Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C60/97(DLA) (11 November 1998)

 


Decision No: C60/97(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 Armagh Disability Appeal Tribunal dated 30 July 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal given on 30 July 1997 to the effect that (1) the claimant is not entitled to either of the rates of the mobility component of Disability Living Allowance from and including 14 November 1996, and (2) the claimant is entitled to the low rate care component of Disability Living Allowance from 14 November 1996 to 13 November 1999. Leave to appeal was granted to the claimant by the Chairman of the Tribunal on 3 October 1997. The Chairman also purported to grant leave to appeal to the Adjudication Officer some time later on the same day. It was agreed by the parties that the claimant would be treated as the appellant in this case, although the Adjudication Officer is entitled to bring all points before a Commissioner that would have been brought if the Adjudication Officer was the appellant.
2. The claimant originally made a claim for Disability Living Allowance on 22 February 1996, stating in particular that she suffered from arthritis and sciatica. After medical reports were completed by the claimant's General Practitioner, an Adjudication Officer on 10 May 1996 awarded the claimant the higher rate mobility component of Disability Living Allowance from and including 22 February 1996. The claimant requested a review on 14 November 1996, and, after further self-assessment forms were received and after an examination by an Examining Medical Practitioner, an Adjudication Officer on 27 January 1997, having established that there were grounds to review the decision of 10 May 1996, decided that he was unable to revise the decision so as to award the care component. A further request for review was received on 19 February 1997 and, after the completion of a further report by the claimant's General Practitioner, a different Adjudication Officer on 21 April 1997 reviewed the decision of 27 January 1997 but did not revise it. The claimant then appealed to a Disability Appeal Tribunal in an attempt to establish that she was entitled to the care component.
3. On appeal the unanimous decision of the Tribunal in relation to the care component was as follows:-

"Appeal allowed. We are satisfied that there are grounds to review

the decision dated 10 May 1996 and we have reviewed it to award the

lowest rate of the care component from 14 November 1996 (date of

request for review) to 13 November 1999. We are satisfied that the

conditions for this award existed at least 3 months prior to

14 November 1996."

The Tribunal made the following findings of fact material to its decision:-

"a. Both claimant and the Adjudication Officer are in agreement

that there are grounds to review the decision dated 10 May

1996 in which claimant was awarded the higher rate of mobility

but disallowed any rate of care. We accept claimant's evidence

that her condition has deteriorated as giving a ground for

review.

b. We accept the report of the Examining Medical Practitioner

dated 16 December 1996 as being a correct assessment of her

disabilities at that time and we adopt the report as part of

these findings. Having carefully studied her General

Practitioner record we find evidence of a deterioration in

her condition between the date of her original application

(22 February 1996) and the present time in that she was sent

for a course of physiotherapy but she did not complete the

course. We can find no other significant evidence of a

deterioration and find that her deterioration has not been

sufficient to invalidate the findings of the Examining

Medical Practitioner which are applicable from 22 February

1996 to the present.

c. We find that the opinions of the Examining Medical Practitioner

regarding claimant's care needs as set out in Part 7 of the

report are, very marginally, sufficient to bring her within the

criteria for the lowest rate of the care component but, as it is

clear from her records that her condition has not been fully

investigated we limit the extent of the award to a total of

3 years."

The Tribunal gave the following reasons for its decision:-

"a. The Examining Medical Practitioner report seems to us to be a

document which has been thoughtfully prepared following a

thorough examination. On claimant's own evidence the

Examining Medical Practitioner was with her for two hours and

during that time he had a full opportunity to carry out a

clinical examination and observe her in her own home. A

change in claimant's condition to a degree which would have

changed the Examining Medical Practitioner's conclusions

significantly would certainly have left some clear traces

in her medical records but we have been unable to find any.

b. Having accepted the Examining Medical Practitioner report as

being accurate over all relevant times we have decided that

it just, and only just, covers the lowest rate of care but

certainly it does not indicate any care or supervision needs

to satisfy any of the care or supervision conditions for

either of the higher rates.

c. Claimant has never seen a consultant with regard to her sciatica

and osteoarthritis and it may be that more can be done for her

so we are limiting the extent of the award to a total of 3 years."

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

"Appeal disallowed. We are satisfied that we have grounds to

review the decision dated 10 May 1996 and we have reviewed it and

revised it to May 1996 and we have reviewed it and revised it to

disallow claimant either of the rates of the mobility component

of Disability Living Allowance from and including 14 November 1996

(the date of the request for the review)."

The Tribunal made the following findings of fact material to its decision:-

"a. Both claimant and the Adjudication Officer are in agreement that

there are grounds to review the decision dated 10 May 1996 in

which claimant was awarded the higher rate of mobility but

disallowed any rate of care. We accept claimant's evidence

that her condition has deteriorated as giving a ground for

review.

b. We accept the report of the Examining Medical Practitioner

dated 16 December 1996 as being a correct assessment of her

disabilities at that time and we adopt the report as part of

these findings. Having carefully studied her General

Practitioner record we find evidence of a deterioration in

her condition between the date of her original application

(22 February 1996) and the present time in that she was sent

for a course of physiotherapy but she did not complete the

course. We can find no other significant evidence of a

deterioration and find that her deterioration has not been

sufficient to invalidate the findings of the Examining

Medical Practitioner which are applicable from 22 February

1996 to the present.

c. We find that the degree of walking ability without severe

discomfort which the Examining Medical Practitioner has stated

as his opinion in Part 5 of his report is such that claimant

is not unable to walk or virtually unable to walk and we

further find that she does not require guidance or supervision

whilst walking out of doors most of the time. Mr Carson has

argued that the exertion required to walk could cause a

deterioration in her health but we can find no medical

evidence to support this and find that it would not do so."

(It is noted that sub-paragraphs (a) and (b) are identical to the equivalent paragraphs in relation to the care component).

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

"a. The Examining Medical Practitioner report seems to us to be a

document which has been thoughtfully prepared following a

thorough examination. On claimant's own evidence the

Examining Medical Practitioner was with her for two hours

and during that time he had a full opportunity to carry out

a clinical examination and observe her in her own home.

A change in claimant's condition to a degree which would

have changed the Examining Medical Practitioner's conclusions

significantly would certainly have left some clear traces in

her medical record but we have been unable to find any.

b. Having decided that the Examining Medical Practitioner report

is accurate as to claimant's condition at all relevant times

we have decided that we must look at the award in respect

of the mobility component.

c. In our opinion a person who can walk 40 yards in 80 seconds

in a reasonable manner cannot be said to be virtually unable

to walk and in an answer which she gave to the Examining

Medical Practitioner claimant indicated that she could walk

for 6 minutes (although with different distance) which seems

to us to be a reasonable time of walking ability. Therefore

having regard to the guidance given in Commissioner's decision

A97/95DLA which approves (indirectly) a finding that 40 yards

did not meet the criteria we have decided to disallow the

award made by the Adjudication Officer as not being justified

by the evidence."

(It is noted that sub-paragraph (a) is identical to the equivalent paragraph in relation to the care component).

5. The net effect of the Tribunal's decision is that, whilst she succeeded in obtaining the lowest rate of the care component on appeal, she lost entirely her right to the higher rate mobility component. This was in spite of the fact that the Adjudication Officer in his written submission had specifically stated to the Tribunal that, as the appeal did not expressly raise the question of entitlement to, or the rate or period of the mobility component award, the Tribunal should not consider that award; although the Adjudication Officer also did point out that this would not be the case should information become available to the Tribunal which would give it reasonable grounds for believing that entitlement to, or the rate or period of the award of the mobility component ought not to continue. However it is entirely clear that the Presenting Officer before the Tribunal never submitted that the mobility component was in issue before the Tribunal.
6. The grounds on which the claimant sought leave to appeal to a Commissioner were as follows:-

"The Chairman did not advise me that I could ask for an adjournment

and write to the Adjudication Officer stating I was happy

and satisfied with the mobility component in which case mine would

not have been a grounds case. The Chairman went to great pains to

advise me of the Social Security law in relation to my claim for

review. He did not advise me of the alternative approach I might

take. I believe this Tribunal's behaviour breached the rules of

natural justice."

The Chairman granted leave to the claimant on these grounds.

7. As stated in paragraph 1 of this decision the Adjudication Officer purportedly was also granted leave to appeal. The grounds on which Mr Shaw, on behalf of the Adjudication Officer, submitted that the Tribunal had erred in law were as follows:-

"Mobility component

1. The tribunal erred in point of law by deciding to consider the

award of the mobility component for life made by the adjudication

officer on 10 May 1996. This award could only be considered by the

tribunal if information was available to the tribunal giving it

reasonable grounds for believing that entitlement to that component,

or the higher rate of that component, ought not to continue.

2. If the tribunal did have reasonable grounds for believing that

entitlement to the mobility component at the higher rate for life

ought not to continue the tribunal erred in law because the chairman

failed to record relevant findings in relation to the decision to

consider the mobility component. In C21/96(DLA) it was held that

the onus is on the tribunal, it has a heavy duty to discharge and

can only do so by setting out in precise terms the evidence on

which it based its opinion.

3. The tribunal erred in law in their reliance on decision

A97/95(DLA). That decision of the Northern Ireland Chief

Commissioner approves of the Great Britain decision CM/379/89.

In each case the Commissioner refused to disturb disallowances

by tribunals. In CM/379/89 the Commissioner also points out that

the decision to make an award is basically one for the adjudicating

authority. The tribunal appear to have regarded this decision as

authority for the proposition that the adjudication officer's

award was wrong.

Mobility component - ground for review

4. The tribunal erred in law by failing to identify a ground on

which the award of the mobility component at the higher rate made

by the adjudication officer on 10 May 1996 was reviewed.

Alternatively, if the tribunal found that one of the grounds in

S28(2) of the Social Security Administration (NI) Act 1992 was

satisfied, the tribunal erred in law because the chairman failed

to record findings as to which ground was satisfied together with

the reasons for its finding.

Care component

5. The tribunal erred by failing to make proper findings as to the

date of deterioration. Alternatively, the tribunal erred because

the tribunal chairman failed to record the relevant findings and the

associated reasons.

6. The tribunal erred in failing to make findings in relation to the

conditions in S72(1)(b)(ii) of the Social Security Contributions

and Benefits (NI) Act 1992 (continual supervision throughout the

day in order to avoid substantial danger to himself or others)

in relation to the risk of falling; or alternatively because the

chairman failed to record findings and associated reasons in

relation to S72(1)(b)(ii) and the risk of falling.

7. The tribunal erred because the chairman failed to record findings

in relation to the lowest rate of the care component (S72(1)(a)).

The parties are left not knowing whether the tribunal awarded

entitlement to this component by virtue of both of the conditions

in S72(1)(a) or only one of those conditions, and if so, which

one is considered to be satisfied.

8. The tribunal erred in failing to make findings in relation to

night requirements (S72(1)(c)). There was evidence of such

requirements in part 7 (page 18) of the report by the Examining

Medical Practitioner which was adopted by the tribunal as part

of their findings.

9. The tribunal made a decision based on irrelevant evidence in

deciding not to treat the claim as made for an indefinite period

and make an award for an indefinite period. Regulation 17(6) of

the Social Security (Claims and Payments) (NI) Regulations 1987

refers. The Examining Medical Practitioner's report, which was

adopted as the findings of the tribunal, shows that the award is

based on conditions which are either chronic or progressive. The

outcome of future investigations is an unknown quantity and can

only be relevant if and when a change in care or mobility

requirements result."

In the circumstances I consider it appropriate to treat these observations if they were proper grounds of appeal before me in the present case.

8. I directed an oral hearing at which the claimant was represented by Mr M L Carson of UNISON and the Adjudication Officer was represented by Mr G L Shaw.
9. Mr Carson submitted that it was particularly inappropriate for the Tribunal to remove the award of mobility component in circumstances where the Adjudication Officer was not alleging that such an award was in issue. Furthermore he submitted that the claimant was satisfied with the Adjudication Officer's award in relation to mobility component and had not wished to put it in issue before the Appeal Tribunal. Otherwise he relied on the submissions put forward by Mr Shaw set out at paragraph 7.
10. Mr Shaw expanded on his written submissions and in particular emphasised paragraph 4 of those submissions. Mr Shaw submitted that, as the Adjudication Officer had no reason to review the decision of the Adjudication Officer in relation to the mobility component, the Tribunal also was not permitted to consider the mobility component. Relying on the provisions of section 28(2) of the Social Security Administration (Northern Ireland) Act 1992 Mr Shaw submitted that the Adjudication Officer only purported to review the decision in relation to the care component and did not review the decision in relation to the mobility component as there was no reason so to do. Accordingly, if the Adjudication Officer was not justified in considering the mobility component, Mr Shaw submitted that the Appeal Tribunal should not have considered it either.
11. However, it seems to me, as the care component and the mobility component are part of the same benefit, that an Adjudication Officer in appropriate circumstances would have grounds to reconsider both components of Disability Living Allowance. It must be remembered that Parliament has given specific protection to claimants, whose claims are being reviewed under section 28, by the provisions of section 30(4) which restrict the Adjudication Officer considering an award of a certain component unless certain conditions are fulfilled. Accordingly I conclude that the Tribunal did not err in law by failing to identify a ground on which the award of the mobility component at the higher rate made by the Adjudication Officer on 10 May 1996 was reviewed. It seems to me that the Adjudication Officer had jurisdiction in appropriate circumstances to review both components. As such the Tribunal on appeal potentially also has such a jurisdiction.
12. However, as Mr Shaw pointed out at paragraph 1 of his legal submissions and in his oral argument, the Tribunal is still bound by the provisions of section 31(6) of the Act, which states:-

"(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."

13. It is difficult to be certain what the meaning of Section 31(6)(i) is (whether "the appeal expressly raises that question") but in this case it would seem that the only potential relevance of the sub-section is connected with Section 31(6)(ii) (whether "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").
14. Mr Commissioner McNally in C21/96(DLA) at paragraph 13, has set out the proper approach to be taken by a Tribunal in circumstances such as the present:-

"It is clear that there is a statutory prohibition on a Tribunal

considering a person's entitlement to a component which has been

awarded for life, unless information is available to the Tribunal

which gives it reasonable grounds to believe that entitlement ought

not to continue. So when a Tribunal takes upon itself to look at a

component which is not the subject of an appeal it also takes upon

itself the heavy responsibility of discharging the onus of proof

that it has reasonable grounds to do so. It is not sufficient for

a Tribunal to say that it had information to raise the issue and as

the Great Britain Commissioner said in CSDLA/251/94

"If the Tribunal are to consider entitlement under the second

statutory exception it would be necessary for them to demonstrate

that they had information available to them giving them reasonable

grounds to believe that that entitlement ought not to continue.

If they took such a view it would be necessary for them to make

findings of fact in respect of the information they were relying

upon in coming to their belief". He then went on to say that in

these circumstances where a Tribunal is considering whether a

claimant is virtually unable to walk or not, a Tribunal would be

required to demonstrate by recording findings of fact, the

information available to them which gave them reasonable grounds

to believe that entitlement to the higher rate ought not to

continue. This would involve recording the basis upon which the

original award was made and setting out the evidence which bears

to demonstrate that the conditions are not satisfied and that

entitlement ought not to continue. ..."

15. The only relevant finding recorded by the Chairman is set out paragraph (c) of the findings of fact material to the decision in relation to the mobility component (set out at paragraph 4 herein) which refers to Part 5 of the Examining Medical Practitioner's report. Part 5 is difficult to read but it clearly states, in relation to walking, that after 20 yards she suffers from severe pain.
16. The Tribunal in this case has failed to demonstrate, by recording findings of fact, the information available to it which gave it reasonable grounds to believe that entitlement to any rate of mobility component ought not to continue. In addition I am far from satisfied that the evidence set out in the Tribunal's decision has shown that the conditions for the award are not satisfied and that entitlement ought not to continue. Accordingly I hold that the Tribunal erred in law in the circumstances.
17. Mr Shaw also submitted that the Tribunal erred in law in its reliance on decision A97/95(DLA). It seems that the Tribunal considered that this decision decided that if a person can walk 40 yards he can never be eligible for an award of mobility component. If this is so the Tribunal in my view was incorrect. The distance is only one factor that the adjudicating authorities have to take into account when assessing whether or not a person is virtually unable to walk (see section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992). Many other factors are relevant, including the level of discomfort, how long it takes discomfort to develop, speed and method of progression and whether or not rests are taken, either sitting down or standing up. In any event I consider that, if the Tribunal had been permitted to reconsider the mobility component, it was incorrect to rely on the decision A97/95(DLA) to support the proposition that it appears to suggest that case decided. Indeed in that case the Chief Commissioner stated specifically as follows:-

"I do not consider that there is anything to suggest that the

Tribunal erred in law in holding that, although the claimant

could only progress 75 yards before the onset of severe

discomfort, he was nevertheless not virtually unable to walk."

As I read this decision it does not suggest that Tribunals should apply any particular distance as a rule of thumb in deciding whether a person is virtually unable to walk or not because of the physical disability.

18. In relation to the care component, Mr Shaw made certain submissions which are set out at paragraph 7 herein. While it is correct to say that Mr Carson was not taking any point about the award of the care component on behalf of the claimant, it seems appropriate for me to deal with the issues that arise. It is important that a Tribunal makes appropriate findings when it decides that a claimant is entitled to any component of Disability Living Allowance. The decision does not make it clear the basis on which this award was made. Section 72(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 states:-

"72.-(1) Subject to the provisions of this Act, a person shall

be entitled to the care component of a disability living

allowance for any period throughout which -

(a) he is so severely disabled physically or mentally

that -

(i) he requires in connection with his bodily

functions attention from another person for a

significant portion of the day (whether during

a single period or a number of periods); or

(ii) he cannot prepare a main meal for himself

if he has the ingredients;

(b) he is so severely disabled physically or mentally

that, by day, he requires from another person -

(i) frequent attention throughout the day in

connection with his bodily functions; or

(ii) continual supervision throughout the day

in order to avoid substantial danger to himself

or others; or

(c) he is so severely disabled physically or mentally

that, at night, -

(i) he requires from another person prolonged or

repeated attention in connection with his bodily

functions; or

(ii) in order to avoid substantial danger to

himself or others he requires another person to

be awake for a prolonged period or at frequent

intervals for the purpose of watching over him."

19. The lowest rate of the care component is paid to a person who satisfies only the condition of Section 72(1)(a), the middle rate is paid to a person who satisfies the conditions of either Section 72(1)(b) or (c) and the highest rate is payable to a person who satisfies the conditions of both Section 72(1)(b) and (c) (see Section 72(4)). By finding that the claimant was only entitled to the lowest rate of the care component, the Tribunal, by implication, has found that the claimant does not satisfy the conditions set out in Section 72(1)(b) and (c) for the middle and highest rate. However, as Mr Shaw pointed out at paragraphs 6 and 8 of his submissions (set out at paragraph 7 herein) the Tribunal failed to deal with issues in the case which might have resulted in the Tribunal at least considering whether the conditions set out in Section 72(1)(b) and (c) might be relevant. In my review the Tribunal was erroneous in law in not dealing with these issues.
20. Section 72(1)(a) sets out two conditions for the award of the lowest rate of the care component. A person can be awarded this rate if one or other or both of these conditions are satisfied. Therefore a person can satisfy the adjudicating authorities that an award of the lowest rate of the care component is appropriate by establishing:

(i) that he requires in connection with his bodily functions attention from another person for a significant portion of the day; or

(ii) that he cannot prepare a cooked main meal for himself if he has the ingredients; or

(iii) both (i) and (ii).

The requirements for (i) and (ii) are entirely different. From the decision it is not known on which basis the claimant succeeded and one can only speculate that the Tribunal was satisfied that the claimant succeeded in her claim on one of the statutory grounds set out in section 72(1). In my view the Tribunal erred in law in not dealing with this issue.

21. Mr Shaw also submitted that the Tribunal was incorrect, in any event, in making an award in relation to the care component for a definite period. Regulation 17(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 states as follows:-

"17.-(1) Subject to the provisions of this regulation and of

section 37ZA(3) of the Act (disability living allowance) and

Article 21(6) and (6F) of the Order (family credit and disability

working allowance), a claim for benefit shall be treated as made

for an indefinite period and any award of benefit on that claim

shall be for an indefinite period."

Therefore the Tribunal was required to treat the claim for care component as a claim for an indefinite period. Regulation 17(6) states as follows:-

"(6) If, it would be inappropriate to treat a claim as made, and

to make an award, for an indefinite period (for example where

a relevant change of circumstances is reasonably to be expected

in the near future) the claim shall be treated as made and the

award shall be for a definite period which is appropriate in

the circumstances."

For the reasons stated by Chief Commissioner Chambers in C8/94(DLA) I hold that the provisions of Regulation 17(1) and (6), which are of general application, apply to awards of Disability Living Allowance, subject to such variations as may be required by section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (formerly section 37ZA of the Social Security (Northern Ireland) Act 1975). The relevant variation in this case, in accordance with section 72(3), is that the awards of Disability Living Allowance are described as being for fixed periods or for life rather than for a definite or indefinite period.

22. Accordingly the Tribunal before making an award for a definite or fixed period is required to find that it is inappropriate to treat the claim as a claim for an indefinite period or for life in the circumstances. As Mr Shaw pointed out, the Examining Medical Practitioner's report, adopted as the findings of the Tribunal, shows that the award of the care component is based on conditions which are either chronic or progressive. In my view it is inappropriate to make an award in such circumstances for a definite or fixed period.
23. In the circumstances I am satisfied that the Tribunal's decision is erroneous in law for the reasons herein. I allow the appeal, set aside the decision of the Tribunal for the reasons given herein and I refer the matter back to a differently constituted Tribunal for a rehearing. This new Tribunal should have regard to what I have said in the course of this decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

11 November 1998