A136/96(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave
to appeal to the Social Security Commissioner
on a question of law from the decision of
the Disability Appeal Tribunal
dated 4 July 1996

	DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant in this case seeks leave to appeal against the decision of the Disability Appeal Tribunal sitting at Belfast, whereby it was held that she was not entitled to either the care or the mobility component of disability living allowance from and including 7 January 1996.  

2.	The Tribunal's decision on the care component was based upon the following recorded findings of fact:-

		"She lives alone and does not actually receive any attention,
		supervision or cooking assistance.  The issue is whether these
		are nevertheless reasonably required.

		Her main problem appears to be fatigue because she is depressed
		and not getting enough sleep.  She does not have severe heart
		disease or spinal disease.  She is not severely mentally disabled.
		She is on no treatment.
		She cannot be bothered to cook and if she did, by the time she
		had it ready, she would not feel like eating it.  The issue for
		us is what she cannot do, rather than what she will not do.

		Also her condition varies so much we cannot see how she can
		justify the 3 and 6 month rule."

	Their reasons for decision were:-

		"Considered R(M)3/86 and A64/96(D.L.A).  She is not severely
		or mentally impaired.  She can slowly but still in a reasonable
		time and manner attend to all her bodily functions day and night
		and cooking, when she feels like doing so.  We do not accept she
		is having frequent falls and supervision is not reasonably 
		required."

3.	In relation to the mobility component, the Tribunal's recorded findings of fact were:-

		"Miss O... does not have severe heart disease and is not on
		medication for this.  She does not have angina, all ECGs have been
		normal, she has not had a treadmill test and is not breathless on
		the least exertion.

		X-rays have indicated degeneration of the coccyx but this would 
		not interfere with walking.  She does not appear to have any severe
		disease of the spine and is able to drive a car and work the pedals
		without difficulty.

		She can walk without a stick, without physical assistance, without
		guidance or supervision, without a limp, without falls and her 
		balance is reasonably good.  She says if she walks too far she falls
		but we do not accept this as it is not supported by the medical
		evidence.  The distance she can walk is a matter of some controversy
		given the reports from her General Practitioner of 25 August 1995
		and 2 February 1996 and her own evidence today.  On balance we 
		feel that Miss O... is depressed, that this interferes with her
		sleep and she feels too tired sometimes to walk.  We do not accept
		in the absence of supporting medical evidence that this would be
		3-5 days a week.  We believe she can walk on most days 30 yards
		to her car, drive to the shops and walk around leaning on a trolley.
		The medical evidence does not reveal any severe mental or physical
		disablement.  We have considered the evidence of falls and are not
		convinced guidance or supervision is required."

	Their reasons for decision were:-
		"Given the findings at 3 above, we cannot reasonably say that she
		is unable or virtually unable to walk or that the exertion of 
		walking would be dangerous or that she needs guidance or supervision.
		The weight of medical evidence is that she is not suffering from
		a severe physical or mental disablement so Disability Living
		Allowance is not appropriate.  A64/96(D.L.A) considered.  We
		doubt the correctness of the decision to allow the high rate
		mobility component 7 January 1994 - 6 January 1996 R(A)3/89 
		considered on falls."

4.	The grounds upon which the claimant now relies, as set out in her notice of application for leave to appeal are:-

		"1.  It is submitted that the tribunal has erred in law in 
		relation to the care component by disallowing the claim on the
		basis that the claimant is not severely physically or mentally
		disabled.  The tribunal has relied on the decision of the Chief
		Commissioner in A64/96(DLA) as authority for the requirement for
		"severe" disablement.  I respectfully submit that the tribunal
		has placed undue weight on what would appear to be an obiter 
		comment in this decision, and that there is no legal requirement
		in the test for the care component to be "severely" physically
		or mentally disabled.  The test is rather one of determining 
		whether the claimant suffers from a physical or mental disablement,
		the effects of which are so severe that the claimant requires
		frequent attention, etc.  In other words the effects of the 
		disablement and the attention needs which arise from them are the
		key to determining whether there is entitlement or not.

		2.   In the alternative the tribunal has not made adequate 
		findings of fact in relation to the care component to determine 
		the issues in the case."

5.	In response to an invitation to comment upon the application, Mrs P Swann, the Adjudication Officer now concerned with the case, by letter dated 11 March 1996, set out her views on this matter.  She pointed out that, as explained in NI Decision No. C69/96(DLA), the severity of a claimant's disablement was to be judged by reference to satisfaction of the conditions of entitlement.  She nevertheless expressed the opinion that, on the evidence at their disposal, the Tribunal were entitled to come to the decision in question.  She further drew attention to the fact that there is no test of severity of disablement in respect of the mobility component of disability living allowance and she suggested that the Tribunal might have confused the disability conditions of the two components.  

6.	Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 provides that in order to secure entitlement to the care component of disability living allowance, a claimant must establish that he is so severely disabled physically or mentally that he requires attention or supervision of a specific nature.  The precise interpretation of these provisions has been the subject of considerable discussion in recent times, and, as Mrs Swann has stated, I have had occasion to express my views on them in decision No. C69/96(DLA).  As I there sought to explain, the severity of the disablement is to be judged by reference to the claimant's needs for attention or supervision:- see GB Decision No. CDLA/926/94; Rowland on Medical Disability Appeal Tribunals, The Legislation, 1995 Edition, page 21; in re H (a minor) February 1994 CA unreported.  That is not to say, however, that a Tribunal errs in law in recording a conclusion that the claimant is not severely disabled physically or mentally.  Indeed there are many references in reported cases to the propriety of such a finding:- see for example Mallinson -v- Secretary of State for Social Security [1994] 2 AER 295, at page 299(c), where it was said by Lord Wolff that in order to satisfy the conditions of entitlement a claimant must establish (a) that he is severely disabled, (b) that his disablement is so severe that he requires from another person frequent attention throughout the day, and (c) that the frequent attention is connection with his bodily functions.  I am therefore of the opinion that, so long as it is clear from the Tribunal's decision that the severity of the claimant's disablement has been judged by reference to the relevant provisions of section 72, they do not err in law in recording a finding to the effect that the claimant is not severely disabled physically or mentally, or is not suffering from a severe physical or mental disablement.  In my view the Tribunal's findings of fact and reasons for decision in this case make it clear that their assessment of the claimant's disablement was correctly based, and that they did not err in law in recording that she was not suffering from a severe physical or mental disablement.  

7.	The Tribunal's findings of fact on the care component may in themselves be sparse; but they must be considered in conjunction with the "reasons for decision" which include further findings.  As I have often stated in the past, so long as sufficient findings of fact have been recorded, it matters not where they appear in the Tribunal's decision, and looking at the totality of the decision in this case I consider that the findings of fact, including those recorded under the heading "reasons for decision" provided a sufficient and proper basis for the Tribunal's decision on the care component.

8.	So far as the mobility component is concerned, it is correct to say that, as Mrs Swann has pointed out, there is no requirement that a claimant shall be suffering from a severe physical or mental disablement.  The Tribunal's reference to this matter was accordingly unnecessary and inappropriate; but there is nothing unusual in that.  The findings of fact and reasons for decision recorded by Tribunals frequently contain material which ought not to the there.  The important question is whether the findings and reasons which have been recorded provide a proper basis for the Tribunal's 
	decision and make it clear that the statutory provisions have been correctly applied.  In this instance I consider that the Tribunal's decisions in relation to both components of disability living allowance satisfy that test.  Leave to appeal is accordingly refused.

(Signed):  R R Chambers

CHIEF COMMISSIONER

7 July 1997