Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C32/96(DLA) (7 June 1996)

 


Decision No: C32/96(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 17 July 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of the Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer not to award her either component of disability living allowance.
2. The Tribunal against whose decision she now seeks leave to appeal made the following findings of fact relating to:-

Care Component

Findings of fact

"On her DLA1 this lady said she needed help 6-7 days a week with

getting out of bed and dressed, washing, showering, toileting,

moving indoors, medicating, cooking and she fell once a month.

At night she needed 6-7 nights per week help going to bed, in bed,

going to the toilet and medicating. She told the Examining Medical

Practitioner she only needed supervised in the bath and

medication supervised, help with heavy pans and bed making and

she had one fall in recent years no falls due to vertigo and she

was supervised 1-2 nights a month for several hours. Today she

said she can unaided get out of bed, dress, go to the bathroom

and wash, toilet herself, manage the stairs, medicate herself,

prepare a meal but not cook it, undress, go to bed except when

she has severe back pain (once in last 3 weeks) and needs

supervised every night because she would commit suicide. Given

the contradictions in her evidence, we reject it totally. We

accept the Examining Medical Practitioner's opinion that she

would need supervised in the bath twice weekly - this is not

frequent throughout the day. And that she would need some

help with heavy pans - but she could use light one and the

test is cooking for herself not the family.

We were advised by her solicitors on 9 December 1994 to rely

on J… O…'s evidence. He had already said 8 August 1994

she had no care, supervision or mobility problems."

and gave reasons for its decision as:-

"The evidence of Mr O… Community Psychiatric Nurse

8 August 1994 and the Examining Medical Practitioner

1 September 1994 is against her. Her own evidence is

totally unreliable. She is not severely mentally or

physically disabled."

Mobility component

Findings of fact

"In her DLA1 on 11 July 1994 she said she could walk 30 yards

in 3 or 4 minutes and needed guidance or supervision. She was

falling once a month.

On 8 August 1994 her Community Psychiatric Nurse, J… O...,

said she had no mobility problem and no need for care or

supervision.

On 1 September 1994 she told the Examining Medical Practitioner

she could walk ½ mile in 20-25 minutes pausing several times.

She needed reassurance. She had had one fall in the past few

years.

The Examining Medical Practitioner accepted and we accept she

could walk ½ mile without severe discomfort, with satisfactory

gait and balance and no physical support. She was prone to

panic attacks. She did not mention dizziness to him and he did

not notice any. It is not mentioned by the Community Psychiatric

Nurse and we reject it.

She is not deaf and can hear with a hearing aid. She is

depressed but has not seen a psychiatrist or Community

Psychiatric Nurse for a long time."

and gave reasons for its decision as:-

"The evidence of the Community Psychiatric Nurse and the

Examining Medical Practitioner is against her. Her own

evidence is unreliable and unsupported by the medical

evidence and we reject it. She is clearly not unable and

virtually unable to walk, she can do ½ mile. Her panic

attacks do not appear to be so frequent or severe as to

prevent her walking or lead to a need for guidance or

supervision."

3. Claimant's solicitor sought leave to appeal against that decision and supported the application by letter dated 1 November 1995 which set out the grounds as:-

"... The basis of our request for an appeal is that the tribunal

on the day failed to construe the meaning of supervision needs

according to legislation and law on the subject.

Our client cannot leave her house without being accompanied

by either her daughter or some other member of her family.

Our client requires guidance and supervision from another

person while she is outdoors. It has been held that

encouragement, support, comfort and reassurance can amount

to supervision (CSA/68/1989). This would suggest that

conditions such as agoraphobia etc. previously excluded

because it was not a physical disablement might now qualify

under the section. In commissioners file CDLA/042/94 a

person subject to panic attacks may freeze or run off in a

random direction. The fact the presence of a companion gives

a person reassurance does not mean that the companion can not

also be carrying out the function of supervision or guidance.

That there is supervision of the claimant's walking when another

person is accompanying the claimant and is watching over her,

in the sense of monitoring here physical or mental or

emotional state for signs of something that might require some

more positive action by the person to enable or encourage the

claimant to continue walking, or monitoring the route ahead

for obstacles, dangers etc. which might upset or disquiet the

claimant. It was our estimation on the day the M… B… was

entitled to Disability Living Allowance.

We believe that the tribunal gave unsatisfactory examination

of the whole of the evidence and made an error of a point of

law."

4. The Chairman of the Tribunal refused leave to appeal. Claimant then sought leave to appeal to the Commissioner on the same grounds. The Adjudication Officer then concerned made a written comment on that application as follows:-

"This application raises several issues I will deal with in

the following paragraphs.

The evidence: The Tribunal decided to totally reject the

claimant's evidence because of its contradictions. While I

accept that it is the function of the tribunal to assess the

qualify of evidence, rejecting it if appropriate, I submit

that in the circumstances of this case it may not have been

appropriate to determine the claim against the claimant

without seeking further evidence. The claimant is stated to

be suffering from 3 identifiable disabilities, 2 of which

are a psychiatric nature. The latter have been accepted

by the examining medical practitioner, and the psychiatric

community nurse has certified that the claimant suffers from

depression and anxiety with panic attacks. I submit that it

may frequently not be appropriate to place undue reliance on

a claimant's evidence where there is psychiatric illness,

because of the very nature of the condition. Resort must be

had to specialist advice in such cases, if the existing

evidence held is either inadequate or is doubted for any reason.

Evidence which would be outside the knowledge of an expert

witness could be obtained from a friend or neighbour in many

cases. While the onus is on the claimant to prove her case,

in my submission it may be unreasonable to reject her evidence

out of hand without giving her the opportunity to produce more

suitable proof. In practice, of course, the tribunal can call

for their own medical reports.

The care component: The tribunal, faced with contradictions

in the evidence from the claimant, stated that they relied

upon the evidence from the Examining Medical Practitioner.

In the findings on the care component, they found that the

Examining Medical Practitioner's evidence was to the effect

that care needs were supervision twice weekly while bathing,

and that some help was needed with heavy pans. This does not

appear to be a complete finding of the needs identified by the

examining doctor. He found that there were medication

requirements, and reassurance requirements both indoors and

out of doors and by both day and night. I submit that the

tribunal failed to have regard to these requirements, or if

they did the tribunal erred in law because the chairman failed

to record reasons as to why the tribunal decided to reject the

evidence of the examining doctor on these matters, while

accepting it on others.

The mobility component: I concede that the tribunal erred in

law in their decision on the mobility component. The evidence

recorded by the Examining Medical Practitioner was to the effect

that the claimant suffers from "panic attacks when she goes out"

(page 19 of his report). It is not clear how the tribunal

concluded that "her panic attacks do not appear to be so frequent

or severe as to prevent her walking or lead to a need for

guidance of supervision".

Should the Commissioner decide to grant leave, I consent to the

Commissioner treating the application as an appeal and determining

any question arising on the application as if it arose on appeal."

5. I arranged an oral hearing at which the claimant was present and was represented by Mr M… , Solicitors and the Adjudication Officer was represented by Mr Shaw.
6. Mr Shaw reiterated the points which he made in his comments on the application. He said that the Tribunal should have concentrated on attention rather than supervision and that attention was the real issue. He said that it often happens in cases of this nature that the evidence is contradictory. He also referred to the decision and said that it was difficult to see how the Tribunal could have arrived at the decision that her panic attacks do not appear to be so frequent or severe as to prevent her walking or lead to a need for guidance and supervision when all the evidence indicated that she could not go out alone. He also said it was difficult to see how the Tribunal could possibly have made the finding that she did not mention dizziness to the Examining Medical Officer, or that he did not notice any; whereas in fact she told the Examining Medical Officer that she suffered from vertigo, that it occurred several times a day and lasted for a few seconds to 1-2 minutes. She knew to rise slowly and to sit down or hold onto something if she felt light headed. She said she was careful and had not had any falls due to vertigo. Mr Shaw said he found it very difficult to understand the findings of the Tribunal in regard to dizziness. Mr Shaw also drew attention to claimant's evidence to the Tribunal when she said, "when the Examining Medical Practitioner came out on 1 September 1994 I was frightened, flustered and confused and the hearing aid was not working. I was very embarrassed answering questions", yet the Tribunal seemed to consider that the medical report was the only satisfactory evidence in respect of her condition, even though there was evidence which was not contradicted that a friend stays over 3 to 4 nights per week for the past 2 years and helps her to lift heavy pans. She suffers from depression and panic attacks and that a friend calls 3 or 4 times a night to check is she all right. The doctor recorded that she cannot go out on her own as she has panic attacks and that she stated "I need help to keep the depression under control". He said that reassurance is important with regard to both components and conceded that on the evidence she was entitled to the lower rate mobility and the middle rate care allowance.
7. Mr M... endorsed the remarks of Mr Shaw and said that the Tribunal was completely wrong to reject out of hand claimant's evidence because in her type of illness it is possible to distort facts and that it was quite clear that this lady needed assurance at all times due to her panic attacks and her depression.
8. I have read all the documents and have considered all that has been said. I accept the concession of Mr Shaw. I accept that the Tribunal did err as he stated and that the entitlement to the benefit is clear from the evidence.
9. At the hearing I granted leave to appeal and both parties having consented I treated the application as the appeal. For the reasons set out above I allow the appeal and I set aside the decision of the Tribunal.
10. I am satisfied that this is a proper case in which I should exercise the powers vested in me to give the decision which the Tribunal should have given. I have considered all the evidence together with additional evidence of the Psychiatric Nurse and I am quite satisfied that Mr Shaw's concession is a proper one and that claimant is entitled to the lower rate mobility component and the middle rate care component of disability living allowance from the date the claim was received, namely 11 July 1994 for life.

(Signed): C C G McNally

COMMISSIONER

7 June 1996