Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C58/97(DLA) (15 February 1999)

 


C58/97(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT (NORTHERN IRELAND) 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT (NORTHERN IRELAND) 1992 DISABILITY LIVING ALLOWANCE Appeal to the Social Security Commissioner on a question of law from the decision of Belfast Disability Appeal Tribunal dated 25 April 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Tribunal which held that the claimant is not entitled either to the care component or the mobility component of Disability Living Allowance from and including 10 November 1994.
2. On 10 November 1994 the claimant made a claim for Disability Living Allowance stating that she suffered from fibromyalgia. On 1 December 1994 an Adjudication Officer disallowed this claim from and including 10 November 1994. After a request for review was received on 14 December 1994, the claimant was examined by an Examining Medical Practitioner on 31 January 1995. On 22 February 1995 a different Adjudication Officer reviewed the decision of 1 December 1994 and revised it so as to award the lowest rate care component from and including 10 November 1994. A further claim for Disability Living Allowance was received on 25 January 1996. On 1 April 1996 the Adjudication Officer reviewed the decision of 22 February 1995 but did not revise it. Another request for review was received on 22 April 1996. On 9 July 1996 a different Adjudication Officer reviewed the decision of 1 April 1996 but did not revise it. On 15 October 1996 the claimant appealed to an Appeal Tribunal.
3. The Tribunal came to the following findings of fact material to its decision in relation to the mobility component:-

"The Adjudication Officer decision of 9 July 1996 is wrong in law.

The Adjudication Officer on that occasion should have addressed

whether the Adjudication Officer on 1.4.96 had grounds to review.

The Adjudication Officer on 1.4.96 should have reviewed the

previous decision on grounds of error of law in that, a review

on 22.2.95, no one acting judicially and on the evidence

available could have come to the decision to make an award of

lowest rate care.

We have considerable medical evidence in this case. While this

indicates some degree of osteoarthritis and generalised muscular

rheumatism it does not support the degree of disability claimed.

We note rheumatologist describes her condition as psychosomatic.

We find she can walk a reasonable distance in reasonable time and

manner.

This is confirmed in General Practitioner's factual report.

Her husband today talks of 40/50 yards as her limit but even on this

basis she couldn't be considered virtually unable to walk.

She is mentally competent and aware of common dangers and we

find no reason why she would require supervision or guidance

while walking out of doors in unfamiliar surroundings."

The Tribunal gave the following reasons for its decision in relation to the mobility component:-

"The evidence taken as a whole does not support award of low rate

care. The Adjudication Officer erred in law on 27.2.95 in making

award on review.

The Tribunal is therefore considering the disability question from

and including 10.11.94.

We reject the direct evidence. It describes a most severe level of

disability which is not supported by her or General Practitioner on

the weight of medical evidence.

Decision CDLA 758/94 applied.

The overall weight of evidence indicates satisfactory walking ability.

She is not unable to walk or virtually unable to walk and does not require supervision or guidance while walking out of doors most of the time.

We place particular reliance on high quality observation evidence of

Dr T..."

The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

"This appeal is disallowed.

From and including 10.11.94 S... E... is not entitled to Disability

Living Allowance mobility component."

4. The Tribunal found the following findings of fact material to its decision in relation to the care component:-

"The Adjudication Officer decision of 9 July 1996 is wrong in law.

The Adjudication Officer on that occasion should have addressed

whether the Adjudication Officer on 1.4.96 had grounds to review.

The Adjudication Officer on 1.4.96 should have reviewed the

previous decision on grounds of error of law in that, a review

on 22.2.95, no one acting judicially and on the evidence

available could have come to the decision to make an award of

lowest rate care.

We have considerable medical evidence in this case. While this

indicates some degree of osteoarthritis and generalised muscular

rheumatism it does not support the degree of disability claimed.

We note rheumatologist describes her condition as psychosomatic."

The Tribunal gave the following reasons for its decision in relation to the care component:-

"The evidence taken as a whole does not support award of low rate

care. The Adjudication Officer erred in law on 27.2.95 in making

award on review.

The Tribunal is therefore considering the disability question from

and including 10.11.94.

We reject the direct evidence. It describes a most severe level of

disability which is not supported by her or General Practitioner on

the weight of medical evidence."

The unanimous decision of the Tribunal in relation to the care component was as follows:-

"This appeal is disallowed.

From and including 10.11.94 S... E... is not entitled to

Disability Living Allowance care component at any rate."

5. It is noted that there is considerable duplication in the findings of fact and the reasons for the Tribunal's decision in relation to both components.
6. Therefore the outcome of the claimant's appeal is that she ended up with neither mobility nor care component although prior to the appeal she had been successful in obtaining the lowest rate of the care component. It is noteworthy that the Adjudication Officer's written submission was to the effect that the claimant was entitled to the lowest rate care component, while the Presenting Officer at the hearing submitted that the claimant was not entitled to any such award.
7. The claimant set out the following grounds in the Application for Leave to Appeal:-

"1. Inadequate findings of fact and reasons for decision.

The Tribunal found that I could walk a reasonable distance in a

reasonable time and manner. I believe that this statement is vague

and is not supported by evidence.

2. There has been a breach of the rules of natural justice.

The tribunal referred to and applied a commissioners decision

(CDLA 758/94) in their reasons for decision. This decision was not

referred to throughout the hearing nor was it part of the adjudication

officers submission. My representative and I had no opportunity to

view or comment on this decision."

8. A different Chairman to the Chairman who presided at the original appeal granted leave to appeal on 2 October 1997 and specifically stated that leave was granted in order that the Commissioner can rule on the points raised by Mr H M… [the representative of the claimant] especially point 2.
9. By letter dated 13 February 1998 Mr Shaw, the Adjudication Officer then concerned with this appeal, made various submissions and in particular made the following points:-

(i) The Tribunal in finding that the claimant "can walk a reasonable distance in reasonable time and manner" had failed to make specific findings on the four factors set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992;

(ii) The reference to CDLA/758/94 is in all the circumstances a typing error for decision CDLA/757/94 which was specifically raised at the hearing by the presenting Adjudication Officer.

Over and above these comments on the claimant's grounds of appeal Mr Shaw also made additional points including the following:-

(iii) There may be procedural unfairness in that the claimant does not seem to have been given reasonable notice that she would have to defend the challenge to her existing award of lowest rate care component as well as presenting a case that she was entitled to mobility component.

10. In the circumstances it seems appropriate to quote Mr Shaw's observations on this issue in full:-

"The question before the tribunal was whether there were grounds

to review the award of the lower rate care component in respect

of the main meal test made by the adjudication officer on 22

February 1995 (that decision had effectively replaced the first

adjudication officer's decision on the claim, which lapsed

following any ground review. See CA/108/87). The relevant

application for review was the claim dated 25 January 1996 which

fell to be treated as an application for review by virtue of

s28(12) of the Social Security Administration (NI) Act 1992.

Mrs E...'s purpose in completing another claim document was to

try to obtain a higher rate of benefit. The outcome has been the

withdrawal of the original award. The background to this is that

the adjudication officer who decided the review decision on

9 July 1996 (the decision under appeal) was satisfied that the

original award of the lower rate care component in respect of the

main meal test was correctly awarded. The submission to the

tribunal accepted there was entitlement to the care component at

this rate. At the tribunal hearing, however, the presenting

officer submitted that the award of the lowest rate of the care

component was erroneous in point of law. The position was,

therefore, that while the claimant and her representative were

seeking a ground of review which would enable the award to be

revised upwards, and they had reason to believe that the

adjudication officer would not be challenging the existing award,

at the hearing they were unexpectedly faced with the task of

defending this award. The Commissioner may wish to consider

whether there was a procedural unfairness here; I submit that the

claimant was entitled to reasonable notice to prepare argument on

the points raised by the presenting officer. The onus of proof

was of course on the presenting officer to show that the original

award was erroneous. The evidence before the adjudication officer

on 22 February 1995 included the following:-

self assessment page 16- My condition makes it impossible

to stand and cook a meal.

statement to the Examining Medical Practitioner(EMP)- My

hands may be painful and need some help cooking at times;

EMP's report page 15- re peeling/chop vegetables- help 50%

hands painful;

re coping with hot pans- hands painful tendency to drop

things;

I submit that, based on this evidence, the adjudication officer's

award was not perverse, and the tribunal erred in law in finding

that it was erroneous."

11. Mr Barry McVeigh of the Northern Ireland Association of Citizens Advice Bureaux, who appeared for the claimant, in written observations dated 31 March 1998, stated, inter alia, that:-

(i) he accepted that the reference to decision number CDLA/758/94 was a transcription or typing error; and

(ii) that the record of proceedings would suggest that the Tribunal Chairman commenced the hearing by cautioning the claimant to the effect that jurisdiction of the Tribunal included possible reconsideration of the existing low rate care award, and that this leads to the view that the decision of the Tribunal was made before any evidence had been taken from the claimant.

12. The reference by Mr McVeigh to this caution is a reference to the following portion of the record of proceedings:-

"Chairman cautioned claimant that jurisdiction of Tribunal

included possible reconsideration of existing low rate care

award."

13. I arranged an oral hearing of this appeal at which the claimant, who was not present, was represented by Mr Barry McVeigh and the Adjudication Officer was now represented by Mrs Patricia Swann.
14. At the appeal hearing it became obvious that the most important point in the case was that introduced by Mr Shaw in his written observations; namely, was there procedural unfairness in the claimant not receiving reasonable notice that she had to prepare an argument supporting or defending the original award of lowest rate care component? Both Mr McVeigh and Mrs Swann submitted that the Tribunal was in error in dealing with this issue.
15. It is not clear from the Tribunal's decision why it considered that it had jurisdiction to reconsider the existing award of low rate care component. However the potential jurisdiction of the Tribunal is set out in section 31 of the Social Security Administration (Northern Ireland) Act 1992 and the relevant sub sections state as follows:-

"(4) Where a person who has been awarded a disability living

allowance consisting of one component alleges on an appeal that

he is also entitled to the other component, the tribunal need not

consider the question of his entitlement to the component which

he has already been awarded or the rate of that component.

(5) Where a person who has been awarded a disability living

allowance consisting of both components alleges on an appeal that

he is entitled to one component at a rate higher than that at

which it has been awarded, the tribunal need not consider the

question of his entitlement to the other component or the rate of

that component.

(6) The tribunal shall not consider -

(a) a person's entitlement to a component which has

been awarded for life;

(b) the rate of a component so awarded; or

(c) the period for which a component has been so

awarded,

unless -

(i) the appeal expressly raises that question; or

(ii) information is available to the tribunal which

gives it reasonable grounds for believing that

entitlement to the component, or entitlement to it

at the rate awarded or for that period, ought not

to continue."

16. Mrs Commissioner Brown in decision number C12/98(DLA) has recently dealt with the meaning of section 31(6) and I consider that is helpful to quote a portion of that decision at this stage:-

"7. It is quite clear that section 31(6)(i) is designed as

protective of claimants. It is also quite apparent that

section 31(6)(ii) is designed as protective of the public

purse. The section is not felicitously drafted and

section 31(6)(i) is open to two possible constructions, I

set them out below with my comments -

(1) That it protects a component until that component

is put in issue on appeal.

Comment

If that construction is adopted in this case the

Tribunal undoubtedly had jurisdiction and this has

been the accepted construction in the past. I do

not consider, however, that it is the correct

construction. It appears to me that if the

legislature had wished to say that once a component

was put in issue by an appeal the adjudicating

authority had full power to consider this component

it could have said so. The fact that it did not do

so is in my view significant.

(2) A second possible construction is that section

31(6)(i) protects the existing award of a component

until one of the three elements of the award is

raised (in this case the rate) and then only that

element can be considered but not the entitlement

to or the length of time of the award.

Comment

In effect this would mean that an award of low rate

care component was always protected but awards of

middle or high rate care were not necessarily so.

As regards the mobility component a somewhat absurd

situation could be created. The qualification for

the low rate of the mobility component is that a

claimant is "able to walk but is so severely

disabled physically or mentally that, disregarding

any ability he may have to use routes which are

familiar to him on his own, he cannot take

advantage of the faculty out of doors without

guidance or supervision from another person most of

the time". The qualification for the high rate of

the mobility component is that a person is either

unable to walk or virtually unable to do so . This

is further refined by Regulations but it can be

seen that there are circumstances where the mere

seeking of the high rate of the mobility component

could throw the entitlement to the low rate of that

component into question.

8. I can see no reason why the legislature should have wished

to protect persons in receipt of the low rate of the care

component who appealed and not to protect persons in

receipt of the middle rate of that component who appealed

for higher rate. Endeavouring therefore to give a

sensible meaning to the sub-section I think that it must

be construed to read that the entitlement, rate and period

for which a component has already been awarded are

protected unless the appeal expressly raises an issue in

relation to one or more of these. In short it means that

the rate of an existing award can only be revised upwards

unless section 31(6)(ii) comes into play. Ms G… had

not expressly raised her entitlement to the care component.

The Tribunal thus had no jurisdiction under section

31(6)(i) to consider if the low rate care award was

correct.

9. With relation to section 31(6)(ii) I would wish to refer to

a decision CDLA/13008/96 of Great Britain Commissioner

Powell. That decision refers to section 33(6), the Great

Britain equivalent of section 31(6). I approve this

excellently reasoned decision and in particular would

mention paragraph 18(18) to (24) and paragraph 19 which

state:-

"18. ....

(18) The second tribunal was, however,

prohibited from considering the lifetime

award of the care component by section 33(6)

unless one of the tests set out in that

section were satisfied. I accept Mr

Norman's submission that the claimant's

appeal did not expressly raise a question

relating to that component. That being so,

what is meant by the words "information is

available to the tribunal which gives it

reasonable grounds for believing that

entitlement ... ought not to continue"?

(19) I accept that a disability appeal

tribunal can only proceed if the necessary

information is before it at the time it

considers whether the prohibition in section

33(6) is overridden. The disability appeal

tribunal cannot, at that stage, direct

enquiries or the gathering of further

information to enable it to decide whether

to go further. The members must make a

decision on the information then available

to them.

(20) However, thereafter I part company

with Mr Norman's analysis of section 33(6).

I accept Mr Heath's submission that the

words "reasonable grounds for believing"

are merely the key which enables a disability

appeal tribunal to proceed further and look

at the facts in detail. I further accept

his submission that the test is a low one.

At this stage, the tribunal is not making a

decision that entitlement should or should

not continue. That comes later. They are

merely looking to see whether there are

reasonable grounds for believing that it

ought not to continue. If the members do so

consider, then they can proceed to look at

the facts in detail, make whatever findings

may be necessary and reach a decision.

In my judgement, at this preliminary stage

the test is not a high one and a decision to

proceed will not be made in error of law

unless it is one that no reasonable tribunal,

properly directing themselves, could have

come to. Parliament meant what it said.

All that is required are reasonable grounds

for belief.

(21) In the present case, the second

tribunal clearly had such grounds. Quite

apart from anything else, the report of

Doctor Paul N…, referred to below and

which was adduced on behalf of the

claimant, commented that the claimant's

daily care needs were not sufficiently

frequent to qualify him for the care

component.

(22) Further, having passed the section

33(6) test, the second tribunal did not have

to find an independent ground of review

within section 32(2). Although the

adjudication officer had not considered the

care component, what the second tribunal had

before them was a single decision or award

under which the claimant was entitled to the

care component but, after 22nd January 1994,

was not entitled to the mobility component.

An award which resulted from an application

which was required to be treated as an

application for review. The whole of that

decision was before the second tribunal and

not just part of it. However, section 33(6)

prohibited the members from (sic) considering

the lifetime award of the care component

unless the test in section 33(6) was

satisfied. Since this was so, there was

nothing further which prevented them from

doing so.

(23) I consider that the above conclusions

are in accordance with paragraph 4 of

decision R(DLA)1/95 and paragraph 6 of

R(A)2/90, which is an attendance allowance

case. See also paragraphs 5 to 8 of

decision CSDLA/180/94 (starred as 28/95) to

which Mr Heath referred me.

(24) A tribunal must, of course, act fairly

and judicially. If the members are minded to

consider the unappealed component, they must

indicate this at an early a stage in the

hearing. They should also identify the

information which leads them to believe that

entitlement ought to continue. However, they

need only do so briefly at the preliminary

stage. When, later, they come to consider

the matter in detail they will either decide

that entitlement should continue or that it

should not. In the latter event, they must

give adequate reasons explaining why they

have reached that decision. If the appeal

tribunal does decide that there are

reasonable grounds for believing that

entitlement to the unappealed component

ought not to continue (sic), it should

proceed to consider the matter in detail

and come to a decision - one way or the

other. In my judgement there are no other

bars preventing them from doing so.

19. The above analysis appears to me to accord

with reality. Disability Living Allowance is, in

the first instance, based on self-assessment. The

claimant fills in a questionnaire and the

adjudication officer makes a decision on the basis

of the answers he or she has given. In most cases

the members of the appeal tribunal will have before

them more material than was available to the

adjudication officer and will also have the

advantage of seeing and hearing the claimant. In

many cases they will have vastly more information

than was available to the adjudication officer.

For example, hospital records or detailed medical

reports prepared by consultants for use by the

tribunal."

10. In this case I am not clear on what basis the Tribunal

proceeded to consider the existing award. If the Tribunal

was looking at same under section 31(6)(ii) it has not

identified the information which led it to believe that

entitlement ought not to continue and this is an error of

law. Mrs Moffett referred me to A84/96(DLA) in which the

NI Chief Commissioner referred to paragraph 15 of

CSDLA/251/94 requiring the Tribunal to "set out sufficient

factual foundation to demonstrate that they are entitled

to consider entitlement because the case fell within the

statutory exception relied upon by them". I agree that

the Tribunal should do so. The factual foundation is,

however, only that which is necessary to show "reasonable

grounds" for believing that an award of a component should

be altered or stopped. Once that foundation is shown, and,

as mentioned above the standard of "reasonable grounds" is

not a high one, the Tribunal's jurisdiction under section

31(6)(ii) is established. It can then proceed to consider

the claimant's entitlement to the component and the rate

and period of the award of the relevant component but must

as the Chief Commissioner stated (paragraph 7), make its

own findings of fact on these matters. There is a two

stage process - (1) to indicate the information giving

grounds to consider the component under section 31(6)(ii)

and (2) once jurisdiction under section 31(6)(ii) is

established, to decide on entitlement, and if entitled,

rate and period of that component.

It is also important that the rules of natural justice be

borne in mind throughout. How these are to be applied is

obviously particular to each case but it is desirable that

a claimant is not taken by surprise by the Tribunal's

consideration of a component under section 31(6)(ii).

Where, therefore, consideration under section 31(6)(ii)

appears likely, I can see no error (rather the reverse) in

a Chairman warning a claimant at the outset that this

consideration may or will take place and indicating why and

seeking comment. Adjournment may have to be considered

but it is not desirable or correct to be prescriptive on

that matter."

17. As in C12/98(DLA) I do not consider that the claimant in the present case has expressly raised her entitlement to the care component and, in my view, the Tribunal's decision is consistent with this conclusion. Therefore it seems to me that the Tribunal has no jurisdiction under section 31(6)(i) to consider if the low rate care award was correct. Therefore the rate of the existing award of low rate care component can only be revised upwards unless section 31(6)(ii) comes into play.
18. The question then arises whether the Tribunal has dealt appropriately with section 31(6)(ii). As Mrs Commissioner Brown has stated in C12/98(DLA) it is important that the rules of natural justice are borne in mind throughout. In this case it seems to me that the claimant was taken by surprise by the Tribunal's consideration of the care component, presumably relying implicitly on its powers set out in section 31(6)(ii).
19. In the present case the claimant and her representative was not aware that the presenting officer intended to ask the Tribunal to reconsider the lowest rate care component award until the oral hearing before the Tribunal. The approach taken by the Adjudication Officer who presented the written documents for the appeal appears to have been different to the approach taken by the presenting officer. There was certainly, in my view, no error in the Chairman presiding warning the claimant at the outset that consideration of the existing award under section 31(6)(ii) might take place. However it seems to me appropriate and necessary to indicate why, and under what statutory power, the Tribunal is considering this issue and also, in my view, it is necessary for a Chairman to specifically seek the comments of the claimant or any representative. This is an obvious situation where an adjournment would have to be considered, although, depending on the attitude of the claimant and the representative an adjournment need not be necessary in every case. My conclusion is that a Tribunal in such circumstances must take reasonable steps to ensure that a claimant is not taken by surprise by its consideration of a particular component and also has a reasonable opportunity to prepare and make a case in relation to that component for the Tribunal. This is a similar conclusion to the conclusion of Mrs Commissioner Brown in decision number C70/97(DLA), set out at paragraph 30.
20. In the circumstances I accept Mr McVeigh's and Mrs Swann's submissions that the Tribunal erred in law in this particular case by not adhering to the rules of natural justice in ensuring that the claimant was in a position to deal with what was in fact a reconsideration of an award of low rate care component. Accordingly I find that the Tribunal has erred in point of law.
21. I now return to the first ground of appeal, namely the claimant's submission that, in relation to the mobility component, there were inadequate findings of fact and reasons for decision in that the Tribunal's finding that the claimant could walk a reasonable distance in a reasonable time and manner was vague and not supported by the evidence. This submission, to some extent, has been supported by both Mr Shaw and Mrs Swann.
22. It is correct that the specific findings of the Tribunal are far from being ideal. However, on close examination, it seems to me that it is implicit in the Tribunal's findings of fact that the Tribunal was finding that the claimant could walk at least 40 to 50 yards. This distance must be seen in the context of the General Practitioner's factual report which stated that she could walk 500 yards approximately, the estimate of the examining medical practitioner that the claimant could walk a total of 200 yards, and the estimate of Dr T…, Consultant Rheumatologist, that she could walk approximately 50 yards before resting. While it would have been preferable for the Tribunal to have made specific findings on the four factors set out in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1991, it seems to me that in this particular case the Tribunal was entitled, in light of the evidence, to have concluded, implicitly, that the claimant could never be considered to be a person who was virtually unable to walk, even if the evidence in her favour at its height was accepted. Accordingly I do not find that the Tribunal has erred in law in this respect.
23. The second ground of appeal put forward by the claimant, namely that there had been a breach of the rules of natural justice in that the Tribunal applied decision number CDLA/758/94 without giving the claimant or her representative an opportunity to comment on it, was not proceeded with before me. This was a very proper concession made by Mr McVeigh as clearly the reference to that decision was a typographical error.
24. My decision therefore is that the decision of the Appeal Tribunal is erroneous in point of law. Accordingly I set it aside and remit the case to a freshly constituted Disability Appeal Tribunal for a rehearing. As the appeal is related only to the mobility component and the claimant was in effect an award from an Adjudication Officer of the care component at the lowest rate for life, the freshly constituted Tribunal will be required to apply the statutory prohibition on considering the care component unless either of the two exceptions set out in section 31(6) of the Social Security Administration (Northern Ireland) Act 1992 applies.

(Signed): J A H Martin

CHIEF COMMISSIONER

15 February 1999