Decision No: C27/97(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
Appeal to the Social Security Commissioner
on a question of law from the decision of
Dungannon Disability Appeal Tribunal
dated 28 January 1997
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision of the Disability Appeal
Tribunal given on 28 January 1997 to the effect that (1) the claimant is entitled to
high rate mobility component from and including 16 February 1995 until 29
March 1996, and (2) the claimant is entitled to the middle rate care component
of disability living allowance from and including 16 February 1995 to 29 March
1996 and the low rate care component of disability living allowance from and
including 30 March 1996 for life. Leave to appeal was granted by a Social
Security Commissioner on 11 June 1997.
2. This case has a long history. A Disability Appeal Tribunal hearing was held on 9
November 1995 and it was decided that the claimant did not satisfy the
conditions of entitlement for an award of the higher rate of the mobility
component and the middle rate of the care component from 30 March 1995 to
29 March 1996. Instead the Tribunal awarded the lowest rate of the care
component in respect of the main meal test from and including 30 March 1995.
On 19 November 1996 a Commissioner decided that the Tribunal of 9
November 1995 had erred in law in reaching its decision. The Commissioner
decided that the Tribunal had misdirected itself in respect of both the qualifying
period and the prospective test and that he would have expected findings and
reasons to indicate why the Tribunal decided to make a life award of the lower
rate of the care component. Accordingly the Commissioner referred the case to
be redetermined by a differently constituted Tribunal. The decision of this new
Tribunal is the decision presently under appeal.
3. I held an oral hearing at which the claimant, who was present, was represented
by Mr Barry McVeigh of the Northern Ireland Association of Citizen Advice
Bureaux. The Adjudication Officer was represented by Mr G L Shaw.
4. At the hearing Mr Shaw pointed out that, in effect, I was seised of an appeal
from the Tribunal concerning the claimant's rights to disability living allowance.
The present practise of Tribunals using two separate forms of decision for both
the care and mobility components in disability living allowance appeals obscures
the legal reality that disability living allowance is one single benefit, though
consisting of two components (section 71(1) of the Social Security Contributions
and Benefits (Northern Ireland) Act 1992). This can cause confusion, as it did in
this case, where both decisions, as typed up, refer to the mobility component as
being the subject matter of the decisions, even though one decision, on close
perusal, referred to the care component. The confusion was made all the
greater as the record of proceedings and the findings of fact in each decision
form were identical, leading to the irresistible conclusion that there was in fact
only one actual hearing, even though the Tribunal came to two separate
decisions set out in two separate decision forms. A decision on a single
decision form in this case would have obviated these difficulties.
5. The facts are that the claimant on 30 December 1994 underwent an amputation
of his left leg above the knee and was fitted with an artificial leg in or about the
end of January or the beginning of February 1995. The Tribunal, on appeal, in
respect of the mobility component held that he was entitled to high rate mobility
component from and including 16 February 1995 until 29 March 1996. The
reasons for the Tribunal's decision in relation to the mobility component were as
"Already awarded high rate mobility component 30 March 1995 -
29 March 1996. We believe an earlier start date appropriate
that is from emergency admission on 17 November 1994. Allowing
for the 3 month award runs from 16 February 1995. In other
respects, and noting award not in dispute the Tribunal decided
not to otherwise interfere with same. We did not believe it
appropriate to extend award beyond 29 March 1996. At the last
hearing appellant admitted that he had adjusted to artificial
limb by end of April 1996 and they noted no evidence of falls;
Also he could walk using a walking stick as opposed to crutches.
Doctor H… in report dated 29 April 1995 confirmed appellant
could weight bear on both lower limbs. On self assessment form
appellant referred to 25yds in 3/4 minutes. Doctor M…, South
Tyrone Hospital, on 7 November 1996 referred to walking 100 yards
on flat ground.
Today appellant spoke of 40/50 yards in 3/4 minutes, resting for
1/2 minute and then could do the same again. On balance of
probabilities the Tribunal is of the opinion that by 30 March 1996
appellant had adjusted to his artificial limb and could walk a
reasonable distance in reasonable time, speed and manner without
severe discomfort. We believe that none of the criteria is satisfied
to render appellant virtually unable to walk from 30 March 1996.
We also believe that the appellant could, from then, take advantage
of his walking faculty on unfamiliar routes outdoors, without
guidance/supervision, most of the time. In relation to falls -
see care component. Also low rate mobility component is not to
6. The Tribunal, on appeal, in respect of the care component held that he was
entitled to the middle rate care component from and including 16 February 1995
to 29 March 1996, and to the low rate care component from and including 30
March 1996 for life. The reasons for the decision were as follows:-
"Tribunal decided not to interfere with award already made in respect
of 30 March 1995-29 March 1996. However, we believe that frequent
attention would have been needed with bodily functions following
every hospital attendance on 17 November 1994 and accordingly
allowing for 3 month qualifying period the start date of award
is now 16 February 1995. By 30 March 1996 the Tribunal is of the
opinion that the only help required was as noted per out findings.
We are of the opinion that this would constitute help for a
significant portion of the day but not frequent attention with
bodily functions. We also accept that standing, holding/lifting
saucepans would be a difficulty in preparing a cooked main meal.
Weighing up all the evidence including that recorded at hearing
on 9 November 1995 the Tribunal, on balance of probabilities,
is of the opinion that low rate care component appropriate
from 30 March 1996 and award for life. We do not have any
evidence to suggest appellant's condition will significantly
improve and indeed we note recent claudication in other leg
and angina. Although hypo(s) at night was mentioned, given the
frequency of same as per our findings and duration 15-20 minutes,
the Tribunal is of the opinion that same does not require prolonged/
repeated attention with bodily functions. Further, it is not
necessary for someone to be awake for prolonged periods/frequent
intervals to avoid substantial danger. We also note appellant
does get warning - sweating - and we believe that it would be
reasonable to have milk and biscuits by the bedside or chocolate.
Appellant mentioned falls but in the context of different ground
levels. With care the panel if of the opinion that appellant
can avoid risk of falls and that there is no risk of substantial
danger such as to require continual supervision."
7. The findings of fact material to the Tribunal's decision were as follows:-
"1. Admitted to Belfast City Hospital as an emergency on
17 November 1994 due to sudden pain in left calf.
2. On 21 December 1994 admitted to Belfast City Hospital and had
left leg above knee amputation 30 December 1994 and then
discharged to Musgrave Park Hospital on 5 January 1995.
3. Had femoral popliteus arterial by-pass on right leg 1988 and
on left leg in 1990 with further surgery in 1991 and 1992.
4. Insulin dependant diabetic - under control. Does have some
hypo(s) during the night causing sweating but not loss of
consciousness. Between 2-3 mornings tends to experience
hypo(s). Can occur 2/3 times week, 1 week and some weeks
none. Takes 2-4 digestive biscuits and glass of milk. Admits
could take some chocolate. Although appellant does not keep
biscuits/milk by the bed. Tribunal is of the opinion that it
would not be unreasonable to do so. Monitors during the
day and can avoid hypo(s).
5. Department award middle rate care component 30 March 1995-
29 March 1996. Tribunal find that 3 month qualifying period
runs from 17 November 1994 when admitted to Belfast City
Hospital. We accept that frequent attention with bodily
functions would have been needed from that date of operation
and the following operation to adjust to loss of part of
lower limb. Department did not dispute award running to
29 March 1996 and Tribunal decided not to interfere with end
date for mobility rate award. From 30 March 1996 Tribunal
accepts appellant's evidence that help needed putting on socks,
limb, taking 15 minutes or so in morning. Also someone to help
him coming downstairs. Has downstairs toilet to avoid having
to use stairs during day.
6. From October 1996 some angina which is relieved with inhaler/
spray. Some recent claudication right leg.
7. Appellant works, initially part time following amputation but
has resume full time employment again as a Civil Servant -
seated job. Drives automatic car.
8. High rate mobility component awarded 30 March 1995 - 29 March
1996. Tribunal of opinion that appellant would have been
virtually unable to walk following emergency admission to
Belfast City Hospital 17 November 1994. Accordingly, start
date of award should be from 16 February 1995 allowing for
3 qualifying months. From 30 March 1996 Tribunal believes
that appellant could walk a reasonable distance in reasonable
time, speed and manner without severe disablement. The
exertion of walking would not cause danger to life or serious
deterioration to health.
9. Can take advantage of walking faculty when outdoors on
unfamiliar routes without guidance/supervision, most of the
10. Cannot prepare a cooked main meal for himself if he has the
11. Mentally competent, aware of dangers, not aggressive/
destructive, does not wander. Not prone to fits blackouts,
seizures or such likes."
These findings of fact related to both the care and the mobility component.
8. The claimant appealed this decision on the ground that there had been a failure
to state adequate findings of fact and reasons for the decision. In particular the
claimant relied on the fact that whilst the Tribunal was furnished with reports
from Mr H…, Consultant Surgeon, dated 24 January 1997, and Dr H…,
Consultant Physician, dated 27 July 1997, on the condition of the claimant, the
matters mentioned in the reports were not addressed in the Tribunal's findings of
fact. Consequently it was argued on behalf of the claimant that the Tribunal's
decision neither accepted or rejected the evidence contained in the reports. If
the Tribunal is deemed to have rejected the findings of fact, no reasons were
given for the rejection.
9. Mr Shaw in his written submission dated 27 June 1997 submitted as follows:-
"The issue before the tribunal was the claim dated 25 January 1995.
The appeal is made on the basis that the tribunal's record of
proceedings does not make it clear whether the evidence from the
consultants Mr. H… and Mr. H… was accepted or rejected.
I submit that the only point in the two letters in question which
would have merited specific mention was the reference by Mr H…
to discomfort on walking. I concede that this probably did merit
mention, as it undoubtedly was in Mr F... 's favour, and its omission
tends to give the impression that the tribunal only took account
of the evidence which was unfavourable to the claimant. As severe
discomfort is central to the argument in the mobility component,
it would be an essential part of the tribunal's function to determine
whether they accepted that there was discomfort, and if so whether
it amounted to severe discomfort.
All this is closely related to the need to make findings as to the
factors in regulation 12(1)(a) of the Disability Living Allowance
regulations. The tribunal chairperson did not record specific
findings, merely recording "a reasonable distance in reasonable
time, speed and manner without severe discomfort". While it has
been held that findings are not required in every case (see
CDLA/2554/95 - para 11) the Commissioner may wish to consider
whether in this case the findings are adequate."
10. It was made clear by Mr McVeigh at the hearing he was only submitting that the
Tribunal's decision in relation to the mobility component was in error.
11. It is evident that the Tribunal did not take into account the evidence of the two
Consultants in favour of the claimant. No grounds were given for discounting
this evidence. It seems to me that a Tribunal should not come to a conclusion
inconsistent with such evidence without giving good reason. To emphasise the
relevance of these reports I quote them in full. Mr H... 's report dated 24
January 1997 states as follows:-
"Mr F... has been a patient at the Belfast City Hospital since 1988.
He originally attended Mr R… C… and underwent arterial
surgery in June 1988. He has continued for regular review since
that time and in 1992 had to have arterial surgery to the left leg.
Unfortunately the bypass in the left leg failed in late 1994 and
Mr F... subsequently had an above knee amputation. When he was
reviewed at the Hospital after his amputation it was noticed that
his right leg was extremely swollen and I think it is most likely
that he had an extensive deep venous thrombosis. By the time he
was reviewed at the hospital, the swelling in his leg had been
present for many weeks and I did not think it was worthwhile
investigating or treating this. I did however arrange for him
to have compression stockings to attempt to reduce the oedema in
the leg. The arterial supply in the right leg seems to be fairly
healthy at this time and Mr F... reports ache and pain in the leg
on walking. It seems most likely that this ache and pain is due to
There is no curative treatment for venous claudication and the vast
majority of patients are managed conservatively. Hence I have
not arranged any further investigations at this stage.
I write this letter because it seems to me that anyone who has had
an above knee amputation on one side and continues to have discomfort
in the right leg on walking must be eligible for some kind of
living assistance whether it be expenses or assistance with
transport. Without knowing the bureaucratic mechanisms of the
disability living allowance I would ask that strong consideration
be given to assisting Mr F... as I do feel he has continuing
R J H... MD FRCS
Dr H…'s report states as follows:-
"This gentleman has had diabetes mellitus since 1972.
Secondary to this condition he has developed widespread vascular
Owing to peripheral vascular disease he had a left knee amputation
in December 1994. He now has a prosthesis but there have been
considerable problems owing to pain and discomfort at the stump
and this has limited his mobility quite considerably. You will
be well aware that an above knee prosthesis is considerably more
difficult to use than a below knee prosthesis.
He also has claudication affecting his right leg. The consequence
of the sum of these two problems affecting his legs is that his
mobility is limited considerably. This limitation of mobility is
exacerbated by his having developed angina of effort (for which
he is being treated with Elanatan LA). His present exercise
tolerance is limited to a maximum of 50 yards; owing to this it
appears to me appropriate that he should be reinstated with
"an orange sticker". When one, for example, takes his attending
this Hospital, he is unable to walk from the conventional car
park to the Diabetic Clinic or the Vascular Clinic owing to the
problems outlined above.
With respect to his diabetes, his impaired mobility means that he
is no longer able to deal satisfactorily easily or safely with
hypoglycaemic attacks. As a consequence of his improving his
diabetic control he has more frequent (and occasionally more severe)
hypoglycaemic attacks. This problem has been particularly prevalent
at night lately.
Owing to these problems it appears to me that he fulfils the
necessary criteria for the "high rate" care component of disabled
If you wish to have any further information, please don't hesitate
to contact me. I am sure you will consider Mr F... 's appeal in the
light of what I think must be extra information provided by me
about his situation.
W… H… MD FRCP FRCPI FRCP(G)
12. The legislation relating to the mobility component of disability living allowance
provides that a person shall be entitled to the higher rate of the mobility
component if they are unable or virtually unable to walk (Social Security
Contributions and Benefits (Northern Ireland) Act 1992, section 73(1)(a)).
Regulations further provide that in determining whether a person is virtually
unable to walk, consideration must be given to the distance, speed, time and
manner of walking, and, only walking which can be achieved without severe
discomfort can be taken into account. (The Social Security (Disability Living
Allowance) Regulations (Northern Ireland) 1992, regulation 12(1)). There is no
doubt that the claimant is not unable to walk but he has difficulties with walking.
Therefore the question to be decided in relation to the mobility component at the
higher rate is whether he can be regarded either as virtually unable to walk.
13. Mr McVeigh submitted that all the objective evidence pointed to a high degree of
immobility. Mr Shaw agreed with this assessment. Many of the findings of the
Tribunal confirm this. However, the conclusion that the Tribunal came to,
namely that it believed that the claimant could walk a reasonable distance in
reasonable time, speed and manner without severe disablement from 30 March
1996 seems to be inconsistent with much of the rest of the evidence, which
suggests that he is virtually unable to walk.
14. It is clear from the medical reports that the claimant's condition is not likely to
improve. It was urged upon me by Mr McVeigh and Mr Shaw to take that into
account when coming to a decision in this case.
15. For the reasons stated I conclude that the decision of the Tribunal was
erroneous in point of law in that it came to a conclusion inconsistent with the
evidence. Both Mr McVeigh and Mr Shaw submitted that this was an
appropriate case for me to give the decision which I consider the Tribunal
should have given. In the circumstances I consider that it is appropriate so to do
as, on the present state of the evidence, a Tribunal would be obliged to come to
the conclusion that the claimant is entitled to high rate mobility component of the
disability living allowance from and including 16 February 1995 for life.
Accordingly I exercise the power to set aside the decision of the Tribunal on the
mobility component and give the decision that the claimant is entitled to the
allowance set out in the previous sentence. This conclusion does not affect the
decision of the Tribunal in relation to the care component.
(Signed): J A H Martin
12 December 1997