AB-v-Department for Social Development (DLA) [2012] NICom 278
Decision No:  C65/11-12(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 7 March 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal from the decision of the appeal tribunal sitting at Belfast on 7 March 2011.

2.	An oral hearing of the appeal has not been requested and I consider that it can properly be determined without a hearing.

3.	I grant leave to appeal.

4.	For the reasons which I give, I consider that the appeal tribunal is in error of law.  I set the decision aside and refer the case to a newly constituted tribunal for determination in accordance with the directions which I have given.

5.	The applicant should be aware that this does not indicate that the new tribunal will necessarily reach a different decision to the first tribunal when all the evidence is considered.

REASONS

	Background

6.	The applicant had claimed disability living allowance (DLA) and had been awarded the low rate of the mobility component and the middle rate of the care component for two distinct periods in succession, namely from 1 August 2006 to 31 January 2008 and from 1 February 2008 to 31 January 2011.  He made a renewal claim which was decided on 9 November 2010, and which disallowed his claim to DLA from and including 1 February 2011.

7.	The applicant appealed to a tribunal which heard his appeal on 7 March 2011.  The appeal was disallowed. On 28 March 2011, the applicant requested a statement of reasons for the tribunal’s decision.  This was issued on 20 June 2011.  The applicant applied to the legally qualified member of the tribunal for leave to appeal to the Social Security Commissioner on 14 July 2011.  This was refused in a decision notified to the applicant on 28 July 2011.

8.	On 15 August 2011, the applicant renewed his application for leave to appeal directly to the Social Security Commissioner.

	Submissions

9.	The applicant’s ground of application for leave to appeal is that his mobility, self-care and motivation are extremely poor and that he had been wrongly assessed.  He also has had more medical problems since the appeal, referring to vitamin deficiency and high blood pressure.

10.	The Department was invited to make observations on the grounds of application for leave to appeal.  Mr Kirk replied for the Department on 25 October 2011.  Mr Kirk observed that while the tribunal has clearly referred to the history of the applicant’s alcohol dependency, it failed to make subsequent findings on any needs arising from the alcohol dependency.  He commented that it had failed to explain why it concluded that alcohol dependency was not a relevant issue and he contended for that reason that the tribunal had erred in law.

11.	Responding to the applicant’s second ground, Mr Kirk further observed that evidence of deterioration in his health might lead the applicant to submit a new claim, but that the tribunal would have been precluded from taking new conditions into account by Article 13(8)(b) of the Social Security (NI) Order 1998.

12.	On 2 November 2011, the applicant was invited to comment further.  He made further submissions regarding his health and submitted that his condition was not properly assessed.

	Assessment

13.	I see no merit in the grounds of application set out by the applicant.  His first point does not identify any error of law in the tribunal’s decision and merely seeks to re-argue the appeal.  His second point relates to a possible deterioration in his condition since the tribunal hearing.

14.	Mr Kirk submits that there may be an error in the tribunal decision, in that it has not referred in its decision to its assessment of any needs which might arise from the condition of alcohol dependency.  Mr Kirk’s submission to the effect that the tribunal decision may contain an error of law on this basis is at least arguable and therefore I grant leave to appeal.

15.	The tribunal refers in its statement of reasons to evidence that the applicant’s disabling conditions included “Alcohol Dependence Syndrome – 80 units of spirits/week”.  The tribunal further records the comment of his GP that the applicant is “not willing to seriously address alcohol issues”.  It may be that the appeal tribunal had in mind the passage in R(DLA)6/06 at paragraph 33, where the GB Tribunal of Commissioners say:

“Rather than a clear-cut distinction between dependence and choice, in our judgment it is more helpful to think in terms of the degree of self-control that is realistically attainable in the light of all the circumstances, including the claimant’s history and steps that are available to him to address his dependence.  A person who cannot realistically stop drinking to excess because of a medical condition and cannot function properly as a result can reasonably be said to both suffer from disablement and to require and attention, supervision or other help contemplated by the legislation that is necessary as a consequence of his drinking.  We can see no reason why the effects of being intoxicated should not be taken into account in determining his entitlement to the care component of DLA.”

16.	It may be that the tribunal considered that the applicant has not demonstrated that he cannot realistically stop drinking, as he appears to have chosen not to engage with any community addiction services.  However, the tribunal decision does not spell this out, although this may have been a conclusion open to it.

17.	Additionally, however, I consider that Mr Kirk makes a valid criticism of the tribunal in terms of the findings of fact made.  In particular the decision does not address the question of entitlement to the care component on the basis of the “cooked main meal” test.  It is not enough to record a decision that “none of the tests for any rate of the care component had been met” without answering the specific question of whether or not the applicant is able to prepare a cooked main meal for himself.  The tribunal has posed this question in its statement of reasons but left it unanswered.  A failure to indicate whether the applicant’s medical condition of alcohol dependency has any effect on his ability to prepare a main meal for himself is a clear error of law.

18.	Therefore, I consider that the decision of the tribunal dated 7 March 2011 is erroneous in point of law.  I remit the appeal to a newly constituted tribunal.

19.	In determining the appeal the tribunal shall have regard to the principles set out in R(DLA)6/06 and have regard in particular to paragraph 33.

(signed):  O Stockman

Commissioner

17 April 2012