of the claimant sitting without signs of discomfort throughout the hearing which lasted for about 40 minutes and being seen to rise a little stiffly thereafter and walk out slowly but unassisted.  These findings indicated that the Tribunal had not applied the correct test for the high rate of the mobility component.

3.	In light of the above it was submitted that the Tribunal’s finding that the claimant was not so limited by pain that she was virtually unable to walk was not sustainable on the evidence.

4.	The Department made observations on the application and, following my grant of leave, on the appeal by letters dated 22 December 2003 and 21 April 2004.  In its initial letter it had opposed the application.  I granted leave and indicated the reasons why I had done so as follows: -

that arguable issues appeared to me to arise as to whether the Tribunal erred in law as to: -

(1)	the use which it made of its own observations and knowledge; and

(2)	as to whether there was a finding of fact (i.e. the walking distance at Tesco) as to which there was no evidence;

(3)	whether the Tribunal (majority) applied the correct burden of proof in the penultimate paragraph of its reasons relating to the care component.

5.	In its second letter the Department submitted that with relation to its use of its own observations the Tribunal had not erred in law.  It relied on decision R4/99 (IB), paragraph 23 as indicating that the Tribunal was entitled to use its own observations as one of the methods of assessing the evidence before it without specifically asking for comment on those observations.  It submitted further that the Tribunal had not relied on those observations alone but that they were but one of the factors which brought the Tribunal to the conclusion it reached.

6.	As regards the Tribunal expressing its opinion as to the distance that the claimant would have to walk in Tesco the Department submitted that the Tribunal had erred in law in that it had made a finding of fact in relation to which there was no evidence.  It referred to decision C21/99(DLA) where at paragraph 4 I stated: -

“While therefore I consider that the Tribunal did have sufficient evidence to make the finding it did, it did not appear to base its finding on this evidence but rather on a speculative assumption as regards the distance entailed in walking to the claimant’s doctor’s and dentist’s surgeries.”

7.	The Department submitted that it was not evident how familiar the Tribunal was with the store in question and it therefore appeared that its finding on how far the claimant would walk whilst on a shopping trip to that store was pure speculation.  The Department submitted that it was open to the Tribunal to question the claimant in relation to the distances that she would walk whilst on her shopping trips and by failing to do so it had made a finding of fact on which there was no evidence.  It had therefore erred in law.

8.	As regards the final point in relation to which I had granted leave to appeal the Department submitted that the Tribunal had erred in that it had not applied the correct burden of proof in relation to deciding the lower rate of the care component.  It referred to decision C7/98(DLA) where I stated at paragraph 5: -

“The onus of proof in any claim to entitlement to benefit is on the claimant (review cases are of course dealt with differently).  It is a matter for the claimant to produce sufficient evidence to support the claim.  This can of course be the claimant’s own evidence or medical or other corroborative evidence.  It is a matter for the Tribunal what evidence it finds acceptable and what evidence it rejects and provided it is not perverse and provided that it gives reasons or that reasons are apparent for the acceptance or rejection of any piece of evidence the Tribunal is within the proper exercise of its powers.”

9.	The Department submitted that in this case the claimant had originally been awarded the higher rate of the mobility component and the middle rate of the care component of DLA which award expired on 8 July 2002.  She had submitted a renewal claim and an indefinite award of the lower rate of the mobility component had been made for the period 9 July 2002.  In the appeal submission the appeal writer had some concerns about the award of benefit and asked the Tribunal to consider the validity of the award based on the available evidence.  The Department submitted that it appeared that the Tribunal had considered this to mean that it was being asked to review the existing award in which case the burden of proof would have shifted to the Department.  However, as the appeal before the Tribunal was in relation to a new claim and the Tribunal in effect stood in the shoes of the decision maker in deciding the claim, the burden of proof of entitlement to benefit remained with the claimant.  The Department therefore submitted that the Tribunal had erred in deciding that the burden of proof in the case lay with the Department.

10.	The claimant was given an opportunity to respond to the Department’s observations but did not do so.

11.	In relation to the ground of appeal as regards the Tribunal’s use of its own observations.  I do not consider that there is any merit in this ground.  The Tribunal has obviously used these observations as a means of assessing existing evidence.  The claimant herself had made mention of difficulties getting out of a chair and sitting in the car.  I can ascertain no indication that the Tribunal did not apply the correct test for the high rate of the mobility component and its observation of the claimant walking after prolonged sitting does not appear to me to be indicative of its so doing.  The Tribunal is, as the Department has indicated, quite entitled to make use of its own observations in assessing the existing evidence.  This I consider is what it has done and I can ascertain no error of law in that respect. 

12.	As regards the Tribunal’s comments in relation to the walking distance when shopping at Tesco I do consider that the Tribunal has erred in that it has made an assumption in relation to which there is no evidence.  The Tribunal was quite entitled to put forward any particular knowledge which it might have as to the distance walked in supermarkets and in their car parks.  It should, however, have put this particular knowledge to the claimant for comment.  It was a matter for the Tribunal whether it accepted or rejected the comment made but it was in error in using such knowledge without putting it forward for comment.  I do consider that the Tribunal erred in law in this respect and I set its decision aside for that reason.

13.	As regards the ground relating to the claimant’s ability to walk up and down stairs I again do not consider that this indicates any misapplication of the test for the higher rate of the mobility component.  The claimant, in her claim form, indicated that she needed help using the stairs and that this was part of her general immobility as was the matter of her getting out of a chair.  The Tribunal has found, and I consider that on the evidence it was entitled to find, that the claimant could walk up and down the stairs in her house.  It was considering her general assertion of pain on movement whether walking or otherwise.  The claimant herself made this general assertion and the Tribunal was therefore quite entitled to consider it.  I can ascertain no indication that the Tribunal applied the wrong test for the high rate of the mobility component.  I consider that there is no merit in this ground. In summary therefore I do not consider that the facts were such that no Tribunal acting judicially and properly instructed as to the relevant law could have come to the determination in question.  Neither do I consider that the Tribunal’s finding that the claimant was not so limited by pain that she was virtually unable to walk was unsustainable on the evidence.  

14.	As regards the ground of appeal in relation to the burden of proof, the Department is correct in its submission that in a renewal claim the burden of proof lies on the claimant.  In this case the issue of whether or not the lower rate of the care component had been properly awarded was raised by the Department but it was not raised as part of a review but rather as an issue to be dealt with as part of the appeal.  The Tribunal therefore applied the wrong burden of proof.  This is the second reason why I set the Tribunal’s decision aside.  

15.	I do not feel that this is a case where I can give the decision which the Tribunal should have given.  I therefore remit the matter to a differently constituted Tribunal for rehearing. That Tribunal should bear in mind the views indicated above.  If it has any factual knowledge specific to the distances involved in walking in supermarkets it should put that knowledge forward for comment.  It should also apply the correct burden of proof of entitlement which in this case is on the claimant.

(Signed):M F Brown

Commissioner

24 June 2004