Northern Ireland - Social Security and Child Support Commissioners' Decisions

This is an appeal by the claimant against the decision of a Tribunal which affirmed that the claimant is not entitled to either the mobility or the care component of Disability Living Allowance from and including 21 December 2000. Leave to appeal was granted by the Legally Qualified Member on 17 June 2002.
The claimant, who is represented by Mr Barry McVeigh of the Northern Ireland Association of Citizens Advice Bureaux, has set out two grounds of appeal, namely:

(i) that the Tribunal has misinterpreted the statutory test that attention need only be required and not necessarily received; and

(ii) that the Tribunal has failed to address all factors when deciding entitlement to the higher rate of the mobility component as set out in regulation 12 of the Social Security (Disability Living Allowance) (Northern Ireland) 1992, which concerns the ability to walk out of doors.

Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.

The claimant originally was in receipt of higher rate mobility component of Disability Living Allowance. A renewal claim in respect of the period from 21 December 2000 was received in the Department on 30 June 2000 indicating that the claimant was suffering from chronic bronchiectasis, chronic obstructive pulmonary disease and chronic anxiety neurosis. On 9 September 2000 it was decided that the claimant's claim should be disallowed from and including 21 December 2000. A letter disputing that decision was received on 21 September 2000. After the provision of further information and the examination of the claimant by an Examining Medical Practitioner, the decision of 9 September 2000 was reconsidered on 4 February 2001, but not changed. On 28 March 2001 the claimant's appeal was received, although he was only notified on 10 April 2001 of the decision dated 4 February 2001.

On appeal the Tribunal unanimously decided that the claimant did not satisfy the requirements of either the care component or the mobility component of Disability Living Allowance as and from 21 December 2000 and, accordingly, his appeal failed.

The Tribunal gave the following reasons for its decision in relation to both components:

"[The claimant] has a number of complaints of which the most serious are chronic bronchiectasis and chronic obstructive pulmonary disease. He has anxiety and joint pains which latter complaint the General Practitioner considers to be related to mild generalised osteo arthritis. [The claimant] states that his chest problem is the main condition.

In relation to his care needs, [the claimant] states that he needs daily postural drainage of his chest, which he doesn't always get because his wife and daughter are not available. However he can get himself up in the morning as his wife leaves the house for work at about 7.30am. Although sometimes, [the claimant's wife] will return at lunch time, she normally comes back at 4.45, having made lunch for him. [The claimant] can get himself washed and dressed and would take a shower, rather than a bath. He would prepare his own breakfast and he puts in the day, by watching television or visiting his daughter and grand-daughter. [The claimant] states that he cannot or rather does not peel potatoes. He is physically capable of doing so but because his wife has always prepared the meals, he has never learnt to cope.

[The claimant's wife] states that she carries out postural drainage at night and sometimes at lunch times, if she can get home. [The claimant] would wake up during the night coughing but would get up and make a cup of tea and he would go back to bed again. Mr Fusco looks after his own medication.

The tribunal decided that in view of the above and in view of the fact that

[the claimant] stated in his application form that he only gets postural drainage about 2 days per week, that he does not reasonably require attention for a significant portion of the day or frequently during the day in connection with his bodily functions nor does he require prolonged or repeated attention during the night.

The Tribunal accept that [the claimant] has a genuine complaint and one that may deteriorate, but at present, he is able to manage his own care needs satisfactorily. He does not cook a main meal because he has never learnt to do so, not because he cannot it because of severe physical or mental disability. Although he may require daily postural drainage, it appears that he does not get it and all other aspects of his condition he manages himself. At present, the Tribunal find that [the claimant] does not satisfy the requirements for the care component of disability living allowance as and from the 21 December 2000 and his Appeal is turned down in relation to this component.

In relation to the mobility component, [the claimant] states that he is severely restricted by his chest condition in that he cannot walk more than 50 yards without severe discomfort. He continues to take his inhalers as prescribed although he states that they do not help. However in the General Practitioner's notes, The Hospital, at the chest clinic stated that in July 1999 prior to starting on the inhalers his "exercise tolerance as reduced considerably", it "should improve" after the commencement of inhalers.

([The claimant] was also smoking at this time but has since given up). Indeed on 23^rd November 1999, the clinic noted that he was "not overtly short of breath at rest" and had "improved since his last visit". He appears that objectively, the inhalers appear to be working. In October 2000 his General Practitioner indicated that he could walk 300 yards as long as he stopped. The General Practitioner at the same time also noted that there had been no deterioration in [the claimant's] condition which was stable at that time.

[The claimant] states that his General Practitioner would not know about his mobility as he rarely visits him.

[The claimant] stated that he would go to Knocknagoney Shopping Centre (Tesco's) to shop where he could sit down and rest. He does not do the shopping. He would avoid walking long distances because of his breathlessness. However, this morning, he parked his car in a car park, which was not the nearest to the Appeals Service and which would be well in excess of 300 yards away. He walked to the Appeals Service, albeit he had to stop a couple of times on the way. However even the journey between rests, that

[the claimant] describes would be on at least 2 occasions in excess of 50 yards.

Again, the Tribunal are satisfied that [the claimant] has a genuine problem which causes him discomfort, but the tribunal find that relying on the above facts and some inconsistencies in [the claimant's] evidence, that he is not virtually unable to walk within the definition required by the legislation.

[The claimant] also states that he suffers from panic attacks but his does not prevent him travelling out on his own around his home town and to his daughter's house. He also drives down to Crawfordsburn Country Park and listens to the trees, as he needs to get out of the house.

[The claimant] appeared to suffer from the panic attacks when he couldn't breathe but would take inhalers to counteract this. [The claimant] himself stated that his chest complaint was the main complaint and it appeared to the tribunal that there was no reason why he could not walk without guidance or supervision particularly as he told the Examining Medical Practitioner that he could carry out messages on his own.

The condition of mild oesteo arthritis was not one that [the claimant] considered restricted him unduly, albeit it caused pains in his knees.

Accordingly the tribunal find that [the claimant] does not satisfy the requirements for the mobility component of disability living allowance as and from the 21 December 2000 and his Appeal is turned down in connection with this component."

The claimant sought leave to appeal on the following grounds:

" 1. The Tribunal has misinterpreted the statutory test that attention need only be required and not necessarily received.

The Tribunal states, "Although he may require daily postural drainage, it appears that he does not get it…".

2. The Tribunal has failed to address all factors when deciding entitlement to the higher rate of the mobility component as set out in Reg 12 of the Social Security (Disability Living Allowance) Regulations (NI) 1992, i.e. his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk…"

The Decision Making and Appeals Unit of the Department, through Mr Kennedy, opposes the claimant's appeal and, in particular, made a very relevant written submission by letter dated 8 August 2001.

Mr McVeigh on behalf of the claimant, by email dated 27 August 2002, also made a further submission to the effect that it was particularly relevant that the Legally Qualified Member of the Tribunal had granted leave on the basis that an error of law had been identified in the Tribunal's decision.

In my view the fact that the Legally Qualified Member in this case marked a box which states "leave to appeal granted (error of law identified)" and also stated "Point of Law: See letter of appeal" does not signify that she has accepted that there is an error of law. Instead, she is acknowledging that there is an issue for a Commissioner on appeal to decide whether there is in fact any such error. I accept that the form used by Legally Qualified Members in deciding whether to grant leave to appeal or not is potentially misleading to the non-lawyer. Therefore it may be appropriate for the relevant authorities to consider whether an appropriate amendment might be usefully made to the relevant form. However I have no hesitation in finding that there is no substance in Mr McVeigh's additional submission.

The claimant's first ground of appeal is that the Tribunal has erred by misinterpreting the statutory tests which merely requires attention to be required but not necessarily received. Mr McVeigh has justified this assertion by quoting the following words from the Tribunal's reasons for its decision:

" Although he may require daily postural drainage, it appears that he does not get it…".

Mr Kennedy has conceded that, taken out of context of the rest of the Tribunal's reasons for its decision, the quoted statement does appear to indicate that the Tribunal has misinterpreted the statutory test. However, he goes on to submit that a full reading of the Tribunal's decision shows that it properly considered the conditions for entitlement and reached a conclusion which it was entitled to reach on the basis of the evidence before it.

If the Tribunal's reasoning is examined objectively and evaluated, it can be seen that the Tribunal initially found that the claimant had a number of complaints of which the most serious were chronic bronchiectasis and chronic obstructive pulmonary disease. Also the Tribunal clearly went on to consider whether the claimant's bodily functions were impaired as a result. It also accepted that the claimant required postural drainage of his chest.

As Mr Kennedy has pointed out, the question then arose as to whether the claimant reasonably required attention in connection with his bodily functions. The Tribunal has noted in particular a statement by the claimant in his application form that he gets postural drainage about 2 days per week. The Tribunal also found that the claimant did not require attention for a significant proportion of the day, or frequently during the day, in connection with his bodily functions, nor does he require prolonged or repeated attention during the night. These conclusions are readily sustainable on the evidence.

Mr Kennedy has submitted that the sequence of the Tribunal's reasoning has demonstrated that it properly considered the requirements for entitlement to the care component of Disability Living Allowance. He further submits that the quotation relied on in support of the appeal does not betray a misunderstanding of the statutory requirements on the Tribunal's part.

I accept that Mr Kennedy's submission on this point is correct. In my view a full reading of the Tribunal's decision makes it clear that the Tribunal has considered properly the conditions for entitlement and, accordingly, was entitled in light of the evidence before it to conclude that the claimant was not entitled to the care component.

Mr McVeigh's second ground of appeal is that in relation to the higher rate of the mobility component the Tribunal erred in law by failing to address all the factors set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992. The regulation is in the following terms: -

"12.-(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) (of the Social Security Contributions and Benefits (Northern Ireland) Act 1992)(unable or virtually unable to walk) only in the following circumstances –

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment -

(i) …

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk, or

(iii) …

(b) …"

The reference to section 73(1)(a) is to the basic entitlement to mobility component which states that: -

"… a person shall be entitled to the mobility component of disability living allowance for any period in which … -

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

(b) …"

However, when one examines the reasons for the Tribunal's decision set out in the statement of reasons one finds that the Tribunal has specifically recorded that the claimant "is not virtually unable to walk within the definition required by the legislation." The Tribunal has also noted, as Mr Kennedy has pointed out, that the claimant was able to walk to the hearing from a car park which was not in close proximity to the appeal hearing venue and it concluded that he had been able to walk in excess of 50 yards on two occasions allowing for rests. In light of the fact that the Tribunal has specifically referred to the requirements set out in the legislation it is reasonable to assume that the Tribunal was taking into account the time taken to cover this distance and the manner in which the claimant was able to walk. While the Tribunal could have been more specific in setting out its findings it has clearly addressed its mind to the legislative requirements and, in the circumstances, I do not consider I am entitled to conclude that the Tribunal has erred in law in this respect.

For the sake of completeness I state that it has never been argued that the claimant was entitled to the lower rate of the mobility component.

In light of my conclusions I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss this appeal and affirm the decision of the Appeal Tribunal.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

(Dated): 11 OCTOBER 2002