Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C9/97(DLA) (26 January 1998)

 


Decision No: C9/97(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 Coleraine Disability Appeal Tribunal dated 11 November 1996 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant brought by leave of the Commissioner against the decision of a Disability Appeal Tribunal (DAT) which held that claimant was not entitled to either the care or the mobility component of Disability Living Allowance (DLA).
2. Briefly the facts are that the claimant is a 55 year old lady who claimed DLA as she suffered from high blood pressure, shortness of breath, dizzy spells and nervous debility. She applied for a review but the decision was not revised and claimant appealed to a DAT against that decision.
3. That Tribunal upheld the Adjudication Officer's decision and the DAT to which claimant appealed heard her appeal in her absence. Unfortunately she had not filled out in full the claim form and the Tribunal made the following findings of fact:-

Care Component

"She did not mention any care needs on her claim form. She mentioned problems with stairs, falls, bathing and cooking. However, Examining Medical Practitioner found no attention, cooking or supervision needs. General Practitioner agrees. We accept Examining Medical Practitioner and General Practitioner's reports as factual."

Mobility Component

"We accept the findings of the Examining Medical Practitioner as factual ie she can walk 400 metres in 20 minutes (including a few halts), limping but with good balance, no physical support and no guidance or supervision except reassurance as she suffers from chronic anxiety and has a fear of falling. She has some minor Osteoarthritis but not enough to render her virtually unable to walk. She has no chest or heart disease, her shortness of breath is related to her obesity and accordingly the exertion of walking would not be risky for her."

and gave reasons for its decision as:-

Care Component

"She can cook and does not require attention with bodily functions day or night or day or night supervision.

Her nervous debility is not severe.

The Examining Medical Practitioner and General Practitioner are against her and the weight of evidence is against her."

Mobility Component

"She can walk a reasonable distance in a reasonable time and manner without severe discomfort or risk from exertion and without guidance or supervision.

The General Practitioner and Examining Medical Practitioner are against her."

4. Claimant applied for leave to appeal to the Chairman of the Tribunal but this was refused. She then applied to the Commissioner and leave was granted. Upon the Adjudication Officer being informed that the Commissioner had granted leave he commented upon claimant's appeal as follows:-

"Although the application did not identify any specific point of law in which the tribunal may have erred, I submit that the Commissioner may wish to consider whether the following points may identify an error in law in the decision.

Mobility component - higher rate I would have preferred the tribunal to have made findings as to the duration of the halts, and their occurrence. I would also have liked to have seen findings as to pain or discomfort during any walking, as any walking carried out with severe discomfort must be disregarded. In view of the evidence of painful knees, this appears to be a possible error in the decision. The Commissioner may also wish to note that in decision number R(M)1/91 the Great Britain Commissioner held that pain or distress constitutes a lower threshold than severe discomfort.

Mobility component - lower rate the tribunal found that the only guidance or supervision required for progress was reassurance. It is possible for reassurance to amount to supervision for the purpose of the condition in S73(1)(d); see CDLA/757/94, for example. In CDLA/1414/95 encouragement, support, comfort and reassurance were all held to amount to supervision for the lower rate of the mobility component. In the light of these decisions, I submit that the chairman should have recorded adequate reasons for rejecting the lower rate entitlement. I note also that the tribunal do not appear to have excluded familiar routes when arriving at their decision, as the test requires them to.

Care component The tribunal found that no care needs were mentioned on the claim form. This may not be quite correct, for there are indications of attention requirements in the self-assessment questionnaire. These appear to be both physical requirements - ".. I am off balance, very shaky, and not at all walking straight" (page 5) - but it is submitted that the questionnaire reveals requirements which are more of a psychological nature which fall to be considered following the decision of Mallinson in the House of Lords. On page 7 the entries include "I suffer from depression and often I just sit in the house and do not feel like going out at all". This impression appears to be further confirmed by the factual report from the general practitioner, where the disability "depression" is placed first, presumably indicating it ranks first in terms of importance. The general practitioner additionally shows the present clinical condition as "poor mood" and "insomnia". Finally, the report of the Examining Medical Practitioner confirms the foregoing. Note in particular page 25 - "Her over whelming problem is a constant fear of falling; while this is probably genuine, I feel she has overstated her care needs". It does appear that both the tribunal and the examining practitioner were not regarding psychological requirements as a care (ie attention) requirement. It is submitted that this is incorrect. The correct approach was to identify any requirements such as encouragement, support, comfort and reassurance and take them into account, if they were reasonably required, towards the possible satisfaction of the relevant conditions, including the main meal test. It is submitted that the foregoing is consistent with the relevant case law.

Should the Commissioner decide to grant leave, I consent to the Commissioner treating the application as an appeal and determining any question on the application as if it arose on appeal."

5. I arranged an oral hearing of the appeal at which claimant did not appear nor was she represented. However, the Adjudication Officer was represented by Mrs Hazel Moffett. Mrs Moffett conceded that the Tribunal erred in that it disregarded claimant's physical requirements, she suffered from shortness of breath, she had a problem with falling and that her own GP mentioned depression. He also certified that she was disabled with arthritis, especially of her knees and her right wrist and the power of this wrist was weakened and that she was treated for this.
6. Mrs Moffett then referred to the Memorandum of the Adjudication Officer and said that the Tribunal did not take into account her depression or the fact that the Examining Medical Practitioner recorded that her overwhelming problem is a constant fear of falling, but also said that she had early osteoarthritis in her knees and a problem of shortness of breath on exertion, but that he was unable to exactly quantify how severe this was. He also recorded that from August 1995 the pains in her knees worsened and so also did her general anxiety level and that her disability was mainly due to chronic anxiety and fear of falling. He recorded that her falls apparently were due to light headedness, this happened once or twice a month invariably outside and that they were anxiety related. As far as stairs and baths were concerned and using the cooker and hot pans she needed supervision due to the fear of falling. Although there was no evidence that she was unsafe on the stairs, there was evidence that she required help due to the fear of falling as far as having a bath was concerned and as far as cooking was concerned. There was a gradual worsening of the pains in her knees and the shortness of her breath on exertion. Because of the constant fear of falling any supervision would be for reassurance only.
7. Mrs Moffett said it was very difficult having read the medical reports to reconcile them with the finding of the Tribunal that the Examining Medical Practitioner and the General Practitioner were against her and that the weight of evidence was against her. She referred again to her Memorandum and said as far as the mobility component was concerned she clearly needed supervision out of doors which would entitle her to the lower rate mobility and as far as the care component was concerned she said there was no evidence that she required any attention at night but accepted that her needs were frequent throughout the day in respect of care. Although her claim form was incomplete, but if one accepts what was said in her letters and what was said on the claim form, together with what has been reported by her GP and the Examining Medical Practitioner she would be entitled to the middle rate care component from the date of claim.
8. I have read all the documents in this case and I have considered carefully the concession by the Adjudication Officer and the points raised in the Adjudication Officer's comments of 23 April 1997. I agree with the Adjudication Officer that it is difficult to reconcile the evidence in this case with the comments, made by a medical member of the Tribunal and repeated in the Tribunal's decision that the General Practitioner and the Examining Medical Practitioner were against her as it did not accord with either the facts or the evidence.
9. I am prepared to accept the concessions by the Adjudication Officer that the supervision which claimant requires out of doors because of her fear entitles her to the low rate mobility and that the reassurance and comfort which she requires frequently throughout the day entitles her to the middle rate care component, both from the date of claim 25 January 1996 for life.
10. For the reasons set out above I allow the appeal, set aside the decision of the Tribunal and give the decision which the Tribunal should have given which I have stated above. Claimant is entitled to the middle rate care component and the lower rate mobility component from 25 January 1996 for life.

(Signed): C C G McNally

COMMISSIONER

26 January 1998