England and Wales Court of Appeal (Civil Division) Decisions

Miah v Secretary of State for Social Security [2002] EWCA Civ 592 (3rd May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd May 2002

Mr Justice Sumner:

1. This is an appeal by the Appellant, 47 year old Mr Tula Miah, against a decision of Commissioner Jacobs of 21 February 2001. It concerns lower rate disability living allowance which had been paid to the Appellant since 20 February 1996. As a result of the decision that allowance became no longer payable. The question raised by the appeal is whether there was evidence upon which that decision could properly be reached.

Nature of the Appeal

2. In essence the Appellant’s case is as follows. The reason he was granted lower rate disability living allowance in 1996 was because of visual impairment.
3. In 1999 he inquired whether his allowance would change because he now had diabetes. That was taken as an application for a review and no challenge is made to that decision.
4. On the review the Adjudication Officer had an additional form from the Appellant’s General Practitioner, Dr Singh. It was designed for claims arising from diabetes. He held that the criteria for the award were no longer made out. On a further review a second Adjudication Officer came to the same conclusion. On appeal the Appeal Tribunal found that the original award was wrong and that there had been a change in circumstances. The findings entitled them to stop the payment of the allowance.
5. The Appellant appealed on a point of law to Commissioner Jacobs. He argued that there was no evidence to support those conclusions. Commissioner Jacobs in his decision of 14 May 2001 concluded that was evidence showing a change of circumstances. He therefore upheld the Appeal Tribunal’s finding. From that decision the Appellant now appeals to this court, leave having been granted by Mummery LJ on 9 July 2001.
6. In order to determine this matter it is helpful to trace the history. Before doing so I refer to s.73 (1) of the Social Security Contributions & Benefits Act 1992 which governs the grant of the mobility element of a disability living allowance. I include only the relevant provisions:-

“Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over [the relevant age] and throughout which –

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or……….

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time”.

The History of the Appellant’s Disability Allowance.

7. The Appellant first received the allowance in 1996 under s.73(1)(d). To do so he had to show firstly that, whilst he was able to walk, he was unable to take advantage of that faculty out of doors without guidance or supervision from another person most of the time; secondly he had to show that his inability arose because he was severely physically or mentally disabled.
8. The Appellant originally applied for lower rate disability living allowance in December 1995. He claimed that he was severely physically disabled because he only had sight in one eye. He needed someone to help him outdoors. He was supported by his son. He was also supported by his General Practitioner, Dr Singh, who wrote –

“He has artificial left eye. In the right eye he suffers with constant irritation with watering and occasionally gets blurred vision”.

Another section of the form completed by Dr Singh had this heading –

“Please tell us any other information you think that we should know. For example, tell us what drugs they take”.

Dr Singh’s answer included the following –

“Opticrom aqueous eye drops”.

9. On 20 February 1996 the Appellant was awarded the lower rate allowance for life. This was from 9 December 1995. This continued until the Appellant wrote to Social Services on 2 March 1999 in these terms –

“Please find enclosed my GP’s letter confirming that I am a diabetic. I would like to know if my DLA will change if so please let me know if I can get a higher rate”.

10. Because this was held to be a request for a review it could lead to his mobility allowance being withdrawn. That arose under section 30(2) of the Social Security Administration Act 1992 (“the 1992 Act”), which was subsequently repealed by the Social Security Act 1998. It was in these terms –

“Reviews of decisions of adjudication officers

On an application under this section made after the end of the prescribed period, a decision of an adjudication officer under section 21 above which relates to an attendance allowance or a disability living allowance may be reviewed if –

(a) the adjudication officer is satisfied that the decision was given in ignorance of, or was based on a mistake as to, some material fact; or

(b) there has been any relevant change of circumstances since the decision was given ……….

(d) the decision was erroneous in point of law; or ………”.

11. On 2 March 1999 the Appellant forwarded a further medical report from Dr Singh. Dr Singh confirmed that since August 1997 the Appellant had been a diabetic. The medical report was in a form prescribed by Department of Social Security. Mr Maurici, who appears for the Secretary of State for Work and Pensions, confirmed that it was a form used for those making a claim for an allowance by reason of diabetes. That is also made clear by the references on the form - “DBD 370 Diab”.
12. I refer to the 3 questions and answers by Dr Singh on the form which are relevant to this appeal –

“1. Present clinical condition, with special reference to any visual loss or neuropathy. Please also detail other conditions present”.

“Artificial left eye. Diabetes”.

“2. Date you last saw the patient and treatment prescribed”.

“……. Medication: Gliccazide 40 mgs BD”.

“11. Is the patient able to walk outdoors, without the help of another person?

NO Please describe what help is needed from another person.

---------------------

YES Please describe the walking ability on level ground while using appropriate aids, and without the help of another person, before the onset of severe discomfort. (Approximate distance in yards).

---------------------“

Dr Singh ticked yes. He did not add anything at the end.

13. That form led an adjudication officer, Mr Jeynes, to hold on 3 August 1999 that the Appellant was not entitled to his existing allowance. There had been a relevant change of circumstances. The medical evidence showed the Appellant did not satisfy the criteria for a disability living allowance.
14. On 31 August 1999 Mr Miah asked for a review of that decision under s.30(1) of the 1992 Act, p.49. Another Adjudication Officer upheld the decision on 9 October 1999. Reasons were given. They included the following –

“Mr Miah states that as his left eye is completely blind, he needs someone with him when he goes outdoors. Dr Singh’s report confirms that Mr Miah is able to walk outdoors without the help of another person and although I accept that he is blind in one eye, I do not accept that he cannot walk out of doors on unfamiliar routes without guidance or supervision. He does not, therefore, qualify for the lower rate of the mobility component”.

15. The Appellant appealed under s.33 of the 1992 Act. His appeal came before the Birmingham Appeal Tribunal. He did not attend but he was represented by Mr Millar from the Aston Legal Centre. On 4 April 2000 the Tribunal dismissed his appeal.
16. In their reasons the Tribunal recognised that the form completed by Dr Singh was “not specifically designed to discover whether the person needs guidance from another person to walk out of doors”. They held that the original award was made in error. They went on –

“He was blind in one eye, but had adequate visual acuity in the other. His sighted eye was affected to some extent by excessive watering, and he had drops to use for that purpose. It may be that on that basis (though it is doubtful) the original award was merited. However, by the time of the GP report, his condition had in our view improved to the extent where the relevant medication (Opticrom) was no longer in prescription, and there was no other factor known to the GP which suggested that Mr Miah had a need for guidance or supervision to enable him to take advantage of the faculty of walking out of doors. In these circumstances the Tribunal is satisfied that there was, on the face of it, evidence which merited the Adjudication Officer ‘looking again’ at the question of whether lower rate Mobility Component conditions were satisfied …….. Mr Miah has not produced any evidence which suggest that the GP report is incomplete or mistaken”.

17. The Appellant appealed to a Commissioner. By s.34(1) of the 1992 Act he was entitled to do so on the ground that the decision of the Tribunal was erroneous in point of law. He was supported by the Secretary of State who, in October 2000 said –

“I agree with the following error of law identified, that question posed to the GP did not address the need for evidence about guidance and supervision. In this respect, I submit that the tribunal erred in relying on the GP’s answer to question 11 page 104.

I submit that further findings of fact are necessary in order to determine this case correctly. However, the evidence is not available for the Commissioner to make the necessary findings. The fact finding ought to be made by a tribunal constituted in accordance with section 7(4) of the Social Security Act 1998.

I therefore request that the Commissioner set-aside the tribunal’s decision and remit the case to a new tribunal with appropriate directions for its determination”.

18. Further arguments were raised by Mr Millar on the Appellant’s behalf on 20 November 2000 at a hearing before Commissioner Jacobs. In particular he raised the question of whether there had been a change of circumstances.

The Commissioner’s Decision.

19. The Commissioner rejected the arguments of both the Appellant and the Secretary of State in his decision of 14 May 2001, p.23. He noted that the form used by Dr Singh did not refer to guidance or supervision. He went on –

“The questionnaire used in this case did not in its terms refer to guidance or supervision. However, ‘help’ is very broad and is sufficient to cover both supervision and guidance. If the GP considered that the claimant needed guidance or supervision, the answer would obviously have been that he needed help to walk out of doors. I reject the arguments of the claimant’s representative that this questionnaire did not provide evidence relevant to the mobility component at the lower rate ………..

Eyedrops. The tribunal took account of the fact that the claimant was no longer prescribed eyedrops. His original claim was based in part on blurred vision for which he used eyedrops. The fact that those drops were no longer prescribed allowed the tribunal, in the absence of any other explanation, to conclude that they were no longer needed. The most obvious reason for that was that blurred vision was no longer a problem …………..

Summary. The tribunal analysed the evidence rationally and in accordance with common sense. It made detailed findings on all matters of fact relevant to its decision. Those findings were supported by the evidence. It interpreted the law correctly, applied that law to the facts, and reached a decision that it was entitled to reach on its findings. It gave reasons for its decision that were clear, detailed and accurate. There was no breach of the principles of natural justice”.

20. He did not support the argument that the original decision in 1996 had been wrong. Subsequently on 14 May 2001 he refused leave to appeal. It is from that decision that the Appellant now appeals. Detailed and helpful skeleton arguments have been filed by Mr Kolinsky who appears for the Appellant and Mr Maurici.

The Appellant’s Submissions.

21. Mr Kolinsky summarises his submissions in one question. Bearing in mind the wording of s.73(1)(d), was there a proper evidential basis for concluding that the Appellant no longer required guidance and supervision when walking on unfamiliar routes? He argues forcefully that there was not. He advances a series of points in support.
22. Firstly he draws attention to the fact that adjudication officers have the power to call for medical evidence and can ensure that medical forms contain the questions appropriate to the evidence required. He cites an earlier decision of the Commissioner which supports that proposition. That did not happen here. The form completed by Dr Singh was not appropriate for someone who might require guidance or supervision when walking out of doors on unfamiliar routes.
23. The Commissioner rightly recognised that the form did not cover guidance or supervision. He was however wrong to conclude that the word “help” in question 11 would sufficiently alert a General Practitioner to the specific terms of s.73(1)(d). In particular it presupposes that doctors would be aware of the relevance of the distinction between an ability to walk familiar routes and an inability to walk unfamiliar routes without guidance or supervision.
24. The Commissioner has in effect assumed that he can safely and properly answer a question which Dr Singh was not asked. He has done this by construing the word “help” not only broadly but as adequately covering the distinction between familiar and unfamiliar routes. There are insufficient grounds to make such an assumption. Accordingly it was wrong in law to hold that there was a change in circumstances when there was either no evidence or inadequate evidence to substantiate that finding.
25. Mr Kolinsky says the Secretary of State was right to support the Appellant’s appeal to the Commissioner. There is nothing in his decision which meets the Secretary of State’s original point that the Appeal Tribunal erred in relying on the answer to question 11.
26. Next he argues that too much emphasis was placed on the fact that Dr Singh said in 1996 that he prescribed eye drops and was silent about this in 1999. He points out that far from there being no evidence, the Appellant said in a letter of 31 August 1999–

“I also have a problem with my right eye and I have to use eye drops”.

There was no mention of this by the Appeal Tribunal nor by the Commissioner.

27. Quite apart from this, it was not open to the Commissioner to conclude that the absence of the use of eye drops meant that he no longer had blurred vision in that eye. The absence of prescribed eye drops might equally have resulted, if correct, because the eye drops were ineffective or had side effects. Furthermore as he pointed out in his oral submissions, the form signed by Dr Singh only asked in question 2 when he last saw the patient and what he prescribed. If eye drops for instance had been prescribed on an earlier visit, that would not become apparent.
28. Mr Kolinsky pointed out General Practitioners receive fees for answering the forms which they are sent. This should encourage adjudication officers to ask relevant questions when the information they receive is inadequate. It is asking too much of busy doctors to expect that they would know the significance of the distinction between familiar and unfamiliar routes. This is of particular relevance when they are sent a form relevant to diabetes, but not relevant to impaired eyesight. It is understandable why that form was sent. But it does not follow that an Appeal Tribunal can speculate on the answers that would have been given if the right questions had been asked.
29. This is only emphasised by the fact that question 11 is directed to the ability to walk. It does not cover the difference between familiar and unfamiliar routes. It is more appropriate to s.73(1)(a) which relates to those unable to walk or virtually unable to walk. That was not in contention.

The Respondent’s Submissions.

30. Mr Maurici on behalf of the Secretary of State now supports the Commissioner’s conclusions. He says that the word “help” in question 11 is, as the Commissioner pointed out, a broad concept capable of covering both supervision and guidance. The form does not need to use the precise wording of the statute. Questions can be in non-statutory form and still elicit the material evidence.
31. In this case the question asked adequately covered the difference between familiar and unfamiliar routes. A general practitioner would be sufficiently alerted to the distinction. Requiring more than that is being over technical.
32. In relation to the eyedrops the only finding was that Dr Singh had ceased prescribing them. There was no finding that the Appellant had ceased to take them or that they were not needed. Also when asked about the Appellant’s present clinical condition, Dr Singh had made no mention of occasional blurred vision in the right eye as he had done in 1996. It was reasonable to assume that this was because that condition had improved.
33. Mr Maurici emphasised that the inferences drawn by the Appeal Tribunal and upheld by the Commissioner were permissible. The breadth of the question was sufficient. Dr Singh could have qualified his answers if he wanted to.
34. He was asked by the court about the forms used. He produced 2 sets which related to mobility and visual handicap. It is right to note that the form relating to mobility asks at question 8 –

“Is the patient able to walk outdoors, without severe breathlessness or angina and without help of another person?

No – Please describe what help is needed from another person.

Yes – Please describe the walking ability on level ground while using appropriate aids, and without the help of another person, before the onset of severe discomfort.

Approximate distance in metres”

The form relating to visual impairment asks at question 4 –

“Has the patient adapted to their visual impairment to an extent which allows them to move about in familiar places safely”?

35. These forms he submitted were not standard in the sense that they were a guide to Adjudication Officers. They could be used as they were, adapted, or other questions could be asked. But they did not, he accepted, adequately address the distinction between familiar and unfamiliar routes.

Conclusions.

36. For my part I would allow this appeal. I find Mr Kolinsky’s arguments wholly persuasive.
37. I accept of course that a fact finding Tribunal can draw all reasonable inferences from the evidence which is before them. It is not however permissible to speculate on what the answer might have been if the relevant question had been asked. This is especially important where the inference to be drawn relates to such a specialised area as medical opinion.
38. Ignoring for the moment the Appellant’s letter of 31 August 1999 to which I have referred, the only additional evidence since 1999 which we have seen shows:

a. The Appellant now had diabetes.

b. He had an artificial left eye.

c. When he was last seen by Dr Singh he was prescribed a medicine relating I understand to diabetes.

d. He was able to walk outside without the help of another person.

e. There was no answer relating to his walking ability on level ground.

39. I do not accept that it is reasonable to infer that the Appellant’s stated ability to walk without the help of another person applied equally to unfamiliar routes and to familiar ones. There is no dispute but that the Appellant could walk outside without the help of another person. The unanswered question was whether he could do so on unfamiliar routes.
40. I do not see that the word “help” is sufficiently specific to enable a safe inference to be drawn on the essential point to which I have referred. That conclusion is reinforced when it is seen that Dr Singh was next asked to consider the Appellant’s ability to walk before the onset of severe discomfort. It is not surprising that the answer to that question was left blank. It has no connection with visual impairment. It does have significance for those who have diabetes.
41. I have to conclude that there was no sufficient evidence on which a finding could safely be made adverse to the Appellant. The question of eyedrops does not assist. The Appellant said positively he was still taking them. Dr Singh’s answers do not support a different conclusion; he only reported what he prescribed for the Appellant when he last saw him.
42. I have little doubt that the difficulty arose because a form relating to diabetes was sent to Dr Singh when what was under consideration was impaired eyesight. The Secretary of State was in my judgment right to support the Appellant’s appeal to the Commissioner.
43. Where the test of entitlement is closely prescribed as under s.73(1)(d), it is difficult to see how findings can properly be made unless the questions asked are sufficiently specific. Here they were not. It is therefore wrong in my view to draw a conclusion from the answers given that there was a relevant change of circumstance. It is not possible to make the necessary inferences from questions that were not asked and answers that were not given.
44. Accordingly I would allow this appeal for the reasons I have endeavoured to set out. In a note from both counsel following the hearing it is now agreed that if the appeal is allowed this matter should not be remitted for further hearing before a Tribunal. I agree. The Secretary of State has power to call for and consider further medical evidence if he considers that appropriate.

Lord Justice Sedley: I agree.

Lord Justice Ward: I also agree.

Order: appeal allowed; declared that there was no basis for terminating appellant's life award of lower rate of mobility component of disability living allowance from and including 29.7.99 and that accordingly the said life award subsists; respondent to use its best endeavours to resume payment of the said benefit to the appellant, to quantify the sum due to the appellant in respect of the said benefit from 29.7.99 and to pay the same to the appellant within 28 days; respondent to pay the appellant's costs of and incidental to the appeal, to be assessed by detailed assessment if not agreed. (Order not part of approved judgment)