[2005] NISSCSC C16_05_06(DLA) (3 October 2005)

Decision No:  C16/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 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 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case begins as an application for leave to appeal by the claimant against a decision dated 10 January 2005 of an appeal tribunal sitting at Londonderry.  That tribunal disallowed the claimant’s appeal in connection with disability living allowance (DLA) and decided that he was not entitled to that allowance from and including 28 November 2003.  Before the tribunal there was no contention that the claimant was entitled to the mobility component of DLA and same forms no part of the appeal to me.  Similarly before the tribunal evidence was given by the claimant which would indicate that the tribunal’s conclusion that he was not entitled to either the lower rate or the middle rate (day needs) of the care component of DLA was correct.  No point has been made on this matter in the appeal to me.   I therefore proceed on the basis that there is no contention that the tribunal’s decision was incorrect in that respect.  The issues before me have related solely to the middle rate of DLA for night needs.

2.	I grant leave and, pursuant to regulation 11(2) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, treat the notice of application as a notice of appeal sent under regulation 12 of those regulations.  The Department has consented to the observations which it made on the application being treated as its observations on the appeal.

3.	In the appeal to me the claimant was represented by Mr McD… and the Department by Miss Fleming of its Decision Making Services.  I am grateful to both representatives for their assistance in this matter.  The grounds of appeal as set out on the OSSC1 Form do not indicate any error of law.  They merely express disagreement with the tribunal’s decision.  However, a letter signed, but it would appear not written, by the claimant dated 18 April 2005 to the legally qualified panel member seeking leave to appeal submits that there was an error of law in the tribunal reaching the conclusion that the claimant could himself awaken and reset the machine.  The claimant states that the evidence was to the effect that he would need to be awakened by his wife.  He submits that the medical evidence to this effect was not “fully considered”.  This appears to be the evidence from Nurse L… contained in an undated letter addressed “To Whom It May Concern.”

4.	In its letter dated 19 July 2005 the Department submits that the tribunal fully considered all the evidence and that it was for the tribunal to decide the amounts of attention which the claimant reasonably required from another person and that the reasons adequately explained the decision.  The Department therefore opposes the appeal.

5.	The tribunal’s reasons in relation to the night needs read as follows:

“REASONS FOR DECISION (including legislation and Commissioners Decisions considered by the Tribunal):

The Appellant has sleep apnoea.  The claim was in respect of high rate care for help with bodily functions.

He also has cellulitis which flares up from time to time, diabetes type II, arthralgia, hypertension and obesity.  His main disabling condition is the sleep apnoea.  The Appellant gave new evidence that he had no daytime care needs.  The Tribunal therefore found that the Appellant did not require frequent attention throughout the day in connection with his bodily functions, neither did he require help for a significant portion of the day.  The main issue was night care.  The Appellant’s case was that he has nightmares which upsets the machine and he referred to the report of Nurse L… regarding this.  However the Tribunal having heard the evidence did not accept that the Appellant was unable to reset the machine for his sleep apnoea himself.  We found that with the use of the machine his condition was controlled, he could reset it at night if required.  We also did not accept the evidence that the machine required to be reset 2-3 times at night.  We were satisfied that if the Appellant awoke after a nightmare he could reset the machine himself in 5 – 10 minutes.  We also did not accept that his cellulitis would prevent him getting up and reset the machine, which would not involve him moving very far.  We also noted that the diabetes is at present controlled by diet and does not require any medication.

The appeal is therefore disallowed for night care needs as the Appellant does not require prolonged or repeated attention in relation to his bodily functions.”

6.	It will be noted from the above reasons that the tribunal made no findings as to whether the claimant’s wife was required to waken him.  It found, and I consider that on the evidence it was entitled to find, that the claimant could reset his machine at night if he needed to do so but he had stated that his wife needed to waken him before he could do this.  It is, of course, a matter for the tribunal whether or not it accepts this evidence and the tribunal has made it clear that it did not accept the evidence that the machine required to be reset 2 – 3 times per night.  In fact the claimant himself had not said that it needed to be reset 2 – 3 times per night he said that it needed to be reset every night sometimes 2 – 3 times per night.  This does not mean that it needed resetting this number of times every night.  The assessment of evidence is of course, a matter for the tribunal and it is entitled to accept or reject evidence according to its view of the reliability of that evidence.  Similarly it is entitled to accept or reject medical evidence.  If that medical evidence is based on a history which the tribunal considers unreliable it may reject that evidence.  That is not an error of law.

7.	Here, however, the tribunal did not deal with a specific contention by the claimant ie that his wife required to give him attention during the night to waken him on at least one occasion.  The failure to deal with that contention was in my view an error of law.  I set the decision aside for that reason. 

8.	I do not consider 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 re-hearing and re-determination.  It would obviously be of assistance to that tribunal if it has before it the general practitioner records and any other medical evidence which the claimant wishes to produce.  This is, however, a matter for the claimant.  I therefore direct the new tribunal to deal with the question of what, if any, attention is reasonably required from another person by the claimant in connection with his bodily functions as a result of his disability.  I also direct the tribunal to give adequate reasons for its decision.

9.	The claimant wins his appeal.

(Signed):  M F Brown

Commissioner

3 October 2005