Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C27/97(DLA) (12 December 1997)

 


Decision No: C27/97(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 Dungannon Disability Appeal Tribunal dated 28 January 1997
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against a decision of the Disability Appeal Tribunal given on 28 January 1997 to the effect that (1) the claimant is entitled to high rate mobility component from and including 16 February 1995 until 29 March 1996, and (2) the claimant is entitled to the middle rate care component of disability living allowance from and including 16 February 1995 to 29 March 1996 and the low rate care component of disability living allowance from and including 30 March 1996 for life. Leave to appeal was granted by a Social Security Commissioner on 11 June 1997.
2. This case has a long history. A Disability Appeal Tribunal hearing was held on 9 November 1995 and it was decided that the claimant did not satisfy the conditions of entitlement for an award of the higher rate of the mobility component and the middle rate of the care component from 30 March 1995 to 29 March 1996. Instead the Tribunal awarded the lowest rate of the care component in respect of the main meal test from and including 30 March 1995. On 19 November 1996 a Commissioner decided that the Tribunal of 9 November 1995 had erred in law in reaching its decision. The Commissioner decided that the Tribunal had misdirected itself in respect of both the qualifying period and the prospective test and that he would have expected findings and reasons to indicate why the Tribunal decided to make a life award of the lower rate of the care component. Accordingly the Commissioner referred the case to be redetermined by a differently constituted Tribunal. The decision of this new Tribunal is the decision presently under appeal.
3. I held an oral hearing at which the claimant, who was present, was represented by Mr Barry McVeigh of the Northern Ireland Association of Citizen Advice Bureaux. The Adjudication Officer was represented by Mr G L Shaw.
4. At the hearing Mr Shaw pointed out that, in effect, I was seised of an appeal from the Tribunal concerning the claimant's rights to disability living allowance. The present practise of Tribunals using two separate forms of decision for both the care and mobility components in disability living allowance appeals obscures the legal reality that disability living allowance is one single benefit, though consisting of two components (section 71(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992). This can cause confusion, as it did in this case, where both decisions, as typed up, refer to the mobility component as being the subject matter of the decisions, even though one decision, on close perusal, referred to the care component. The confusion was made all the greater as the record of proceedings and the findings of fact in each decision form were identical, leading to the irresistible conclusion that there was in fact only one actual hearing, even though the Tribunal came to two separate decisions set out in two separate decision forms. A decision on a single decision form in this case would have obviated these difficulties.
5. The facts are that the claimant on 30 December 1994 underwent an amputation of his left leg above the knee and was fitted with an artificial leg in or about the end of January or the beginning of February 1995. The Tribunal, on appeal, in respect of the mobility component held that he was entitled to high rate mobility component from and including 16 February 1995 until 29 March 1996. The reasons for the Tribunal's decision in relation to the mobility component were as follows:-

"Already awarded high rate mobility component 30 March 1995 -

29 March 1996. We believe an earlier start date appropriate

that is from emergency admission on 17 November 1994. Allowing

for the 3 month award runs from 16 February 1995. In other

respects, and noting award not in dispute the Tribunal decided

not to otherwise interfere with same. We did not believe it

appropriate to extend award beyond 29 March 1996. At the last

hearing appellant admitted that he had adjusted to artificial

limb by end of April 1996 and they noted no evidence of falls;

Also he could walk using a walking stick as opposed to crutches.

Doctor H… in report dated 29 April 1995 confirmed appellant

could weight bear on both lower limbs. On self assessment form

appellant referred to 25yds in 3/4 minutes. Doctor M…, South

Tyrone Hospital, on 7 November 1996 referred to walking 100 yards

on flat ground.

Today appellant spoke of 40/50 yards in 3/4 minutes, resting for

1/2 minute and then could do the same again. On balance of

probabilities the Tribunal is of the opinion that by 30 March 1996

appellant had adjusted to his artificial limb and could walk a

reasonable distance in reasonable time, speed and manner without

severe discomfort. We believe that none of the criteria is satisfied

to render appellant virtually unable to walk from 30 March 1996.

We also believe that the appellant could, from then, take advantage

of his walking faculty on unfamiliar routes outdoors, without

guidance/supervision, most of the time. In relation to falls -

see care component. Also low rate mobility component is not to

avoid danger."

6. The Tribunal, on appeal, in respect of the care component held that he was entitled to the middle rate care component from and including 16 February 1995 to 29 March 1996, and to the low rate care component from and including 30 March 1996 for life. The reasons for the decision were as follows:-

"Tribunal decided not to interfere with award already made in respect

of 30 March 1995-29 March 1996. However, we believe that frequent

attention would have been needed with bodily functions following

every hospital attendance on 17 November 1994 and accordingly

allowing for 3 month qualifying period the start date of award

is now 16 February 1995. By 30 March 1996 the Tribunal is of the

opinion that the only help required was as noted per out findings.

We are of the opinion that this would constitute help for a

significant portion of the day but not frequent attention with

bodily functions. We also accept that standing, holding/lifting

saucepans would be a difficulty in preparing a cooked main meal.

Weighing up all the evidence including that recorded at hearing

on 9 November 1995 the Tribunal, on balance of probabilities,

is of the opinion that low rate care component appropriate

from 30 March 1996 and award for life. We do not have any

evidence to suggest appellant's condition will significantly

improve and indeed we note recent claudication in other leg

and angina. Although hypo(s) at night was mentioned, given the

frequency of same as per our findings and duration 15-20 minutes,

the Tribunal is of the opinion that same does not require prolonged/

repeated attention with bodily functions. Further, it is not

necessary for someone to be awake for prolonged periods/frequent

intervals to avoid substantial danger. We also note appellant

does get warning - sweating - and we believe that it would be

reasonable to have milk and biscuits by the bedside or chocolate.

Appellant mentioned falls but in the context of different ground

levels. With care the panel if of the opinion that appellant

can avoid risk of falls and that there is no risk of substantial

danger such as to require continual supervision."

7. The findings of fact material to the Tribunal's decision were as follows:-

"1. Admitted to Belfast City Hospital as an emergency on

17 November 1994 due to sudden pain in left calf.

2. On 21 December 1994 admitted to Belfast City Hospital and had

left leg above knee amputation 30 December 1994 and then

discharged to Musgrave Park Hospital on 5 January 1995.

3. Had femoral popliteus arterial by-pass on right leg 1988 and

on left leg in 1990 with further surgery in 1991 and 1992.

4. Insulin dependant diabetic - under control. Does have some

hypo(s) during the night causing sweating but not loss of

consciousness. Between 2-3 mornings tends to experience

hypo(s). Can occur 2/3 times week, 1 week and some weeks

none. Takes 2-4 digestive biscuits and glass of milk. Admits

could take some chocolate. Although appellant does not keep

biscuits/milk by the bed. Tribunal is of the opinion that it

would not be unreasonable to do so. Monitors during the

day and can avoid hypo(s).

5. Department award middle rate care component 30 March 1995-

29 March 1996. Tribunal find that 3 month qualifying period

runs from 17 November 1994 when admitted to Belfast City

Hospital. We accept that frequent attention with bodily

functions would have been needed from that date of operation

and the following operation to adjust to loss of part of

lower limb. Department did not dispute award running to

29 March 1996 and Tribunal decided not to interfere with end

date for mobility rate award. From 30 March 1996 Tribunal

accepts appellant's evidence that help needed putting on socks,

limb, taking 15 minutes or so in morning. Also someone to help

him coming downstairs. Has downstairs toilet to avoid having

to use stairs during day.

6. From October 1996 some angina which is relieved with inhaler/

spray. Some recent claudication right leg.

7. Appellant works, initially part time following amputation but

has resume full time employment again as a Civil Servant -

seated job. Drives automatic car.

8. High rate mobility component awarded 30 March 1995 - 29 March

1996. Tribunal of opinion that appellant would have been

virtually unable to walk following emergency admission to

Belfast City Hospital 17 November 1994. Accordingly, start

date of award should be from 16 February 1995 allowing for

3 qualifying months. From 30 March 1996 Tribunal believes

that appellant could walk a reasonable distance in reasonable

time, speed and manner without severe disablement. The

exertion of walking would not cause danger to life or serious

deterioration to health.

9. Can take advantage of walking faculty when outdoors on

unfamiliar routes without guidance/supervision, most of the

time.

10. Cannot prepare a cooked main meal for himself if he has the

ingredients.

11. Mentally competent, aware of dangers, not aggressive/

destructive, does not wander. Not prone to fits blackouts,

seizures or such likes."

These findings of fact related to both the care and the mobility component.

8. The claimant appealed this decision on the ground that there had been a failure to state adequate findings of fact and reasons for the decision. In particular the claimant relied on the fact that whilst the Tribunal was furnished with reports from Mr H…, Consultant Surgeon, dated 24 January 1997, and Dr H…, Consultant Physician, dated 27 July 1997, on the condition of the claimant, the matters mentioned in the reports were not addressed in the Tribunal's findings of fact. Consequently it was argued on behalf of the claimant that the Tribunal's decision neither accepted or rejected the evidence contained in the reports. If the Tribunal is deemed to have rejected the findings of fact, no reasons were given for the rejection.
9. Mr Shaw in his written submission dated 27 June 1997 submitted as follows:-

"The issue before the tribunal was the claim dated 25 January 1995.

The appeal is made on the basis that the tribunal's record of

proceedings does not make it clear whether the evidence from the

consultants Mr. H… and Mr. H… was accepted or rejected.

I submit that the only point in the two letters in question which

would have merited specific mention was the reference by Mr H…

to discomfort on walking. I concede that this probably did merit

mention, as it undoubtedly was in Mr F... 's favour, and its omission

tends to give the impression that the tribunal only took account

of the evidence which was unfavourable to the claimant. As severe

discomfort is central to the argument in the mobility component,

it would be an essential part of the tribunal's function to determine

whether they accepted that there was discomfort, and if so whether

it amounted to severe discomfort.

All this is closely related to the need to make findings as to the

factors in regulation 12(1)(a) of the Disability Living Allowance

regulations. The tribunal chairperson did not record specific

findings, merely recording "a reasonable distance in reasonable

time, speed and manner without severe discomfort". While it has

been held that findings are not required in every case (see

CDLA/2554/95 - para 11) the Commissioner may wish to consider

whether in this case the findings are adequate."

10. It was made clear by Mr McVeigh at the hearing he was only submitting that the Tribunal's decision in relation to the mobility component was in error.
11. It is evident that the Tribunal did not take into account the evidence of the two Consultants in favour of the claimant. No grounds were given for discounting this evidence. It seems to me that a Tribunal should not come to a conclusion inconsistent with such evidence without giving good reason. To emphasise the relevance of these reports I quote them in full. Mr H... 's report dated 24 January 1997 states as follows:-

"Mr F... has been a patient at the Belfast City Hospital since 1988.

He originally attended Mr R… C… and underwent arterial

surgery in June 1988. He has continued for regular review since

that time and in 1992 had to have arterial surgery to the left leg.

Unfortunately the bypass in the left leg failed in late 1994 and

Mr F... subsequently had an above knee amputation. When he was

reviewed at the Hospital after his amputation it was noticed that

his right leg was extremely swollen and I think it is most likely

that he had an extensive deep venous thrombosis. By the time he

was reviewed at the hospital, the swelling in his leg had been

present for many weeks and I did not think it was worthwhile

investigating or treating this. I did however arrange for him

to have compression stockings to attempt to reduce the oedema in

the leg. The arterial supply in the right leg seems to be fairly

healthy at this time and Mr F... reports ache and pain in the leg

on walking. It seems most likely that this ache and pain is due to

venous claudication.

There is no curative treatment for venous claudication and the vast

majority of patients are managed conservatively. Hence I have

not arranged any further investigations at this stage.

I write this letter because it seems to me that anyone who has had

an above knee amputation on one side and continues to have discomfort

in the right leg on walking must be eligible for some kind of

living assistance whether it be expenses or assistance with

transport. Without knowing the bureaucratic mechanisms of the

disability living allowance I would ask that strong consideration

be given to assisting Mr F... as I do feel he has continuing

problems.

Yours faithfully

R J H... MD FRCS

CONSULTANT SURGEON"

Dr H…'s report states as follows:-

"This gentleman has had diabetes mellitus since 1972.

Secondary to this condition he has developed widespread vascular

disease.

Owing to peripheral vascular disease he had a left knee amputation

in December 1994. He now has a prosthesis but there have been

considerable problems owing to pain and discomfort at the stump

and this has limited his mobility quite considerably. You will

be well aware that an above knee prosthesis is considerably more

difficult to use than a below knee prosthesis.

He also has claudication affecting his right leg. The consequence

of the sum of these two problems affecting his legs is that his

mobility is limited considerably. This limitation of mobility is

exacerbated by his having developed angina of effort (for which

he is being treated with Elanatan LA). His present exercise

tolerance is limited to a maximum of 50 yards; owing to this it

appears to me appropriate that he should be reinstated with

"an orange sticker". When one, for example, takes his attending

this Hospital, he is unable to walk from the conventional car

park to the Diabetic Clinic or the Vascular Clinic owing to the

problems outlined above.

With respect to his diabetes, his impaired mobility means that he

is no longer able to deal satisfactorily easily or safely with

hypoglycaemic attacks. As a consequence of his improving his

diabetic control he has more frequent (and occasionally more severe)

hypoglycaemic attacks. This problem has been particularly prevalent

at night lately.

Owing to these problems it appears to me that he fulfils the

necessary criteria for the "high rate" care component of disabled

living allowance.

If you wish to have any further information, please don't hesitate

to contact me. I am sure you will consider Mr F... 's appeal in the

light of what I think must be extra information provided by me

about his situation.

W… H… MD FRCP FRCPI FRCP(G)

CONSULTANT PHYSICIAN"

12. The legislation relating to the mobility component of disability living allowance provides that a person shall be entitled to the higher rate of the mobility component if they are unable or virtually unable to walk (Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 73(1)(a)). Regulations further provide that in determining whether a person is virtually unable to walk, consideration must be given to the distance, speed, time and manner of walking, and, only walking which can be achieved without severe discomfort can be taken into account. (The Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, regulation 12(1)). There is no doubt that the claimant is not unable to walk but he has difficulties with walking. Therefore the question to be decided in relation to the mobility component at the higher rate is whether he can be regarded either as virtually unable to walk.
13. Mr McVeigh submitted that all the objective evidence pointed to a high degree of immobility. Mr Shaw agreed with this assessment. Many of the findings of the Tribunal confirm this. However, the conclusion that the Tribunal came to, namely that it believed that the claimant could walk a reasonable distance in reasonable time, speed and manner without severe disablement from 30 March 1996 seems to be inconsistent with much of the rest of the evidence, which suggests that he is virtually unable to walk.
14. It is clear from the medical reports that the claimant's condition is not likely to improve. It was urged upon me by Mr McVeigh and Mr Shaw to take that into account when coming to a decision in this case.
15. For the reasons stated I conclude that the decision of the Tribunal was erroneous in point of law in that it came to a conclusion inconsistent with the evidence. Both Mr McVeigh and Mr Shaw submitted that this was an appropriate case for me to give the decision which I consider the Tribunal should have given. In the circumstances I consider that it is appropriate so to do as, on the present state of the evidence, a Tribunal would be obliged to come to the conclusion that the claimant is entitled to high rate mobility component of the disability living allowance from and including 16 February 1995 for life. Accordingly I exercise the power to set aside the decision of the Tribunal on the

mobility component and give the decision that the claimant is entitled to the allowance set out in the previous sentence. This conclusion does not affect the decision of the Tribunal in relation to the care component.

(Signed): J A H Martin

CHIEF COMMISSIONER

12 December 1997