SH-v-Department for Social Development (DLA) [2010] NICom 96
Decision No:  C43/10-11(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 4 September 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant with the leave of a Commissioner, against the decision of a tribunal to the effect that the claimant is entitled to the care component of disability living allowance (DLA) at the lowest rate (main meal) from 31 May 2009 to 30 May 2011 inclusive and is not entitled to the mobility component of DLA from and including 31 May 2009.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	The claimant was in receipt of middle rate care component (for day attention) from 31 May 2007 to 30 May 2009.  A renewal claim, in respect of the period from 31 May 2009 was received on 14 January 2009 indicating that the claimant had depression, anxiety, pain in all joints, a heroin addiction and back problems.  On 22 January 2009 it was decided that the claimant’s claim should be disallowed from and including 31 May 2009.  This decision was disputed.  On 5 February 2009 the decision of 22 January 2009 was considered.  However it was not changed.  The claimant then appealed on 13 February 2009.  On appeal, the tribunal affirmed the decision that the claimant was not entitled to mobility component of DLA but held that the claimant was entitled to care component of DLA at the lowest rate (main meal) from 31 May 2009 to 30 May 2011.

4.	The claimant, who is represented by Councillor C Casey, appealed on the following grounds:

“I was only allowed low rate mobility.  I broke my neck and other injuries.  I have chronic arthritis.  I broke both my kneecaps.  I am also recovering herion [sic] addict and still have to get daily doses of methadone.  I suffer serious panic attacks.  I don’t think the tribunal considered any of this.”

5.	Leave to appeal was granted by a Commissioner on 5 August 2010 for the following reasons:

“It is arguable that the decision was wrong in law, because the tribunal failed to deal with the issue of self-neglect.”

6.	Contrary to the point made in the claimant’s grounds of appeal, the claimant in fact was awarded the lowest rate care component and not the lower rate mobility component.

7.	The only live issue of substance raised in the appeal is the point clarified by Mr Jim Hinton of Decision Making Services on behalf of the Department in a letter dated 1 June 2010.  Mr Hinton pointed out the following:

“However, I would contend the tribunal had a duty to further explore the issue of self neglect as referred to in the GP’s report and whether the help required could have amounted to frequent attention throughout the day which would have warranted an award of the middle rate care component.  The GP in his factual report in assessing the day to day variation in (the claimant’s) condition stated:

		“Reduced drive and interest in life.”

	Regarding the long term complications of alcohol abuse the GP stated:

		“Potential for self neglect, physical deterioration etc.”

	…”

	Mr Hinton has submitted that the tribunal ought to have investigated the issue of self-neglect and, by not so doing, he has submitted that the tribunal has failed in its inquisitorial role and, accordingly, has erred in law.  The tribunal, in its reasons in relation to the care component stated as follows:

“In his claim Claimant had indicated that he required attention or encouragement with most aspects of his personal care during the day and help to get to sleep at night together with supervision and help with the preparation of a main meal.  His General Practitioner had said that Claimant was ‘able to perform’ all requirements in respect of personal care but also noted that there was ‘potential for self-neglect’.

	Tribunal heard extensive evidence from Claimant in which he described his daily routine.  He said that he lived in a bungalow on his own.  Sometimes his sister would call in the morning to check him; if she were not able to do so then a friend would call.  He told Tribunal that without their cajoling he might not bother to wash and dress although physically he would have no problem.  He said that he would not be able to prepare a meal because of reduced grip in his right hand.  His medication is supplied in daily boxes and a friend has to check this for him.  He gave a picture of sitting about watching television or staying in bed during the day and said that friends might call ‘but he does not be bothered’.  It appeared from the evidence that he had no needs for attention during the night.

	Tribunal concluded on the basis of the evidence that Claimant’s requirements are not sufficient to merit an award of either the highest or the middle rate of the care component.  It accepted that because of the injury to his right hand and the General Practitioner’s indication of a potential for self-neglect Claimant did satisfy the criteria for the lowest rate of the care component for help in the preparation of a main meal.

	Accordingly, Tribunal finds that at the relevant date Claimant was not so severely disabled physically or mentally as to require either: throughout the day frequent attention in connection with bodily functions, or continual supervision to avoid substantial danger, or during the night prolonged or repeated attention  in connection with bodily functions, or another person to be awake for a prolonged period or at frequent intervals to watch over him nor does he require attention from another person for a significant portion of the day. …”

8.	In my view the issue of self-neglect was potentially a real issue in this case.  Mr Hinton is correct, in my view, that the tribunal, exercising its inquisitorial role, ought to have at the very least taken steps to question the claimant about these matters.  In its reasoning the tribunal noted that there was evidence of self-neglect but, instead of adjudicating upon its relevance to a possible award of the middle rate care component, it merely decided that the claimant’s requirements were not sufficient to merit an award of either the highest or the middle rate of the care component.

9.	Accordingly I conclude that the tribunal has erred in this respect and, therefore, its decision is erroneous in law.  I therefore allow the appeal and set aside the decision of the tribunal.  In the circumstances I must refer the matter back to a differently constituted tribunal for a rehearing.  However, the fact that this appeal has been allowed should not be taken as an indication as to the ultimate success of the claimant’s appeal to a tribunal.

(signed):  J A H Martin QC

Chief Commissioner

8 October 2010