C52-96_DLA_ by lsy121925

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									                                                             Decision No: C52/96(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
                   and appeal to the Social Security Commissioner
                     on a question of law from the decision of the
                       Londonderry Disability Appeal Tribunal
                                dated 4 October 1995


             DECISION OF THE SOCIAL SECURITY COMMISSIONER



1.    This is a late application for leave to appeal against the decision of Disability
      Appeal Tribunal (DAT) which supported and upheld the decision of an
      Adjudication Officer that claimant was not entitled to either component of
      disability living allowance (DLA).

2.    I granted the late application for leave to appeal. At the hearing I granted leave
      to appeal and both parties having consented I treat the application as the
      appeal. For the reasons set out below I dismiss the appeal.

3.    Claimant is a married lady now aged 44. She suffers from severe pains in her
      back and from asthma. Her husband who is a Veterinary Surgeon was in
      general practice up until several years ago when he had to give up practice
      because of his wife's allergic reaction to animal dust.

4.    The Tribunal considered both component of DLA and made the following
      findings of fact and reasons for their decision to disallow the appeal as follows:-




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Mobility component

"Findings
The claimant is 43. She has 4 children aged between 17 and 3. Her
husband is a Veterinary Surgeon who gave up private practice 2 years
ago due to the allergic reactions of his wife to animal dust. She
has 2 conditions (a) Severe brittle asthma and (b) Chronic low back
pain/sciatica (right leg). She has intermittent attacks of both
conditions. These attacks can be severe and require visits to
hospital including casualty. She has been seen by Consultant
Neurosurgeon Mr F… and Mr B… and by Doctor D… Consultant
Chest Physician on numerous occasions. Despite being asked several
times by all 3 panel members as to the frequency of both sets of
attacks, Mrs C... could not be definitive - nor indeed could her
husband. What her husband did say was that Mrs C... had to
lie down each day for several hours due to the pain in her back.
She does not need attention at night on a repeated basis nor does
she need help during the day every day. She did say she could
cook for herself if not suffering from either form of attack. She
can walk when not in pain with her back but her husband did say
walking exacerbates the back condition.

The Tribunal finds that there are days (which it finds hard to
quantify) when this lady would be unable to cope with here bodily
functions and cooking for herself and indeed to walk any distance
but these days are not often. Rather they are sporadic."

"Reasons for decision

It is accepted that this lady has chronic back pain and severe
brittle asthma. This incapacitates her from her household duties
and ordinary recreation and indeed work but this is not the test
for Disability Living Allowance which deals with personal care
attention to ones own bodily functions. Cooking one main meal
for oneself and ability to walk a reasonable distance out of
doors without severe discomfort. As the Tribunal has found
there may be days when the test is satisfied but these are
intermittent and certainly not regular enough to satisfy the
very difficult test for Disability Living Allowance."

Care Component

"Findings

The claimant is 43. She has 4 children aged between 17 and 3. Her
husband is a Veterinary Surgeon who gave up private practice 2 years
ago due to the allergic reactions of his wife to animal dust. She




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           has 2 conditions (a) Severe brittle asthma and (b) Chronic low back
           pain/sciatica (right leg). She has intermittent attacks of both
           conditions. These attacks can be severe and require visits to
           hospital including casualty. She has been seen by Consultant
           Neurosurgeon Mr F… and Mr B… and by Doctor D… Consultant
           Chest Physician on numerous occasions. Despite being asked several
           times by all 3 panel members as to the frequency of both sets of
           attacks, Mrs C... could not be definitive - nor indeed could her
           husband. What her husband did say was that Mrs C... had to lie
           down each day for several hours due to the pain in her back. She
           does not need attention at night on a repeated basis nor does she
           need help during the day every day. She did say she could cook
           for herself if not suffering from either form of attack. She can
           walk when not in pain with her back but her husband did say
           walking exacerbates the back condition.

           The Tribunal finds that there are days (which it finds hard to
           quantify) when this lady would be unable to cope with her bodily
           functions and cooking for herself and indeed to walk any distance
           but these days are not often. Rather they are sporadic."

           "Reasons for decision

           It is accepted that this lady has chronic back pain and severe
           brittle asthma. This incapacitates her from her household duties
           and ordinary recreation and indeed work but that is not the test
           for Disability Living Allowance which deals with personal care
           attention to ones own bodily functions. Cooking one main meal
           for oneself and ability to walk a reasonable distance out of doors
           without severe discomfort. As the Tribunal has found there may
           be days when the test is satisfied but these are intermittent and
           certainly not regular enough to satisfy the very difficult test
           for Disability Living Allowance."

5.   The claimant sought leave to appeal on the grounds that the Tribunal erred in
     law and that it ignored crucial medical evidence. The Adjudication Officer made
     written comments on that application as follows:-

           "The application is made on the basis that the tribunal ignored
           crucial medical evidence. I am unable to comment meaningfully as
           I am not clear as to exactly what evidence Mrs C... is referring.
           The tribunal appears to have arrived at its decision on the basis
           that although the disability conditions (or some of them) are
           satisfied at times, Mrs C... did not persuade the tribunal that
           this occurred on a sufficiently frequent basis. I would submit
           that in effect the claimant has failed to prove her case to the
           tribunal to the extent that they found themselves unable to make




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            detailed findings on the disability conditions.

            Should the Commissioner decide to grant leave I consent to the
            Commissioner treating the application as an appeal and
            determining any question on the application as if it arose on
            appeal."

6.   At the oral hearing claimant was represented by Mr Mullan and the Adjudication
     Officer was represented by Mr Shaw. Mr Mullan said that the Tribunal failed to
     consider the entirety of the medical evidence. He said medical evidence was
     available from Dr D… and Dr C…. He said that claimant's condition was both
     permanent and long-standing and was sufficient to establish disability. He said
     that her complaints were two-fold, that was her back pain and her asthma. He
     said the question at issue was whether or not the attacks occurred with sufficient
     frequency and that the evidence of the medical men would have allowed the
     Tribunal to come to a proper decision and that the Tribunal decision did not take
     account of the medical evidence. He criticised the Tribunal's decision as
     disallowing the appeal because claimant was unable to provide times and dates
     and said that it would be unfair to expect claimant to keep a diary or a log of
     events.

7.   Mr Shaw said that the issue was not whether claimant was disabled or not but
     did she need personal attention on a frequent basis, for example in dressing,
     toilet arrangements etc. The Tribunal found that her problems, although severe,
     were intermittent but to be entitled to the benefit the frequent attention was
     required. He accepted that she had chronic back pain and asthma and that she
     spent two or three hours a day in bed but that the evidence was not before the
     Tribunal to satisfy it as to the frequency of her need for assistance.

8.   I have considered all that has been said and I have read all the documents in
     this case. I accept firstly that the mobility component of the DLA is not really an
     issue, what was an issue was the care component. To satisfy the test for the
     care component of DLA one must require attention with ones bodily functions
     and I accept all that has been said on behalf of the claimant. I accept that she
     has very severe chronic pain and this is borne out by the fact that she has on
     occasions received injections of morphine. I also accept that she spends
     several hours a day in bed and that she is ably assisted by her husband and her
     daughter. I also accept that her husband had to give up general practice
     because of claimant's allergy to animal dust.

9.   I have considered the findings of the Tribunal that there are days when she is
     unable to cope with her bodily functions or cook for herself but that this attention
     is not as frequent as would bring her within the regulations. Before a Tribunal
     could make a finding as to the frequency of her inability to cope it would need
     some evidence and the person to give that evidence would be either the
     claimant or her husband. Both of them gave evidence to the Tribunal and the
     Tribunal found as a fact that there was a complete lack of any definite evidence




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as to the frequency of her attacks. I am satisfied therefore on that basis and on
the basis of the evidence which was before the Tribunal it had no option but to
come to the decision to which it came, namely that on the evidence claimant
was not entitled to either component of DLA. I will only add that I have every
sympathy with the claimant. I consider that she is severely handicapped by the
pain that she suffers and it may well be that if a fresh claim was made and the
frequency of her attacks was substantiated to show a deterioration in her
condition that may go a long way to convincing an Adjudication Officer that she
would be entitled to the award.


(Signed): C C G McNally

COMMISSIONER



2 August 1996




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