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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

151.The claimant is a woman now aged 41. She has suffered from severe dizziness since about 1995.

152.The claimant was awarded the higher rate of the mobility component and the lowest rate of the care component of DLA from 30 August 1996 for life.

153.On 14 July 2003 the claimant applied for supersession in order to obtain a higher rate of the care component.  By a decision made on 25 November 2003 that application was refused.  On the claimant’s appeal, the Birmingham Appeal Tribunal by its decision made on 7 June 2004 superseded the awarding decision and replaced it with a decision that the claimant was entitled to the lower rate of the mobility component from 7 June 2004 to 13 July 2005 and to the lowest rate of the care component (on the basis both of a need for attention in connection with bodily functions for a significant portion of the day and of the main meal test) from 14 July 2003 to 13 July 2005.  The ground on which it removed the award of the higher rate of the mobility component was that there was no organic cause for the claimant’s dizziness.  The basis of the claimant’s appeal to a Commissioner is that the tribunal erred in law in removing the higher rate of the mobility component.

154.At the oral hearing, additional grounds emerged in argument.  In particular, it was observed that the appeal tribunal stated that the burden of showing, on the balance of probabilities, that she satisfied the conditions of entitlement to any particular rate of either component was on the claimant.  It rested its conclusion in paragraph 18 of the statement of reasons on the conclusion that she had not discharged the burden of proof.  It was submitted for the claimant that, when the appeal tribunal was exercising the power of superseding the existing decision adversely to the claimant, it had to be satisfied both that there was a ground of supersession supporting such an adverse decision and that the superseding decision should be adverse to her, so that the burden of proof was not on the claimant (see paragraph 10(4) of Tribunal of Commissioners’ decision R(IB) 2/04).  It was also submitted that the appeal tribunal had failed to show in its statement of reasons that it had consciously exercised its judicial discretion under section 12(8)(a) of the Social Security Act 1998 to consider issues not raised by the appeal (i.e. qualification for the higher rate of the mobility component and the lowest rate of the care component) and failed to give any reasons for the exercise of the discretion in that way (see paragraph 94 of R(IB) 2/04).

155.In the part of her supersession claim pack relating to walking out of doors, the claimant stated: “I cannot go outdoors alone because of my permanent dizziness.  It is constant day and night and I need someone for support at all times.”  She did not answer the questions as to how far she could walk before feeling severe discomfort.

156.The evidence before the tribunal included the claimant’s medical notes.  These included a transcript of a letter to her GP (Dr Mitchell) dated 7 February 2002 from a Dr Lopes at the City Hospital Trust, which contained the following:

“I gather that [the claimant] has seen a number of specialists ranging from ENT surgeons to neurologists, none of whom have been able to find an organic cause for her dizziness.  She does have some clicking symptoms in her temporomandibular joint and the only link that there could be with her symptoms of dizziness may be that both these symptoms are stress related….”

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