Decision No: C1/01-02(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 11 January 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by a Deputy Commissioner, by the claimant, against a decision dated 11 January 2001 of an Appeal Tribunal sitting at Omagh.  The decision disallowed the claimant’s appeal in relation to Attendance Allowance from and including 21 July 1999.  The Tribunal decision was what is known as a paper determination, the claimant not having requested a hearing by the Tribunal.  The claimant did not seek a hearing of his appeal to me and I am satisfied that the appeal can properly be determined without such a hearing.

2.	The claimant’s grounds of appeal were contained in an OSSC1(NI) form received in the Commissioners office on 24 October 2001.  The grounds were that the Tribunal had no evidence or insufficient evidence to support its decision because the claimant had had numerous hypoglycaemic episodes both day and night over the past few years.  He claimed that he had not attended his GP in relation to same because his wife and family were present and had prevented the attacks developing into full hypoglycaemic comas.  The claimant stated that he would not have come out of these attacks if no one had been present and that he had recently had a General Practitioner out at 5am (this visit appears to have taken place in the year 2000).

3.	The Deputy Commissioner who granted leave to appeal had indicated his reasons for so doing.  These reasons were that the claimant had stated that he suffered from hypoglycaemic episodes 3-4 times per month by day and 3-4 times per month by night.  His evidence had been that he had had no hypoglycaemic coma since 1988.  The Deputy Commissioner also reasoned that the Tribunal had stated that the claimant’s General Practitioner said that he “rarely” had “hypoglycaemic episodes” whereas in fact the General Practitioner had stated that he had “occasional” hypoglycaemic episodes.  The Deputy Commissioner had also noted that the granting of leave did not necessarily mean that the appeal would ultimately succeed.   The Deputy   Commissioner reasoned that all insulin dependent diabetics were liable to hypoglycaemic attacks but most managed by eating sensibly and carrying or having readily available a carbohydrate snack.  

4.	The Appeal was opposed by the Department in a letter dated 14 January 2002 from Mrs Gunning of the Decision Making and Appeals Unit.  Mrs Gunning referred to the fact that the appeal was a paper hearing and the Tribunal had decided the case on the documentary evidence.  The claimant had claimed that he needed constant supervision in case he suffered a hypoglycaemic attack or a fall resulting in such an attack.  Relying on the medical evidence the Tribunal had found that that evidence did not support the claims made.  In particular the claimant’s General Practitioner in his report dated 28 September 1999 had indicated that overall control of the diabetes was satisfactory, and that the claimant could manage his own urine and blood testing and therapy without help, that there were occasional hypoglycaemic episodes but there was usually a warning, that the claimant had had no falls and there was no significant risk of falls on the level indoors.  In Mrs Gunning’s submission the reasons for the Tribunal’s decision had also indicated that the Tribunal had cited the claimant’s General Practitioner’s records as showing that his condition was well controlled and that he had had no “hypos” since 1988.  In Mrs Gunning’s submission the reasons for the decision clearly indicated that the Tribunal had rejected the claimant’s claims and relied on the General Practitioner’s report and the information in the medical records.  Based on this Mrs Gunning submitted that the Tribunal was entitled to decide as it did, that the decision was sustainable on the evidence, that the claimant had not identified an error of law in the Tribunal’s decision and accordingly she opposed the application.

5.	I am in agreement with Mrs Gunning that the Tribunal’s decision was sustainable on the evidence.  It is quite clear from that evidence that the claimant could attend to his bodily functions either by day or by night.  Even on his own evidence he required assistance in connection with bodily functions only on the comparatively few occasions per month when he suffered from hypoglycaemic episodes.

6.	With regard to supervision, as the Tribunal stated the claimant’s stated needs in relation to this appeared to relate to falls and hypoglycaemic attacks.  The Tribunal relied, as it was entitled to do, on the General Practitioner’s report and that of the Examining Medical Practitioner.  Both indicated that the claimant had not fallen.

7.	The Tribunal has stated clearly that it had relied on the Examining Medical Practitioner and on the General Practitioner’s evidence.  In so doing it does not appear to me that it has rejected the claimants written evidence that he suffered minor hypoglycaemic attacks (minor being short of hypoglycaemic comas) some 3-4 times per month by day and 3-4 times per month by night.  It has, however, rejected the claimant’s evidence in relation to falling, as it was not supported by the available medical evidence.  This the Tribunal was perfectly entitled to do.  The claimant had stated that he was prone to fall and this was not, as the Tribunal indicated, supported by the medical evidence.  The Tribunal also clearly indicated that it did not consider that the claimant required continual supervision by day or another person to be awake to watch over him to avoid substantial danger by night and relied on the medical evidence for this conclusion.  It does appear to me that the medical evidence entitled the Tribunal to this conclusion.  I do appreciate that in the General Practitioner’s report the term “occasionally” rather than “rarely” is used but this appears to me to be a matter of terminology and in any event the Tribunal relied also on the evidence of the Examining Medical Practitioner as to the frequency of hypoglycaemic episodes.

8.	It must be remembered that what the Tribunal was considering in connection with the supervision conditions was whether the claimant required continual supervision throughout the day to avoid substantial danger to himself or others or required another person to be awake for a prolonged period or at frequent intervals by night to watch over him to avoid substantial danger to himself or others.  The claimant himself informed the Examining Medical Practitioner that he had never fallen (which contradicted his earlier evidence in his claim form).  It does appear to me that on the basis of the medical evidence, which I consider the Tribunal was entitled to rely on, the Tribunal was entitled to its conclusion that the claimant did not require either attention or supervision to the level necessary to satisfy the requirements for attendance allowance.  It does not appear to me that the Tribunal rejected the evidence that the claimant did suffer the minor hypoglycaemic episodes which he stated and considered that he required some attention and some supervision in connection with those. However it does not appear to me that, relying on the medical evidence, the Tribunal can be faulted for its conclusion that the claimant did not require attention or supervision to the level necessary to satisfy the statutory conditions.

9.	The Tribunal was unable to take on board any evidence which related to the situation after the date of the decision under appeal which was 29 November 1999.  The Tribunal could not therefore have taken on board any additional evidence of General Practitioners visits or otherwise which the claimant might have wished to put forward in relation to the situation after that date.  There is, however, no indication that that evidence was ever put before the Tribunal and the Tribunal did not err in law therefore by not considering that evidence.  

10.	I am unable to ascertain any error in the decision whether as contended by the claimant or otherwise.  I therefore dismiss the appeal.

(Signed):  M F BROWN

COMMISSIONER

13 JUNE 2002