Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C1/98(AA) (24 August 1998)

 


Decision No: C1/98(AA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

ATTENDANCE ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Newtownards Disability Appeal Tribunal

dated 19 September 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, leave having been granted by myself, against a decision dated 19 September 1997 of a Disability Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newtownards.
2. Mr B... appealed and his grounds of appeal are set out in an OSSC1 form. They relate in general terms to two matters - (1) the adequacy of the findings of fact in relation to Mr B...'s attention needs and (2) the Tribunal having taken into account in its reasons that Mr B... continued to smoke, and that he refused to enlist medical advisors to alleviate his condition. In Mr B...'s view the former part of (2) was an irrelevant consideration and the latter was not based on evidence. In his view both amounted to an error of law.
3. My decision is that the Tribunal's decision is in error of law and is set aside. The matter is remitted to a differently constituted Tribunal which should rehear the case bearing in mind the reasons expressed below.
4. Mrs Moffett of Central Adjudication Services by letter of 27 April 1998 supported the claimant's view that the findings of fact were inadequate, particularly with regard to Mr B...'s mental health needs. Mrs Moffett stated:-

"... Although there is no diagnosis of any mental health condition,

and furthermore, the GP has opined that Mr B...'s mental state is

'satisfactory with no evidence of any abnormality' I would submit

that since there was evidence that there were problems of a mental

health nature, Mr B...'s mental health was at issue and findings of

fact should have been made. ..."

5. She also commented with relation to the taking into account of the smoking and refusing to enlist medical advice; that these factors were not relevant considerations when determining entitlement to Disability Living Allowance, there being no penalty for claimants who do nothing to alleviate their condition or whose lifestyle is perhaps not in keeping with an improvement or recovery from ill health. She submitted that the inclusion of these matters in the reasons for the decision indicated either a breach of the rules of natural justice or that the decision contained an incorrect proposition of law.
6. Mrs Moffett further commented that in the findings of fact the Tribunal had recorded that it did not "consider that the medical evidence shows that the claimant requires assistance with bodily care needs for frequent attention throughout the day or for constant supervision either night or day". In Mrs Moffett's view this statement suggested that the Tribunal were of the opinion that Mr B...'s own evidence could only be accepted if it has been supported by medical evidence.
7. I consider the decision to be in error of law in that it is difficult to know what part of the evidence of Mrs B... was accepted and what part rejected, and no reasons are given as to why. The same applies with regard to Mr B...'s evidence. The Tribunal seem to have accepted that some attention was necessary, thereby rejecting the views of the claimant's GP but not accepting either Mr B...'s or Mrs B...'s evidence in full. This it is of course perfectly entitled to do but it should indicate why. If it does not do so, as here the claimant is left at a loss as to why his evidence is not accepted in full. He cannot therefore understand the decision. I would add, however, that the Tribunal must be free to exercise its judgment. It can for example find certain parts of a claimant's evidence reliable and others not. Provided it states this its decision will not per se be in error of law. As I have stated before evidential assessment is a matter for the Tribunal. It does not have to deal exhaustively with every piece of evidence. Where, however, crucial evidence is involved and there is a conflict, the Tribunal should indicate either specifically or by clear implication whether or not it accepts such evidence totally, rejects it totally or accepts it in part. Such indication need only be brief but should usually be accompanied by a brief explanation of the reasons for such acceptance or rejection.
8. I do not think that there is any error in the Tribunal's findings of fact with relation to needs for prompting/encouragement. The Tribunal did clearly indicate the conditions which it considered Mr B... suffered from and in light of his GP's views and the absence of diagnosis of any medical condition relating to mental health their finding in this respect is completely understandable. I do not agree with the views expressed by Mrs Moffett in relation to this matter. There is a fundamental question to be asked in relation to mental health and this is whether or not the claimant is suffering from a mental disablement. Merely feeling depressed at times does not indicate a mental disablement. Everyone is subject to low mood at times and it seems to me that in the circumstances of this case the Tribunal was quite properly able to conclude there was no mental disablement, indeed any other conclusion could have been surprising in the circumstances. I should also mention that not all people who do have depression in a clinical sense need encouragement with washing, dressing, etc and not all encouragement is encouragement in connection with bodily functions. I do of course accept that encouragement can, where it is reasonably required in connection with bodily functions, at times constitute attention.
9. As regards the mention of Mr B... continuing to smoke and allegedly refusing to enlist medical advisors to alleviate his condition, I am, in this particular case unable to trace the relevance of the Tribunal's comment in this respect, although I would say that there could be circumstances where these matters may be relevant to a Tribunal's decision, for example if a claimant has not gone to see a doctor it could be relevant to a Tribunal's assessment of his credibility. The possibility of alleviation of a condition by medication or other treatment can also be relevant to the determination in relation to the length of time for which any possible award should be made. The Tribunal, if it considers such matters relevant to its decision, should indicate the relevance.
10. I turn now to Mrs Moffett's additional comment in relation to the requirement for corroborative medical evidence. If the Tribunal had expressed the view that it could never accept the claimant's evidence without corroborative medical evidence that would of course be wrong. In any particular case, however, it is open to a Tribunal not to accept a claimant's uncorroborated evidence. In this case the phrase referred to by Mrs Moffett should I think have been put under the "reasons" section of the decision as it is not a finding of material fact. So classifying it and having seen the medical evidence, it appears to me that the phrase in question was simply a way of expressing the fact that the medical evidence did not support the claimant's claim to assistance with bodily care and supervision. I do not therefore consider that any error of law has been shown in this respect.
11. I do not consider that this is a case where I can give the decision which the Tribunal should have given. There are obvious factual issues and evidential conflicts which will have to be resolved and the Tribunal is a much more appropriate body to do so. It is for this reason I am remitting the appeal as stated above.

The remittal for rehearing should not be taken as indicating the likelihood or otherwise of the claimant succeeding in his appeal. That is a matter for the new Tribunal to decide.

(Signed) M F Brown

COMMISSIONER

24 August 1998