Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1993] NISSCSC C14/93(AA) (21 July 1993)

 


Decision No: C14/93(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Application by the above-named claimant for leave to appeal and

appeal to the Social Security Commissioner on a question of law

from the determination on review by the Attendance Allowance Board

for Northern Ireland given on 3 April 1992

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of an Attendance Allowance Board on review dated 3 April 1992 which withdrew his attendance allowance. I arranged an oral hearing at which claimant was not present but was represented by Miss M... and the Department was represented by Mrs Fearon, Solicitor of the Department of Health & Social Services.
2. Briefly the facts are that the claimant, now a man of 48 years of age, suffers from among other things, a bad back to such an extent that he has been in receipt of attendance allowance at the higher rate continually from 1986. When the award was running out in November 1990 he sought a renewal and this was granted for 2 years from October 1990 after he was medically examined on 31 August 1990. Subsequent to that examination a letter was written to the Board alleging that he was not as disabled as the doctors had considered, as a result a review was carried out by the Board. The Board arranged to have him medically examined in October 1990 and sought a report from a Consultant Surgeon and upon that evidence the Board reviewed and reversed its previous decision and withdrew the benefit. For the sake of clarity I will call this the First Decision.
3. The first decision was based on the medical examination of October 1990 and the Consultant's report of November 1990. As a result of his examination the Examining Medical Officer recorded:-

"... He had to be helped from his chair and helped to sit on

the bed and helped lifted into bed, and helped to sit up in bed.

His behaviour is bizzarre and exaggerated."

"In my opinion he is mobile and could adjust clothes and sit up

in bed without help and use bottle."

The Consultant recorded:-

".... When seen on 29.3.1990 his symptoms had returned

to their pre-exacerbation state. The amount of supervision

and watching over is entirely dependent upon Mr M...'s clinical

condition at present. It is quite probable that this has changed

from when he was last seen. It would not be possible to comment

further without seeing the man and examining him."

4. These two reports were translated by the Board in its written reasons for its first decision as -

"At the time of the examination on 18 October 1990 the examining

medical practitioner observed that he could rise from his usual

chair and walk about the room without help from another person.

It was recorded that he could move his position in bed and get

into bed and out of bed as required. Unaided he can dress, undress,

wash and get in and out of the bath and he can make his way to the

toilet without help from another person. Once at the toilet he can

cope with passing water or having a motion. At the toilet he can

cope with wiping himself, adjusting his clothes and getting on and

off the toilet seat. .... The examining medical practitioner recorded

that he can eat and drink normally and cup up his food as required."

5. The interesting thing is that there is no record in the medical examination of the medical practitioner observing him doing any of these things. I will return to this point later when dealing with the Board's second reasoned decision. Claimant appealed successfully to a Commissioner against that decision which was set aside on the grounds that claimant did not have an opportunity to meet the allegation made against him and that the Board had failed to give proper reasons for the decision to withdraw the benefit and to explain the difference between the first and the second medical reports, one which considered he was entitled to the benefit and the second one which considered he was not. The matter was referred back to the Board to reconsider the claim and having done so the Board confirmed its decision to withdraw the award and gave written reasons for its decision (the Second Decision). In this second reasoned decision it is not suggested that the medical practitioner had observed claimant doing any of these things, because that decision (the second) recorded, "The examining practitioner was of the opinion on 18 October 1990 that Mr M... could unaided rise from his usual chair, walk and get to the toilet. .... The examining practitioner was also of the opinion that claimant could dress and undress, wash his face and hands, get into and out of a bath, cut up food and feed himself." That is only one example of the distortion of the facts when translated into a written decision. The second distortion is where the Board in its second decision referred to the report of the Consultant Surgeon who recorded that the symptoms had returned to the pre-exacerbation state. That is translated into -

"It is accepted that Mr M... has a long-standing back problem

with exacerbations and remissions associated with marked variation

in his needs."

and again in paragraph 23 it records -

".... The Board recognises that Mr M... suffers from an

illness with a marked variation in disablement and in needs

and recognises that at stages in his illness the claimant

could satisfy the conditions of the Act and at other stages

in his illness he would not satisfy the conditions of the Act."

At no time did anyone suggest that there were marked variations in his needs and when the Consultant Surgeon talked about a return to his pre-exacerbation state, that was a state which merited him getting the full higher attendance allowance award for 6 years. But the Board translated that into the argument that his pre-exacerbation state did not entitle him to the benefit.

6. The Consultant Surgeon who reported in November 1990 examined the claimant again and made a report in April 1991 and in the second decision the Board refers to that report as follows:-

"... An illness with exacerbations has been referred to in the

undated letter from the family doctor, the report from the

consultant surgeon received on 19 November 1990 and the report

from the consultant surgeon received on 10 April 1991. The Board

has looked at the situation as a whole..."

The interesting thing is that in the second report from the same Consultant Surgeon dated 10 April 1991 he says -

"This man now has a long history of back pain with exacerbations.

He does seem to be rather limited in his activity, being unable

to dress himself or for example, to get onto an examination couch.

There is no evidence that there is any surgically correctable

problem in his back.

His symptoms probably improve and worsen on a rather intermittent

basis. It would certainly seem that this man needs assistance with

dressings and almost certainly with personal hygiene."

That opinion of the Consultant Surgeon seems to have been used only to support the argument that claimant has an illness with exacerbations and completely ignored the opinion that he had a long history of pain with exacerbations and also that he needed assistance with dressing and with personal hygiene. It was because so much emphasise was put on exacerbations that I sought assistance from the Board as to how the Board dealt with a claimant who had had such a condition and arranged the second hearing. At the second hearing the claimant was again represented by Mrs M..., the Department by Mrs Fearon and the Board was represented by Mrs Attracta Wilson, Solicitor of the Department of Finance. The Chairman of the Attendance Allowance Board kindly attended and gave evidence and handed in a memorandum on the subject which I have annexed hereto in Appendix A.

7. It is clear from that memorandum that it is of little assistance in the instant case because it does not deal with the situation were a person has a problem which becomes more severe but which even in its pre-exacerbation state is sufficiently serious to warrant an award of the benefit.
8. Mrs Fearon on behalf of the Department referred to the medical examination of October 1990 upon which the Board placed great reliance and which was at complete variance with previous medical reports and conceded that as the examining doctor had received a copy of the allegations against the claimant before he carried out his examination; that it would be difficult to consider that report as an independent one.

That being so the whole basis of the Board's argument was destroyed. She also said that it was not very clear whether or not the second written decision referred to a review and to the new claim of April 1992 or not, but it would appear that that new claim had never been dealt with. Certainly no decision was recorded or communicated to the claimant.

9. Miss M... argued that the claimant still does not know why he was deprived of benefit which he was in receipt of for 6 years and that the Board had still not fulfilled the statutory duty of explaining why it was withdrawing the benefit.
10. I am indebted to Mrs Fearon, Mrs Wilson, Miss M..., and also to the Chairman of the Board who kindly gave up his time to come and assist at the hearing. I am satisfied that the concession by Mrs Fearon is a perfectly valid one. I find it very difficult to reconcile some of the reasons given by the Board with the facts in the medical reports upon which those reasons are allegedly based. It is not possible to know from the decision of the Board why the benefit is being withdrawn.
11. I am satisfied that the Board erred in law and that the decision is flawed. With the consent of both parties I treated the application as an appeal. I allow the appeal and set aside the decision of the Board. I refer the case to second-tier adjudication, with the direction that consideration be given to the matters referred to above.

(Signed): C C G McNally

COMMISSIONER

21 July 1993