Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C66/97(DLA) (30 September 1998)

 


Decision No: C66/97(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 the

Newry Disability Appeal Tribunal

dated 26 June 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which upheld the decision of an Adjudication Officer to refuse claimant either component of Disability Living Allowance (DLA).
2. Briefly the facts are that the claimant claimed DLA in August 1993 on the grounds that he was suffering from anxiety and severe depression and was awarded the low rate care component from 30 July 1993 to 29 July 1996. He lodged a renewal claim in April 1996 which the Adjudication Officer disallowed having received what he referred to as a "report" from Dr D.... A second Adjudication Officer reviewed the decision but refused to revise it. Claimant appealed to a DAT which upheld that decision.
3. Claimant sought leave to appeal to a Commissioner on the grounds that the Tribunal failed to give adequate statement of reasons for its decision and the findings of fact on which it was based, and also that it made a decision based on insufficient evidence. Leave to appeal was refused by the Chairman but a subsequent application to the Commissioner for leave to appeal was granted.
4. The Tribunal made the following findings of fact and reasons for its decision:-

MOBILITY COMPONENT

Findings of fact

"He has no physical problems with walking and is seeking low rate

mobility on the ground that he cannot cross main roads on his own.

He can go out on his own if he takes his medication."

Reasons for decision

"He is not severely mentally impaired. The medical records show

he has a personality disorder. We do not accept he cannot cross

main roads on his own."

CARE COMPONENT

Findings of fact

"We accept his evidence that he can attend to all his own bodily

functions day and night without assistance from another person.

We do not accept his assertion he cannot prepare a main cooked

meal. There is no physical or mental reason why not.

We do not accept he requires continual supervision. The medical

records show that his previous suicide attempts were attention

seeking behaviour and not serious attempts on his life. His

sleepwalking does not occur frequently enough or for long

enough periods to qualify (last time was 6 months ago).

He claims to be severely disabled by insomnia for the last 4

months but he is not on any medication for this."

Reasons for decision

"He requires no attention with bodily functions.

He can prepare a cooked main meal.

Supervision by day and night is not required most of the time."

5. I arranged an oral hearing of the appeal. Prior to the hearing, the Adjudication Officer then concerned with the case made the following written submission relating to the grounds of appeal.

"The tribunal appears to have arrived at their decision in what

was quite scanty evidence. The papers contained none of the usual

evidence by way of self-assessment. There was no report by an

examining medical practitioner, the adjudication officer having

obtained only a factual report from Mr. B...'s general

practitioner. The factual report would have been adequate only

for the purposes of determining the "substantial danger" test in

S72(1)(b)(ii) and (c)(ii) of the Social Security Contributions

and Benefits (NI) Act 1992. The tribunal also had sight of

Mr. B...'s GP records. As the requirements in issue are

psychological in nature, I consider that the GP records would

have been unlikely to have contained evidence which would

assist materially in making findings in relation to requirements.

If I am correct in the foregoing, the tribunal had to rely heavily

on direct evidence from Mr. B... himself.

From the record of proceedings relating to mobility, this

concentrated on his ability to get out and about because of panic

attacks. Mr. B... considered that if he took his medication,

he could go out alone. Unfortunately, the record does not indicate

any evidence relating to progress by foot on unfamiliar territory.

The tribunal found he can go out on his own if he takes his

medication. S72(1)(d) sets out that any ability to use routes

which are familiar to him on his own must be disregarded. In a

case involving psychological requirements I would expect to see

findings in relation to encouragement, support, comfort and

reassurance - see CDLA/1414/1995. The Commissioner may therefore

wish to consider whether the tribunal applied the test in S73(1)(d)

correctly.

Turning to the care component, again only psychological requirements

were in issue. It was argued by Mr. B...'s representative that

he required motivation. This is highly relevant to the care

component. The main meal test may be satisfied where motivation

is lacking, or where concentration is deficient. As motivation

was so central to entitlement in the care component generally I

would have expected the tribunal to deal with it in their findings.

See CSDLA/80/96. Similarly, any prompting or motivation which is

reasonably required during the course of the day would count

towards satisfaction of the tests in S72(1)(a)(i) and (b)(i).

This would be in addition to the need to monitor medication, which

is fairly clear from the evidence. It should be remembered that the

claimant is entitled to lead as normal a life as possible consistent

with his or her disability: see 2/84(AA), approved of in the case

of Halliday by the House of Lords. Again, the question of dysthymia

and poor sleep pattern certified by the General Practitioner in

his factual report is dealt with by the finding he claims to be

severely disabled by insomnia for the last 4 months but he is not on

any medication. This finding is not altogether helpful, and leaves

open the whole question of whether there is insomnia, and if so

whether it requires attention. In this respect the Commissioner

may wish to refer to unreported Great Britain decision CDLA/12912/96,

a case dealing with a suffer from schizophrenia, in which the

Commissioner said at paragraph 11 - sleep is an essential bodily

function; and if the normal sleep patterns are too badly disturbed

as a result of a person's mental illness a vicious circle can

develop and lead to much more severe mental and physical

consequences, so that the kind of attention involved in talking

to them and calming them down is a most important and necessary

part of the assistance.

I note that there was a previous award of disability living

allowance in this case and the chairman had the papers relating

to that award. I would therefore have expected some explanation

in the tribunal decision for the shift from entitlement to no

entitlement. It could be that the previous award was wrong, that

there has been an improvement, or merely that the tribunal differed

in their interpretation of the facts. In CM205/1988 at paragraph 10

it was held that a Medical Appeal Tribunal must take into account

facts and opinions in previous award.

There are a number of sources of additional evidence which the

tribunal could have followed up. A self assessment could have

been sent out for completion by the claimant, or by his sister

who countersigned the original. Another possibility is evident

from the claim form itself - Dr C... in Newry Day Hospital.

A report from an Examining Medical Practitioner could have been

helpful, although such reports are generally not the best source

where mental disabilities are concerned. The "3A Club" may well

provide another possibility. I consider that the adjudication

officer's submission to the tribunal should have drawn the

tribunal's attention to the need for further evidence and the

possible sources. Had a presenting officer been in attendance

at the tribunal he could have advised the tribunal. I therefore

have considerable sympathy with the task which faced the tribunal.

I note that a psychiatric report has been sought by the Commissioner

and it may be that this will be all that is required to resolve

the claim. The Agency has been asked to arrange for this report

to be obtained. The Commissioner may nevertheless wish to bear

in mind the other possibilities for evidence - none of which

displace the importance of direct evidence from the claimant and

preferably someone who has intimate knowledge of him and his

condition.

Even though there may well be errors in the tribunal decision,

I should point out that it does not follow that I am advocating the

tribunal should have made an award. It may well be that a

disallowance, properly arrived at on adequate evidence, may be

open to a tribunal in this case."

6. At the oral hearing claimant was not present but was represented by Mr Brady and the Adjudication Officer was represented by Mr Shaw. Mr Brady accepted a lot of what Mr Shaw said in his written submission. He said that the Tribunal should have known that claimant would not have been capable of properly filling in the questionnaire because of the fact that he suffered from depression, lowering of mood and irritability dysthymia. It seemed to hold this against the claimant because he did not set out fully his requirements. He also said that the Tribunal made no reference to the fact that he had previously received the care award and made no reference to the fact that it was now being removed. He said if a person has physical problems it is very easy to explain them and they can be seen, whereas mental problems are harder to prove. He said that Dr C... the Psychiatrist was the expert in these matters and that he was best qualified to comment on the claimant's condition. Mr Brady said that the claimant was afraid of traffic. He needed assurance, encouragement and motivation, all of which he got from his sister, his psychiatric nurse, the Consultant Psychiatrist and from the Day Centre 3A, which is the National Schizophrenic Fellowship Drop-in Centre which claimant attended every day.
7. Mr Shaw said this case highlighted the need to have proper evidence before a Tribunal can decide an appeal and that the Tribunal requires proper evidence to apply the disability test correctly whenever there is only an issue of claimant's mental ability.
8. I have considered all that has been said and I accept that there were not proper findings of fact made by the Tribunal. The only mention the Tribunal made of claimant's mental condition was that he suffered from a personality disorder. The Tribunal said he could go out on his own if he takes his medicine and there was no evidence to that effect. The Tribunal made no reference to where that evidence came from to justify such a finding. Also, as far as making a cooked main meal was concerned the Tribunal did not enquire whether someone of his mental condition would need motivation in planning and making such a meal, because the evidence was that he never made meals. I am satisfied that the Tribunal erred in law and I therefore allow the appeal and set aside the decision of the Tribunal.
9. I consider that it would be grossly unfair to send this matter back to be reheard by a differently constituted DAT because of the strain which would be put on someone who suffers from a severe depression. I am satisfied that I should give the decision which the Tribunal should have given. The Tribunal had evidence that claimant attended Daisyhill Hospital Mental Health Centre that he was being treated by Dr C..., Consultant Psychiatrist. It also had a letter from a Social Worker from the Mental Health Department of the Daisyhill Hospital. That letter referred to the deterioration in his mental health and the fact that he attended an outpatients clinic and he was being treated by Dr C.... Surprisingly the Tribunal sought no evidence, although the evidence that it had was very scarce, and in view of the fact that claimant had a mental condition I would have thought that it would have sought some additional evidence other than a few scant questions asked from his GP. In any event I sought and obtained a report from Dr C... the Consultant Psychiatrist who treated claimant and he records that claimant over the past year has had recurrent depressive symptoms with thoughts of self-harm and social withdrawal. More recently a number of psychotic type symptoms had developed such a paranoid ideation and referential ideas. His depression consists of subjective low moods and hopelessness. His sleep becomes very disturbed and he becomes preoccupied. He then describes the treatment as being divided between psychological and physical, and details various medications which as yet have had little obvious effect. He said he receives supportive psychotherapy from Dr C... himself on a regular basis and also attends a number of community facilities on a daily basis during the working week. This is to provide him with a firm base and are very necessary for his day to day well being. Dr C... went on to say that his attendance at the Day Care facilities gave him considerable reassurance and activities and he would be given the necessary support and encouragement. Outside that he is dependant on his sister, who takes a considerable interest in his welfare, and would check on him to deliver his medication at times. Dr C... went on to say that there was not much potential change in the claimant and the best that could be obtained was a stabilisation of his current state. He said he did not foresee him making a full recovery in the foreseeable future in view of the long career of being in receipt of psychiatric services.
10. In view of that evidence and of the evidence of the support which he receives from various Agencies I am satisfied that he requires frequent attention throughout the day in connection with his bodily functions. This includes being motivated to make a main meal as well as other bodily functions and he could not do without this motivation. Consequently I am satisfied that he is entitled to the middle rate care component in respect of that frequent attention. As far as the mobility component is concerned I am quite satisfied that he needs someone with him when he is crossing the road because of his mental condition and that would entitle him to the low rate mobility component.
11. My decision therefore is that claimant is entitled to the middle rate care and the low rate mobility components of DLA from 30 July 1996 for life as it is quite clear from Dr C... report that there is no immediate prospect of any improvement in claimant's condition.

(Signed): C C G McNally

COMMISSIONER

30 September 1998