Northern Ireland - Social Security and Child Support Commissioners' Decisions

AR-v-Department for Social Development (DLA) [2010] NICom 118

Decision No:  C76/10-11(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 5 February 2010

 

 

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 5 February 2010, to the effect that the applicant did not satisfy the conditions of entitlement for an award of disability living allowance (DLA) from and including 30 June 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 appellant has submitted that the appeal tribunal erred in law in that:

 

(i)       the appeal tribunal failed to take into account pain in his lower back and how this affected his day to day living;

 

(ii)      the appeal tribunal did not consider medical reports which were before it;

 

(iii)      the appellant felt intimidated and unsettled by the attitude of the legally qualified panel member.

 

6.    The Department, through Mr Hinton of Decision Making Services, has submitted that the tribunal erred in law on the basis that:

 

(i)       the appeal tribunal failed to fulfil its inquisitorial role in exploring how the appellant could plan, prepare and cook a meal for one person without exploring the effect of his evidence concerning his inability to sit; and

 

(ii)      the appeal tribunal failed to explore and assess the key factors of time, speed and manner of walking when assessing whether the appellant satisfied the conditions of entitlement to the higher rate of the mobility component of DLA, and in light of his evidence that his speed of walking was slow and his manner of walking was poor.

 

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.    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 1 October 2009, which decided that the applicant was not entitled to DLA from and including 30 June 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 Department is to provide details of the evidential basis on which decisions on subsequent claims were made.  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

 

 

 

24 November 2010