Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C37/96(DLA) (21 January 1997)

 


Decision No: C37/96(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

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 18 January 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT).
2. Briefly the facts are that the claimant is a 40 year old lady who claimed disability living allowance (DLA) from 25 February 1993. She was awarded the lower rate mobility component and the lower rate care component from 25 February 1993 to 24 February 1995. A review was requested in June 1993 and claimant was examined by an Examining Medical Practitioner. As a result of his report, the Adjudication Officer reviewed the previous decision and revised it so as to disallow the care component from 20 October 1993. Claimant appealed against that decision to a DAT which took away all benefits from 25 February 1993. Claimant then appealed to the Commissioner against that decision. The Commissioner referred the matter back to be reheard by a differently constituted DAT.
3. That Tribunal held a complete rehearing but disallowed the appeal and gave reasons for its decision as:-

Care Component

"The Adjudication Officer's decision of the 8.2.94 has been

substituted in the written submission dated 5 July 1994 so as

to provide that the start date of this decision is 25.2.93.

We accept this substitution and the cases dealt with on that

basis.

In opening submission at this hearing the appellant's

representative conceded that middle rate and highest rate

care component were not applicable and we find that the

criteria for the award of middle and highest rate care

are not satisfied in this case.

With regard to the lowest rate care we find that the appellant

does not require attention in connection with her bodily

functions for a significant portion of the day. The case has

been argued before the tribunal primarily on the basis of

inability to prepare a cooked main meal but we find that the

appellant is not unable to perform the functions necessary

to achieve this.

Much has been made of the apparent conflict in the medical

evidence principally by reason of a report by Dr T... of

13.12.93 which the appellant disputes in that she indicates

she more regularly sees the younger doctor in the practice

namely Dr W.... However since Dr T... is part of the

same practice we find that we cannot totally disregard his

report. In that report he gave the opinion that the

appellant could prepare the tasks necessary for the cooking

and preparation of a main meal. The other doctor in the

practice Dr W... in his report of 24.1.95 confirms,

intereria, that "my partner and I often see her at home".

He does say she is very dependent on her family who cook

for her while she is ill and he also confirms in a

further report of October 1995 that she needs help from her

family in all the activities of daily living because she is

very often dizzy and weak. She does not offer any opinion

as to her ability to prepare a cooked meal which would in any

way conflict with Dr T.... Her own evidence to the

Examining Medical Practitioner that she doesn't usually

do the cooking because she is afraid of her balance being

poor and she indicates that her brother does her cooking.

To the tribunal today she indicates that her daughter does

the cooking. When ever addressed about the domestic

arrangements in connection with cooking we find that she is

not unable to perform these tasks.

The criteria for the award of lowest rate care are therefore

not satisfied. NB Tribunal held complete rehearing in this

case.

Although it was accepted the appellant indicates problems

with her balance, we do not consider it to be of such a

degree as to prevent her preparing a cooked main meal for

herself. While we have taken into account the appellants

own evidence, she has been extensively investigated and

the medical evidence does not support the level of disability

which she outlines.

The decision of the CDLA/85/94 in Regulation 25(2)6 considered."

Mobility Component

"On the weight of all the evidence in this case the appellant

is not so severely disabled physically as to be unable to

walk or virtually unable to walk.

She indicates a reluctance to walk out of doors because of

a fear of falling and that her ability to walk would be

limited by dizziness and poor balance. However having

considered all the medical evidence we do not consider that

there is a significant risk of falling and that the dizziness

and balance which she claims is not so severe as to

significantly interfere with her mobility. The level of

restriction which she describes is unexplained by the medical

evidence as a whole.

Much as an aid of the contents of the report of Dr T... whom

the appellant indicates is not her usual General Practitioner.

Rather than she states that she more often attends Dr W...

the other General Practitioner in the same practice. However

Dr W... in his report indicates that both doctors are

involved in the tribunal for the appellant in any event we

are satisfied that Dr T...'s report would be based upon the

records available within the group practice. Dr T... fairly

indicated in his report that he did not know how far the

appellant could walk but he described the prognosis for her

walking ability as good and her gait and pace normal.

Dr W... in his report January 1995 refers to her feeling

unsteady when she walks and feeling faint when standing for

any length of time but does not express any opinion that she

is virtually unable to walk.

He also indicates in his report that her family help her

when she walks to prevent her falling. It is stated however

that we consider the risk of falling is not as significant

or substantial.

The appellant herself in her evidence to the Examining

Medical Practitioner indicated that she did not need

guidance and that she uses a person for physical support

rather than for supervision or guidance. The Examining

Medical Practitioner opinion was that she was mentally

capable and aware of common dangers and there is nothing

to indicate otherwise anywhere in the evidence. On the

balance we find that she does not satisfy the criteria

for the award of mobility."

4. Claimant then sought leave to appeal to the Commissioner against that decision on the following grounds:-

"The tribunal erred in law:

Mobility Component

(a) by making inaccurate findings of fact,

The tribunal found as a fact, that the Examining

Medical Practitioner (EMP) concluded there was no

need for supervision or guidance. The EMP made no

mention of the former in the report submitted to the

AO.

(b) by making inadequate findings of fact.

The tribunal found that the EMP 'observed her walking

a distance of 15 yards without discomfort although

she would not go outside to perform a walking test

as she felt unable to do so'. No finding was made

with regard to EMP's note that it took a minute to

walk distance of 15 yards. As speed and length of

time for progress without severe discomfort is part

of the test for mobility component, the length of

time to progress 15 yards should have been recorded

as a finding of fact.

The tribunal went on to record that they were

satisfied the appellant could walk a reasonable

distance in a reasonable time and manner.

The tribunal also found: 'she states she wouldn't

walk out on her own and she needs someone with her

because of her fear of falling. However, she also

states "I just don't go out".

The evidence before the tribunal on getting out was

as follows:

"My sister used to take me out in the car - don't

go out often now."

Have to get a taxi to go to doctor. I rarely

go up - they usually come out to house".

"Don't go on my own. Take daughter with me."

"I've been to parent teacher meetings. I get

a taxi".

"I wouldn't walk out on my own".

"I need someone with me because of my fear of

falling. I just don't go out".

The evidence, in the round, suggests that the appellant

rarely goes out, and when she does she is normally

accompanied and travels by taxi. This is not

reflected in the finding.

(c) misinterpreted the law in holding that physical support

is distinct from supervision

The tribunal accepted the appellant's complaints with

regard to balance and dizziness but held that falls

were infrequent and insignificant. The evidence before

the tribunal was of falls every 2-3 weeks (i.e. at

least 20 per year) with no history of significant

injury and that she uses a person for physical support

rather than supervision or guidance.

The need for physical support to adjust balance and

prevent falls would in normal parlance constitute

a significant part of supervision. The delineation

of physical support as distinct and discrete from

supervision is an error of law.

Care Component

Misinterpreted the law in holding the absence of past injury

from falls is a relevant factor in deciding degree of risk

associated with loss of balance and dizziness when cooking

a meal.

The tribunal found as fact:

'We do not consider the risk of falling significant. She

herself referred to these falls in her self assessment form

as minor. We therefore find that her balance and dizziness

are not significant factors in relation to her ability to

cook a meal'.

The tribunal decision is that problems with balance are not

a degree as to prevent her preparing cooked meal for herself.

There is no dispute about her physical capacity to undertake

cooking tasks, however, the tribunal have not addressed

(or if so, not sufficiently clearly addressed) the risk of

falls and loss of balance whilst cooking. The absence of

past injury may well be a function of the appellant not

placing herself in positions of potential danger (e.g.

lifting pots or pans containing boiling water or scalding

fat or oil). The decision should be based on degree of

risk rather than absence of past injury."

5. I granted late leave to appeal and upon receipt of the application for leave to appeal the Adjudication Officer responded as follows:-

"Mobility Component

(a) Inaccurate findings of fact. I concede that the examining

medical practitioner gave his opinion only as to the need for

guidance (see page 14 of the medical report).

(b) Inadequate findings of fact. Both rates of the mobility

component were in issue before the tribunal. While the

findings are lengthy, I concede that they do not include

specific findings as to speed, distance, time and manner of

progress (without severe discomfort). The Commissioner may

wish to consider whether it is adequate to find, as the

tribunal did, that the claimant could walk a reasonable

distance in a reasonable time and manner. Regarding the

findings relating to the lower rate of the mobility

component, the tribunal appear not to have given consideration

to unfamiliar territory. S73(1)(d) stipulates that the

ability of a claimant to take advantage of walking on

familiar routes on his own must be disregarded.

(c) Misrepresentation of the law in holding that physical

support is distinct from supervision. I submit that the

tribunal have not erred in this respect. In paragraph

23(k) of decision number CDLA042/94 (*109/94) the Commissioner states "Other, more active measures may also amount to supervision."

Care Component Misrepresentation of the law in holding that

absence of past injury from falls is a relevant factor in

deciding degree of risk associated with loss of balance and

dizziness when cooking a meal. I note that in the previous

sentence the tribunal states "The appellant's symptoms are

so unexplained in all of the medical evidence before the

tribunal that we do not find her description of her

disability creditable." I submit that in the circumstances

the tribunal were probably entitled to consider the evidence

as to falls as a whole when determining whether there was

a significant risk of falling. In the same way, the

tribunal appears to have discounted dizziness and

balance.

GENERAL COMMENTS

1. I would have some reservations about the way in which

the tribunal approached this case, which features a

predominately psychiatric condition. In such cases I

submit that an adjudicating authority should be alert

to the existence of requirements which are not physical

in origin. Evidential conflict on the physical

symptoms may itself be a manifestation of the

psychological nature of the complaint, rather than an

indication of poor credibility.

2. Before the tribunal there was evidence which pointed

directly or indirectly to a need for reassurance.

The appeal to the Commissioner, under heading (b),

quotes some of the direct evidence from the claimant.

At page 14 of his report the examining medical

practitioner states "Feels lack of confidence outside -

states does not go outside prefers someone with her."

At page 24 it is stated "Has become more unsteady,

increasing loss of confidence in her mobility and

functional ability." At page 4 (in connection with

cooking) the claimant states "I am afraid because of

my balance being poor." The self-assessment form is

countersigned by the general practitioner "Post viral

fatigue syndrome" and chronic depression." The reply

made by the claimant on page 10 - in connection with

help required in the bathroom - "I don't wash too much".

3. The tribunal do appear to have admitted in their

reasons to a need similar to reassurance when they

state "We find that if she was motivated ...". The

Commissioner may wish to consider whether the tribunal

erred in failing to consider motivation and reassurance

when applying the test for the lower rate mobility

component. In decision CDLA/1414/95 at paragraph 5

the Commissioner held that "encouragement, support,

comfort and reassurance" constituted supervision for

the purposes of the lower rate of the mobility

component.

4. Similarly, the Commissioner may wish to consider

whether the tribunal should have taken into account

the need for reassurance when determining entitlement

to the care component. The finding "No significant

day time needs have been indicated ..." may indicate

the tribunal wrongly interpreted the word "attention"

in S72(1) of the Social Security Contributions and

Benefits (NI) Act 1992. Since the decision of the

House of Lords in the case of Mallinson it has been

settled that the spoken word may amount to attention.

5. Before the tribunal there was a period of almost

three years. Because of the length of time covered

by the appeal, and the possibility of variation in

the claimant's condition during that period, I would

have been happier if the tribunal had specifically

considered whether there had been any significant

change in the disability during this time."

6. I arranged an oral hearing at which claimant was represented by Mr Allamby and the Adjudication Officer was represented by Mr Shaw. As the facts have been set out at length in the previous decision I do not propose to detail them again. However at the hearing Mr Shaw accepted that, on the evidence, claimant was entitled to the lower rate mobility component but argued that to establish entitlement to the higher rate would require findings that claimant's problems were physical in nature.
7. Mr Shaw referred to his written comments which I have quoted above. He did not dispute the findings of her disability, but argued that there should be a finding as to whether her problems were physical or not before she could be awarded the higher rate mobility. Mr Allamby argued that on the balance there was enough evidence to suggest that claimant's disability was physical. He drew attention to the medical report of the examining doctor which was not disputed, that it took the claimant one minute to walk 15 yards and the doctor recorded "was only able to walk slowly and with some unsteadiness to her bathroom upstairs and back, about 15 yards. She would not go outside as she felt unable to do so. No discomfort complained of when walking, no severe discomfort certainly." He said her speed was slow, that she staggered slightly that her balance seemed slightly poor on testing and when asked to describe any help with physical support that would be needed from another person when walking outside the reply was, "unsure". Then the disputed answer to the question "Describe any need for guidance or supervision that would be needed whilst walking outdoors (along an unfamiliar route) most of the time?" replied, "No need for guidance" and recorded that the day was a better than average day.
8. Apart from the fact that the Tribunal recorded that the medical examiner found that she needed neither supervision or guidance this answer needs explaining. Because if one looks at her self-assessment form when she is asked to describe help needed relating to people who needed guidance or supervision when walking outdoors the claimant replied, "I know my direction I do not need guidance that way, but because of being unsteady a tendency to fall I only go outside if someone is with me. I use the person for physical support. No history of wandering." So that is where the doctor got his "no guidance" from because the guidance was clearly interpreted by her as guidance as to direction.
9. Mr Allamby argued that the Tribunal accepted that she suffered from problems with her balance and that because she could walk in an unsteady manner for 15 yards could not justify the finding by the Tribunal that she could walk a reasonable distance, but did accept that she needed to be motivated to go out. He said that although the Tribunal held that her falls and dizziness were infrequent and therefore insignificant, they had applied the wrong test. The test was not whether or not she suffered any injury.
10. Turning to the cooking test Mr Allamby accepted that she could probably do most of the physical things connected with the cooking test but because of her lack of balance and her dizziness her capability for lifting a pot was suspect because she would be a danger to herself. He said that the Tribunal in its findings of fact found that her balance and dizziness are not significant factors in relation to her ability to cook a meal and seemed to base that on their opinion that the risk of falling was not significant.
11. I have considered all that has been said and I have read all the documents in this case. This is the second time I have had to deal with this matter because I referred it back previously and in my previous decision I referred to the guidance required by her when walking.
12. I also have the advantage, as the second Tribunal did, of two reports of claimant's GP, Dr W.... In his first report of 25 January 1995 he refers to her complaint of headaches, dizziness since 1991 and to the fact that she was investigated in the ENT in June 1993 regarding her persistent dizziness and he quoted a Consultant Neurologist who assessed her headaches and dizziness as post concussive syndrome and stated that her symptoms could persist for several years. Dr W... also recorded that she complains of feeling unsteady when she walks; she is weak and faint on standing for any length of time and recorded:-

"My partner and I often see her at home, because she's unfit

to come to surgery, being bed bound by dizziness. I feel very

sorry for Mrs G..., several examinations and investigations

have failed to provide us with any useful information with

which to treat her. Numerous medications have failed to

improve her symptoms, which in addition to the physical

discomfort they cause her, make her depressed and hopeless

regarding her life. She is very dependent on her family who

cook, shop and clean for her while she is ill. As a result

of her dizziness, they also help her when she walks about

to prevent her falling. I have seen her greatly distressed

by her ill-health. Had it not been for Dr L...'s diagnosis

of post-concussive syndrome, I would have labelled her as

a kind of Myalgic Encephalomyelitis (ME), as her symptoms are

very similar and as in ME, very severe symptoms are not tied

in with any useful laboratory or X-ray tests."

and in a supplement to that dated 12 October 1995 Dr W... refers to his previous report and says that the claimant should "be treated as someone, who has ME, (Myalgic Encephalomyelitis), in that she has a disabling illness, but unfortunately for her case, has no specific diagnostic signs or tests to prove her illness", and then went on to say, "Further I feel that I may have handicapped her case, as I believe that the DLA report, which I filled in for her was misinterpreted due to lack of details in it. When not suffering from dizziness Mrs G...'s gait would be normal in character, but limited in distance by the chronic fatigue from which she suffers. Unfortunately, she is very often dizzy and weak, and needing help from her family in all activities of daily living." I am satisfied that in the light of that evidence, which is not disputed, it is hard to see how the Tribunal could find that although she had been extensively investigated, that the medical evidence does not support the level of disability which she outlines. I think that this point has been adequately dealt with by Dr W... and he does not dispute the disabilities from which she suffers and indicates that the medical evidence is such that there is no specific diagnostic signs or tests to prove her illness.

13. I am satisfied that the Tribunal erred in law as Mr Shaw indicated in refusing the mobility component and it also misdirected itself as to the meaning of "guidance" and I therefore allow the appeal and set aside the decision of the Tribunal.
14. As this matter has been going on for some considerable time and as it has been before the Commissioner twice I am satisfied it is a proper case in which I should exercise the power vested in me to give the decision which the Tribunal should have given.

Mobility Component

The Adjudication Officer accepts that she is entitled at least to the lower rate mobility and would not dispute the findings of disability which would entitle her to the higher rate provided there was a finding that her complaint was physical in nature. I am satisfied from the report of her General Practitioner and from her own evidence that her complaint is physical in nature and consequently I am satisfied that she is entitled to the higher rate mobility.

Care Component

Because of her dizziness and taking into account her depression and her hopelessness regarding her life and the fact that she is so dependent upon her family, I am satisfied that even the preparation of a meal would be difficult, also the fact that her balance is affected by her dizziness and that would relate to her capacity to lift a pot or a kettle because of risk to herself that she is entitled to the lower rate care component as she could be a risk to herself.

15. These two components were awarded to her from 15 February 1993 and I am satisfied that she fulfilled the conditions from that date. As far as the duration of the award is concerned Mr Shaw argued that unless one could find it was inappropriate to make an award for life that the award should be for life. I am satisfied that the award should be for life. Consequently my decision is that the claimant is entitled to the higher rate mobility and the lower rate care from 15 February 1993 for life.

(Signed): C C G McNally

COMMISSIONER

21 January 1997