Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C64/97(DLA) (22 October 1998)

 


Decision No: C64/97(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

Belfast Disability Appeal Tribunal

dated 6 May 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 6 May 1997 to the effect that the claimant is not entitled to either the care component or the mobility component of Disability Living Allowance from and including 29 February 1996. Leave to appeal was granted by the Chairman of the Tribunal on 26 September 1997.
2. The claimant originally made a claim for Disability Living Allowance on 29 February 1996 and stated in particular that she suffered from fibromyalgia, low back pain, pain in cervical spine and headaches. A report was completed by Dr W..., the claimant's General Practitioner on 18 April 1996 and on 10 May 1996 the claimant was examined by an Examining Medical Practitioner. On 21 May 1996 an Adjudication Officer disallowed the claim from and including 29 February 1996. On review a different Adjudication Officer on 5 September 1996 reviewed the decision of 21 May 1996 but did not revise it. On 5 December 1996 the claimant appealed to a Disability Appeal Tribunal.
3. In relation to the care component the Tribunal found the following facts material to its decision:-

"Having heard claimant's evidence and considered it in the context

of the medical evidence available to us we find her own account

is not a credible or reliable one. There are contradictions and

inconsistencies in the difficulties described by her and also

between her account today and the self-assessment details.

Her stated level of disability is so severe that we observe that it

is not credible that it would not have been the subject of more

supportive evidence from the General Practitioner. This is not

the case.

Further the Examining Medical Practitioners report gives very clear

clinical findings at variance with claimant's stated degree of

disability. We find this report is a more reliable assessment

and is consistent with the medical history to the extent that it

is available to us.

The weight of the evidence therefore is that she does not require

assistance with her bodily functions by day or night, is not

incapable of preparing a cooked main meal and is not in need of

supervision by day or watching over by night to prevent damage

to herself or others and these are our findings."

In relation to the mobility component the Tribunal came to the identical findings of fact set out in the first three paragraphs above and made the following further findings:-

"On weight of medical evidence claimant can walk satisfactory

distance in reasonable time and manner and does not need

supervision or guidance while walking out of doors in unfamiliar

surroundings.

The physiotherapist has mentioned 5 minutes walking and the

Examining Medical Practitioner states 200-500 yards at slow speed

but with normal gait and balance. This is indicative of a vastly

greater walking ability than claimant herself states and we agree

with Examining Medical Practitioner assessment."

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

"Own General Practitioner makes no reference to disc damage or leg

shortening. There is no x-ray evidence to confirm such problems.

Examining Medical Practitioner carried out examination and found

full function in all limbs, normal back contour and no tenderness.

Inconsistencies in claimant's evidence. States she has no grip

or power in her hand yet says she can use walking stick for support

and would be able to use crutches. She presents today putting

full weight on her hands to get up from the chair.

She describes needing help in and out of a chair yet confirms she

can use a temporary toilet bucket by day and when on her own.

These are not easily reconciled.

For these reasons we rely on the medical evidence and the detailed

findings of the Examining Medical Practitioner are particularly

convincing.

Criteria for award of care component not satisfied at any level."

In relation to the mobility component the Tribunal gave reasons identical to the first five paragraphs of the reasons in the care component and in addition stated as follows:-

"For the reasons stated her and at Part 2 we prefer to rely on

the medical evidence which does not support a claim for mobility

component at any level."

(There is in fact a discrepancy between the respective paragraphs 5 in the reasons for the decision in that the reasons for the decision in relation to the care component refers to "detailed findings", while the equivalent reasons in relation to the mobility component refers to "bi-lateral findings". However, after looking at the Chairman's original notes I am satisfied that the word "bi-lateral" is a transcription error).

5. The claimant appealed to a Commissioner with leave of the Chairman of the Tribunal. I directed an oral hearing at which the claimant, who was not present, was represented by Mr Christopher O'Rawe of Disability Action and the Adjudication Officer was represented by Mr Gary Shaw.
6. Mr O'Rawe made the following points in his submission:-

(i) The issue of pain which was relevant in the case was either ignored by the Tribunal or not referred to in either its findings or reasons; and this issue was relevant both for the care and the mobility components.

(ii) There was no consideration of the Physiotherapist's evidence or any explanation in the reasons as to why it was rejected.

(iii) The finding of fact by the Tribunal that the General Practitioner's evidence is not supportive enough cannot be substantiated by actual evidence.

(iv) No explanation was given as to why the General Practitioner's comment on the effect of the disability was rejected.

(v) The Tribunal failed to deal with the issue of psychological requirements.

7. In relation to the pain issue there is no doubt that in the claimant's evidence, the Physiotherapist's evidence, the General Practitioner's evidence and the Examining Medical Practitioner's report there are many references to pain. When deciding whether a claimant is entitled to the care component it is necessary for a Tribunal to consider whether the relevant attention is reasonably required to enable the disabled person to have a normal life; see Cockburn -v- Chief Adjudication Officer [1997] 3 All ER page 860 (e) and (f). In my view it is necessary for a Tribunal to take into account whether or not a claimant suffers from pain when it considers whether the relevant attention is "reasonably required to enable the disabled person to have a normal life." Mr Shaw, in his oral submissions, agreed with this conclusion.
8. In relation to the Physiotherapist's evidence Mr O'Rawe was referring to the following evidence from P… M… BSc (Hon), MCSP, SRP, Senior Chartered Physiotherapist, set out in DLA1 and dated 5 March 1996.

"Fibromyalgia secondary to lumbar disc deforrangement (sic) &

chronic dysfunction producing severe low back ... pain brought on

by walking 5 minutes maximum, then has to rest and standing (sic).

Unable to do any housework at all - produces severe pain. Little

response to physiotherapy and other forms of treatment."

It seems that this evidence has not been taken into account. Mr Commissioner Skinner in the Great Britain case CM/406/92 came to the following conclusion which I consider to be relevant to the present case:-

"Where the medical evidence is submitted on behalf of the claimant

and has been rejected it is necessary for the Tribunal to give

some reason for its rejection." (paragraph 10).

In my view the same approach should be taken to evidence from, for example, a Psychologist or a Physiotherapist, as to the evidence from a Registered Medical Practitioner. I conclude that in the circumstances the Tribunal did not deal with this evidence appropriately.

9. The Tribunal did find as a fact that the claimant's stated level of disability was so severe that the Tribunal observed that it was not credible that it would not have been the subject of more supportive evidence from the General Practitioner; and that such evidence was not available. However, the Tribunal had before it a letter from Dr J M…, who appears to have been the relevant General Practitioner at that time, to the following effect:-

"This to confirm that Mrs M... has been attending our Surgery

for several years with severe and chronic pains, especially

affecting her neck, occiput and across right shoulder. She has

been diagnosed as suffering from polymyalgia and her present

function is severely affected, including and household tasks."

In my view, Mr O'Rawe is correct to submit that this letter is largely supportive of the claimant's evidence. I conclude that the Tribunal either did not take this evidence into account or did not take it into account properly.

10. Mr O'Rawe also submitted that the Tribunal had relied on what the General Practitioner had not found, namely that the General Practitioner made no reference to disc damage or leg shortening and there was no x-ray evidence to concern such problems, rather than relying on his findings. Accordingly Mr O'Rawe submitted that the Tribunal had not dealt properly with the medical issues and in particular had not taken into account those matters set out in the previous paragraph in the General Practitioner's letter. In my view this is a point of substance and is supportive of the submissions made on behalf of the claimant set out in the previous paragraph and also supports my conclusion that the Tribunal did not take the medical evidence properly into account.
11. Both Mr O'Rawe and Mr Shaw submitted that the Tribunal did not deal adequately with the psychological issues especially in light of the following comments made by the Examining Medical Practitioner:-

"Fibromyalgia can have a significant non-physical element and I

feel with better motivation and a more positive attitude she

could manage to achieve a lot more than at present."

Mr O'Rawe and Mr Shaw submitted that the Tribunal, in light of that finding, should have directed its attention towards factors such as motivation, prompting, encouragement, support, comfort and reassurance, which could be relevant both to the issue of attention in relation to bodily functions (in relation to the care component) and help in relation to unfamiliar routes (in relation to the mobility component). It is also clear from the claim form that the claimant was putting reassurance and support in issue in this case and this is supported to some extent by the fact that the claimant also gave evidence that she was taking medication for depression.

12. Manifestly the Tribunal has an inquisitorial duty, in deciding an appeal (see paragraph 11 of C31/98(DLA)), but this does not override the primary responsibility, which falls on the claimant, to prove the basis of the claim. However it seems to me that in this case the combination of factors set out by Mr O'Rawe and supported by Mr Shaw does put in issue the psychological aspect of this case. In my view the Tribunal did not deal with this important issue and in the circumstances it should have done so.
13. I conclude, therefore, that the Tribunal was erroneous in point of law by not dealing with the issues of pain and the psychological requirements of the claimant. In addition I conclude that the Tribunal erred in law by not dealing appropriately with the evidence of the Physiotherapist and the evidence of Dr M….
14. Accordingly I allow the appeal and set aside the decision of the Tribunal on both components as the decision is erroneous in point of law. I remit the case for rehearing and redetermination to an entirely differently constituted Disability Appeal Tribunal. This Tribunal will have to take into account the fact that on 6 November 1997 an Adjudication Officer made an award of high rate mobility component and middle rate care component of Disability Living Allowance from 13 August 1997 to 12 August 2000.

(Signed): J A H Martin

CHIEF COMMISSIONER

22 October 1998