Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C68/98(DLA) (23 February 1999)

 


Decision No: C68/98(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 Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of Belfast Disability Appeal Tribunal dated 16 June 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Disability Appeal Tribunal to the effect that the claimant was entitled to lower rate care component of Disability Living Allowance from and including 17 April 1997 and was not entitled to the mobility component of Disability Living Allowance from and including 17 April 1997. I arranged an oral hearing at which the claimant was present, but unrepresented, and the Adjudication Officer was represented by Mr G L Shaw. The original date of this hearing was 30 April 1998, but the case on that date was adjourned to 8 September 1998.
2. At the hearing I granted leave to appeal. Both parties consent to me treating the application as an appeal. Therefore, in accordance with regulation 5(3) of the Social Security Commissioners Procedure Regulations (Northern Ireland) 1987, I treat this application as if it were an appeal.
3. The claimant originally made a claim for Disability Living Allowance on 19 January 1994. After attending a Disability Appeal Tribunal he was awarded the middle rate care component and higher rate mobility component from 17 April 1994 to 16 April 1997. On 25 November 1996 a renewal claim was received and, after the completion a report by Mr L...'s General Practitioner and an examination by an Examining Medical Practitioner, an Adjudication Officer on 28 January 1997 awarded the lower rate care component from and including 17 April 1997. A request for review was received on 17 February 1997. Accordingly on 10 April 1997 a different Adjudication Officer reviewed the decision of 28 January 1997 but did not revise it. The claimant then appealed on 22 April 1997 to an Appeal Tribunal.
4. On appeal, the Tribunal found the following facts material to its decision on both the care and mobility components:-

"The claimant in this case has appealed against the Adjudication

Officer's decision to award low rate care component from and

including 17 April 1997 and disallow mobility component from

that date. He is a 60 year old man who suffers from a right

hand injury, a severe anxiety state, hypertension and the effects

of coronary by pass surgery. The Tribunal had the benefit of

the scheduled documentation together with General Practitioner's

notes and records and a report from his General Practitioner

dated 11 June 1997. The Tribunal were also informed that claimant

has an appointment with a clinical psychologist on 20 August

1997. The claimant attended the Tribunal together with his son.

Miss R..., Adjudication Officer, was in attendance. The

claimant suffers from moderate depression which has been much

improved since August 1996. His General Practitioner notes

indicate that he is sleeping more easily and indeed is running

his household looking after the children which gives him a lot

of satisfaction. He himself felt his general health was improving.

He had a normal CT scan in 1994. He suffers from generalised

pains in his knees, back and neck. He has 80 degree straight leg

raising bilaterally. He has been advised by the clinical

psychologist to take exercise. He is not unable to walk nor

is he virtually unable to walk. He does not require guidance

or supervision while walking out of doors. He can attend to

all of his bodily functions both by day and night without

assistance. He is not at risk if left unsupervised either by

day or night. He cannot prepare a main cooked meal."

The Tribunal gave the following reasons for its decision in relation to both components:-

"In this case we are satisfied, having taken into account all of

the evidence and in particular the contents of the General

Practitioner's notes and records, that claimant can walk a

reasonable distance without stopping or without severe discomfort.

In that respect therefore the high rate mobility cannot be paid.

Despite his numerous complaints we feel that he can walk out of

doors most of the time without guidance or supervision. Low

rate mobility component must therefore be disallowed.

With regard to the care component his General Practitioner

indicated that he could deal with all of his bodily functions

without any problems. Although his General Practitioner

indicated that he would be able to cook we feel that his overall

problems and in particular his painful right hand combine to

make it impossible for him to prepare a main cooked meal for

himself. There is no evidence in the papers to suggest that

there is any risk to himself or others if Mr L... is left

unsupervised either by day or night."

The Tribunal gave the following unanimous decision in relation to the care component:-

"Appeal disallowed.

Low rate care component payable from and including 17 April 1997."

The Tribunal gave the following unanimous decision in relation to the mobility component:-

"Appeal disallowed.

Mobility component not payable from and including 17 April 1997."

5. The claimant sought the leave of the Chairman to appeal to a Commissioner. The grounds were as follows:-

"The findings of fact material to the decision is wrong as my

GP did not state I look after or care for any children at any

time over the last 6 years. I do not have any responsibility

for looking after children, I enjoy visiting my grandchildren

for short periods of time. I do not clean and cook. I spoke

to my GP today 28/8/97 (Dr R…) and he checked his notes

and these points were not made by the GP, as stated in the

Findings of Fact material to the Decision 16.6.97."

6. The Chairman refused the application for leave to appeal on 5 September 1997.
7. The claimant then applied to a Commissioner for leave to appeal by a letter received at the Office of the Social Security Commissioners on 17 September 1997 and this letter set out the following grounds:-

"I wish to apply direct to the Commissioner. The Chairman of

the Tribunal has refused leave to appeal.

He states in his findings that my GP says I look after my

children which I do not. At the Tribunal hearing the

representative from the DHSS conceded in my favour and was prepared to offer full mobility benefits - this was overturned by the Tribunal.

If I do not get mobility I will be unable to afford at all to

keep my hospital appointments and will have to get the doctor

to call with me. This is greater cost to the Health Service

than my payment of mobility. I will not be able to attend the

Ulster Hospital for hand physiotherapy treatments and this will

have an adverse affect on my disability.

I would therefore ask you to review my case."

8. At my invitation Mr Shaw made the following observations on behalf of the Adjudication Officer by letter dated 3 February 1998:-

"The application to the chairman takes issue with the tribunal's

findings of fact which is as follows - His General Practitioner

notes indicate that he is sleeping more easily and indeed is

running his household looking after the children which gives

him a lot of satisfaction. I agree that it is difficult to

explain this finding. I do not have a copy of the handwritten

decision, and am unable to rule out the possibility that it is

a transcription error.

The application to the Commissioner makes the additional point

that the presenting officer conceded entitlement to the higher

rate of the mobility component. I submit that the tribunal are

not bound to adopt a concession made by the adjudication officer,

but instead they should arrive at their own decision on the

evidence. Accordingly I consider that the tribunal did not err

in point of law simply because they arrived at their own decision.

Finally, the application to the Commissioner relies on the effect

a refusal of benefit would have on Mr L.... This, I submit,

does not constitute a point of law. The tribunal were obliged

to decide whether Mr L... met any of the conditions of

entitlement for disability living allowance. This concern, in

essence, the effect of a disability, as opposed to the effect

of a refusal of benefit.

My own comments on the tribunal decision are as follows:

General comment. The tribunal were faced with determining

entitlement to disability living allowance in the light of two

disabilities, one of which was physical, and the other

psychological. This is important both because psychological

requirements are more obscure by their very nature, and because

entitlement to the higher rate of the mobility component cannot

derive from a mental disability. Another feature of the appeal

was that there had been a prior award of middle rate care

component and higher rate mobility component from 17 April 1994

to 16 April 1997. Any change in the new award might merit

explanation.

Turning to the higher rate of the mobility component, I note that

the tribunal made general findings as to distance of progress

without severe discomfort based on the General Practitioner's

evidence. Commissioners in Northern Ireland have generally

insisted upon specific findings as to speed, distance, time and

manner. In the circumstances the Commissioner may wish to

consider whether the tribunal should have made a prior finding

as to whether the relevant, ie the limiting disability was

physical or mental. If the limiting disability is mental, the

tribunal need go no further, for higher rate mobility component

may not be paid on that account. On the other hand, any physical

limitations on walking would merit findings as to speed, distance,

time and manner.

Entitlement to lower rate mobility component depends on the need

for guidance or supervision to enable the disabled person to take

advantage of the faculty of walking on unfamiliar routes most of

the time. The tribunal finding relates to walking out of doors,

however. This, together with the absence of the appropriate

evidence in the record of proceedings, may be an indication that

the tribunal applied the incorrect test. I note too that the

definition of "supervision" includes encouragement, support,

comfort and reassurance. See CDLA1414/95. As the evidence

raises the issue of these psychological requirements, I would

have expected to see the appropriate enquiries and findings

by the tribunal.

Turning to the care component, the tribunal appears to have

concentrated on physical requirements only. Psychological

disabilities featured strongly in the evidence and I submit

that the tribunal should have considered them, and made

appropriate findings on any associated requirements. Since

the case of Mallinson (reported as R(A)3/94) it has been

clear that the spoken word may amount to attention with a

bodily function. See, too, for example C44/96(DLA) in which

it was held that reassurance can be taken into account for

purposes of care component, and C39/97(DLA) in which the

Northern Ireland Chief Commissioner held that the tribunal

should have regard to psychological requirements."

9. At the original hearing before me on 30 April 1998 it was agreed that it was appropriate for me to see the General Practitioner notes referred to in the Tribunal's findings of fact in order to discover if there was any error, in transcription or otherwise in the Tribunal's reference to this matter. In examining the notes it is clear that the Tribunal's statement is based on a letter dated 3 September 1996 from Mr T… B…, Consultant Clinical Psychologist, to the claimant's General Practitioner to the effect that he "had involved himself in running the household and looking after his grandchildren, from which he derived a lot of satisfaction." This letter also referred to the claimant presenting "in June with an anxiety state which would be classed as severe" but that, in August "he was much improved".
10. It is clear that the claimant is correct that the Tribunal has made an error both in referring to "General Practitioner notes" rather than a letter from a Clinical Psychologist and in referring to "the children" rather than grandchildren. However, this is not a point of any substance and, in my opinion does not have any effect on the substance of the decision.
11. The claimant has also submitted that the Presenting Officer conceded entitlement to the higher rate mobility component. There is some corroboration of this statement in the record of proceedings which states that Miss R… on behalf of the Social Security Agency stated as follows:-

"I would submit the high rate mobility may be appropriate."

12. However, even if this is a concession, it is quite clear that the Tribunal is not bound to adopt the view of the Adjudication Officer and is entitled to arrive at its own decision on the evidence. In the circumstances the Tribunal has not erred in point of law in relation to this issue.
13. The claimant has also relied on the effect that a refusal of benefit would have on him. As Mr Shaw pointed out, the Tribunal is obliged to decide whether the claimant meets any of the conditions of entitlement, which, in essence concerns the effect of a disability, and, accordingly, cannot take into account the effect of a refusal of benefit. In the circumstances the claimant's submissions in relation to this matter cannot be sustained.
14. Mr Shaw's additional comments are also relevant in deciding this particular appeal. He emphasised that the Tribunal was considering both physical and mental disability. The Tribunal has referred specifically to the fact that the claimant "suffers from ... a severe anxiety state". This is obviously based on the clinical psychologist's letter referred to in paragraph 9 herein. The Tribunal has also found that the claimant "suffers from moderate depression which has been much improved since August 1996." The finding of improvement is obviously based on the same letter. In the circumstances I consider that the Tribunal was entitled to base its reasons for decision on the physical findings as the mental or psychological issues are no longer of any real relevance in light of the improvement in his mental condition. Mr Shaw has criticised the Tribunal for not specifically dealing with guidance or supervision in relation to the lower rate of mobility component as there is no reference to encouragement, support, comfort or reassurance. However, on the evidence before the Tribunal it does not seem to me that the Tribunal would have been reasonably expected to have raised the issue of supervision.
15. Mr Shaw, in relation to the care component, also submitted that the Tribunal appears to have concentrated on the physical requirements only. However, in light of the Tribunal's findings, which appear to be perfectly proper in the circumstances, this is not surprising. Of course a Tribunal should have regard to relevant psychological requirements but, in my view, the findings of fact are not such as to require the Tribunal to consider the relevance of psychological matters which are either no longer relevant or are of little significance.
16. Mr Shaw also submitted that, perhaps, the Tribunal ought to have explained why the Tribunal came to a different conclusion to the earlier Tribunal in 1994. The present Tribunal was deciding this case on the evidence before it. Accordingly it was required to isolate the relevant issues and decide them in light of the legal position. While it might have been preferable for the Tribunal to have specifically explained why the present claim failed, whereas the previous claim resulted in entitlement, it seems to me that claimant has been given a proper explanation which will enable him to know why his claim has both succeeded in part and failed in part. In this case it is obvious that the earlier award has been superseded in effect because of a general improvement in his health. In my view it would have been mere surplusage in this particular case for the Tribunal to have stated that explicitly.
17. In all the circumstances I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss this appeal.

(Signed): J A H Martin

CHIEF COMMISSIONER

23 February 1999