[2006] NISSCSC C1_05_06(AA) (20 July 2006)

Decision No:  C1/05-06(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

ATTENDANCE ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 29 April 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant against a decision dated 29 April 2005 of an appeal tribunal sitting at Omagh.  The tribunal had allowed the claimant’s appeal against a decision dated 19 May 2003 of the Department whereby she was disallowed attendance allowance (AA) from and including 9 October 2002.  The tribunal awarded her the lower rate of AA for the period 9 October 2002 to 23 January 2003.  The reason for the termination of the award was that the claimant had a knee replacement operation in September 2002 and that by 23 January 2003 she no longer had needs such as to satisfy the conditions for AA.  My decision is given in the final paragraph.

2.	The grounds of appeal were contained on an OSSC1 form received in the Commissioners’ Office on 12 October 2005.  The grounds were as follows:

(a)	That the tribunal had erred in fact by finding that the claimant’s diabetes was diet controlled.  Her diabetes was and always had been controlled by medication as confirmed by her doctor’s letter of 7 September 2005.  

(b)	That as a result of this the side effects of the medication had not been taken into consideration.

(c)	That no consideration had been given to her needs for assistance in everyday living and to the problems raised by day and night incontinence.

3.	I granted leave on the ground that an arguable issue arose as to whether the factual error in relation to diabetes being diet controlled was such as to vitiate the decision.  I held a hearing of the appeal which the claimant did not attend (she had not attended the hearing before the tribunal) but Councillor McGowan attended to represent her.  The Department was represented by Mr McGrath.  I am grateful to both representatives for their assistance in this matter.

4.	At hearing the issue was addressed as to whether or not the tribunal’s exploration of the claimant’s night needs was adequate.  In particular I referred to the medical evidence including the examining medical practitioner’s (EMP) report which appeared to indicate that the claimant had to rise three times at night to go to the toilet and had to use a pot in the bedroom as the bedroom was too small to contain a commode.  This evidence appears to have been accepted by the EMP and indeed by the tribunal.  The claimant also indicated, and again this evidence was accepted by the EMP, that she suffered from incontinence due to the need to take extra fluids because of her glucophage medication.

5.	Both at hearing and in a letter dated 8 December 2005 the Department expressed the view that the tribunal was entitled to its view that the claimant’s care needs had ceased to be at the level necessary for qualification for any rate of AA at 23 January 2003.  The Department conceded that the tribunal had erred in relation to its conclusion that the diabetes was diet controlled but expressed the view that this was not something that vitiated the decision.  In particular Mr McGrath submitted that it had not affected the tribunal’s assessment of the credibility of the claimant’s evidence. In fact the tribunal appeared to have accepted the claimant’s evidence.  Mr McGrath submitted that the claimant had not indicated any need for assistance in relation to attention for toileting needs during the night.  The tribunal had specifically addressed that issue in its reasons for decision and it had also addressed the issue of dizzy spells and loss of balance.  Overall on the basis of the evidence Mr McGrath submitted that the tribunal was entitled to reach its conclusions on this matter without adjourning to obtain additional evidence or to explore the matter further with the claimant.

6.	Councillor McGowan informed me that he did not have any legal expertise but that the claimant was an elderly lady of stoic disposition who would simply accept that certain things had happened to her and do her best to cope with them.  In his view she needed assistance.  In that respect I note that the claimant, in her letter of appeal dated 27 June 2003, had indicated that she required assistance with regular toileting and that she had had several falls during the night and arrangements had been made to ensure that she no longer attempted to attend the lavatory unattended.  She had, however, not mentioned any difficulties attending to her toileting needs during the day and had informed the EMP on 14 May 2005 that her last fall happened before her knee operation.

7.	I am of the view that the tribunal did err in law.  It does appear to be accepted that the claimant suffered from incontinence and that she had taken measures to deal with the incontinence at night which led to her using a plastic pot in her bedroom.  I consider that the tribunal should have adjourned to afford the claimant a further opportunity to attend in order that it could explore whether the measures taken by the claimant were due to disablement and necessary and if so, whether there was a reasonable requirement for attention.  I am also of the view that the tribunal’s erroneous conclusion that the diabetes was diet controlled may have also affected its assessment of the level of assistance which the claimant might need during the night to cope with her incontinence.  In light of both of these factors I set the tribunal’s decision aside as in error of law.

8.	As this matter has been continuing for a considerable period of time I would have preferred to have given a substantive decision myself but unfortunately the claimant did not attend the hearing before me.  I am therefore unable to do so.  I accordingly remit the matter to a tribunal which may have either the same or a different constitution to the preceding one.  I direct that tribunal to explore fully whether or not the claimant had any needs for night attention coming from incontinence and if so whether these were at a level so as to qualify the claimant for either rate of the AA.  The claimant should note that the tribunal is unable to take into consideration any circumstances not obtaining at 19 May 2003. The claimant should make all reasonable efforts to attend the tribunal hearing and should be aware that she may be accompanied by a representative and/or a member of her family when she does so.

9.	The claimant wins her appeal.

(signed):  M F Brown

Commissioner

20 July 2006