Decision No: C24/04-05(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 4 June 2004

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of Mrs Commissioner Brown, against the decision of the Appeal Tribunal sitting at Newtownards on 4 June 2004.  For the reasons which I give that decision is erroneous in point of law.  I therefore set it aside and refer the matter to a differently constituted tribunal (“the New Tribunal") for rehearing.

2.	The question for determination by the Appeal Tribunal was whether the claimant was entitled to either or both components of a disability living allowance (DLA).  On 19 January 2004, a decision maker decided that she was not entitled to either component.  The Appeal Tribunal dismissed her appeal against that decision.

3.	The claimant was born on 16 October 1952.  She was 51 in January 2004.  It appears from the papers that, towards the end of 2003, she was diagnosed as suffering from cancer of the rectum.  On 16 December 2003, she underwent major surgery involving the removal of her bowel.  She was left in a weak and distressed condition and was, and is, reliant upon a colostomy bag.  The condition from which she suffers is both distressing and embarrassing.  The diagnosis, together with the surgery and its after-effects, left the claimant at a very low ebb both physically and mentally.  She requested a claim pack on 16 December 2003.  This was the same day on which she underwent surgery.  She completed, signed and dated the claim forms on 7 January 2004.  These were then returned on 15 January 2004, after her general practitioner had added her comments.  I have already indicated how the application fared.

4.	The claimant applied for leave to appeal against the Appeal Tribunal’s decision on the grounds set out in a letter which was received on 3 August 2004.  Leave was refused by a legally qualified panel member but was granted by Mrs Commissioner Brown on the following, limited, ground: -

“Leave to appeal is granted as an arguable error appears to arise in relation to the Tribunal’s assessment of the claimant’s evidence.  The arguable error is that the Tribunal has in relation to the care component based its assessment of part of the evidence on its view that the claimant contended that her colostomy bag continued to leak “frequently by day and night” and it is arguable that the evidence given did not entitle the Tribunal to this view.”

5.	The Department does not support the appeal either on this ground or generally.  See its submissions dated 21 January 2005, and in particular those appearing under the heading “Commissioner’s determination”.  I am grateful for these submissions which I have found of much help.  Nevertheless, I have come to the conclusion that the Appeal Tribunal did err in the manner indicated by the Commissioner and I therefore allow the appeal.

6.	The relevant passage in the Appeal Tribunal’s statement of reasons is as follows: -

[The claimant’s] contention, that her colostomy bag frequently leaks by day and night and that she needs help to deal with the resulting laundry, we consider to be inconsistent with her doctor’s note of 15 April 2004 (in the records available today) … “her colostomy is working well …”.  The absence of any relevance [by which, must be meant “reference”] to spillage or leakage would suggest to us that this is not really as significant a problem as [the claimant] claims.”

7.	I have two problems with that passage.  First, I am unsure as to whether the claimant did tell the Appeal Tribunal “that her colostomy bag frequently leaks by day and night”.  What the Chairman’s notes actually record her as saying is: -

	“… I need help to deal with spillage of bag onto bed clothes.”

	“Spillage can happen irregularly maybe twice in a day maybe not at all.”

	“Last spillage was around lunchtime yesterday.”

Now, it may be that what the claimant was saying was that there were frequent spills.  However, this is not clear from what she is recorded as saying.

Secondly, I fail to see why a note by her doctor that “her colostomy is working well” together with “the absence of any reference to spillage or leakage” raises a conflict which the Appeal Tribunal was entitled to resolve against the claimant.  I can see all sorts of reasons why a doctor might not refer to spillage or leakage in any notes he or she made.  Further, I would regard the note that her colostomy is working well as being directed primarily towards the medical aspects of her condition rather than incidental matters connected with the emptying or positioning of the bag.

8.	I am unable to make the findings which would enable me to give a final decision.  I therefore remit the matter to the new tribunal for rehearing.  Since I am allowing the appeal for the reasons just given it is unnecessary for me to deal with the claimant’s other grounds of appeal.  The following remarks may, however, be appropriate.  Although, in an ideal world, any tribunal which heard the claimant’s appeal might consist of persons with particular knowledge of rectal cancer and bowel surgery, it is simply not possible to provide such a tribunal. Tribunals have to deal with widely differing medical problems and are sometimes required to do so in quick succession. It is impractical to tailor their composition to the medical problems of different appellants.  The relevant regulations require a tribunal to consist of a legally qualified chairman sitting with a doctor and a member with experience of disability problems.  That means that tribunal will, in any event, have a broad spectrum of experience.  If its members have been sitting for any length of time then each of them will have heard many cases involving the difficulties from which the claimant suffers.

9.	There will now be a rehearing.  It is for the claimant to lodge evidence in support of her appeal and it is not for the New Tribunal to seek out evidence on her behalf.  This applies both to any psychological problems from which she may be suffering as well as her physical problems.  The claimant should appreciate that, despite its name, this benefit is not awarded on grounds of disability alone.  Disability is a pre-condition but it is also necessary to demonstrate that the statutory conditions laid down by Parliament are met.  In a recent letter the claimant has said that she has made a further claim which has been successful.  The New Tribunal will need to have details of the award, and particularly its commencement date, because this will determine the limit of its jurisdiction.  The claimant must, however, understand that any award which has been made cannot determine the present appeal.

10.	Finally, the claimant has complained about the way in which she has been addressed.  In this decision I have, in accordance with the usual practice, referred to her throughout as “the claimant”.  I have done so deliberately and for her protection.  This decision is a public document.  By referring to her in the anonymous way in which I have it should not be possible for anyone unconnected with her appeal to identify her from the decision.

11.	For the reasons already given, I allow the appeal and remit the matter to the new tribunal.

(signed):J P Powell
Deputy Commissioner

17 February 2005