DB-v-Department for Social Development (DLA) [2010] NICom 101
Decision No:  C64/10-11(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 28 August 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against a decision of an appeal tribunal, dated 28 August 2009, to the effect that the applicant did not satisfy the conditions of entitlement for an award of disability living allowance (DLA) from and including 28 September 2009.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing.

3.	Leave to appeal is granted.

4.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

5.	The applicant’s representative has submitted that the appeal tribunal erred in law in that:

(i)	the appeal tribunal failed to provide adequate reasons for its decision not to award the higher rate of the mobility component of DLA.  The appeal tribunal did not make it clear in its reasoning whether it considered the appellant’s previous award of the higher rate of the mobility or why it believed that his condition had improved since the previous award.  The applicant’s representative referred to the decision of the Commissioner in Great Britain in R(M)1/96 to support the submission for the requirement for the tribunal to consider a previous award;

(ii)	the appeal tribunal made an irrational finding on a matter material to the outcome.  It interpreted the evidence in a general practitioner’s (GP) factual report as stating that the applicant could walk 150 yards without severe discomfort.  It was submitted by the representative that the GP did not state this.  The applicant’s representative contended that the GP appeared to state that there was pain and that the maximum distance the applicant could walk was 150 yards.  The appeal tribunal failed to make it clear on the basis of the evidence before it that the applicant had no impairment of gait or balance and no recorded history of falls; and

(iii)	the appeal tribunal erred in concluding that the applicant “could perform the tasks associated with preparing a cooked meal using a chair or perching stool.”  The appeal tribunal in assessing entitlement to the care component accepted that the applicant would have difficulty rising from a chair without holding on but then stated that he could use a chair or perching stool to prepare a main meal without examining the reasonableness of this additional aid.

6.	The Department, through Mr Hinton of Decision Making Services, has submitted that the decision of the appeal tribunal was not in error of law on the basis of the grounds submitted by the applicant’s representative but has submitted that the appeal tribunal erred in law on the basis that the appeal tribunal failed to exercise its inquisitorial role in not exploring whether the applicant would have an entitlement to the lower rate of the mobility component of DLA.

7.	Therefore, it is clear that both parties have expressed the view that the decision appealed against was erroneous in point of law.

8.	Accordingly, pursuant to the powers conferred on me by Article 15(7) of the Social Security (Northern Ireland) Order 1998, I allow the appeal, I set aside the decision appealed against and I refer the case to a differently constituted tribunal for determination.

9.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to DLA, for a particular period, remains to be determined by another appeal tribunal.

10.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is a decision of the Department, dated 26 May 2009, which decided that the applicant was not entitled to DLA from and including 28 September 2009;

(ii)	the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred.  The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed):  K Mullan

Commissioner

21 October 2010