[2005] NISSCSC C30/04-05(DLA) (19 April 2005)

Decision No:  C30/04-05(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 25 May 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 25 May 2004 of an appeal tribunal sitting at Cookstown.  The Tribunal disallowed the claimant’s appeal against a departmental decision dated 10 January 2004 which superseded a decision dated 12 February 2003 whereby the claimant was awarded lower rate mobility component and middle rate care component of disability living allowance (DLA) from and including 9 October 2002 to 8 October 2005.  The decision of 10 January 2004 removed entitlement from and including that date.

2.	I should comment here that the Tribunal wrongly described the decision under appeal as being dated 1 October 2004 and decided that the claimant did not satisfy the conditions for any rate of any component of DLA from and including that date.  In light of the Tribunal’s findings I consider and find that its intention was to remove the reward from and including 10 January 2004 and that the transposition of 1 for 10 as regards date and 10 for 1 as regards month of termination of the award was simply a slip of the pen.  However, it did lead to an erroneous notice of decision which was, in this case, sufficient to constitute an error of law.  I set the decision aside for that reason.

3.	The above error was not one of the claimant’s grounds of appeal.  Her grounds were comprised in an OSSC1 form received in the Commissioners Office on 11 August 2004.  Essentially the grounds were that she did need assistance in day to day life and that her condition had deteriorated since the Tribunal hearing.  I pause here to note that the Tribunal did not err in law by not taking into consideration any deterioration after the hearing.  By Article 13(8) of the Social Security (Northern Ireland) Order 1998, the Tribunal was forbidden to take into consideration circumstances which did not obtain at the date of the decision under appeal.  In this case that decision was dated 10 January 2004.

4.	Observations on the appeal were made by letter dated 13 October 2004 from Mr Kirk of the Department’s Decision Making Services (DMS).  I am grateful to Mr Kirk for his considerable assistance in this matter.  The claimant, by a further (undated) letter received on 24 February 2005 made further observations relating to diagnoses she had “now” been given.

5.	I am in agreement with Mr Kirk that there is no merit in the claimant’s grounds of appeal.  The Tribunal, on the evidence, was entitled to reach the conclusions which it reached as to the claimant’s care and mobility needs.  It relied, as it was entitled to do, on the medical evidence.

6.	I am in agreement with Mr Kirk that the Department’s later decision of 9 April 2004 was a revision of the decision dated 10 January 2004.  However nothing hangs on this, the appeal being clearly made against the decision of 10 January 2004 as revised.  The decision of 10 January 2004 was clearly a supersession decision.  No natural justice point arises as the grounds for supersession were clearly spelt out in the submission ie that there had been a relevant change of circumstances in that the claimant’s mobility and care needs were less than those which had been the basis of her award.  The submission also indicated the medical evidence on which this ground was based.  As a Tribunal of Commissioners in Great Britain in decision CIB/4751/2002 and others decided a tribunal has power to correct any defective decision but it does not necessarily err in law, if in its decision notice, it does not reformulate the decision.  In this case, as the Department had already corrected the decision of 10 January 2004 by the decision of 9 April 2004, it was unnecessary for the Tribunal to reformulate it.  In this case the decision under appeal was not wrong in substance.  Neither was the decision wrongly labelled as a supersession.  In the circumstances I can see no benefit to the claimant or to the adjudication process in the Tribunal correcting and reformulating either of the decisions.  I therefore consider that its failure to do so was not an error of law.

7.	On appeal the Tribunal accepted the medical evidence and relied also on the medical records.  As I have indicated above its decision was sustainable on the evidence.

8.	I have set the Tribunal’s decision aside for the reason indicated above.

9.	I then come to consider whether or not I should give the decision which the Tribunal should have given.  The Department appears to wish me to do so.  It submits that the Tribunal’s decision to disallow DLA was correct.  The claimant has expressed no views on the matter.  She was informed that I might give the decision which the Tribunal should have given and was asked to comment.  In reply she merely stated that since she applied for leave she had been diagnosed with sciatica and cataracts.  I am unable to take these matters into account as they did not obtain at the date of the decision under appeal.  I have decided to give the relevant decision. As did the Tribunal, I accept and rely on certain of the findings in the medical reports dated 11 April 2003 and 28 November 2003 (from the claimant’s General Practitioner) as detailed below.  They indicate some shoulder disease but good hand and arm function.  They also indicate no balance problems, normal sight and hearing, no concentration problems, awareness of risks.   The General Practitioner has indicated that the claimant can safely and unaided dress, undress, use stairs, walk indoors, use taps, use pots and pans and peel and chop vegetables and that there is no history of falls or impairment of gait or balance and no need for attention or supervision to enable the claimant to get around in unfamiliar surroundings.  The General Practitioner has indicated that “minimal help” would be required in using a cooker.  The examining doctor found that the claimant had shoulder disease which limited full raising of her shoulder on the right but that hands and arms were otherwise normal and that she had no problems lifting and carrying substantial weights with either hand.  As no great weights are involved in preparing and cooking a meal for one and as no heavy lifting or prolonged standing or bending is involved in preparing a reasonable range of meals for one, I consider that it has been shown that the claimant was not incapable of preparation and cooking a main meal.  The General Practitioner also indicated that the claimant had no problem walking.  Accepting the above findings I consider that it has been shown that the claimant’s care and mobility needs had lessened.

10.	I conclude that there has been a relevant change of circumstances in lessening of care and mobility needs.  The Department has shown, on the balance of probabilities that such a change took place and that from and including 10 January 2004 the claimant was not entitled to DLA.

11.	My decision is therefore that the decision dated 12 February 2003 is superseded and that  from and including 10 January 2004 the claimant is not entitled to DLA.  The claimant technically wins her appeal but this is of no advantage to her as I uphold the Department’s supersession decision of 10 January 2004 albeit setting out more fully the grounds upon which same is based.

12.	The claimant has mentioned deterioration in her condition since the Tribunal hearing.  As indicated above that is not a matter which I can take into consideration.  It could only be considered on a fresh claim and I cannot say whether or not any such claim would succeed.

(Signed):  Moya F Brown

Commissioner

19 April 2005